RULES AND REGULATIONS
Title 17--CONSERVATION AND NATURAL RESOURCES
DEPARTMENT OF CONSERVATION
AND NATURAL RESOURCES
[17 PA. CODE CH. 11]
State Parks; General Provisions
[32 Pa.B. 5843] The Department of Conservation and Natural Resources (Department), Bureau of State Parks (Bureau), adopts amendments to Chapter 11 (relating to general provisions). The final-form rulemaking updates Chapter 11 to improve the protection of State park resources, safety of visitors and recreational opportunities of park visitors.
The final-form rulemaking also reorganizes Chapter 11 and eliminates unnecessary provisions. The previous sections of Chapter 11 are deleted and replaced with §§ 11.201--11.224.
A. Effective Date
The final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.
B. Contact Person
For further information, contact Gary Smith, Chief, Park Operations and Maintenance Division, Bureau of State Parks, P. O. Box 8551, Harrisburg, PA 17105-8551, fax (717) 783-5017 or e-mail garyksmith@state.pa.us. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available electronically through the Department's website: www.dcnr.state.pa.us.
C. Statutory Authority
This final-form rulemaking is being made under the authority in sections 303, 313 and 314 of the Conservation and Natural Resources Act (act) (71 P. S. §§ 1340.303, 1340.313 and 1340.314) and 18 Pa.C.S. §§ 7505 and 7506 (relating to violation of governmental rules regarding traffic; and violation of rules regarding conduct on Commonwealth property).
D. Background and Purpose
Under Executive Order 1996-1, ''Regulatory Review and Promulgation,'' the Department reviewed Chapter 11 and determined that it needed to be updated, reorganized and streamlined. This final-form rulemaking is intended to accomplish these objectives, as well as to incorporate the flexibility to expand recreational opportunities of the public in State parks. The provisions that formerly comprised Chapter 11 have been eliminated and replaced by new provisions to which new section numbers have been assigned.
The substance of most former provisions of Chapter 11 is retained in the amended chapter, but many of these provisions appear in a different arrangement. In addition, unnecessary provisions have been eliminated. These include provisions that would more appropriately be in the form of permit conditions rather than regulations; provisions that are matters of internal Department policy rather than rules governing conduct of the public in State parks; and provisions that merely restate Fish and Boat Commission (Commission) regulations in 58 Pa. Code (relating to recreation).
In the previous provisions of Chapter 11, many rules of conduct carried criminal penalties--the offender could be cited with a summary offense--while others did not. The only means of enforcing the latter was to order the offender to leave a State park. An offender who refused to leave could be charged with criminal trespass, a misdemeanor. In amended Chapter 11, the rules of conduct carry a criminal penalty. Therefore, the amended chapter gives officers more flexibility in enforcing the regulations--if a regulation needs to be enforced against a park visitor, the officer may either cite the offender for violating the regulation or order the offender to leave the park.
Finally, as a result of several successful pilot programs, the amended chapter liberalizes some provisions to expand recreational opportunities in State parks.
E. Summary of Comments and Responses and Changes Made in Final-Form Rulemaking
This final-form rulemaking was published as proposed on March 23, 2002 (32 Pa.B. 1611), with a 60-day public comment period. As a result of the comments received from the public and from the Independent Regulatory Review Commission (IRRC), the Department made a number of changes to the proposed rulemaking. The comments and changes are discussed.
Comment
Section 11.203 (relating to State park waters) identifies areas of water that are under the jurisdiction of the Department. If this jurisdiction is established from statute, this section may be unnecessary. What new rules or procedures does this section establish that apply to members of the public? The Department should cite the specific statutory citations that provide for the jurisdiction described in paragraph (1) and for the specific bodies of water in paragraphs (2) and (3).
Response
The purpose of this section is to inform the public what bodies of water the Department has jurisdiction over, and therefore, what bodies of water are covered by this chapter. The information, some of which is derived from statutes and some from deeds, is not readily available anywhere else. In the final-form rulemaking, statutory cites have been added to paragraphs (2) and (3) (regarding Presque Isle State Park; and Pymatuning State Park).
Comment
State parks should not be open for hunting and trapping 24 hours a day because of excessive disturbance to animals and nonhunting visitors to the parks. The Department should explain why these activities should be allowed 24 hours a day.
Response
The Department recognizes that the proposed rulemaking could be misleading. It appears to allow all hunting and trapping 24 hours a day. Hunting and trapping are regulated by the Game Commission, not the Department. Therefore, the Department does not have the authority to expand hours for these activities beyond the hours permitted by the Game Commission. The final-form rulemaking clarifies that hunting and trapping are permitted during hours permitted for these activities under the Game Commission regulations.
Comment
State parks should not be open for fishing 24 hours a day. It would be difficult to enforce this provision against persons who might use the park during the night for purposes other than fishing.
Response
The provision allowing fishing and boating 24 hours a day is not a change from the previous regulation, which was successfully implemented and enforced for many years.
Comment
Allowing snowmobiling 24 hours a day will result in excessive noise, which could adversely impact wildlife and overnight park visitors. Are snowmobiles limited to certain areas or designated trails? The Department should explain why this activity should be allowed 24 hours a day.
Response
Snowmobiling has been permitted 24 hours a day in State parks for many years. This policy has been implemented successfully and is now being incorporated in the Department's regulations. Snowmobiling, which is subject to noise level requirements under § 51.91 (relating to snowmobile noise level requirements), is restricted to specifically designated snowmobile trails. The number of persons who engage in snowmobiling during overnight hours and the number of persons who engage in overnight camping in the winter are relatively low and therefore the opportunity for conflict is minimal.
Comment
Should § 11.208 (relating to schedule; closure) include camping or use of overnight facilities as a 24-hour activity and reference § 11.218 (relating to camping; overnight facilities)?
Response
The final-form rulemaking has a provision referencing camping and overnight facilities in § 11.218.
Comment
Motor vehicles and motorboats should not be allowed in State parks because of the noise, disturbance and environmental damage they cause.
Response
Motor vehicles were permitted in all State parks and motorboats were permitted in selected State parks under previous regulations. This permission is continued under the final-form rulemaking. Pleasure driving is one of the most popular activities in State parks. Motorboating is also a popular form of recreation for which the Department wishes to continue to provide opportunities. Depending on the size and characteristics of the particular body of water, the Department restricts the type and size of boat motors. The Department does not permit motorboating on some lakes.
Comment
The format of certain sections of the proposed rulemaking is confusing because the sections are written in the negative as lists of prohibitions. This negative format becomes even more complicated when an allowed activity is stipulated as an exception to the prohibition. Chapter 8 of the Pennsylvania Code & Bulletin Style Manual recommends ''directness'' and the use of ''positive ideas'' rather than ''exceptions'' in drafting regulations.
Response
The Department reviewed the proposed rulemaking and made changes in several sections to improve clarity. These sections are noted elsewhere in the Preamble. Although some of the sections could be stated as ''positive ideas'' many cannot be phrased this way without sounding awkward and confusing. Since engaging in an activity that is prohibited in the regulations is a summary offense, the Department chose to maintain a generally consistent format of listing prohibitions.
Comment
Section 11.207(b)(3) (relating to traffic and parking) states, ''The following activities are prohibited: . . . Parking a bus in an area that is posted as being closed for buses.'' This could mean that every area in the park not intended for bus parking would need to be posted.
Response
The Department changed this provision in the final-form rulemaking. The final-form rulemaking states that parking a bus in an area that is not designated for buses is prohibited.
Comment
Section 11.207 should include a specific reference to the definition of ''motor vehicle'' in 75 Pa.C.S. (relating to the Vehicle Code) (code).
Response
This change has been made in the final-form rulemaking by defining ''motor vehicle'' in § 11.201 (relating to definitions). The definition includes references to specific sections of the code.
Comment
Section 11.211 (relating to natural resources) is confusing because paragraph (1) is a prohibition that contains exceptions to the prohibition. The exceptions in paragraph (1) (i) and (ii) could stand alone as positive statements.
Response
The Department changed this section in the final-form rulemaking to improve clarity. As suggested in the comment, the exceptions that appeared under paragraph (1) in the proposed rulemaking now stand alone as permitted activities in a new subsection (b).
Comment
A number of provisions in the rulemaking include phrases such as ''permission of the Department'' or ''approved by the Department.'' Also, references are made to permits. The final-form rulemaking should inform the reader how to apply for approval or a permit.
Response
Persons who wish to engage in an activity which requires Department permission under this chapter may request permission from the park manager. Definitions of ''permission of the Department'' and ''permit'' have been added to § 11.201 in the final-form rulemaking. ''Permission of the Department'' is defined to mean approval obtained from a park manager. ''Permit'' is defined to mean written approval obtained from a park manager on a form prescribed by the Department.
Comment
Section 11.207, which refers to traffic-control devices, should include a specific reference to the code definition of ''official traffic-control devices.''
Response
This change has been made in the final-form rulemaking by defining ''official traffic-control devices'' in § 11.201. The definition includes a specific reference to 75 Pa.C.S. § 102 (relating to definitions).
Comment
Proposed § 11.207(b)(1) uses the terms ''a person with a disability'' or ''severely disabled veteran.'' Paragraph (1)(i) and (ii) should be combined into one paragraph or subsection. The new subsection need only refer to a valid plate or placard issued in accordance with sections 1338 and 1342(a) and (b) of the code (relating to person with disability plate and placard; and veteran plate and placard).
Response
This change has been made in the final-form rulemaking. See § 11.207(b)(1)(ii).
Comment
Section 11.207(b)(1)(i) and (ii) contains the phrase ''or a substantially equivalent issuance from another state.'' We have two concerns with this phrase. First, how would a person with an out-of-State plate know whether it is ''substantially equivalent'' to a Pennsylvania plate? Since other jurisdictions issue plates and placards, any valid plate or placard from another jurisdiction should be allowed. Our second concern is that the rulemaking should be expanded beyond ''another state'' to include jurisdictions such as Canadian provinces and the District of Columbia.
Response
The final-form rulemaking addresses these concerns. See § 11.207(b)(1)(ii). It states that a valid plate or valid placard issued by another state, the District of Columbia or a Canadian province for a person with a disability is deemed to be in compliance with the plate and placard requirements.
Comment
Section 11.207(b)(1)(iii) is confusing because it refers to a ''placard . . . indicating issuance of authorization to operate the vehicle on State park land'' with no reference to parking or people with disabilities. The paragraph does not include the word ''disability.'' It is our understanding that it is referring to a placard that is part of the Department's policy for fostering greater access to State parks for persons with disabilities. People with disabilities who use a motor vehicle for personal mobility may obtain a placard from the Department to use their vehicle on pathways where other motor vehicles are prohibited. There are two concerns.
First, the Department should consider formalizing this policy by adding a new subsection to § 11.207 indicating that persons with disabilities who use this type of personal vehicle may apply to the Bureau for this placard.
Second, § 11.207(b)(1)(iii) should be amended to explain that paragraph (1)(iii) is limited to people with disabilities who use a motor vehicle for personal mobility.
Response
The final-form rulemaking addresses these concerns. Subsection (c) states the process for persons with disabilities to request permission to use a motorized vehicle on State park land. Subsection (b) states that a person who has received this permission may park in an area designated for persons with disabilities. In addition, § 11.216(c) and (d) (relating to general recreational activity; horses; snowmobiles; all-terrain vehicles; mountain bikes) has been modified to specify that permission for persons with disabilities to use a snowmobile or an all-terrain vehicle (ATV) in areas not otherwise open for this use may be given in accordance with § 11.207(c).
Comment
Section 11.207(e)(2) and (3) of the proposed rulemaking includes citations to 234 Pa. Code (relating to rules of criminal procedure). These should cite the specific rules in 234 Pa. Code that apply.
Response
The final-form rulemaking addresses this concern. The provisions that were in § 11.207(e) of the proposed rulemaking are in § 11.207(d)(2)(ii) and (iii) of the final-form rulemaking. The citations to 234 Pa. Code include the citation to the applicable rule (Rule 401).
Comment
Proposed § 11.207(f) specifies that the fine for a parking ticket is $15 and references sections 3351--3354 of the code. However, the minimum fine for parking in spaces reserved for a person with a disability is $50 and fines may be greater under section 3354(f) and (g) of the code (relating to additional parking regulations). The rulemaking should directly specify or reference the fines for violations of parking provisions of the code.
Response
The final-form rulemaking addresses this concern in subsection (d)(2)(i). For violations of sections 3351 and 3353 of the code (relating to stopping, standing and parking outside business and residence districts; and prohibitions in specified places) and 3354(a), (b) or (d)(1) of the code, the amount charged by a parking ticket will be in the amount of the maximum fine as provided in the code. The code currently establishes a fine of $25 for violation of section 3351 of the code and $15 for violation of section 3353 or 3354(a), (b) or (d)(1) of the code.
Parking tickets will not be issued for violations of section 3354(d)(2), (3) or (e) of the code. These violations will be handled solely by issuance of summary citations. The reason tickets will not be issued for these violations is that under section 3354(f) of the code, fines for these violations can range from $50 to $200 and section 3354(g) of the code imposes an additional fine of $50 for violations of section 3354(d)(2) or (3) of the code. Rather than establishing a parking ticket charge for these violations, the Department will defer to the courts' authority to set the fine.
Comment
In proposed § 11.207, violations provisions are located separately in subsections (d) and (f). These violations provisions should be combined into one subsection that lists all violations provisions.
Response
The final-form rulemaking addresses this concern. Section 11.207(d) contains all violations provisions.
Comment
Mountain biking should not be permitted in State parks because of the environmental impact.
Response
Mountain biking is permitted on 18 designated trails in the State parks system. The new rulemaking does not expand opportunities for mountain biking; in fact it specifically restricts trail riding to trails posted for mountain biking. In considering whether to designate a trail for mountain biking, the Department applies certain guidelines. The possibility and impact of erosion and other environmental degradation are factors that the Department considers. Many parks do not have designated mountain biking trails because the Department has determined that these parks exhibit sensitive environmental conditions and are therefore not suitable for mountain biking. For the parks that do have designated trails, mountain biking clubs have been active in maintaining the trails.
Comment
With regard to the two provisions prohibiting causing noise that ''would likely annoy or disturb a reasonable person of normal sensitivities,'' how will the Department interpret the phrase a ''reasonable person of normal sensitivities''?
Response
In the proposed rulemaking, these provisions appeared in § 11.207 and § 11.209 (relating to miscellaneous activities). In the final-form rulemaking, the provision in the traffic and parking section is deleted because it is redundant with the same provision appearing in the miscellaneous activities section.
The noise provision incorporates the objective ''reasonable person'' standard, which the Commonwealth Court of Pennsylvania recently upheld in a constitutional challenge. In the case of Commonwealth v. Ebaugh, 783 A.2d 846 (2001), the court stated that the phrase ''annoy or disturb a reasonable person of normal sensitivities'' is an objective standard that looks to the impact of noise upon a reasonable person under the particular circumstances of the incident, and that a person of ordinary intelligence would understand what conduct violates this standard.
Comment
What is the intent of § 11.208(h), which states that the Department may prohibit certain uses or activities in a State park, portion of a State park or State park facility? What types of activities may be prohibited? What notice will be provided to the public?
Response
The intent of subsection (h) is to put the public on notice that the Department may exercise its authority to prohibit certain activities in certain locations under certain circumstances. For example, a swimming area might be closed temporarily if testing reveals that the water is unsafe. Lake Erie at Presque Isle State Park might be closed temporarily for swimming during periods of high waves or strong undertow. Day use areas that have been flooded might be closed. A pavilion that has been struck by a falling tree might be determined to be unsafe and closed temporarily. A water main break might necessitate the closing of a restroom. The Department advises the public of these closures and restrictions by posting. Depending on the circumstances, the Department may also issue a press release.
Comment
In § 11.210 (relating to fires), the phrase ''without written permission of the Department'' is duplicative of the Department's discretion stated in paragraphs (1) and (3). The phrase is also misleading because it implies the possibility the Department would grant written permission to leave a fire unattended.
Response
It should initially be noted that in the proposed rulemaking three fire-related activities were listed as being prohibited without written permission of the Department. In the final-form rulemaking, one of these activities (disposing hot charcoal except in designated facility) is prohibited absolutely (that is, it is not conditioned on receiving written permission).
Other than that modification, the Department has retained the language of the proposed rulemaking. It disagrees with the comment that the regulation contains duplications and is misleading. Section 11.210 lists two activities that are prohibited without written permission of the Department. One of these activities is starting or maintaining a fire except in a facility designated for fires. An example of a situation in which the Department has given written permission to have a fire in an area other than a designated facility is at Presque Isle State Park where the Department has permitted bonfires on the beaches during Discover Presque Isle Days. The other activity that is prohibited without written permission of the Department is leaving a fire unattended. An example of a situation in which the Department has given written permission to leave a fire unattended is when a charcoal-making demonstration is being conducted. Because this process takes several days to complete, there are periods when the fire will be unattended.
Comment
A State park may need to restrict fires in dry periods or drought to prevent forest fires. Although there is a general provision in § 11.208 prohibiting activities, § 11.210 should include notice that fires may be further restricted by a State park due to drought or dry forest conditions.
Response
As pointed out in the comment, in § 11.208, the Department advises the public of its authority to restrict activities in particular areas when circumstances dictate. The Department acknowledges that there are times when it bans fires in particular parks due to the level of forest fire danger. During these times, signs are posted at the location informing the public of the fire ban. The Department prefers to rely on § 11.208 and this posting rather than stating in § 11.210 that it may post restrictions during times of forest fire danger. It prefers not to single out the fires section of the rulemaking in which to advise of the possibility of further restrictions by posting, because this possibility applies to all activities in State parks.
Comment
A ''pet'' is defined in the proposed rulemaking as ''a dog, cat or other domestic animal.'' It is unclear what other types of animals would qualify as domestic animals.
Response
To clarify the meaning of ''pet,'' § 11.201(i) of the final-form rulemaking defines ''pet'' as ''A dog, cat or other animal that has been domesticated. This term does not include bovine or equine animals or poultry.''
Comment
It is not reasonable to allow pets in recreation areas but not in camping areas. Having pets in camping areas is safer and more sanitary than in recreation areas because owners keep their pets inside their trailers, recreational vehicles or tents and almost all are trained to relieve themselves only where their owners permit and most owners pick up after them. A two pet limit and $1 per night charge per pet in overnight areas is suggested. Cats should be permitted in camping areas.
Response
Under both the previous regulation and the final-form rulemaking, pets are allowed in State parks, but they are not allowed in swimming areas and they are not allowed in overnight areas unless the overnight area has been designated for pets.
The Department has tried to be responsive to both those who desire the opportunity to have their pets with them in overnight areas and those who object to allowing pets in overnight areas. It has tried to balance these concerns by instituting a pilot program in 2001. Under the pilot program, pets are permitted in campgrounds in ten State parks. There is a two pet limit for noncaged pets and a $2 per night charge for each pet. The pilot program has been generally well received by the public. The final-form rulemaking does not affect this pilot program. The Department has announced an expansion of the pilot program to additional parks in 2003.
Comment
Pets should not be allowed in overnight areas because of the smell of dog urine and the failure of owners to dispose of droppings.
Response
The Department has tried to be responsive to both those who desire the opportunity to have their pets with them in overnight areas and those who object to allowing pets in overnight areas. It has tried to balance these concerns by instituting a pilot program in which it has permitted pets in some but not all overnight areas. The final-form rulemaking adds a requirement that pet droppings be disposed of properly.
Comment
With regard to the provision concerning pets in overnight areas in § 11.212 (relating to pets), the Department should explain whether the rulemaking is a change in policy and what restrictions apply to pets in overnight areas. If there is no change in policy, the Department should consider amending the language in the rulemaking to state that pets are permitted in overnight areas subject to restrictions.
Response
Under both the previous regulations and final-form rulemaking, pets are allowed in State parks, but they are not allowed in swimming areas and they are not allowed in overnight areas unless the overnight area has been designated for pets. Both the previous regulation and the final-form rulemaking require that pets be attended and under control at all times.
The final-form rulemaking adds other restrictions that were not included in the previous regulations. It requires that pets do not behave in a manner that may reasonably be expected to disturb or intimidate another person or that may cause damage to property. Pet droppings must be disposed of in trash receptacles or outside the park. Pets must be licensed and vaccinated.
Additional restrictions are posted at overnight areas designated for pets: pets may be walked only in the woods behind the campsite or in a designated pet walking area; they may not be walked through the campground or through any site other than the owner's site; and they are allowed off their campsite only when on the way to or from a pet walking area or to a day use area. Pet food may not be left outside a camping unit or vehicle.
Concerning the suggestion that the Department consider amending the language in the final-form rulemaking to permit pets in overnight areas subject to restrictions, the Department has tried to be responsive to both those who wish to have their pets with them in overnight areas, and those who object--for reasons such as allergies, noise or other types of disturbances or annoyances--to allowing pets in overnight areas. It has tried to balance these concerns by instituting a pilot program in which it has permitted pets in some, but not all, overnight areas.
Comment
The leash requirement should not be relaxed because of the possibility of dog attacks.
Response
Under the previous regulations, the maximum leash length was 6 feet. The final-form rulemaking does not specify a leash length, but allows for establishment of leash length by posting. Removing the leash length requirement from the final-form rulemaking allows the Department to tailor leash length requirements to specific areas in each park. The Department anticipates that the 6-foot maximum leash length will continue to be the rule on certain trails.
Comment
Why are hunting dogs exempt from two of the requirements that apply to other pets, namely the requirement that they not behave in a manner that may reasonably be expected to disturb or intimidate another person or may cause damage to property?
Response
By their very nature, hunting dogs engaged in hunting could violate these requirements that apply to pets. For example, hunting dogs could offend persons who object to hunting, engage in behavior such as barking that could disturb other persons or cause damage to flora and fauna. Therefore, unless they are exempted from the requirements that apply to pets, hunting dogs would effectively be prohibited in State parks.
Comment
Section 11.213 (relating to organized events; public assemblies; distribution of printed matter) requires that an application for permission to engage in an organized event be submitted on a form prescribed by the Department. The final-form rulemaking should include information on how to obtain the form.
Response
The final-form rulemaking states that the form may be obtained from a park manager.
Comment
Section 11.213 does not specify the minimum size of an event or group to which the restrictions apply. It should specify the minimum number of people that constitutes a group or event covered by this section. It should clearly state what specific activities require a permit. In subsection (c), which states that the Department will grant or deny a permit without ''unreasonable delay,'' what is ''unreasonable delay''?
Response
Many factors--such as the size of the park, size of the event, facilities available, number of visitors, whether other events and activities are being held and if so the location, number of participants and facilities used--affect the impact of a particular group or event in a particular State park at a particular time. Examples of organized activities at State parks are Easter egg hunts, environmental fairs, fireworks displays, class field trips, graduation parties, kayak races, hot air ballooning, bicycle club activities, hang gliding, model airplane demonstrations, marathons, roller blade races, search and rescue training, volksmarches and wedding ceremonies. State parks regulations have always included an organized activity provision similar to this final-form rulemaking. It has been workable, the public has generally understood it and the parks have been able to work with the public in accommodating many kinds of activities. For these reasons, the Department has not added the specificity suggested by the comment.
Similarly, concerning the issue of ''unreasonable delay,'' it would be impossible to state in the final-form rulemaking the precise number of days it would take the Department to deny or grant permission to engage in an organized event. Depending on staff availability and the nature of the activity, some permissions can be granted when a visitor makes the request at a park office. Others, such as those requiring special activities agreements (which may require substantial study and evaluation and various levels of approval within the Department), might take from 6 to 8 weeks.
Comment
Section 11.215 (relating to weapons and hunting) refers generally to 34 Pa.C.S. (relating to the Game and Wildlife Code) (game code). The rulemaking should specifically reference the pertinent sections of the game code that apply.
Response
The game code and the Game Commission regulate the activity of hunting. The purpose of § 11.215(2) is to restrict hunting to areas of State parks designated for hunting and to generally advise the public that while engaged in hunting, they are subject to the game code. The game code would apply to the activity of hunting regardless of whether the Department's regulation states that it does. The Department prefers not to attempt to single out specific provisions of the game code that might be applicable in particular situations. However, in § 11.215(2)(iv), which states that the device used for hunting must be lawful for hunting under the game code, the final-form rulemaking cites the applicable section of the game code.
Comment
The Department should consider allowing persons who have been issued a license under 18 Pa.C.S. § 6109 (relating to licenses) to carry a firearm in State parks for purposes besides hunting or target-shooting.
Response
For reasons of public safety, the Department does not permit the carrying of firearms in State parks for purposes other than hunting and target-shooting. The high attendance rates at many State parks in the summer season can lead to confrontations between park visitors. A substantially increased level of vigilance and enforcement preparedness by park personnel would be needed if concealed weapons were permitted.
Comment
In § 11.216, greater clarity would be achieved by combining subsection (b)(1) and (4) rather than using the reference to paragraph (4) in paragraph (1).
Response
This change has been made in the final-form rulemaking.
Comment
Section 11.216(c) should specifically reference the pertinent sections of the code.
Response
Section 11.216(c) and (d) applies to the use of snowmobiles and ATVs. The subsections state that use of snowmobiles and ATVs shall be in accordance with Chapter 77 of the code (relating to snowmobiles and all-terrain vehicles). Since Chapter 77 of the code regulates the use of snowmobiles and ATVs, § 11.216 does not cite specific sections within Chapter 77 of the code. However, in the final-form rulemaking, definitions of the terms ''snowmobile'' and ''all-terrain vehicle'' have been added to § 11.201 and specific sections of the code are cited in these definitions.
Comment
Swimming should not be prohibited outside designated areas. Swimming should be permitted except where dangerous conditions exist that are not obvious.
Response
This prohibition was in the previous regulation and is simply being continued in the final-form rulemaking. Hazardous conditions could develop in a body of water at any time. It would be impossible for the Department to monitor all portions of all bodies of water in State parks for potential hazards.
Comment
In § 11.217 (relating to swimming), the Department may permit use of underwater breathing apparatus or snorkel by a diver who has been certified by an organization approved by the Department. Does the Department maintain a list of approved organizations that certify divers? If so, how can individuals obtain a copy?
Response
The final-form rulemaking states that a list of approved organizations may be obtained from the park manager.
Comment
In § 11.219 (relating to boating), subsection (b)(1) and (3) should be combined.
Response
In the proposed rulemaking, subsection (b)(1) prohibited operating watercraft on a body of water not posted as being open for boating; subsection (b)(3) prohibited operating watercraft in an impoundment not designated for boating. In the final-form rulemaking, subsection (b)(3) has been deleted because an impoundment is a type of body of water and is therefore covered in subsection (b)(1).
Comment
In § 11.219, in which specific types of watercraft are listed as prohibited, the term ''novelty-type watercraft'' is vague.
Response
In the final-form rulemaking, this term has been deleted, because of the difficulty of defining the term and because the prohibition against unseaworthy watercraft in § 11.219(e)(3)(v) adequately covers watercraft that are not suitable for boating.
Comment
In § 11.219, in which the construction requirements for inflatable watercraft are specified, why are these requirements different from the requirements for inflatable watercraft in the section on whitewater boating?
Response
In § 11.219 of the final-form rulemaking, specifications for the material with which inflatable watercraft must be constructed have been deleted. This deletion removes the inconsistency raised by this comment. The requirements for inflatable watercraft in the final regulation are the same as under the previous regulations.
Comment
The horsepower limit should not be increased in some State parks. Boats with higher horsepower will create increased noise and increased wake which will disturb other users of the park, such as kayakers, canoeists and nature watchers, as well as wildlife. The increased wake will adversely affect the shoreline.
Response
Section 11.219 of the final-form rulemaking affects the six State parks where the previous regulations established a 10 horsepower limit. The final-form rulemaking replaces the 10 horsepower limit with the requirement that motorboats in these lakes not exceed the horsepower limit as posted. Therefore, rather than specifying the horsepower limit, the final-form rulemaking allows for the limit to be established by posting. This change gives the Department the flexibility to adopt appropriate horsepower restrictions by means of posting to better fit limitations at individual lakes.
The Department is currently conducting a pilot program at lakes at the six State parks where previous regulations limited the horsepower to 10. Under the pilot program, posting at the lakes allows motorboats with a horsepower up to 18. Prior to the pilot program, it had been a common practice for boaters to attempt to circumvent the 10 horsepower limit at these lakes by modifying their motors from 9.9 to 15 horsepower or to display 10 horsepower covers on more powerful motors. Because a 15 horsepower motor is so similar in appearance--especially from a distance--to a 9.9 horsepower motor, the Department had difficulty enforcing the 10 horsepower limit at these lakes.
In general, motors that are above 18 horsepower are noticeably larger than those that are 18 horsepower or less and therefore are easy to spot by law enforcement officers. It is for this reason and because there is no discernible difference between 15 horsepower motorboats and 18 horsepower motorboats in the amount of noise and wake they produce, that the Department's pilot program permits motors up to 18 horsepower. During the pilot program, park managers are closely monitoring the lakes for signs of increased shoreline erosion or other adverse effects.
Comment
The proposed rulemaking permits use of personal watercraft on bodies of water where unlimited horsepower boats are permitted. Based on studies of collision rates, personal watercraft threaten the safety of other waterway users. The Department should review these studies.
Response
The Fish and Boat Commission routinely reviews boating accidents and has taken regulatory measures to improve the safety record and boating knowledge of personal watercraft operators. Section 109.3 of 58 Pa. Code (relating to personal watercraft) now requires that personal watercraft operators must obtain a Boating Safety Education Certificate. Since this requirement became effective in January 2000, the number of accidents involving personal watercraft has significantly decreased. The Bureau meets regularly with officials from the Commission and will continue to keep apprised of boating accident statistics involving all boats, including personal watercraft.
Comment
Should a provision be added to § 11.219 to prohibit annoying others by causing loud noises similar to the provision in § 11.207?
Response
The noise provision that had been in § 11.207 in the proposed rulemaking has been deleted in the final-form rulemaking because it was redundant with the general noise provision in § 11.209. The noise provision in § 11.209 is applicable to any activity in a State park. It should also be noted that motorboat noise is regulated by 58 Pa. Code Chapter 119 (relating to motorboat noise control).
Comment
The language concerning personal watercraft in § 11.219 is unclear. The proposed rulemaking does not define or explain the phrase ''personal watercraft, regardless of horsepower.''
Response
To eliminate confusion, the phrase ''regardless of horsepower'' has been deleted from the reference to personal watercraft in § 11.219 of the final-form rulemaking. A definition of ''personal watercraft'' has been added to § 11.201. This definition uses the definition of the term in 58 Pa. Code § 109.3.
Comment
The Fish and Boat Commission lists safety requirements for personal watercraft in 58 Pa. Code § 109.3, including a requirement for a Boating Safety Education Certificate. The Department's regulations should include or cross-reference the safety requirements at 58 Pa. Code § 109.3.
Response
As stated in § 11.204 (relating to application of Fish and Boat Commission rules and Game Commission rules), 58 Pa. Code applies in State parks. The Department has chosen not to restate or cross-reference 58 Pa. Code in Chapter 11.
Comment
In § 11.219(e), the proposed rulemaking stated that at Point State Park watercraft may be moored along the river wall ''temporarily'' during the day. The meaning of ''temporarily'' is vague. The Department should indicate the maximum time limit for mooring watercraft along the river wall during the day.
Response
The final-form rulemaking clarifies this provision by stating that watercraft may be moored along the river wall during the hours the park is open to the public.
Comment
The best way to promote clean protected areas is to prevent fishing. Debris and damage along streams results from fishing activities.
Response
The final-form rulemaking merely carries forward the provision in the previous regulations that allowed fishing in State parks. The Department acknowledges the validity of the concern about debris and will continue to enforce the prohibition against littering. See § 11.214 (relating to waste)). However, fishing is a legitimate and very popular form of recreation for which the Commonwealth issues licenses. The Department believes it should not deny the public enjoyment of the many excellent opportunities for fishing in State parks.
Comment
ATVs should continue to be restricted to designated areas and horseback riding should continue to be permitted on designated trails.
Response
The comment is supportive of the proposed rulemaking, which simply continues the provisions of the previous regulations concerning ATVs and horseback riding. The proposed rulemaking has been adopted in this final-form rulemaking.
Comment
An exception should be allowed to the prohibition in § 11.209 against ''removing or disturbing an historical or archeological artifact, relic or object.'' The exception would be for collecting artifacts, such as arrowheads, from the ground surface. The exception would be justified because the ground surface is not a dateable area and artifacts not picked up could be broken.
Response
Surface collection of artifacts, such as arrowheads, in State parks is an archeological field investigation on Commonwealth land. Under 37 Pa.C.S. §§ 501--512 (relating to the Historic Preservation Act), the Commonwealth has the exclusive right to engage in an investigation, and the public is not permitted to remove the artifacts.
Comment
Logging and drilling for oil and gas should not be permitted on State park land. A provision should be added to the final-form rulemaking prohibiting these activities. Is the public given notice and an opportunity to comment before the Department allows removal of natural resources? What factors does the Department consider in deciding whether to grant permission?
Response
Section 11.211 of the final-form rulemaking prohibits ''damaging, defacing, cutting or removing rock, shale, sand, clay, soil or other mineral product, natural object or material'' without written permission of the Department. The same section prohibits ''cutting, picking, digging, damaging or removing, in whole or in part, a living or dead tree, shrub or plant'' (with specific exceptions for gathering certain edible plants for one's own consumption and dead and down wood for use within the park in a fireplace or grill). Therefore, the proposed rulemaking prohibits logging and gas and oil drilling without Department approval.
The Department has the power and duty under the act to enter into contracts or leases for oil or gas drilling when it determines that it would be in the best interests of the Commonwealth to do so. The Department does not own the oil or gas drilling rights in most State parks, and therefore has no control over the decision to drill. However, where drilling occurs in these parks, the Department does have influence over the surface use. In State parks where the Department does own mineral rights, it will grant nondevelopmental leases for the purpose of ensuring that it receives the value of oil or gas removed from park land by wells drilled on adjoining property. Very rarely, the Department has drilled where it owns oil and gas rights, usually for the purpose of preventing the loss of the value of its mineral rights by wells drilled on adjoining property.
The Department does not permit logging in State parks where the purpose of the logging is solely commercial. The logging must achieve a benefit for the park. For example, salvage cuts have been needed due to damage caused by windstorms or insects. In addition, logging is sometimes necessary for rights-of-way, roads and park facility construction.
Comment
In § 11.220 (relating to whitewater boating), the general requirements for inflatable watercraft--''tough durable construction intended for whitewater use, consists of a tough laminated material and is of commercial grade''--is vague.
Response
The Department consulted with organizations of users, commercial outfitters and industry in formulating this standard of material and construction for inflatable whitewater watercraft. On the basis of input from these groups, it believes that the standard is understandable to the regulated community and allows for necessary flexibility in application.
Comment
In § 11.220(c)(1)(iii)(C) (regarding Ohiopyle State Park), what is meant by ''watercraft must be other than commercially rented watercraft''?
Response
This provision establishes requirements for watercraft used when river levels on the Lower Youghiogheny River are 4 feet and above. At these levels, the river is very rough and swift, and boating is dangerous for inexperienced boaters. The prohibition against commercially-rented watercraft is intended to screen out inexperienced boaters. In the experience of the Department, persons who rent watercraft tend to be less experienced than persons who use their own watercraft. In addition, boaters tend to be less likely to engage in higher risk whitewater boating if it is their own watercraft that is at risk rather than rented watercraft.
To clarify the meaning this provision, the final-form rulemaking states that watercraft rented from a boat rental business are not permitted at these river levels. Section 117.3 of 58 Pa. Code (relating to responsibilities) requires that boats rented out by a boat rental business be clearly marked with the name of the business.
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