RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 51, 53, 61, 93 AND 97]
Administration, Commission Property, Fishing and Boating
[30 Pa.B. 5013] The Fish and Boat Commission (Commission) by this order amends 58 Pa. Code Chapters 51, 53, 61, 93 and 97 (relating to administrative provisions; Commission property; seasons, sizes and creel limits; registration and numbering; and operator provided equipment). The Commission is publishing these amendments under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The amendments relate to the release of documents and records, restrictions on Commission property, fishing and boating.
A. Effective Date
The amendments will go into effect upon publication of an order adopting the amendments in the Pennsylvania Bulletin.
B. Contact Person
For further information on the amendments, contact Laurie E. Shepler, Assistant Counsel, (717) 705-7815, P. O. Box 67000, Harrisburg, PA 17106-7000. This final rulemaking is available electronically through the Commission's Web site (http://www.fish.state.pa.us).
C. Statutory Authority
The amendments to § 51.9 are published under the statutory authority of section 3 of the Right to Know Law (65 P. S. § 66.3) and section 506 of The Administrative Code of 1929 (71 P. S. § 186). The amendments to §§ 53.4, 53.10, 53.11, 53.15 and 53.18 are published under the statutory authority of section 741 of the code (relating to control of property). The amendments to § 61.1 are published under the statutory authority of section 2102 of the code (relating to rules and regulations). The amendments to §§ 93.4 and 93.17 are published under the statutory authority of section 5122 of the code (relating to registration, licenses, permits, plates and statistics). The amendments to § 93.110 are published under the statutory authority of section 5325 of the code (relating to rules and regulations). The amendments to § 97.3 are published under the statutory authority of section 5123 of the code (relating to general boating regulations).
D. Purpose and Background
The amendments are designed to update, modify and improve Commission regulations relating to the release of documents and records, Commission property, fishing and boating. The specific purpose of the amendments is described in more detail under the summary of changes. Prior to the Commission's action on proposed rulemaking, the Commission's Boating Advisory Board considered the proposed amendments relating to boating and recommended that the Commission approve the publication of a notice of proposed rulemaking containing the changes.
E. Summary of Changes
(1) Section 51.9 (relating to the release of documents and records). The Commission's staff routinely receive and process requests for release of documents and other information in Commission files. Sometimes these requests are made under the Right-to-Know Law (act) (65 P. S. §§ 66.1--66.4). The act contains a very specific definition of the term ''public record.'' This definition has been given a liberal interpretation by the courts, but it is clear that many, if not most, documents in the Commission's files do not meet the statutory definition. Moreover, most law enforcement records are specifically excluded in that they would disclose the institution, progress or results of agency investigations. In addition to documents that meet the statutory definition of ''public record,'' the Commission ordinarily has provided access to other documents, including correspondence with entities and individuals outside Commonwealth government, on request.
One of the issues that arises in dealing with requests for access to documents relates to fees for copying them. Under the act, requesters have the right to inspect, examine and copy public records subject to reasonable restrictions, but there is no requirement for agencies to make copies of records and send them to requesters. In order to follow more systematic procedures for the release of documents, the Commission proposed a new regulation at § 51.9.
After the publication of a notice of proposed rulemaking, a question arose as to whether the Commission should charge a fee for providing electronic copies of documents, and if so, how much the Commission should charge. The Commission, on final rulemaking, adopted the new regulation as set forth in Annex A.
(2) Sections 53.4, 53.15 and 53.18 (relating to limiting access to Commission property; Commission lakes or access areas under special time regulations; and additional restrictions). A recent review by Commission staff revealed some overlap in the Commission's property regulations in §§ 53.4, 53.15 and 53.18. Therefore, the Commission consolidated these regulations into one regulation (§ 53.4) and deleted §§ 53.15 and 53.18, as proposed, with the clarification that any restrictions imposed under § 53.4(a) and (c) are effective when posted at the site.
(3) Sections 53.10 and 53.11 (relating to vehicles; and off-highway vehicles and snowmobiles). The act of November 3, 1999 (P. L. 447, No. 41) (Act 41), which became effective on January 1, 2000, amended, among other things, the penalty provision of section 741 of the code (relating to control of property). In light of this amendment, staff revisited the Commission's regulations relating to vehicles on Commission property. Commission staff also received legislative inquiries regarding the legality of the use of registered all terrain vehicles (ATVs) on Commission property. In an effort to clarify the Commission's intent with regard to the use of vehicles on Commission property, the Commission adopted amendments to §§ 53.10 and 53.11 as proposed.
(4) Section 61.1 (relating to Commonwealth inland waters). A recent review of this regulation revealed that a housekeeping correction was warranted. Therefore, the Commission amended this section as proposed.
(5) Section 93.4 (relating to certificate of registration). One of the more common violations of the boating regulations is operating without the required registration certificate onboard. Often this is simply an oversight as the boater has left the certificate in the car, at the cottage or at home on the kitchen table. Commission policy is that citations usually are not issued when it is reasonable that the certificate is most likely available, just not on-board. An officer, however, must still be shown proof that the registration is valid. Current procedure requires that the owner produce an original certificate within a certain number of days for inspection by the officer. This sometimes causes inconvenience for both the officer and the violator as they arrange for verification.
The regulations provide a mail-in procedure for persons who are caught fishing without displaying a license. This procedure has been very successful and has resulted in greater efficiency and use of officer time. The Commission, therefore, has implemented a similar procedure for boat registration certificates by adding a new subsection to § 93.4 as proposed.
(6) Sections 93.17 and 93.110 (relating to registration of abandoned boats; and boats that are junked, destroyed, lost, stolen or abandoned). Although these regulations, as currently written, allow the Commonwealth, its agencies and political subdivisions to register or acquire title to any boat abandoned on areas under their ownership, the regulations do not extend to the Federal government and do not allow these entities to avail themselves of the salvor process. Therefore, the Commission proposed amendments to these sections. Prior to the publication of the notice of proposed rulemaking, the Office of Attorney General asked a question about how the U. S. Government handles property abandoned on Federal lands and waters. The Commission learned that the U. S. Fish and Wildlife Service and presumably other Federal agencies have regulations on this subject. In order to eliminate any confusion about the interplay between Federal and state regulatory authorities, the Commission adopted the amendments to read as set forth in Annex A.
(7) Section 97.3 (relating to sound producing devices). As currently written, the requirement for sound producing devices contained in this section is different and, in some ways, inconsistent with the Federal Inland Navigation Rules. The purpose of sound producing devices is to allow motorboats to make the sound signals required by the Federal Navigation Rules. Boaters in this Commonwealth seldom use sound signals on small inland lakes and rivers. According to the Federal Inland Navigation Rules, the technical specifications for whistles and bells are only applicable to boats greater than 12 meters in length. Less than 400 of the 350,000 boats registered in the Commonwealth are 12 meters in length or greater. The current requirement in subsection (b)(1) is not complete, and the term ''bell'' is not defined in the Commission's regulations.
The current regulations go further than the Federal regulations by requiring unpowered vessels such as canoes and kayaks to carry a mechanical means of making a sound signal. The Commission has received many complaints from unpowered boat owners (particularly boat livery operators) that this requirement places an inappropriate burden on paddlers and on businesses renting small, unpowered boats. There is little, if any, evidence that this requirement resolves a safety issue or that sound producing devices serve any real purpose on unpowered boats. Finally, the definitions in subsection (a) serve no purpose for regulating sound producing devices or providing useful information to the boating public. Accordingly, the Commission amended § 97.3 to remove those provisions that are inconsistent with the Federal rules, to add a general statement about the applicability of the Federal rules in the Commonwealth and to add a provision concerning sound device requirements for unpowered boats as proposed.
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 to § 51.9 will impose modest costs on the private sector and the general public in that those who request copies of public records and other documents in the Commission's files will be charged 25¢ per letter or legal size page for such copies, $1 per page or the actual cost of reproduction (whichever is greater) for oversize copies (in excess of legal size), $1 per document plus $2 per diskette for documents one megabyte or less in size that are copied to an electronic media, $3 per document plus $10 or the cost of the media on which the document is stored (whichever is greater) for documents of more than one megabyte in size that are copied to an electronic media, $2 for handling, plus the actual cost of postage or shipping. The other amendments will impose no new costs on the private sector or the general public.
H. Public Involvement
A notice of proposed rulemaking was published at 30 Pa.B. 1755 (April 1, 2000). With the exception of the amendments to § 97.3, the Commission did not receive any public comments regarding the proposals. The Commission received one comment after the public comment period from the Upper Delaware Council, generally supporting the changes to § 97.3.
Findings
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, 1202) and the regulations promulgated thereunder (1 Pa. Code §§ 7.1 and 7.2).
(2) A public comment period was provided and the comments received were considered.
(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.
Order
The Commission, acting under the authorizing statutes, orders that:
(A) The regulations of the Commission, 58 Pa. Code Chapters 51, 53, 61, 93 and 97, are amended by amending §§ 53.10, 53.11, 61.1, 93.4 and 97.3 and deleting §§ 53.15 and 53.18 to read as set forth at 30 Pa.B. 1755 (April 1, 2000) and by amending §§ 53.4, 93.17 and 93.110 and by adding § 51.9 to read as set forth at Annex A, with ellipses referring to the existing text of the regulations.
(B) The Executive Director will submit this order, 30 Pa.B. 1755 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, 30 Pa.B. 1755 and Annex A and deposit the same with the Legislative Reference Bureau as required by law.
(D) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
PETER A. COLANGELO,
Executive DirectorFiscal Note: Fiscal Note 48A-105 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 51. ADMINISTRATIVE PROVISIONS § 51.9. Release of documents and records.
(a) Consistent with the act of June 21, 1957 (P. L. 390, No. 212), known as Right-to-Know Law (65 P. S. §§ 66.1--66.4.) and section 324 of the code (relating to Commission records), the Commission will make public records contained in its files available to citizens of this Commonwealth for inspection and examination at reasonable times and will allow requesters to make extracts and copies of the records subject to reasonable restrictions to safeguard the records and reasonable procedures on the time and place for making copies and extracts.
(b) Requests for release of public records contained in Commission files shall be made in writing and submitted to: Executive Director, Pennsylvania Fish and Boat Commission, Post Office Box 67000, Harrisburg, Pennsylvania 17106-7000.
(c) If a photocopier or reproduction device under the control of the Commission is used to copy information released under this section, the requester will be charged 25¢ per letter or legal size page for the copies. If the Commission copies oversize pages (in excess of legal size), the charge shall be $1 per page or the actual cost of reproduction, whichever is greater. If the Commission copies documents to electronic media (such as, computer diskette), the requester will be charged $1 per document copied (if 1 megabyte or less in size) plus $2 per diskette. For electronic documents of more than 1 megabyte in size, the requester will be charged $3 per document plus $10 or the cost of the media on which the document is stored, whichever is greater. If the Commission mails copies of documents copied under this section to the requester, the requester will be charged $2 for handling, plus the actual cost of postage or shipping. All charges shall be payable in advance by check or money order made payable to ''Pennsylvania Fish and Boat Commission.'' The Commission may waive copy charges and mailing charges for good cause or in the public interest. When the total copying, handling and mailing charges for a request are $10 or less, collection ordinarily will be waived.
CHAPTER 53. FISH AND BOAT COMMISSION PROPERTY § 53.4. Limiting access to Commission property and other restrictions.
(a) Commission-owned or -controlled property, including Commission lakes and access areas, may be closed to the public during hours as the Executive Director may direct. The Executive Director will publish a notice in the Pennsylvania Bulletin and will cause the hours to be posted at the site. Time restrictions imposed under this subsection will be effective when posted at the site. It is unlawful for any person to enter or remain upon Commission property during the times it is closed to public use, without the express written consent of the Executive Director or a designee.
(b) The Executive Director or a designee may issue an order barring any person from entering or remaining upon a named Commission property when the Executive Director finds that the presence of the person on Commission property constitutes a substantial disruption of Commission operations or a reasonable threat to the health and safety of Commission personnel or other persons who are engaged in other lawful uses of the property. Orders issued under this subsection may be appealed to the Commission under 1 Pa. Code § 35.20 (relating to appeals from the actions of the staff).
(c) The Executive Director may impose additional restrictions on the use of Commission property, including prohibitions on use or possession of beer and alcoholic beverages and restrictions on fires at times and for periods as the Director deems appropriate for the protection and management of Commission-owned or -controlled property. The Executive Director will publish a notice in the Pennsylvania Bulletin and will cause the additional restrictions to be posted at the site. Additional restrictions imposed under this subsection will be effective when posted at the site. It is unlawful to violate restrictions imposed by the Executive Director on behalf of the Commission under this subsection.
Subpart C. BOATING
CHAPTER 93. REGISTRATION AND NUMBERING § 93.17. Registration of abandoned boats.
* * * * * (b) Boats abandoned on private property. Subject to the following, a landowner, his lessee or his agent may register a boat that has been abandoned on his land or the waters immediately adjacent to his land for at least 3 months.
* * * * * (6) Upon receipt of the required materials and the payment of fees required by law, the Commission will register the boat in the name of the applicant.
(c) Boats abandoned on public property or waters. A person finding a boat abandoned on public property or waters--that is, property or waters under the ownership or control of the Commonwealth, its agencies and political subdivisions--shall notify the Commission of the description and location of the boat as well as the date on which it was found. A person may notify the Commission by completing form PFBC-R3, ''Notice of Abandoned Boat Found on Commonwealth Waters'' and mailing the form to the Commission. A person finding a boat abandoned on lands or waters under the jurisdiction or control of the United States Government should contact the Federal agency with jurisdiction over the lands and waters and follow applicable Federal regulations.
(1) The Commission may take possession of a boat abandoned on public property or waters or may authorize a salvor to take possession provided the salvor complies with these provisions, is a vehicle salvage dealer as defined in 75 Pa.C.S. § 1337 (relating to use of ''Miscellaneous Motor Vehicle Business'' registration plates), and holds a current, valid certificate of authorization issued by the Department of Transportation under 75 Pa.C.S. § 7302 (relating to certification of authorization).
* * * * * (8) The Commonwealth, its agencies and political subdivisions may register any boat abandoned on areas under their ownership or control by proceeding in the manner set forth in subsection (b) or may follow the procedure set forth in this subsection. The Federal government may register any boat abandoned on areas under its ownership or control by proceeding in the manner set forth in subsection (b), may follow the procedure set forth in this subsection or may follow applicable Federal laws or regulations.
§ 93.110. Boats that are junked, destroyed, lost, stolen or abandoned.
* * * * * (b) Acquiring title to boats abandoned on private property.
* * * * * (8) Upon receipt of the material required by this subsection and the payment of any fees required by law, the Commission will issue a certificate of title to the boat to the applicant. Issuance of a certificate of title divests any other person of any interest in the boat.
(c) Acquiring title to boats abandoned on public property or waters.
(1) A person finding a boat abandoned on public property or waters--that is, property or waters under the ownership or control of the Commonwealth, its agencies or political subdivisions--shall notify the Commission of the description and location of the found boat as well as the date on which it was found.
(2) The Commission may take possession of a boat abandoned on public property or waters or may authorize a salvor to take possession if the salvor complies with this section, is a vehicle salvage dealer as defined in 75 Pa.C.S. § 1337 (relating to use of miscellaneous motor vehicle business registration plates) and holds a current, valid certificate of authorization issued by the Department of Transportation under 75 Pa.C.S. § 7302 (relating to certification of authorization).
* * * * * (9) The Commonwealth, its agencies and political subdivisions may acquire title to any boat abandoned on areas under their ownership or control by proceeding in the manner set forth in subsection (b) or may follow the procedure set forth in this subsection. The Federal government may acquire title to any boat abandoned on areas under its ownership or control by proceeding in the manner set forth in subsection (b), may follow the procedure set forth in this subsection or may follow applicable Federal laws or regulations.
[Pa.B. Doc. No. 00-1661. Filed for public inspection September 29, 2000, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
