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PA Bulletin, Doc. No. 04-2104

RULES AND REGULATIONS

[58 PA. CODE CHS. 103, 105, 107 AND 111]

Boating

[34 Pa.B. 6332]

   The Fish and Boat Commission (Commission) by this order amends Chapters 103, 105, 107 and 111 (relating to rules of the road; operational conditions; boating restrictions; and special regulations counties). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). This final-form rulemaking relates to the definition of ''slow, no wake speed'' and eliminating the term ''slow, minimum height swell speed'' as used throughout the Commission's regulations.

A.  Effective Date

   The final-form rulemaking will go into effect on January 1, 2005.

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 electronically through the Commission's website www.fish.state.pa.us.

C.  Statutory Authority

   The amendments to §§ 103.2, 103.3, 103.16, 105.3 and 107.5 are published under the statutory authority of section 5123 of the code (relating to general boating regulations). The amendments to §§ 111.2--111.4, 111.6, 111.9, 111.13, 111.14, 111.17, 111.20--111.25, 111.27, 111.30, 111.31, 111.36, 111.40--111.43, 111.46, 111.48, 111.49, 111.52, 111.56, 111.58, 111.59, 111.62, 111.64 and 111.66 are published under the statutory authority of section 5124 of the code (relating to particular areas of water).

D.  Purpose and Background

   The final-form rulemaking is designed to update, modify and improve the Commission's boating regulations. The specific purpose of the amendments is described in more detail under the summary of changes. The Commission's Boating Advisory Board considered the proposed amendments and recommended that the Commission adopt them as set forth in the notice of proposed rulemaking.

E.  Summary of Changes

   Historically, the Commission's regulations have used the term ''slow, minimum height swell speed,'' as opposed to the more common term, ''slow, no wake speed.'' Section 103.2 defines ''slow, minimum height swell speed'' as the ''lowest engagement speed for the engine and that the wake or wash creates a minimum disturbance.'' The section also provides that ''Buoys and signs marked 'slow, no wake' shall mean operation at slow, minimum height swell speed.''

   The current definition does not adequately describe what the Commission means by ''slow, no wake speed.'' There have been misunderstandings by the boating public and problems when citations by Commission officers for wake violations have been challenged in court. Staff have reviewed the definitions for ''slow, no wake speed'' in other states and by the National Park Service. Other states and the Federal government do not use the term ''slow, minimum height swell speed.''

   The Commission therefore proposed that the term ''slow, minimum height swell speed'' be replaced with ''slow, no wake speed'' so the public better understands the term. The Commission also proposed amending the definition to reflect the accepted standards in other states. The Commission has amended § 103.2 (relating to definitions) to read as set forth in the notice of proposed rulemaking.

   In addition, there are several references to slow, minimum height swell speed throughout the Commission's regulations. The Commission proposed that these references in §§ 103.3, 103.16, 105.3, 107.5, 111.2, 111.3, 111.4, 111.6, 111.9, 111.13, 111.14, 111.17, 111.20--111.25, 111.27, 111.30, 111.31, 111.36, 111.40--111.43, 111.46, 111.49, 111.52, 111.56, 111.58, 111.59, 111.62, 111.64 and 111.66 be amended to reflect the new term. The Commission amended these sections to read as set forth in the notice of proposed rulemaking. In accordance with § 51.5 (relating to correction of regulations), the Executive Director took immediate corrective action on the Commission's behalf to change the reference in § 111.48 to slow, minimum height swell speed to slow, no wake speed 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 34 Pa.B. 4466 (August 14, 2004). The Commission did not receive any public comments concerning the proposal.

Finding

   The Commission finds that:

   (1)  Public notice of intention to adopt the amendments adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided and no comments were received.

   (3)  The adoption of the amendments of the Commission in the manner provided in this order is necessary and appropriate for administration and enforcement of the authorizing statutes.

Order

   The Commission, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Commission, 58 Pa. Code Chapters 103, 105, 107 and 111, are amended by amending §§ 103.2, 103.3, 103.16, 105.3, 107.5, 111.2--111.4, 111.6, 111.9, 111.13, 111.14, 111.17, 111.20--111.25, 111.27, 111.30, 111.31, 111.36, 111.40--111.43, 111.46, 111.49, 111.52, 111.56, 111.58, 111.59, 111.62, 111.64 and 111.66 to read as set forth in 34 Pa.B. 4466 and § 111.48 to read as set forth in Annex A.

   (b)  The Executive Director will submit this order, 34 Pa.B. 4466 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, 34 Pa.B. 4466 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect January 1, 2005.

DOUGLAS J. AUSTEN, Ph.D.,   
Executive Director

   Fiscal Note: Fiscal Note 48A-157 remains valid for the final adoption of the subject regulations.

   (Editor's Note: For the final text of § 111.56, see 34 Pa.B. 6333 (November 27, 2004).)

Annex A

TITLE 58. RECREATION

PART II. FISH COMMISSION

Subpart C. BOATING

CHAPTER 111. SPECIAL REGULATIONS COUNTIES

§ 111.48. Northampton County.

   (a)  East Bangor Dam. The operation of boats powered by internal combustion motors is prohibited.

   (b)  Minsi Lake. The operation of boats powered by internal combustion motors is prohibited.

   (c)  Delaware River. The operation of personal watercraft is prohibited within the Delaware Water Gap National Recreation Area (upstream from mile 209.5).

   (d)  Lehigh River. Boats are limited to slow, no wake speed in the main channel 150 feet upstream and 150 feet downstream from the Route 33 access ramp.

[Pa.B. Doc. No. 04-2104. Filed for public inspection November 24, 2004, 9:00 a.m.]


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