[32 Pa.B. 5843]
[Continued from previous Web Page] Comment
Section 11.220(c)(1)(iv)(A) and (2)(iii)(B) waives watercraft requirements for ''State park-licensed concession watercraft.'' Assuming the watercraft requirements are for purposes of safety, why are ''State park-licensed concession watercraft'' exempt?
Response
State park-licensed concession watercraft are subject to the terms of the concession license agreement rather than the regulations to allow concessionaires the opportunity to use state-of-the-art watercraft as they are developed and become available. These new models might not match the specifications required in the regulations but could nonetheless meet necessary safety standards. Under the license agreement, the concessionaire is required to obtain Department approval before using any type of watercraft in its operations.
In the Lower Youghiogheny River, concessionaires provide guided trips but do not rent out unguided watercraft. In the Middle Youghiogheny River, concessionaires provide guided trips and also rent out unguided watercraft. Section 11.220(c)(2)(iii)(A)) of the final-form rulemaking clarifies that on the Middle Youghiogheny, both guided and unguided concession watercraft are subject to the terms of the license agreement rather than the regulations.
Comment
There are three concerns with § 11.220(c)(1)(iv)(B). First, the intent of ''other than commercially-rented watercraft'' is unclear. Second, the final-form rulemaking should provide information on how watercraft operators or owners can obtain approval for high performance watercraft. Third, what are the size or performance standards that qualify as ''high performance'' and require Departmental approval?
Response
The purpose of this provision is to allow for waiver of the watercraft requirements in § 11.220(c)(1)(iii) for experienced boaters with high-performance watercraft. Waiver will not be allowed for commercially-rented watercraft, because in the experience of the Department, persons who rent watercraft tend to be less experienced than persons who use their own watercraft. To avoid confusion over the meaning of ''other than commercially-rented watercraft,'' the final-form rulemaking refers to ''watercraft rented from a boat rental business.'' Section 117.3 of 58 Pa. Code requires that boats rented out by a boat rental business be clearly marked with the name of the business.
In response to the comment concerning how a person may obtain approval of high performance watercraft, the final-form rulemaking states that a person may use watercraft that does not meet the requirements of the regulations with ''permission of the Department.'' The phrase ''permission of the Department'' is defined in § 11.201 as ''approval obtained from a park manager or designee.''
To address the question concerning the size or performance standards that qualify as ''high-performance,'' the final-form rulemaking removes the term ''high-performance'' and allows for the Department to make a determination whether the particular watercraft will be safe for use, taking into account durability, buoyancy and maneuverability.
Comment
In § 11.220(c)(3), prohibiting waterfall running at Ohiopyle State Park, the river segment to which it applies should be clearly identified.
Response
The final-form rulemaking identifies the section of the Youghiogheny River to which the waterfall provision applies. The section is identified as extending from Bike Trail Bridge to and including Ohiopyle Falls.
Comment
Section 11.220(c)(3) should be amended to identify the process and procedures for obtaining written permission to run Ohiopyle Falls. Can representatives of a group obtain approval or written permission for group members or must each individual apply separately?
Response
The final-form rulemaking allows waterfall running unless posting states otherwise. The posting which would inform the public that waterfall running is prohibited would also state that permission to run the falls may be granted under a special activities agreement obtainable through the park office. A person or organization who contacts the park office will be informed about the procedures for entering into a special activities agreement, including the fact that a group representative may sign the agreement on behalf of the group.
Comment
In § 11.220(d) (regarding Lehigh Gorge State Park), why are inflatable canoes and kayaks exempted from the requirements of subsection (d)(2), (3) and (4)? What are the minimal standards for these types of watercraft?
Response
The subsections addressed in the comment have been renumbered in the final-form rulemaking as subsection (d)(1), (2) and (3). These are requirements for inflatable watercraft at various flow rates ranging from 250 cubic feet per second to more than 5,000 cubic feet per second. The proposed rulemaking listed minimum requirements for three characteristics of inflatable watercraft. These characteristics were length, number of air chambers and outside tube diameter. The requirements prescribing the minimum number of air chambers have been eliminated in the final-form rulemaking. Therefore, inflatable watercraft used at Lehigh Gorge State Park are subject to the general requirement in subsection (a)(2)(ii) of ''multiple'' air chambers applicable to all inflatable watercraft, including canoes and kayaks, used at flow rates at and above 250 cubic feet per second.
The reason a minimum length requirement does not apply to inflatable canoes and inflatable kayaks is that these watercraft require maneuverability for effective performance in whitewater and maneuverability is not a function of length. The reason a minimum outside tube diameter does not apply to inflatable canoes and inflatable kayaks is that these watercraft are not constructed with tube diameters as wide as the diameters required for other whitewater watercraft (rafts). Canoes and kayaks are constructed to have enough buoyancy to carry one or two passengers without tube diameters of the width needed for rafts, which are built to carry heavier loads.
Inflatable canoes and inflatable kayaks are subject to the general requirements in § 11.220(a)(2)(ii) applicable at all the whitewater parks, including Lehigh Gorge. The general requirements are that they have multiple air chambers of a tough durable construction intended for whitewater use, they consist of a tough laminated material and they are of commercial grade.
Comment
The quota allocations for whitewater boating in the Youghiogheny River at Ohiopyle State Park unfairly favor commercial outfitters.
Response
The whitewater quota allocations in the previous regulation have been eliminated in the final-form rulemaking. Although quotas still exist, they are established by Department policy and are not part of this regulation.
Comment
The comments support the elimination of the quota provisions applicable to whitewater boating in the Youghiogheny River at Ohiopyle State Park.
Response
As noted in response to the previous comment, even though the actual quota allocations have been eliminated from this final-form rulemaking, they still exist. They are established by Department policy rather than by regulation.
Comment
Waterfall running at Ohiopyle State Park should be permitted. Persons who commented included both in-State and out-of-State boaters, many of whom are experienced kayakers and canoeists. Reasons given for opening the falls for boating were varied, and included the following: it can be safely run by an intermediate boater; these falls are ''easy'' and ''fairly benign''; waterfall running is a part of responsible, mainstream whitewater boating; inexperienced boaters will generally not attempt to run the falls; the annual race at Ohiopyle Falls demonstrates that thousands of runs over the falls can be made safely; waterfall running is permitted at other rivers managed by State and Federal agencies; the running of waterfalls is commonplace within the paddling community and the decision whether to run the falls should be left to the individual, not the government; running the falls could be permitted subject to certain restrictions, such as requiring that each group stations safety people during runs; whitewater boaters are generally safe, responsible, nonpolluting recreationalists who should not be denied this opportunity; opening the falls would bring additional visitors to the park, including nonboating spectators; promoting outdoor recreation, including ''extreme sports,'' should be a key part of the Commonwealth's strategy to keep young people in the State; this Commonwealth needs more physically active people and should not discourage this kind of activity; waterfall running should be permitted during the off-season, when the number of inexperienced whitewater tourists is low and the cold water will not be tempting except to experienced boaters; waterfall running should be permitted early and late in the day to avoid attracting spectators; the falls should be open with some ''common sense regulations'' similar to those that link raft size to river level; if the Department is concerned about safety, it should prohibit boating on other stretches of the river where there are difficult rapids; all that is needed is a sign warning inexperienced or ill-equipped people against running the falls; running the falls would allow kayakers to become familiar with the rapids, which would better equip them to conduct rescues; and the Lower Youghiogheny could go from ''an already superb kayaking destination to a world class run'' if the falls were open under appropriate water conditions.
Response
Section 11.220(c)(3) of the proposed rulemaking prohibited waterfall running on the Youghiogheny River in Ohiopyle State Park without written permission of the Department. As a result of the comments it received, the Department has changed the proposed rulemaking. The final-form rulemaking permits waterfall running unless posted otherwise.
The final-form rulemaking reflects the current policy of the Department. Under its current policy, the Department informs the public by means of posting that Ohiopyle Falls is closed for boating. The Department does, however, grant permission under a special activities agreement with American Whitewater for an annual Ohiopyle Falls race. The final-form rulemaking allows for a continuation of this policy of posting the falls as being closed for boating, but allowing for opening of the falls for special events. The Department intends to continue to monitor activities at the falls and make decisions in the future as to whether opportunities for boating at that location should be expanded. Meanwhile, posting will inform the public that the falls are closed for boating, but that permission to run the falls may be granted with written permission of the Department.
Comment
Canoeing and kayaking should be permitted on waterways in State parks other than Ohiopyle, Lehigh Gorge and McConnells Mill State Parks during times of high water (white water) unless posting prohibits this activity.
Response
As a result of the comments received on the proposed rulemaking, which prohibited all boating on bodies of water not designated for boating, the Department has made a change in the final-form rulemaking to expand nonmotorized boating opportunities. Section 11.119 of the final-form rulemaking prohibits only motorized boating on bodies of water not designated for boating. It allows nonmotorized boating in rivers, creeks and streams unless posted otherwise.
Comment
The definition of ''commercial activity'' should be changed to allow nonprofit organizations to provide guided whitewater raft trips to members of their organization. Currently, the Department grants licenses to a limited number of commercial concessionaires under which they provide guided whitewater raft trips. Nonprofit organizations, such as certain summer camps, cannot successfully compete for licenses because they are not outfitters that offer guided trips to the general public.
Response
The comment relates to the Department's policy of granting licenses to a limited number of commercial outfitters to provide guided whitewater raft trips to the public on the Youghiogheny River in Ohiopyle State Park. The Department has the authority to do this under section 303(a)(4) of the act. The only connection between this policy and the definition of ''commercial activity'' in § 11.201 is that § 11.209 requires that written permission of the Department be obtained to engage in commercial activity.
''Commercial activity'' is defined in § 11.201 as ''an activity in which a person directly or indirectly accepts consideration of value as compensation for the provision of goods or services, including transportation.'' This definition is substantially the same as the definition in the previous regulation. Under both the new and the old definition of commercial activity, a guided-raft trip provided by a nonprofit organization would be considered ''commercial activity'' and would therefore require written permission of the Department.
The Department has chosen to give written permission--in the form of license agreements--to a limited number of commercial outfitters to act as its concessionaires in providing to the public guided whitewater raft trips. However, it is the policy of the Department not to permit other organizations to provide trips because it has restricted the provision of trips to its licensed concessionaires. This is a policy decision by the Department, authorized by law, and is not addressed in the final-form rulemaking.
Comment
This comment addresses § 11.220 concerning the operation of commercial watercraft in particular sections of the Lehigh River at Lehigh Gorge State Park. Subsection (d)(6) should be amended to prohibit, in addition to commercial watercraft, ''commercially-rented watercraft'' and ''inflatable watercraft.'' Subsection (d)(7) should be amended to prohibit, in addition to commercial watercraft, ''commercially-rented watercraft.'' The comment does not explain why these changes should be made.
Response
These provisions are carried over from the previous regulations with no substantive changes. Section 11.220(d)(5) (renumbered from (d)(6) in the proposed rulemaking) prohibits commercial watercraft between the Francis E. Walter Dam and the White Haven launch area. Section 11.220(d)(6) (renumbered from (d)(7) in the proposed rulemaking) prohibits commercial watercraft between the White Haven launch area and the Rockport launch/take-out area during trout season. The purpose of prohibiting commercial watercraft in these areas is to allow persons to fish in these sections of the river without the disturbance caused by commercial watercraft traffic.
The final-form rulemaking clarifies the meaning of ''commercial watercraft.'' It replaces this term with ''guided and unguided watercraft trips provided by commercial outfitters.''
These provisions have worked successfully in the past and the Department is aware of no problems or concerns that would require a change.
Comment
In § 11.224 (relating to prices), there is no instruction on how to apply for a waiver or reduction in prices.
Response
The final-form rulemaking indicates that a request for a waiver or reduction in prices may be made to a park manager.
Comment
In § 11.224, the final-form rulemaking should state that the schedule of prices will be posted on the Department's website and should include the website address.
Response
This change has been made in the final-form rulemaking.
Comment
In § 11.224, the final-form rulemaking should include a reference to section 314 of the act, which places limitations on the setting of fees by the Department including the limitation that charges and fees ''shall be used solely for the acquisition, maintenance, operation or administration of the State Park system . . . .''
Response
This change has been made in the final-form rulemaking.
Comment
In § 11.24, which states that the Department will set reasonable prices for the sales of goods and services to the public, what is meant by the word ''reasonable''? What factors will the Department consider in determining what is ''reasonable''?
Response
The purpose of this provision is to assure the Legislature and the public that the Department does not intend to abuse its authority in establishing prices for the sales of goods and services. The ''reasonable prices'' standard is the standard recognized by the Legislature in the Public Facilities Concession Regulation Act (62 Pa.C.S. §§ 4301--4303), applicable to concessionaires in public facilities. It is an objective standard that allows for flexibility in application. It is the Department's intent to charge market prices unless specific circumstances dictate otherwise.
In addition to the changes made to the proposed rulemaking in response to the comments it received, the Department also made the following changes:
Section 11.207. Traffic and parking.
In § 11.207(a), the provision in the proposed rulemaking prohibiting operation of a motor vehicle for purposes of commercial activity without permission was deleted because it was redundant with § 11.209(a)(5), which prohibits engaging in commercial activity without written permission. ''Commercial activity'' is defined in § 11.201 as ''an activity in which a person directly or indirectly accepts consideration of value as compensation for the provision of goods or services, including transportation.''
In § 11.207(a), the provisions concerning speed limit and obedience to traffic-control devices are expanded in the final-form rulemaking to cover all vehicles, not just motor vehicles. In § 11.201, the Department has adopted the code's definition of ''vehicle.'' Generally, vehicles are devices in, upon or by which a person is or may be transported upon a highway. The term includes bicycles. All vehicles are covered by the speed limit and traffic-control device provisions because of problems in heavily used parks, where people who are walking, bicycling or using roller blades, scooters, baby buggies or motor vehicles all share the same road. Bicyclists have been clocked at 35 miles per hour on these roads and when they weave through crowds of other users, dangerous conditions result. The regulation subjecting bicyclists and operators of other types of vehicles to the same rules of traffic that apply to motorists is needed too for the safety of park visitors.
In § 11.207(b), a provision was added requiring that parking placards issued under the code to persons with disabilities be displayed in their vehicles in the manner required by the code. This provision had been inadvertently omitted from the proposed rulemaking.
In § 11.207, the provision in the proposed rulemaking that addressed the removal and storage of vehicles illegally parked was removed from the traffic and parking section and added to § 11.206 (related to property left in a State park).
In the provision on parking tickets, the final-form rulemaking states that for parking tickets issued for violations of sections 3351, 3353 or 3354(a), (b) or (d)(1) of the code, the charge will be the maximum fine as provided in the code. The proposed rulemaking specified that the charge would be $15. The reason for the change in the final-form rulemaking is to allow for the possibility of amendments to the code. Currently, the code provides that the fine for violation of section 3351 of the code is $25 and the maximum fine for violation of section 3353 or 3354(a), (b) or (d)(1) of the code is $15.
Section 11.208(b). Schedule; closure.
In § 11.208(b), the time in the morning when Point State Park is open to the public was changed from 8 a.m. in the proposed rulemaking (and the previous regulation) to sunrise in the final-form rulemaking. The reason for this change is to accommodate Pittsburgh commuters who park on the north shore and walk through the park before 8 a.m., as well as other persons who regularly walk in the park before 8 a.m. The park has staff coverage from 7 a.m. until 11 p.m. In addition, city police stationed near the park are on duty around the clock daily.
Section 11.209. Miscellaneous activities.
In § 11.209, the provision prohibiting storing or leaving food that could attract wildlife was moved from subsection (b) to subsection (a). The effect of this change is that under subsection (a), this activity will be allowed if written permission is given. The change was made to allow for permitting bird feeders at State park facilities.
A provision was added to § 11.209(b) prohibiting using drinking fountains, springs, lakes or waterways for washing purposes. This provision appeared in the previous regulation in the rules relating to camping areas. The provision was eliminated from the camping rules in the final-form rulemaking because these rules will be contained in camping permits. However, since the provision on washing applies to all park visitors, not just to campers, it was added to the final-form rulemaking.
Section 11.210. Fires.
In § 11.210, ''without written permission of the Department'' was deleted from the general statement and added to paragraphs (1) and (2) but not paragraph (3). The reason for this change is that there are no situations where permission would be given to dispose hot charcoal any place other than in a facility designated by the Department.
Section 11.212. Pets.
Section 11.212 was revised to permit guide dogs, signal dogs and other animals trained to provide assistance to persons with a disability, in areas of State parks where other pets may not be permitted, that is, swimming areas, overnight areas and buildings.
Section 11.213. Organized events; public assemblies; distribution of printed matter.
In § 11.213, the word ''permit'' was changed to ''permission'' so that the terminology would be internally consistent within this section. The requirement in subsection (b) that an application for permission be delivered to the park manager at least 24 hours in advance was deleted to allow for flexibility in handling requests for permission. Depending on the nature of the activity and other circumstances, some permissions can be granted on the spot. Others, particularly those requiring special activities agreements, might require 6 to 8 weeks for processing. The provision in subsection (c) that the Department will grant or deny permission ''without unreasonable delay'' is sufficient to allow for processing requests for all the various types of activities and circumstances.
Section 11.219. Boating.
Section 11.219 has been revised in the final-form rulemaking to allow for the use of inner tubes, body boards, surfboards, air mattresses and other similar nonwatercraft devices in creeks, streams and rivers. Children 12 years of age and under must wear United States Coast Guard-approved personal flotation devices while engaged in this activity. This revision is consistent with a longstanding policy of the Department allowing this activity.
This section was also revised to allow use of body boards and surfboards in bodies of water designated for boating. Personal flotation devices must be worn. This provision does not apply to Presque Isle State Park, where body boards and surfboards are permitted only by posting. In addition, at Presque Isle personal flotation devices are not required.
In addition, a change was made in § 11.219 concerning the use of water skis. In the proposed rulemaking, only conventional water skis were permitted in lakes that are open to motorboats with unlimited horsepower. In the final-form rulemaking, all types of water skis (as defined in § 11.201) are permitted in these lakes. They are also permitted in other lakes if posting states that they are allowed. By allowing all types of water skis in these lakes, rather than just conventional water skis, devices such as aquaplanes, kneeboards, inner tubes, inflatable hot dogs and air mattresses may be towed behind boats. However, a provision was added prohibiting, without written permission of the Department, the towing of parasails, kite skis and other devices that are intended to lift off the surface of the water. These devices are included in the definition of ''water ski'' in 58 Pa. Code § 109.4 (relating to waterskiing, aquaplaning, kiteskiing and similar activities) but are not included in the Department's definition of ''water ski'' in this chapter.
Section 11.220. Whitewater boating.
Several changes were made in § 11.220. In Subsection (a)(1), the provision allowing participants in whitewater events to wear a ''lifedeck'' personal flotation device with permission of the Department and the Commission was deleted. Lifedeck personal flotation devices are generally no longer being recognized in the whitewater industry as being useful as an alternative to the Type I, III or V personal flotation devices. The previous regulation did not allow lifedeck devices, and the Department mistakenly included the lifedeck provision in the proposed rulemaking.
In subsection (a)(2)(ii), the final-form rulemaking clarifies that the requirement of multiple air chambers for inflatable whitewater watercraft applies to the outside tube.
In subsection (b)(3) of the proposed rulemaking, which prohibited boating before sunrise or after sunset, was deleted in the final-form rulemaking because it was redundant with § 11.208(a).
In subsection (b), the prohibition against using nonwatercraft devices, such as inner tubes and body boards, was revised in the final-form rulemaking. First, ''without written permission of the Department'' was deleted, because permission to use these devices will not be given under any circumstances (except at Lehigh Gorge, which is addressed next). Second, a provision was added stating that nonwatercraft devices, such as inner tubes, surfboards, body boards and air mattresses, may be used at Lehigh Gorge State Park when the flow rate of the Lehigh River is less than 250 cubic feet per second. Children 12 years of age and under must wear a United States Coast Guard-approved personal flotation device when engaged in this activity. Allowing the use of these nonwatercraft devices at Lehigh Gorge during low flow rates is consistent with a longstanding policy of the Department.
Consistent with the provision in subsection (b) of the final-form rulemaking allowing use of nonwatercraft devices during low flow rates on the Lehigh River, subsection (d)(1) (regarding Lehigh Gorge State Park) in the proposed rulemaking was deleted in the final-form rulemaking. This paragraph required that at flow rates less than 250 cubic feet on the Lehigh River, inflatable watercraft must be at least 7 feet long and have at least two air chambers.
In subsection (c)(1)(iii), the final-form rulemaking states that inflatable canoes and inflatable kayaks are not permitted on the Lower Youghiogheny at river levels 3 feet and above. This is not a change from the proposed rulemaking, but rather a clarification. The rulemaking (proposed and final-form) requires that at these river levels inflatable watercraft must be of a specific minimum length and have a specific minimum outside tube diameter. Inflatable canoes and kayaks are not constructed in a way as to be able to meet these specifications. Therefore, the final-form rulemaking clarifies that these watercraft are prohibited.
In subsection (c)(2)(ii), the final-form rulemaking prohibits inflatable canoes and inflatable kayaks on the Middle Youghiogheny at river levels 3 feet and above. Under the proposed rulemaking, this prohibition was inadvertently omitted. The corrected provision in the final-form rulemaking is consistent with the parallel provision applicable at river levels 3 feet and above on the Lower Youghiogheny (subsection (c)(1)(iii)(B)).
In subsection (c)(2)(i), the final-form rulemaking identifies by name the launch and take-out areas on the Middle Youghiogheny River.
In subsection (d) (regarding Lehigh Gorge State Park), the requirement of at least three air chambers for inflatable watercraft at flow rates from 250 cubic feet and above has been deleted in the final-form rulemaking. The Department has concluded that the general requirement in subsection (a)(2)(ii) of ''multiple air chambers'' is sufficient to satisfy safety considerations. The final-form rulemaking is consistent with the requirements for watercraft at Ohiopyle State Park.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form rulemaking.
Benefits
This final-form rulemaking benefits the public by expanding recreational opportunities in State parks. One of the ways it accomplishes this is by placing greater reliance on posting than did the previous regulation. For example, the previous regulation specified that the leash length for pets could not exceed 6 feet. The final-form rulemaking does not mandate a maximum leash length. Instead, it states that if posting specifies a maximum length, the leash may not exceed this length. Similarly, the previous regulation prohibited buoyant devices in swimming areas. The final-form rulemaking allows them if permission is given by posting or by an on-duty lifeguard. Other examples of reliance on posting include horsepower limits for motorboats, the use of body boards and surfboards at Presque Isle State Park and the use of bicycles and other recreational equipment at Point State Park.
This final-form rulemaking expands recreational opportunities in other ways as well. It allows nonwatercraft devices (inner tubes, air mattresses, body boards and the like) in creeks, streams and rivers. It allows body boards and surfboards in boating areas. It allows nonmotorized boats, such as canoes and kayaks, in creeks, streams and rivers unless posted otherwise. It allows water skiing in lakes where motorboats with unlimited horsepower are permitted and in lakes where water skiing is permitted by posting. It allows nonwatercraft devices (inner tubes and the like) on the Lehigh River at Lehigh Gorge State Park during low flow rates.
Another benefit of this final-form rulemaking is that it defines the violation of any rule in Chapter 11 as a summary offense. Under the previous regulation, the violation of some rules was a summary offense and the violation of others was not. Not only was this inconsistency confusing, but the only means of enforcing the noncriminal rules was for the offender to be ordered to leave the park; a refusal to leave the park could then lead to a misdemeanor charge of criminal trespass. The final-form rulemaking clearly defines the violation of any rule in Chapter 11 as a summary offense. Therefore, for any violation, a summary citation may be issued or the offender may be ordered to leave the park, or both of these enforcement actions may be taken.
Compliance Costs and Paperwork Requirements
The revision of Chapter 11 will result in no additional costs or paperwork requirements for the general public, local governments or the private sector. The costs for the Commonwealth will be minimal. They will consist of the Department's costs in revising rules and regulations booklets, summaries of rules and regulations for posting in State parks, websites and permits to include conditions that are being eliminated from Chapter 11, posting horsepower limits for motorboats and posting length limits for pet leashes.
G. Sunset Review
Chapter 11 will be monitored by the Department to determine whether the regulations effectively fulfill the goals which they were intended to accomplish.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 13, 2002, the Department submitted a copy of the notice of proposed rulemaking published at 32 Pa.B. 1611, to IRRC and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Department has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on October 10, 2002, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 24, 2002, and approved the final-form rulemaking.
Order
The Secretary, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 17 Pa. Code Chapter 11, are amended by deleting §§ 11.1--11.16, 11.21--11.27, 11.31--11.39, 11.41--11.52, 11.61--11.83, 11.91--11.96, 11.101, 11.102, 11.111--11.124 and 11.151--11.164 and by adding 11.201--1.224 to read as set forth in Annex A.
(b) The Department shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form, as required by law.
(c) The Department shall submit this order and Annex A to the Independent Regulatory Review Commission and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect upon final publication in the Pennsylvania Bulletin.
JOHN C. OLIVER,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 32 Pa.B. 5582 (November 9, 2002).)
Fiscal Note: Fiscal Note 7B-3 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 17. CONSERVATION AND NATURAL RESOURCES
PART I. DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES
Subpart B. STATE PARKS
CHAPTER 11. GENERAL PROVISIONS Sec.
11.1--11.16. (Reserved). 11.21--11.27. (Reserved). 11.31--11.39. (Reserved). 11.41--11.52. (Reserved). 11.61--11.83. (Reserved). 11.91--11.96. (Reserved). 11.101--11.102. (Reserved). 11.111--11.124. (Reserved). 11.151--11.164. (Reserved). 11.201. Definitions. 11.202. Scope. 11.203. State park waters. 11.204. Application of Fish and Boat Commission rules and Game Commission rules. 11.205. Trespass. 11.206. Property left in a State park. 11.207. Traffic and parking. 11.208. Schedule; closure. 11.209. Miscellaneous activities. 11.210. Fires. 11.211. Natural resources. 11.212. Pets. 11.213. Organized events; public assemblies; distribution of printed matter. 11.214. Waste. 11.215. Weapons and hunting. 11.216. General recreational activity; horses; snowmobiles; all-terrain vehicles; mountain bikes. 11.217. Swimming. 11.218. Camping; overnight facilities. 11.219. Boating. 11.220. Whitewater boating. 11.221. Special provisions for Point State Park. 11.222. Special provisions for Presque Isle State Park. 11.223. Violation of rules regarding conduct in State parks. 11.224. Prices. §§ 11.1--11.16. (Reserved).
§§ 11.21--11.27. (Reserved).
§§ 11.31--11.39. (Reserved).
§§ 11.41--11.52. (Reserved).
§§ 11.61--11.83. (Reserved).
§§ 11.91--11.96. (Reserved).
§ 11.101. (Reserved).
§ 11.102. (Reserved).
§§ 11.111--11.124. (Reserved).
§§ 11.151--11.164. (Reserved).
§ 11.201. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act---The Conservation and Natural Resources Act (71 P. S. §§ 1340.101--1340.1102).
All-terrain vehicle--An all-terrain vehicle as defined in section 7702 of the Vehicle Code (relating to definitions).
Commercial activity--An activity in which a person directly or indirectly accepts consideration of value as compensation for the provision of goods or services, including transportation.
Crimes Code--Title 18 Pennsylvania Consolidated Statutes.
Department--
(i) The Department of Conservation and Natural Resources of the Commonwealth.
(ii) The term includes authorized officials of the Department.
Designated swimming area--
(i) A swimming pool, wading pool or the area of a natural or artificially constructed pond, lake, stream, river, bay, tidal waters or other body of water, which is designated, developed, maintained and operated by a State park for swimming purposes.
(ii) The term includes the land, buildings, equipment and appurtenances used in connection with the body of water.
Fish and Boat Code--Title 30 Pennsylvania Consolidated Statutes.
Game and Wildlife Code--Title 34 Pennsylvania Consolidated Statutes.
Motor vehicle--
(i) As defined in section 102 of the Vehicle Code (relating to definitions).
(ii) The term does not include a snowmobile or all-terrain vehicle as defined in section 7702 of the Vehicle Code.
Official traffic-control devices--Official traffic-control devices as defined in section 102 of the Vehicle Code.
Permission of the Department or permitted by the Department--Approval obtained from a park manager or designee.
Person--A corporation, company, club, firm, association, society, partnership, joint stock company, governmental agency or individual.
Permit--Written approval obtained from a park manager or designee on a form prescribed by the Department.
Personal watercraft--As defined in 58 Pa. Code § 109.3 (relating to personal watercraft).
Pet--
(i) A dog, cat or other animal that has been domesticated.
(ii) The term does not include bovine or equine animals or poultry.
Snowmobile--As defined in section 7702 of the Vehicle Code.
State park--
(i) An area under the jurisdiction of the Department acquired or administered as a park under section 303 of the act (71 P. S. § 1340.303) or designated or administered as a park under section 302(a)(12) of the act (71 P. S. § 1340.302(a)(12)).
(ii) The term includes:
(A) A State park.
(B) A State park preserve.
(C) A parkway.
(D) A conservation area as defined in § 44.1 (relating to defined) that is administered and managed by the Department's Bureau of State Parks.
(E) A State Park Natural Area as defined in § 17.2 (relating to State Parks Natural Area definition).
(F) An environmental education center administered by the Department's Bureau of State Parks.
(G) State park waters under § 11.203 (relating to State park waters).
Summer season--The period beginning on the Saturday of Memorial Day weekend and continuing through Labor Day.
Vehicle--As defined in section 102 of the Vehicle Code.
Vehicle Code--Title 75 Pennsylvania Consolidated Statutes.
Watercraft--As defined in section 102 of the Fish and Boat Code (relating to definitions).
Water ski--
(i) A device used by a person to be towed through or on water behind a boat.
(ii) The term includes conventional water skis, aquaplanes, kneeboards, inner tubes, inflatable hot dogs and air mattresses.
(iii) The term does not include parasails, kite skis, and other devices intended to lift off the surface of the water.
§ 11.202. Scope.
(a) This chapter applies to State parks.
(b) The restrictions in this chapter do not apply to authorized Department employees, authorized volunteers and concessionaires acting within the scope of their duties or concession agreement, or to Federal, State and municipal law enforcement officers performing their official duties.
§ 11.203. State park waters.
The Department has jurisdiction over the following bodies of water:
(1) General.
(i) Lakes, impoundments and other bodies of water that are wholly owned by the Department or completely surrounded by State park land.
(ii) Creeks, streams and nonnavigable rivers that run through or along State parks.
(iii) Water areas within a 100-foot safety zone around launching, swimming, docking, mooring and marina facilities at State parks.
(2) Presque Isle State Park. Misery Bay, Marina Lake, Thompson Bay, Horseshoe Pond, Duck Pond, lagoons and all the waters in Lake Erie and Presque Isle Bay within 500 feet of the low-water mark of the peninsula of Presque Isle, under section 9 of the act of May 27, 1921 (P. L. 1180, No. 436) (32 P. S. § 923), regarding dedication of lands, and section 5 of the act of May 27, 1921 (P. L. 1180, No. 436) (55 P. S. § 361), regarding entry upon dedicated lands; rules and regulations.
(3) Pymatuning State Park. Pymatuning Lake, under section 3 of the act of May 2, 1929 (P. L. 1530, No. 456) (32 P. S. § 763), regarding construction of dam; use of reservoir and surrounding lands for recreation and other purposes; and rules and regulations.
§ 11.204. Application of Fish and Boat Commission rules and Game Commission rules.
Title 58 Pa. Code Parts II and III (relating to Fish and Boat Commission; and Game Commission) applies in State parks to activities under the jurisdiction of the Fish and Boat Commission and the Game Commission. To the extent that this chapter is more restrictive than 58 Pa. Code Part II or III, this chapter applies.
§ 11.205. Trespass.
(a) A person who violates this chapter, disregards an instruction or warning given by a Department-commissioned officer or interferes in the performance of the duties of a Department-commissioned officer may be ordered to leave a State park.
(b) A person who refuses to leave a State park after receiving an order to leave from a Department-commissioned officer commits an act of criminal trespass under section 3503(b) of the Crimes Code (relating to criminal trespass).
§ 11.206. Property left in a State park.
(a) Property that has been left in a State park for more than 24 hours without written permission of the Department, property that impedes public access or navigation, or vehicles or other property parked in violation of § 11.207(b) (relating to traffic and parking) may be moved or removed by the Department and placed in storage at the State park. The property may be subject to disposal under Article XIII.1 of The Fiscal Code (72 P. S. §§ 1301.1--1301.29) or as otherwise provided by law or by agreement between the owner and the Department.
(b) Property that has been stored under this section will be released from storage only upon adequate proof of ownership and payment of the charges established under § 11.224 (relating to prices).
§ 11.207. Traffic and parking.
(a) Traffic. The following are prohibited:
(1) Operation of a vehicle on a State park road at a speed in excess of the posted limit or, where no speed limit is posted, in excess of 25 miles per hour.
(2) Operation of a motor vehicle on a State park road, lane, trail or area that is posted as closed to motor vehicles, except with permission of the Department.
(3) Operation of a motor vehicle off a road or outside a parking area, except on a trail or in an area posted as open to motor vehicles, or except with written permission of the Department.
(4) Operation of a vehicle not in obedience to official traffic-control devices.
(b) Parking. The following activities are prohibited:
(1) Parking a motor vehicle, boat trailer, camp trailer or other vehicle or equipment in an area designated by the Department for persons with a disability unless one of the following requirements is met:
(i) Permission has been given to a user of the vehicle under subsection (c) and the user is in compliance with the conditions of the permission.
(ii) A valid plate or valid placard has been issued to a user of the vehicle under section 1338 or section 1342(a) or (b) of the Vehicle Code (relating to person with disability plate and placard; and veteran plates and placard). 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 of this subparagraph. Placards shall be displayed in the manner required by section 1338(b) or 1342(b) of the Vehicle Code.
(2) Parking a vehicle in violation of section 1338, 1342 or 3354(d)(2), (d)(3) or (e) of the Vehicle Code.
(3) Parking a motor vehicle, boat trailer, camp trailer or other vehicle or equipment as follows without written permission of the Department:
(i) In an area other than an area designated by the Department for parking.
(ii) In a location that obstructs a gate, road, trail, footpath, bicycle path, access way, drinking fountain, entrance, exit or road turnaround.
(iii) In an area that is posted as closed.
(iv) At an overnight facility.
(v) When the park is closed under § 11.208 (relating to schedule; closure).
(4) Parking a bus in an area that is not designated for buses.
(c) Persons with disabilities.
(1) A person who, because of a disability, requires a motorized vehicle to gain access to a portion or portions of a State park may request written permission of the Department to use a motorized vehicle in areas of a State park not otherwise open for motorized vehicle use by the public.
(2) A person who has received permission under paragraph (1) shall comply with the written conditions of the permission.
(d) Violations.
(1) Summary offense.
(i) Except as provided in subparagraph (ii), a violation of this section constitutes a summary offense under section 7505 of the Crimes Code (relating to violation of governmental rules regarding traffic).
(ii) A violation of subsection (b)(2) constitutes a summary offense under the Vehicle Code.
(2) Parking tickets.
(i) For a violation of subsection (b)(1), (3) or (4) or for violation of section 3351, 3353 or 3354(a), (b) or (d)(1) of the Vehicle Code (relating to stopping, standing and parking outside business and residence districts; prohibitions in specified places; and additional parking regulations), Department may issue a parking ticket, as provided for in 234 Pa. Code Rule 401 (relating to means of instituting proceedings in summary cases charging parking violations), which will be handed to the violator or placed on the windshield of the violator's vehicle.
(ii) If it has issued a parking ticket, the Department will file a citation only if the violator fails to pay a charge to the Department in the amount provided in clause (A) or (B) within 5 days of the violation and in the manner specified on the ticket.
(A) For violations of subsection (b)(1), (3) or (4), the charge will be in the amount of the maximum fine as provided in section 7505 of the Crimes Code.
(B) For violations of section 3351, 3353 or 3354(a), (b) or (d)(1) of the Vehicle Code, the charge will be in the amount of the maximum fine for the offense as specified in the Vehicle Code.
(iii) If it has not issued a parking ticket, the Department may issue a citation as provided for in 234 Pa. Code Rule 401.
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