RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CH. 105]
Boating
[34 Pa.B. 4444] The Fish and Boat Commission (Commission) amends § 105.3 (relating to unacceptable boating practices). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The final-form rulemaking makes it unlawful to engage in a practice known as ''teak surfing'' or ''drag surfing'' and to operate a motorboat at any speed when towing a person on water skis or other devices using a tow rope of 20 feet or less.
A. Effective Date
The final-form rulemaking will go into effect upon publication of this order in the Pennsylvania Bulletin.
B. Contact Person
For further information on the final-form rulemaking, contact Laurie E. Shepler, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This final-form rulemaking is available on the Commission's website: www.fish.state.pa.us.
C. Statutory Authority
The amendment to § 105.3 is published under the statutory authority of section 5123 of the code (relating to general boating regulations). A person violating § 105.3(10) or (11) commits a summary offense of the third degree for which a $50 fine is imposed.
D. Purpose and Background
The final-form rulemaking is designed to address the Commission's concerns regarding carbon monoxide (CO) poisoning. The specific purpose of the final-form rulemaking is described in more detail under the summary of changes.
Following the publication of a notice of proposed rulemaking, the Commission's Boating Advisory Board (BAB) recommended that the Commission table this item until additional information could be obtained from the National Association of State Boating Law Administrators (NASBLA) to incorporate into the proposed rulemaking. The Commission, at a subsequent meeting, deferred action on the agenda item so that Commission staff could seek input from the NASBLA and other states. At its September 2003 meeting, the NASBLA adopted a model act for ''Safe Towing Practices.'' The model act provides that no person shall operate a motorboat with a person sitting, riding or hanging onto a swim platform or swim ladder attached to the motorboat. It further provides that no person shall operate a motorboat, using a tow rope of 20 feet or less, when towing a person on water skis or other devices. Thereafter, the BAB recommended to the Commission that the proposed rulemaking be revised to clarify that occupying the swim platform during certain maneuvering activities is permitted and to make it unlawful to operate a motorboat that is towing a water-skier on a rope that is 20 feet or less in length.
E. Summary of Changes
CO is a colorless, odorless, tasteless and highly toxic gas. It is produced when a carbon-based fuel, such as gasoline, propane, charcoal or oil, burns. CO is often emitted through a boat's engine or generator exhaust outlets. As a result, CO can accumulate almost anywhere in or around a boat. It can collect under swim platforms, around the stern and inside canvas enclosures. The results can be dangerous, even fatal.
A fad called ''teak surfing'' or ''drag surfing'' is one of the riskiest activities for CO poisoning. Teak surfing involves an individual holding onto the swim platform of a boat as it accelerates and then letting go to ''surf'' the wake. Teak surfers cannot avoid the risk of inhaling dangerous levels of CO because the propulsion engines produce a very high volume of exhaust gases, usually directed straight into the area behind the boat where the teak surfers are located. There is also an inherent danger of the individual losing his grasp of the swim platform and being hit by a moving propeller. Accordingly, the Commission proposed to amend § 105.3 to make this practice unlawful.
On final-form rulemaking, the Commission adopted the proposed amendment with the clarification recommended by the BAB that occupying the swim platform during certain maneuvering activities is permitted. The Commission further made it unlawful to operate a motorboat that is towing a water skier on water skis or other devices using a tow rope of 20 feet or less in length. The Commission adopted the amendments to read as set forth in Annex A.
F. Paperwork
The final-form rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form rulemaking will impose no new costs on the private sector or the general public.
H. Public Involvement
A notice of proposed rulemaking was published at 33 Pa.B. 4077 (August 16, 2003). The Commission did not receive any comments concerning the proposed rulemaking during the formal public comment period. After the public comment period, the Commission received one public comment opposing the creation of a minimum length for the tow rope. Copies of all public comments were provided to the Commissioners.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the final-form rulemaking adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided, and the comments that were received were considered.
(3) The adoption of this final-form rulemaking in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.
Order
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 58 Pa. Code Chapter 105, are amended by amending § 105.3 to read as set forth in Annex A.
(b) The Executive Director will submit this order and Annex A to the Office of Attorney General for approval as to legality as required by law.
(c) The Executive Director shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
DOUGLAS J. AUSTEN, Ph.D,
Executive DirectorFiscal Note: Fiscal Note 48A-147 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart C. BOATING
CHAPTER 105. OPERATIONAL CONDITIONS § 105.3. Unacceptable boating practices.
It is unlawful to:
(1) Operate a motorboat not equipped with railings or other safeguards at greater than a slow, minimum height swell speed while a person is riding on bow decking, gunwales, transom or motor cover. It is not a violation of this paragraph to ride on the motor cover of an inboard motorboat while underway at that speed if the motor cover is designed by the manufacturer for the operator or a passenger to ride on it.
(2) Operate a motorboat--less than 20 feet in length--at greater than slow, minimum height swell speed while a person is standing on or in the boat. It is not a violation of this paragraph if the boat is designed for the operator or a passenger, or both, to stand while underway at that speed.
(3) Operate or stop a boat in a marked marine event area in violation of the conditions of the event.
(4) Operate or stop a boat in a manner that interferes with the conduct of a permitted marine event.
(5) Cause a boat to become airborne or completely leave the water while crossing the wake of another boat when within 100 feet of the boat creating the wake.
(6) Weave through congested traffic.
(7) Follow too close to another boat, including personal watercraft. For the purposes of this paragraph, following too close shall be construed as operating in excess of slow, minimum height swell speed within 100 feet to the rear or 50 feet to the side of another boat that is underway, unless the boats are operating in a narrow channel, in which case the boats may operate at the speed and flow of other boat traffic.
(8) Operate within 100 feet of a water-skier being towed by another boat.
(9) Operate a pontoon boat while a person is riding outside the passenger carrying area. The passenger carrying area is defined by continuous railings or enclosed spaces intended for persons to use while the pontoon boat is underway. This prohibition does not apply when the operator of the boat is docking, mooring, anchoring or rafting the pontoon boat or when the pontoon boat is underway at slow minimum height swell speed or less.
(10) Operate a motorboat at any speed with a person or persons sitting, riding or hanging on a swim platform or swim ladder attached to the motorboat, except when launching, retrieving, docking or anchoring the motorboat.
(11) Operate a motorboat at any speed when towing a person on waterskis or other devices using a tow rope of 20 feet or less.
[Pa.B. Doc. No. 04-1489. Filed for public inspection August 13, 2004, 9:00 a.m.]
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