RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 51, 53, 93 AND 109]
Administration, Commission Property and Boating
[28 Pa.B. 30] The Fish and Boat Commission (Commission) amends Chapters 51, 53, 93 and 109. The Commission is publishing these amendments under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The amendments relate to administration, Commission property and boating.
A. Effective Date
These amendments will go into effect on January 1, 1998.
B. Contact Person
For further information on the amendments, contact Laurie E. Shepler, Esq., (717) 657-4546, P. O. Box 67000, Harrisburg, PA 17106-7000. This final rulemaking is available electronically through the Commission's Web site at http://www.fish.state.pa.us.
C. Statutory Authority
The 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 amendments are designed to update, modify and improve Commission regulations pertaining to administration, Commission property and boating. The specific purpose for the amendments is described in more detail under the summary of changes.
E. Summary of Changes
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 1 Pa. Code Part II (relating to 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, the Commission adopted an amendment to this section.
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 Commission adopted changes to these regulations that do not alter or change them in any 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 Commonwealth 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, the Commission adopted an amendment to § 53.8 to avoid confusion and the possible prosecution of unsuspecting persons using Commission access areas on the Delaware River. In addition, the Commission, under § 51.6 (relating to correction of regulations), is making a corrective amendment to § 53.8(h) and (i).
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 their dogs, or both, the Commission needs reasonable regulations. On final rulemaking, the Commission adopted the regulation relating to control of dogs on Commission property as proposed with the following exceptions. The Commission added language that allows the use of multilength, mechanically retractable leashes in addition to leashes not exceeding 6 feet in length. The Commission also added a provision that an owner or handler need not keep his dog on a leash when he has the dog under his control onboard a boat.
5) Section 93.13 (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.
For the Commission to start collecting boat registration issuing agent fees for temporary boat registrations issued directly by Commission offices, the Commission adopted a clarifying amendment to the existing regulations. The amendment makes it clear that Commission offices are designated issuing agents.
6) Section 109.4 (relating to water skiing, aquaplaning, kite skiing and similar activities). At its January 1997 meeting, the Commission directed staff to meet with proponents of changes to regulations on water ski observers to discuss their concepts for creating a carefully- crafted limited exception 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 to fully pursue their sport. Staff and Mr. 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 water skiing operations.
(6) The water skiing 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 water skiing 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 (Board) discussed the Legislative proposal at its meeting on December 20, 1996, and recommended against changing the current regulations on observer requirements, which is in § 109.4.
The proponents of change asked the Commission to consider an amendment to § 109.4(c). Although staff were not convinced that a modification of the observer requirement was necessary or appropriate, it was believed that the wording of the proposed change could be an adequate springboard for further discussion. The Commission was encouraged by members of the General Assembly to at least seek public input on a possible proposed change to this regulation.
At its May 2, 1997, meeting, the Board recommended that the Commission consider the publication of a notice of proposed rulemaking containing changes to the competent observer requirement. The Commission, at its meeting on May 5, 1997, 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 provide that, at this stage, the Commission is only seeking public input and does not necessarily endorse the proposed change. A notice of proposed rulemaking was published at 27 Pa.B. 4441 (August 30, 1997).
During the summer of 1997, two individuals received permits under the test program approved by the Commission. No problems were reported with the implementation of that program.
At the October 4, 1997, meeting, the Commission voted to defer final action on the proposed rulemaking until further consideration by the Board. The Board, at its meeting on October 27, 1997, again considered this matter and recommended that the Commission adopt the amendment, as proposed, with the following changes: (1) that water skiing be limited to 10 a.m. everyday, not just Saturdays and Sundays; and (2) that permittees are required to carry the permit onboard. The Board also recommended that the local waterways conservation officer be responsible for reviewing, approving and recommending to the Executive Director the area where the water skiing will take place. By notational vote, the Commission adopted the amendments to § 109.4 with the additional provisions recommended by the Board.
F. Paperwork
The amendments will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The amendments will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The 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 Involvement
A notice of proposed rulemaking containing the proposed changes was published at 27 Pa.B. 4441. Twoproposed amendments attracted public comment during the public comment period, § 53.26 and the changes to the competent observer requirement in § 109.4.
During the public comment period, the Commission received seven public comments regarding the proposed control of dogs regulation, including letters from the Obedience Training Class of Harrisburg, the Mt. Nittany Dog Training Club and the Ivy League Bulldogs. Six of the comments opposed, to a certain degree, the proposed amendments. One letter urged the Commission to entirely drop consideration of the amendments. Several letters expressed concern over the requirement that an owner or handler must keep a dog on a leash not exceeding 6 feet in length while on Commission property. Other areas of concern pertained to the maximum number of dogs that an owner or handler may have on Commission property at one time and the provisions made for retriever training. One public comment expressed support for the proposed amendments but suggested that the proposed amendments may not go far enough. Copies of these public comments were provided to the Commissioners.
During the public comment period, the Commission also received 45 public comments regarding the changes to the competent observer requirement. Two letters opposed and 43 letters supported the proposed changes. Of those who supported the proposed changes, many suggested that the permit should be good only until 10 a.m. on weekday and weekend mornings (not just on weekends, as proposed). Copies of these public comments were provided to the Commissioners.
After the public comment period, the Commission received a letter from the Upper Delaware Council strongly supporting the amendment to § 53.8.
Findings
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) Public comment period was provided and that all comments received were considered.
(3) Adoption of the amendments in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.
Order
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapters 51, 53 and 109, are amended by amending §§ 51.28, 51.33, 51.61 and 93.13 to read as set forth at 27 Pa.B. 4441; and by amending §§ 53.8, 53.26 and 109.4 to read as set forth in Annex A.
(Editor's Note: Amendments to § 93.13 have been consolidated and appear at 27 Pa.B. 40 (January 3, 1997).)
(b) The Executive Director will submit this order, 27 Pa.B. 4441 and Annex A to the Office of Attorney General for approval as to legality as required by law.
(c) The Executive Director shall certify this order, 27 Pa.B. 4441 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect January 1, 1998.
PETER A. COLANGELO,
Executive DirectorFiscal Note: Fiscal Note 48A-69 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 53. COMMISSION PROPERTY § 53.8. Boats.
(a) An internal combustion engine may not be used to propel a boat or to provide energy to the motor on Commission lakes. Boats propelled by battery-powered electric motors and nonmechanically propelled boats, subject to restrictions on sailboats and inflatables, may be used either with or without internal combustion engines attached. Notwithstanding this subsection, internal combustion engines may be used in the performance of official duties by persons authorized by the Commission.
(b) Watercraft on Commission lakes shall have on board a Coast Guard approved Type I, II, III or V personal flotation device in good serviceable condition for each occupant. Occupants of sculls, shells and racing kayaks may substitute and use non-Coast Guard approved inflatable personal flotation devices in accordance with their design and manufacturer recommendation.
(c) Overnight mooring of boats is permitted at designated mooring areas from April 1 to November 30. A boat utilizing mooring areas shall be registered and display the official registration number and current validation stickers described under Subpart C (relating to boating) and Part III of the code (relating to boats and boating). The mooring is at the sole risk of the owner.
(d) The Commission may refuse to permit the mooring of a boat considered unseaworthy. Boats may not be rented or offered for hire at Commission lakes except for boats owned and moored by authorized concessionaires.
(e) Boats abandoned, sunken, obviously unseaworthy or unidentifiable will be impounded. The district waterways conservation officer will notify the owner, if known, of the impoundment and require the removal of the vessel within 10 days. Impounded vessels will be sold or destroyed if not claimed by the owner within 3 months.
(f) Boats may not remain at boarding piers on Commission lakes or controlled property longer than the time necessary for loading and unloading.
(g) Inflatable boats used on Commission lakes shall be at least 7 feet in length, made of durable reinforced fabric and have at least two separate buoyancy chambers exclusive of any inflatable floor or bottom.
(h) A boat using a 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 noncommerical 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 defined under 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. Unpowered kayaks, sculls, sailboards and other low volume boats of similar design are exempt from displaying registration numbers, but shall display a current validation sticker.
§ 53.26. Dogs.
(a) Dogs are permitted on Commission property if they are licensed and otherwise in compliance with the 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 or on a multilength mechanically retractable leash while on Commission property.
(d) The owner or handler shall keep the dogs under supervision and control while on Commission property.
(e) The owner or handler shall immediately scoop, contain and retain all 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 meets one of the following:
(1) Is training a dog for water retrieval purposes and when the following apply:
(i) The dog is actually performing customary water retrieval functions.
(ii) The dog remains within 10 feet of the owner/handler while on land.
(iii) The dog is under the immediate control of the owner/handler at all times.
(iv) The dog does not interfere with anglers or boaters engaged in fishing, boating or other lawful activities.
(2) Has the dogs under his control onboard a boat.
(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 Game Commission.
Subpart C. Boating
CHAPTER 109. SPECIALTY BOATS AND WATERSKIING ACTIVITIES § 109.4. Water skiing, aquaplaning, kite skiing and similar activities.
(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Competent observer--A person who has the ability to assess when a skier is in trouble, knows and understands the water skiing hand signals and is capable of helping a skier.
PFD--Personal Flotation Device.
Trick skier--A water skier who can be identified by body movements and skiing positions, which readily differentiate the trick skier from the ordinary ''forward'' skier engaged in straight skiing or slalom and jump events, and also by the following:
(i) Skis. Short (38 inches--40 inches) and wide (8 inches--9 inches) with no keels on bottom.
(ii) Speed of tow. Slow (12--18 miles per hour).
(iii) Rope. Short (40 to 50 feet) and often with toehold strap attached to handle.
Water ski--A device used by a person to be towed through or on water behind a boat. The term includes conventional water skis, aquaplanes, kneeboards, inner tubes, inflatable hot dogs, air mattress, parasails, kit skis and similar devices.
(b) Skiing hours. Ski activities are prohibited between the hours of sunset and sunrise.
(c) Observer required. The following conditions apply:
(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 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 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 water skiing organization, which provides members with information on water skiing safety.
(ii) The operator fulfills the definition of a ''competent observer'' as set forth in this section, wears an approved 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 water skiing operations.
(vii) The water skiing takes place before the hour of 10 a.m. on a day other than a weekend or holiday. The Executive Director, for good cause shown, may permit water skiing 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 water skiing.
(viii) The water skiing takes place on waters described and approved for the operations in the permit.
(ix) The water skiing takes place when the Executive Director or a designee indicates in the permit.
(x) The boat towing the water skier displays a special water ski flag of a size and design approved by the Commission.
(xi) The permittee carries the permit onboard while operating the boat towing a water skier without an observer.
(d) Umbilical or remote controls. A person may not operate a device which is controlled by a person connected to the power source by means of an umbilical or remote control, or both, which tows the person on or through the water.
(e) Ski tow ropes. Ski tow ropes may not exceed the following lengths:
(1) Conventional water skis and similar devices--80 feet.
(2) Nonreleasable kite ski--150 feet.
(3) Releasable kite ski--500 feet.
(4) Parasails--300 feet.
(f) PFDs. It is unlawful for a person to operate a boat on the waters of this Commonwealth for water skiing unless each person being towed is wearing a Type I, II, III or V United States Coast Guard-approved PFD. Inflatable PFDs may not be used to meet this requirement.
(g) Water ski wetsuits. A person engaged in slalom skiing on a marked course or a person engaged in barefoot, jump or trick skiing may elect to wear a wetsuit designed specifically for the activity in lieu of the United States Coast Guard approved PFD required in § 97.1 (relating to personal flotation devices). A United States Coast Guard approved PFD of a type described in § 97.1 shall be carried in the tow boat for each skier electing to wear a water ski wetsuit. The nonapproved water ski wetsuit device shall meet the following criteria:
(1) The device shall be marked by the manufacturer as a water ski wetsuit.
(2) The device shall be constructed of nylon covered neoprene or similar material and may have either long or short sleeves or be sleeveless. The device may have legs.
(3) The device shall be equipped with additional flotation padding material of a close cell nonabsorptive type such as PVC foam or Ensolite®. This flotation/padding shall be sewn into the device according to the following:
(i) On the front extending from the clavicle to the top of the pelvis vertically and covering the front rib cage area and covering as much of the side area as feasible. A maximum gap between padded areas on the side of the suit under the arm is 4 inches.
(ii) On the rear of the device, padding/flotation material shall cover the area from the top of the shoulder blade to the top of the pelvis and span the entire width of the back.
(iii) Padding/flotation shall be at least 1/2-inch thick. This thickness excludes the thickness of covering material.
(h) Starting and returning from shore or dock. Notwithstanding the slow, no wake restrictions contained in § 103.3(b) (relating to restriction for special areas), skiers are permitted to start from the shore or dock if the traffic situation permits this to be done safely and in accordance with other water ski regulations. A water skier is not permitted to be returned to dock or shore under power. The skier shall release outside the 100-foot limit. The skier may then coast or glide toward the shore or dock, if the skier does not endanger life and property in so doing and steers clear of swimmers, docks and boats.
(i) Ski ramps and jumps. Ski ramps or jumps, authorized in accordance with § 113.10 (relating to permits for installation and lighting of floats, ski ramps and other floating structures) shall have attached on each side a sign which will be evidence that the installation is authorized and warn boaters against mooring or drifting within 100 feet of the jump while it is in use.
(j) Kite skiing and parasailing. The following additional restrictions are applicable to kite skiing and parasailing:
(1) Kite skiing and parasailing is prohibited on waters where water skiing is prohibited or is subject to special regulation.
(2) Kite skiing or parasailing is prohibited on water when other boating activities or congestion impedes safe and prudent operations.
(3) Kite skiers and parasailers may not fly over or under overhead obstructions such as power and telephone lines or bridges; nor may they fly over dams, locks, docks, launching ramps, swim areas, marinas or congested areas.
[Pa.B. Doc. No. 98-13. Filed for public inspection January 2, 1998, 9:00 a.m.]
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