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PA Bulletin, Doc. No. 01-1046


[58 PA. CODE CH. 105]

Unacceptable Boating Practices

[31 Pa.B. 3208]

   The Fish and Boat Commission (Commission) by this order amends Chapter 105 (relating to operational conditions). The Commission is publishing this amendment under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The amendment relates to boating.

A.  Effective Date

   The amendment will go into effect on January 1, 2002.

B.  Contact Person

   For further information on the amendment, contact Laurie E. Shepler, Assistant Counsel, (717) 705-7815, P. O. Box 67000, Harrisburg, PA 17106-7000. This final-form rulemaking is available electronically on the Commission's website (

C.  Statutory Authority

   The amendment is published under the statutory authority of section 5123 of the code (relating to general boating regulations).

D.  Purpose and Background


   The amendment is designed to update, modify and improve the Commission's regulations pertaining to boating. The specific purpose of the amendment is described in more detail under the summary of changes. The Commission's Boating Advisory Board considered the proposal prior to the publication of the notice of proposed rulemaking containing the amendment and recommended publication.

E.  Summary of Changes

   Under the code, negligent operation of watercraft represents a deviation from the ordinary standard of care that a reasonable operator would observe under the circumstances. Reckless operation adds the component of willfulness and wanton disregard for the safety of persons or property. The Commission's regulation in § 105.3 (relating to unacceptable boating practices) contains a lesser offense defined as ''unacceptable boating practices.'' This section lists operations that, while unsafe, do not always fall within the definition of negligent or reckless operation.

   Section 105.3(1) prohibits the operation of a boat not equipped with railings or other safeguards at a speed of greater than slow minimum height swell speed when any person is riding on the bow, decking, gunwales, transom or motor cover. While this definition has served the safety of boaters well, recent court cases indicate a need to further define this regulation. The majority of boats are equipped with railings intended to keep the occupants of the boats within the confines of the boat. A person riding in a bow rider is on the inside of the railings and in the cockpit of the boat. A person riding on a sailboat deck is within the area encompassed by the railings. The most prevalent exception to this general boat construction is the pontoon boat. Quite often, the railings of the pontoon boat do not entirely encompass the bow deck of the boat. Frequently, 3 or 4 feet of deck remain outside the railings. This is to facilitate docking and to keep passengers back from the bow to help balance the boat while underway. Certain courts have interpreted § 105.3 to mean that there is no requirement that persons must remain behind safety rails. The Commission therefore has amended this section as proposed.

F.  Paperwork

   The amendment will not increase paperwork and will create no new paperwork requirements.

G.  Fiscal Impact

   The amendment will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The amendment will impose no new costs on the private sector or the general public.

H.  Public Involvement

   A notice of proposed rulemaking was published at 31 Pa.B. 1379 (March 10, 2001). The Commission did not receive any public comments concerning this proposal.


   The Commission finds that:

   (1)  Public notice of intention to adopt the amendment 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 in 1 Pa. Code §§ 7.1 and 7.2.

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

   (3)  The adoption of the amendment 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 Chapter 105, are amended by amending § 105.3 to read as set forth in 31 Pa.B. 1379.

   (b)  The Executive Director will submit this order and 31 Pa.B. 1379 to the Office of Attorney General for approval as to legality as required by law.

   (c)  The Executive Director shall certify this order and 31 Pa.B. 1379 and deposit the same with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect January 1, 2002.

Executive Director

   Fiscal Note:  Fiscal Note 48A-114 remains valid for the final adoption of the subject regulation.

[Pa.B. Doc. No. 01-1046. Filed for public inspection June 15, 2001, 9:00 a.m.]

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