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PA Bulletin, Doc. No. 11-1726




[ 58 PA. CODE CHS. 61 AND 63 ]


[41 Pa.B. 5365]
[Saturday, October 8, 2011]

 The Fish and Boat Commission (Commission) amends Chapters 61 and 63 (relating to seasons, sizes and creel limits; and general fishing regulations). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The amendments modify and update the Commission's fishing regulations.

A. Effective Date

 The final-form rulemaking will go into effect on January 1, 2012.

B. Contact Person

 For further information on the final-form rulemaking, contact Wayne Melnick, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-form rulemaking is available on the Commission's web site at

C. Statutory Authority

 The amendments to §§ 61.1, 61.2, 61.4, 61.7 and 61.8 and the addition of § 63.55 (relating to saltwater angler registration) are published under the statutory authority of section 2102 of the code (relating to rules and regulations).

D. Purpose and Background

 The final-form rulemaking is designed to improve, enhance and update the Commission's fishing regulations. The specific purpose of the final-form rulemaking is described in more detail under the summary of changes.

E. Summary of Changes

 (1) Since the mid-1980s, the daily creel limit for river herring, a term applied collectively to blueback herring and alewife, in the Delaware River and Estuary was a total of 35 fish. There was no minimum size limit and the season was open year-round. Beginning in 2010, the Commission adopted an amendment in coordination with New Jersey and later coordinated with New York reducing the daily creel limit from the historic limit to a limit of ten river herring from the confluence of the East and West Branches downriver to the Commodore Barry Bridge. The remaining 2.9 river miles below the Commodore Barry Bridge remained at the historic daily limit of 35 herring, in cooperation with New Jersey's Marine Council. The State of Delaware was already managing the fishery with a ten herring creel limit.

 River herring are popular with striped bass anglers who use them either as live or cut bait. Principally, this fishery exists during the spring when river herring and striped bass are migrating into the Delaware River and estuarine waters. Traditionally, anglers jig for river herring at the onset of a trip but are often seen jigging with one rod while another is being passively fished for striped bass.

 Amendment 2 to the Atlantic States Marine Fisheries Commission (ASMFC) Interstate Fishery Management Plan for Shad and River Herring states that river herring abundance has declined since the mid-1990s and currently remains at a depressed level along the Atlantic Coast. Amendment 2 calls for closure of river herring fisheries that cannot be demonstrated to be sustainable. Considering the coastwide declines in river herring and the lack of data to support that the fishery is sustainable, the Commonwealth has been coordinating a proposed total closure for the Delaware River river herring fishery with the other three basin states (that is, New Jersey, New York and Delaware) through the Delaware River Fish and Wildlife Management Cooperative. This amendment will apply to the entire Delaware River and Delaware Estuary inclusive of both tidal and nontidal reaches to the Pennsylvania/Delaware state line.

 In light of this amendment, changes were also necessary in the Lehigh River, the Schuylkill River and their tributaries in § 61.8 (relating to Lehigh River, Schuylkill River and tributaries) and in the Conowingo Reservoir in § 61.4 (relating to Conowingo Reservoir). The Lehigh and Schuylkill Rivers flow into the Delaware River and are thus inhabited by a portion of the anadromous river herring populations that enter the Delaware River. The Conowingo Reservoir is the first portion of the Susquehanna River inhabitable by anadromous river herring that migrate up the Susquehanna River. Harvest of the anadromous populations of river herring is already prohibited in the portions of the Susquehanna River and its tributaries upstream of Conowingo Reservoir under § 61.7 (relating to Susquehanna River and tributaries). The more liberal regulations in the other inland waters of the Commonwealth in § 61.1 (relating to Commonwealth inland waters) are acceptable in that these populations are landlocked and thus distinct from the anadromous populations addressed by the ASMFC and intended to be addressed by the final-form rulemaking.

 Finally, in addition to the changes previously mentioned, some housekeeping changes were needed to make the terminology for river herring consistent throughout Chapter 61.

 The Commission therefore amended §§ 61.1, 61.2, 61.4, 61.7 and 61.8 to read as set forth in the proposed rulemaking.

 (2) Under 50 CFR Part 600, Subpart P (relating to marine recreational fisheries of the United States), anglers who target or catch shad, striped bass and river herring from the Delaware River below Trenton Falls or in the Delaware Estuary are required to register with the National Saltwater Angler Registry Program administered by the National Oceanic and Atmospheric Administration (NOAA). In 2010, the registration was free and a $15 fee has been instituted for 2011. See

 Anglers are not required to register with NOAA if they hold a valid fishing license issued by an ''exempted state.'' For NOAA to designate a state as an ''exempted state,'' the state must agree to provide certain data to NOAA that can be used to assist in completing marine recreational fisheries statistical surveys or evaluating the effects of proposed conservation and management measures for marine recreational fisheries. To that end, the Commission already has entered into a Memorandum of Agreement (MOA) with NOAA that obligates the Commission to create a system for collecting and annually sharing angler data with NOAA. The MOA further exempts anglers in this Commonwealth from the National registration requirement and the associated fee. To meet the terms of the MOA, the Commission proposed a new regulation that requires all applicable anglers to register either with the Commission or NOAA.

 Upon review of the proposed regulation, the Commission determined that it is appropriate to add language to clarify that an angler is also in compliance if he meets the saltwater angler registration requirements of another state. This will allow compliance by anglers who otherwise meet NOAA's requirements through the purchase of a marine license or registration in another state. The Commission adopts the regulation as set forth in Annex A.

 The Commission will create a free online registration tool through which anglers may register and receive a registration number rather than registering with NOAA and incurring the Federal fee. The Commission has been awarded a grant from the ASMFC to fund the development of the online tool. Registered anglers must still possess a valid State fishing license.

F. Paperwork

 The final-form rulemaking will not increase paperwork and will not create new paperwork requirements.

G. Fiscal Impact

 The final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form rulemaking will not impose new costs on the private sector or the general public.

H. Public Involvement

 Notice of proposed rulemaking was published at 41 Pa.B. 2444 (May 14, 2011). The Commission did not receive public comments.


 The Commission finds that:

 (1) Public notice of intention to adopt the amendments adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

 (2) A public comment period was provided and no public comments were received.

 (3) The adoption of the amendments of the Commission in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.


 The Commission, acting under the authorizing statutes, orders that:

 (a) The regulations of the Commission, 58 Pa. Code Chapters 61 and 63, are amended by amending §§ 61.1, 61.2, 61.4, 61.7 and 61.8 to read as set forth at 41 Pa.B. 2444 and by adding § 63.55 to read as set forth in Annex A.

 (b) The Executive Director will submit this order, 41 Pa.B. 2444 and Annex A to the Office of Attorney General for approval as to legality and form as required by law.

 (c) The Executive Director shall certify this order, 41 Pa.B. 2444 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (d) This order takes effect on January 1, 2012.

Executive Director

Fiscal Note: Fiscal Note 48A-225 remains valid for the final adoption of the subject regulations.

Annex A



Subpart B. FISHING


§ 63.55. Saltwater angler registration.

 It is unlawful for a person required under 30 Pa.C.S. Chapter 27 (relating to fishing licenses) to procure a resident fishing license, a nonresident fishing license, a senior resident lifetime fishing license or an annual senior resident fishing license to fish for shad, striped bass or river herring in the Delaware River below Trenton Falls or in the Delaware Estuary unless that person has obtained a saltwater angler registration from the Commission, has registered with the National Saltwater Angler Registry Program administered by the National Oceanic and Atmospheric Administration or has met the saltwater angler registration requirements of another state.

[Pa.B. Doc. No. 11-1726. Filed for public inspection October 7, 2011, 9:00 a.m.]

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