PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 51, 53, 93 AND 109]
Administration, Commission Property and Boating
[27 Pa.B. 4441] The Fish and Boat Commission (Commission) proposes to amend Chapters 51, 53, 93 and 109. The Commission is publishing these amendments as a notice of proposed rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The proposed amendments deal with administration, Commission property and boating.
A. Effective Date
These proposed amendments will, if approved on final rulemaking, go into effect on January 1, 1998, or upon publication of an order adopting the final-form regulations, whichever occurs later.
B. Contact Person
For further information on the proposed changes, contact Laurie E. Shepler, Assistant Counsel, (717) 657-4546, P. O. Box 67000, Harrisburg, PA 17106-7000. This proposal is available electronically through the Commission's Web site (http://www.fish.state.pa.us).
C. Statutory Authority
These proposed amendments are published under the statutory authority of sections 741, 2502, 5122 and 5123 of the code and section 506 of The Administrative Code of 1929 (71 P. S. § 186).
D. Purpose and Background
The proposed amendments are designed to update, modify and improve Commission regulations pertaining to administration, Commission property and boating. The specific purpose for the various proposed amendments is described in more detail under the summary of proposal.
E. Summary of Proposal
1) Section 51.28 (relating to report of the presiding officer). In accordance with current practice, all proposed reports (pertaining to revocations and suspensions), regardless of whether exceptions are filed, are forwarded to the Commission's Law Enforcement Committee for review and consideration. However, under to the General Rules of Administrative Practice and Procedure, a proposed report becomes the final agency decision if no exceptions are filed to the proposed report within 30 days. In those instances when no exceptions are filed, it is unnecessary for the Law Enforcement Committee to review the matter because the proposed report already represents the final agency action. To eliminate an unnecessary step in the current procedure, which will reduce the processing time of these cases, staff proposed that this section be amended. The Commission approved the publication of a notice of proposed rulemaking consistent with staff's recommendation.
2) Sections 51.33 and 51.61 (relating to effective date of filing licenses and trout/salmon permits; and permits required for disturbance of waterways or watersheds). A review of these regulations revealed a need to clarify or make minor corrections to insure that anglers are able to understand them and that the original intent is contained in them. The proposed changes do not alter or change the regulations in a significant manner.
3) Section 53.8 (relating to boats). The law enforcement jurisdiction of the National Park Service (NPS) is limited to the Delaware River, shore to shore on the water only, within the confines of the scenic river area. Additionally, NPS's authority extends to the very few acres that it owns and the Commission and the New York Department of Environmental Conservation access areas where the parties have entered into formal lease agreements. The six Commission access areas involved are Buckingham, Equinunk, Calicoon, Damascus, Narrowsburg and Zane Grey.
The Commission is quite fortunate to be able to rely on NPS's presence and its law enforcement efforts. However, NPS has been put in the position of having to contend with the conflicting laws and regulations of the Commonwealth and New York. The fisheries differences have been resolved for the most part, but confusion remains regarding boat registrations.
Accordingly, staff proposed an amendment to § 53.8 (relating to boats) to avoid confusion and the possible prosecution of unsuspecting persons using Commission access areas on the Delaware River. The Commission approved the publication of a notice of proposed rulemaking containing this change.
4) Section 53.26 (relating to dogs). In recent years, staff have seen a tremendous increase in the number of dogs roaming unsupervised on Commission owned or controlled properties. These animals are causing a number of identifiable problems by barking, growling, stalking and charging anglers and boaters as well as leaving dog ''droppings'' on lawn areas, paths and parking lots. Most of the dogs on Commission property are not brought there by anglers or boaters. It also is recognized that, on some properties, legitimate dog training activities can be conducted without interfering, to any great degree, with the property's intended users.
In an attempt to protect adequately the primary users of Commission properties (that is, boaters and anglers) and still allow others to walk or train, or both, their dogs, the Commission needs reasonable regulations. The Commission approved the publication of a notice of proposed rulemaking, containing a proposed regulation relating to control of dogs on Commission property.
5) Section 93.13 (relating to issuing agents). Under section 5304 of the code (relating to issuing agents), the Commission may designate issuing agents for boat registrations. Boat registration issuing agents, other than the Commission, issue only temporary boat registrations; they do not process renewals of boat registrations.
Boat registration issuing agents are authorized by the code to charge and retain an issuing agent fee not exceeding $2 for each registration. Although the Commission collects and retains issuing agent fees for fishing licenses and permits issued by Commission offices, its offices have not collected the issuing agent fees for temporary boat registrations.
In order for the Commission to start collecting boat registration issuing agent fees for temporary boat registrations issued directly by Commission offices, a clarifying amendment to the existing regulations is required. The proposed amendment will make it clear that Commission offices are designated issuing agents. The Commission approved the publication of a notice of proposed rulemaking containing this change.
6) Section 109.4 (relating to waterskiing, aquaplaning, kiteskiing and similar activities). At its January 1997 meeting, the Commission directed staff to meet with proponents of changes to regulations on waterski observers to discuss their concepts for creating a carefully- crafted limited exceptions to existing regulations and report back to the Commission at the May 1997 meeting. Staff met with Frank Gates to discuss his concerns and those of a group of devoted water-skiers who strongly believe that they need some relief from the current requirements in order fully to pursue their sport. Staff and Frank Gates discussed several alternatives, and it was decided that the proponents of change or their attorney would get back to staff with proposed wording. Later, staff were informed that the proponents of change would like the Commission to seek public comment on the proposal set forth in the January 1997 agenda.
Late in the 1996 session of the General Assembly, Legislators proposed an amendment to pending legislation to provide (in pertinent part):The presence of a competent observer shall not be required in a boat towing a water-skier if all of the following conditions are met:(1) The operator of the boat meets all the qualifications of a competent observer and is wearing an approved personal flotation device while the skier is being towed.(2) The boat is equipped with all of the following:(a) A rearview mirror which is at least 5 inches by 10 inches(b) A ski platform(c) A boom, towing eye or pylon mounted permanently inside the hull of the boat to which the towing rope is secured.(3) Only one person is being towed.(4) The device on which the person is riding is only attached to the person and not to the boat.(5) Conditions, including other boating activities or congestion in the vicinity of the proposed operation, do not impede safe and prudent boat or waterskiing operations.(6) The waterskiing takes place on a day other than a weekend or holiday.As used in this provision, the term ''competent observer'' means a person who has the ability to assess when a water-skier is in trouble, who knows and understands the waterskiing hand signals and is capable of helping a skier.At the request of Commission staff, this amendment was withdrawn to give the Commission staff the opportunity to meet with proponents of the changes to observer requirements and to consider possible changes to Commission regulations. In addition to policy concerns, the staff had concerns with the drafting of the proposed amendment. The Boating Advisory Board discussed the legislative proposal at its meeting on December 20, 1996, and recommended against changing the current regulations on observer requirements, which are set forth in § 109.4 (relating to waterskiing, aquaplaning, kiteskiing and similar activities).
The proponents of change have asked the Commission to consider an amendment to § 109.4(c). Although staff are not convinced that a modification of the observer requirement is necessary or appropriate, it is believed that the wording of the proposed change as set forth in Annex A may be an adequate springboard for further discussion. The Commission has been encouraged by members of the General Assembly to at least seek public input on a possible proposed change to these regulations. At its meeting on May 5, 1997, the Commission approved the publication of a notice of proposed rulemaking seeking public comment on a possible change to § 109.4(c), provided that the notice explicitly provides that, at this stage, the Commission is only seeking public input and does not necessarily endorse the proposed change.
F. Paperwork
The proposed amendments will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The proposed amendments will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed amendments will impose new costs on the private sector and the general public in that persons who initially register their boats at Commission offices will have to pay a $2 issuing agent fee.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions about the proposed amendments to the Executive Director, Pennsylvania Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000, within 30 days after publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.
Comments also may be submitted electronically at ''regulations @ fish.state.pa.us.'' A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
PETER A. COLANGELO,
Executive Director(Editor's Note: Amendments to §§ 53.8 and 109.4, proposed to be amended in this document, appeared at 27 Pa.B. 3999 (August 9, 1997) and will be codified in MTS 275 (October, 1997).)
Fiscal Note: 48A-69. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 51. ADMINISTRATIVE PROVISIONS
Subchapter C. SUSPENSION, DENIAL OR REVOCATION OF LICENSES, PERMITS, REGISTRATIONS OR PRIVILEGES § 51.28. Report of the presiding officer.
* * * * * (c) [The] If exceptions to the proposed report are not filed, the proposed report will be considered the final administrative adjudication of the Commission.
(d) If exceptions to the proposed report are filed, the proposed report, together with the entire record, the briefs, the exceptions, [if any,] and briefs on and opposing exceptions will be filed by the Executive Director with the [Chairman] Chairperson of the Commission's Law Enforcement Committee.
Subchapter D. ISSUING AGENTS § 51.33. Effective dates of filing licenses and trout/salmon permits.
Fishing licenses and permits, such as trout/salmon permits, are valid for the year printed on the license certificate or [stamp] permit, and the month of December of the preceding year, except for tourist licenses that are valid for the dates specified on the license certificate.
Subchapter G. PERMIT REQUIREMENTS § 51.61. Permits required for disturbance of waterways or watersheds.
* * * * * (b) Examples of permits that may be required to undertake specific activities in the waters or watersheds of this Commonwealth include[, but are not limited to,] the following:
* * * * * (18) Permit for use of an algicide, herbicide or fish control chemical in waters of this Commonwealth.
(19) Permit to draw off impounded water.
CHAPTER 53. COMMISSION PROPERTY § 53.8. Boats.
* * * * * (i) A boat using a [Fish and Boat Commission] lake or access area shall be registered and display the official registration number and current validation stickers described under Subpart C and Part III of the code, except that this provision does not apply to noncommercial users of access areas on the Delaware River and West Branch of the Delaware River bounded by the State of New York. Public service boats as definedunder section 5302[(3)] of the code (relating to exemptions from registration) and boats participating in events authorized under § 109.6 (relating to special marine events) are exempt from this section.
* * * * * § 53.26. Dogs.
(a) Dogs are permitted on Commission property if they are licensed and otherwise in compliance with all other provisions of the Dog Law (3 P. S. §§ 459-101--459-1205).
(b) The maximum number of dogs that an owner or handler is permitted to have on Commission property at one time is two.
(c) The owner or handler shall keep the dogs on a leash not exceeding 6 feet in length while on Commission property.
(d) The owner or handler shall keep the dogs under his supervision and control while on Commission property.
(e) The owner or handler shall immediately scoop, contain and retain the droppings of the dog. The owner or handler may not dispose of the dog droppings on Commission property.
(f) The owner or handler is responsible for the conduct of the dog while on Commission property.
(g) Subsection (c) does not apply when an owner or handler is training a dog for water retrieval purposes and when the following apply:
(1) The dog is actually performing customary water retrieval functions.
(2) The dog remains within 10 feet of the owner/handler while on land.
(3) The dog is under the immediate control of the owner/handler at all times.
(4) The dog does not interfere with anglers or boaters engaged in fishing, boating or other lawful activities.
(h) An owner or handler of a hunting dog is exempt from subsections (c) and (e) when he keeps his dog off lawn areas, trails and parking lots and when he is engaged in legal hunting or training during the seasons established by the Pennsylvania Game Commission.
Subpart C. BOATING
CHAPTER 93. BOAT REGISTRATION AND NUMBERING § 93.13. Issuing agents.
(a) The [appointment] designation of issuing agents for temporary boat registrations shall be limited to the Commission and Commission offices, county treasurers and businesses dealing in boats, boating equipment or sporting goods.
* * * * * (d) The Commission will collect and deposit in the Boat Fund the $2 issuing agent fee for all temporary boat registrations issued by Commission offices.
CHAPTER 109. SPECIALTY BOATS AND WATERSKIING ACTIVITIES § 109.4. [Water skiing] Waterskiing, aquaplaning, [kite skiing] kiteskiing and similar activities.
* * * * * (c) Observer required. [It is unlawful for a person to operate a boat for towing or otherwise assisting a person on water skis unless there is at least one competent observer in the boat besides the operator, in a position to observe the progress of the person being towed. It is unlawful for a person to water ski being towed by a watercraft or device not containing an operator and observer as required by this section.] (1) General rule. Except as otherwise provided in this subsection, it is unlawful for a person to operate a boat towing or otherwise assisting a person on water skis unless there is at least one competent observer in the boat in addition to the operator of the boat. The observer shall be positioned in the boat so as to observe the progress of the person being towed. It is unlawful for a person to water ski being towed by a watercraft or device not containing an operator and observer as required by this subsection.
(2) Special conditions. The Executive Director, or a designee, may issue a permit to allow a limited exception to the requirements of paragraph (1). A permit issued under this paragraph will permit operation of a boat towing a water skier without an observer, in addition to the operator, on board the boat. These operations will be permitted only under the following conditions:
(i) Both the operator of the boat and the water skier meet safety training requirements as evidenced by documented completion of a safe boating course and active membership in a state or National waterskiing organization, which provides members with information on waterskiing safety.
(ii) The operator fulfills the definition of a ''competent observer'' as set forth in this section, wears an approved personal flotation device (PFD) and is a person 18 years of age or older.
(iii) The boat is equipped with the following:
(A) A rearview mirror which is at least 5 inches by 10 inches configured so that the operator may at all times observe the progress of the person being towed.
(B) A ski platform.
(C) A boom, towing eye or pylon mounted permanently inside the hull of the boat to which the towing rope is secured.
(iv) Only one person is being towed.
(v) The water skis or other device on which the person is riding are attached only to the person and not to the boat.
(vi) Conditions, including weather, other boating activities and congestion in the vicinity of the proposed operation, do not impede safe and prudent boat or waterskiing operations.
(vii) The waterskiing takes place on a day other than a weekend or holiday. The Executive Director, for good cause shown, may permit waterskiing under this section on a Saturday or Sunday before the hour of 10 a.m if the Executive Director finds that other boating activities on the waters at the same time will not interfere with the waterskiing.
(viii) The waterskiing takes place on waters described and approved for the operations in the permit.
(ix) The waterskiing takes place at times as the Executive Director or a designee indicates in the permit.
(x) The boat towing the waterskier displays a special waterski flag of a size and design approved by the Commission.
* * * * *
[Pa.B. Doc. No. 97-1394. Filed for public inspection August 29, 1997, 9:00 a.m.]
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