PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[58 PA. CODE CH. 91]
Boating
[34 Pa.B. 6425] The Fish and Boat Commission (Commission) proposes to amend Chapter 91 (relating to general provisions). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). This proposed rulemaking relates to the age of operation for personal watercraft (PWC) and boats propelled by motors in excess of 25 horsepower. The Commission previously published a notice of proposed rulemaking regarding this subject at 34 Pa.B. 4151 (August 7, 2004). The Commission is republishing a notice of proposed rulemaking to seek public input on an alternative proposal as more fully described in this preamble.
A. Effective Date
The proposed rulemaking, if approved on final-form, will go into effect upon publication of an order in the Pennsylvania Bulletin.
B. Contact Person
For further information on the proposed rulemaking, contact Laurie E. Shepler, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7815. This proposal is available electronically through the Commission's website: www.fish.state.pa.us.
C. Statutory Authority
The proposed amendments to § 91.4 (relating to age of operator) are published under the statutory authority of section 5123 of the code (relating to general boating regulations). A person violating this section commits a summary offense of the third degree for which a $50 fine is imposed.
D. Purpose and Background
The Commission previously adopted limitations on the age of operation to address concerns for the safety of young operators of larger boats and PWC and those that boat around them. At the time the regulation was adopted, 10 horsepower was considered to be a satisfactory horsepower limitation. Youthful operators could operate larger boats (that is, boats with motors in excess of 10 horsepower) after obtaining a Boating Safety Education Certificate (certificate) or if they had an older operator onboard. A recent amendment to section 5103 of the code (relating to boating education) that provides for mandatory boating education increased the minimum horsepower to 25. Specifically, this section provides that any person born on or after January 1, 1982, may not operate a motorboat greater than 25 horsepower without first obtaining a certificate.
To be consistent with the code and to eliminate some complexity in the regulations, the Commission proposed to amend § 91.4. Specifically, the Commission proposed to simplify the existing regulation and make it consistent with provisions of the mandatory education law. The Commission also proposed to eliminate the distinction between PWC and other motorboat operation by applying the same standards to both. The Commission further proposed to increase the minimum age of operation of a PWC to 16 years of age, effective January 1, 2008. A notice of proposed rulemaking was published at 34 Pa.B. 4151.
At the time the Commission approved the publication of the notice of proposed rulemaking, it also directed staff to solicit the input of the Governor's Youth Council for Hunting, Fishing and Conservation (Council). The Council was surveyed informally, and the Council generally supported the proposed changes. The Commission's Boating Advisory Board (BAB) considered the proposal and recommended that the Commission adopt the changes as set forth in the notice of proposed rulemaking.
Subsequently, the Council held its quarterly meeting and discussed the proposal in detail. The Council voted unanimously in favor of the age of operation being 16 years of age or older for any boat propelled by a motor greater than 25 horsepower and all PWC. The Council also voted unanimously in favor of ''phasing in'' this requirement over a number of years. The Council indicated that it feels strongly that these changes must be simply worded and well publicized.
In addition, the Commission received one public comment from the Personal Watercraft Industry Association (PWIA) that supports increasing the age of operation of PWC to 16 years of age. However, the PWIA indicated that based on its experience, it believes that a phase-in of the minimum age increase for PWC operators is the best approach for implementation by authorities and compliance by the boating public. For that reason, the PWIA encourages the Commission to opt for a regulation that allows those individuals of legal operating age under 16 years of age to be grandfathered by the new statutory requirements.
In advance of the Commission meeting, staff informally polled the BAB, and the BAB is generally in agreement with the phased approach and believes that it is appropriate to solicit additional public comments. The Commission, upon further consideration of this matter, believes that a phased approach may find the most acceptance among the boating public. The Commission therefore approved the republication of a notice of proposed rulemaking seeking public comments on a phased approached as more fully described in the summary of proposed rulemaking. The Commission also intends to hold at least one public meeting.
E. Summary of Proposed Rulemaking
Under the proposal, the minimum age of operation would be 13 years of age, effective immediately upon publication of an order adopting the change. The minimum age of operation would increase to 14 years of age effective January 1, 2006, 15 years of age effective January 1, 2007, and 16 years of age effective January 1, 2008. The proposal also provides that a person 15 years of age or younger may not operate a personal watercraft if there are any passengers onboard 17 years of age or younger. The Commission proposes to amend § 91.4 to read as set forth in Annex A.
F. Paperwork
The proposed rulemaking will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will impose no new costs on the private sector or the general public.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions about the proposed rulemaking to the Executive Director, Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000, within 30 days after publication in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted. Comments also may be submitted electronically by completing the form at www.state.pa.us/fish/regcomments. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: 48A-162. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart C. BOATING
CHAPTER 91. GENERAL PROVISIONS § 91.4. Age of operator.
(a) A person 11 years of age or younger may not operate a [personal watercraft or a] boat propelled by a motor greater than [10] 25 horsepower.
(b) [A person 12 through 15 years of age may not operate a boat propelled by a motor greater than 10 horsepower unless the person has obtained and has in his possession a Boating Safety Education Certificate or at least one person 16 years of age or older is present onboard.
(c) A person 12 through 15 years of age may not operate a personal watercraft if there are any passengers onboard 15 years of age or younger.]
A person 12 years of age or younger may not operate a personal watercraft. Effective January 1, 2006, a person 13 years of age or younger may not operate a personal watercraft. Effective January 1, 2007, a person 14 years of age or younger may not operate a personal watercraft. Effective January 1, 2008, a person 15 years of age or younger may not operate a personal watercraft.
(c) A person 15 years of age or younger may not operate a personal watercraft if there are any passengers onboard 17 years of age or younger.
[Pa.B. Doc. No. 04-2146. Filed for public inspection December 3, 2004, 9:00 a.m.]
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