RULES AND REGULATIONS
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 101, 109, 111 AND 115]
Boating
[32 Pa.B. 5659] The Fish and Boat Commission (Commission) by this order amends Chapters 101, 109, 111 and 115. 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 final-form rulemaking relates to boating.
A. Effective Date
With the exception of the amendment to § 111.2 (relating to Allegheny County), the final-form rulemaking will go into effect on January 1, 2003. The amendment to § 111.2 will go into effect on May 1, 2003, not January 1, 2003, as proposed.
B. Contact Person
For further information on the final-form rulemaking, contact Laurie E. Shepler, Assistant Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This final-form rulemaking is available electronically through the Commission's website (http://www.fish.state.pa.us).
C. Statutory Authority
The amendments to §§ 101.2 and 109.3 (relating to reportable boating accidents; and personal watercraft) are published under the statutory authority of section 5123 of the code (relating to general boating regulations). The amendment to § 111.2 is published under the statutory authority of section 5124 of the code (relating to particular areas of water). The amendments to §§ 115.4, 115.8 and 115.9 (relating to annual safety inspections; personnel requirements of passenger carrying boats; and licenses for operators) are published under the statutory authority of section 5122 of the code (relating to registrations, licenses, permits, plates and statistics).
D. Purpose and Background
The final-form rulemaking is designed to update, modify and improve the Commission's regulations pertaining to boating. The specific purpose of the final-form rulemaking is described in more detail under the summary of changes. The Commission's Boating Advisory Board considered all of the amendments prior to the Commission's consideration of them on final-form rulemaking and recommended that the Commission adopt them as set forth in the notice of proposed rulemaking except as described in this Preamble.
E. Summary of Changes
(1) Section 101.2. The United States Coast Guard has raised the threshold of property damage for reportable accidents involving recreational vessels. Prior to this change, the Coast Guard's regulations, like the Commission's, required a boating accident to be reported when damage to the vessel and other property totaled more than $500 or there was a complete loss of the vessel. The National Association of State Boating Law Administrators (NASBLA) successfully persuaded the Coast Guard to increase the amount of damage to $2,000.
Adoption of this final-form rulemaking will result in less paperwork being required by the public to report a loss. It also will reduce the amount of recordkeeping by the Bureau of Law Enforcement and the Bureau of Boating and Education. In 2001, 90 recreational boating accidents were reported to the Commission. If the Commission had been using the new criteria of $2,000 or more, there would have been 16 fewer or 74 reportable accidents, a reduction of 18%. In 2000, the change would have been less dramatic. There were 90 accidents reported. With the new criteria, there would have been eight fewer reportable accidents, a reduction of 9%. The Commission adopted this amendment as proposed.
(2) Section 109.3. NASBLA has a model act for personal watercraft that includes a definition of the term ''personal watercraft.'' The definition is very similar to the definition in the Commission's regulations and to those enacted by other states. The Commission's definition, however, was vague when it refers to the position of the operator (rather than in the conventional manner of boat operation). The NASBLA model act is clearer and does not change the ''spirit'' or the intent of the existing Commission regulation. In addition, recent developments in boat design continue to make clarification necessary so that boat operators and the Commission's officers clearly understand the legal requirements for all boats. The Commission amended the definition of ''personal watercraft'' as proposed.
(3) Section 111.2. On February 15, 2002, the Commission received a petition from ''Boaters are Voters,'' Pittsburgh. The petition requested an extension of the existing slow, minimum height swell speed zone currently in place at the ''Point'' in Pittsburgh to encompass the area between the Fort Duquesne and Sixth Street Bridges, a distance of about 1,500 feet. The petition was accompanied by letters of support from six organizations and petition sheets with 291 signatures.
The Commission published a notice of proposed rulemaking in the Pennsylvania Bulletin and held a public meeting in the Pittsburgh area to give the public additional opportunity to comment. Essentially, boaters are in two camps--those that want a ''slow no wake'' zone along the entire developing Pittsburgh waterfront and those that do not want further restrictions. In between these extremes are boaters who see a need for some restrictions during certain specified time periods. The Commission has reviewed the comments in the context of the site and has concluded that additional restrictions are warranted. Arguments for extending the zone to encompass the waterside development of the David E. Lawrence Convention Center are also persuasive. Accordingly, the Commission, on final-form rulemaking, amended § 111.2(c) to extend the slow, no wake zone on the Allegheny River to the Fort Wayne (Norfolk Southern) Bridge, instead of the Sixth Street Bridge as proposed. This extension will add an additional 2,000 feet to the zone and will encompass the waterside development in the vicinity of the David E. Lawrence Convention Center. This final-form rulemaking will go into effect on May 1, 2003.
The Commission also approved the publication of a new notice of proposed rulemaking to extend the slow, no wake zone on the Monongahela River from the Fort Pitt Bridge to the Smithfield Bridge and to change the time that the zones are in effect to 7-days-a-week, 24-hours-a-day between May 1 and October 1. Having the zone in effect 7-days-a-week, 24-hours-a-day, between May 1 and October 1 will enhance the boaters' understanding of the regulation and make education, notification (signage) and enforcement easier to implement. If adopted on final-form rulemaking, this amendment also would go into effect on May 1, 2003. The amendments, if promulgated in toto, would address the concerns expressed by the City of Pittsburgh and others and would encompass the river areas currently under active development.
(4) Sections 115.4, 115.8 and 115.9. A recent review of Chapter 115 (relating to boats carrying passengers for hire) revealed that minor changes were needed to correct some of the problems and concerns that occur for owners and operators of passenger carrying vessels and the inspectors that inspect these vessels. In § 115.4(a) and (d), the Commission adopted amendments to make it clear that when the inspector arrives on the agreed date of inspection, the vessel must be completely ready for inspection and a current certificate of insurance must be presented to the inspector. Too often, vessels are not ready for inspection and certificates of insurance are late or never forwarded by the insurance companies.
The Commission also amended § 115.8 to provide accommodations for persons with physical limitations. Recently, the owner of a passenger carrying vessel requested certification as a passenger for hire operator. A doctor had certified that the individual is physically qualified to operate a passenger carrying vessel in accordance with the Commission's current standards. The individual's physical limitations, however, would prohibit him from handling mooring lines, associated equipment and certain emergencies without assistance. These limitations would not interfere with the actual operation of the vessel.
The fee requirement in § 115.9(a) was redundant because § 115.9(c) already requires that the applicable fee be attached to the application. Thus, the Commission deleted the fee requirement in § 115.9(a). The Commission also amended § 115.9(d) to be more specific concerning examination requirements for the oral and practical test. Prior regulations required a Boating Safety Education Certificate for crewmembers but not the operator. Accordingly, the Commission amended these sections as proposed.
F. Paperwork
The final-form rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form rulemaking will impose no new costs on the private sector or the general public.
H. Public Involvement
A notice of proposed rulemaking was published at 32 Pa.B. 3490 (July 20, 2002). The Commission also sent copies of the proposed amendments to Chapter 115 to all operators of ''passengers for hire'' boats.
The Commission did not receive any public comments regarding the proposals except for the amendment to § 111.2. During the formal public comment period, the Commission received a total of 86 comments, including a form letter submitted by 63 individuals opposing the amendment to § 111.2. The Commission also received public comments before and after the formal period for accepting comments. Copies of all public comments have been provided to the Commissioners. In addition, the Commission held a public meeting on August 1, 2002, in Monroeville to give the public an additional opportunity to comment. About 40 people attended the meeting and expressed a wide divergence of views.
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) A public comment period was provided, and the comments that were received were considered.
(3) The adoption of the final-form rulemaking 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 101, 109, 111 and 115, are amended by amending §§ 101.2, 109.3, 115.4, 115.8 and 115.9 to read as set forth at 32 Pa.B. 3490 and by amending § 111.2 to read as set forth in Annex A.
(b) The Executive Director will submit this order, 32 Pa.B. 3490 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, 32 Pa.B. 3490 and Annex A and deposit them 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-128 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart C. BOATING
CHAPTER 111. SPECIAL REGULATIONS COUNTIES § 111.2. Allegheny County.
(a) Allegheny River. The following special regulations apply to the Allegheny River:
(1) Boats are limited to slow, minimum height swell speed from Miles 12.8 to Lock and Dam Number 2 at Mile 14.5 in the back channel of Twelve and Fourteen Mile Islands.
(2) The area behind Nine Mile Island, Mile 10.0 to Mile 10.4 is a designated ski zone. Boats not actively engaged in towing water skiers are limited to slow, minimum height swell speed.
(b) Monongahela River. Water skiing is prohibited from the Glassport Bridge (Mile 19.4) to the Union Railroad Bridge (Mile 21.1) at Clairton.
(c) Allegheny, Monongahela and Ohio Rivers (City of Pittsburgh). Boats are limited to slow, minimum height swell speed from the Fort Pitt Bridge over the Monongahela River and the Fort Wayne (Norfolk Southern) Bridge over the Allegheny River to the West End Bridge over the Ohio River. This zone shall be in effect on weekends from May 1 to October 1 from 3 p.m. Friday until midnight Sunday and from 3 p.m. on the day preceding Memorial Day, July 4 and Labor Day until midnight of the holiday.
(d) Youghiogheny River. Boats are limited to slow, minimum height swell speed from the mouth of the Youghiogheny River to the McKeesport Access Area, a distance of about 200 yards.
[Pa.B. Doc. No. 02-2054. Filed for public inspection November 15, 2002, 9:00 a.m.]
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