RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CH. 91]
Boating
[35 Pa.B. 3308] The Fish and Boat Commission (Commission) amends Chapter 91 (relating to general provisions). 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 relates to the age of operation for personal watercraft (PWC) and boats propelled by motors in excess of 25 horsepower.
A. Effective Date
The final-form rulemaking will go into effect upon publication 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 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 EducationCertificate (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 a 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 PWC to 16 years of age, effective January 1, 2008. A notice of proposed rulemaking was published at 34 Pa.B. 4151 (August 7, 2004).
At a subsequent meeting, the Commission considered the proposed rulemaking and the public comments that it received. The comments were generally in favor of the proposed rulemaking increasing the minimum age of PWC operation but suggested that a phased approach to implementation would be more appropriate than increasing the minimum age of operation to 16 years of age, effective January 1, 2008, as set forth in the notice of proposed rulemaking. The Commission, upon further consideration of the matter, agreed that a phased approach may find the most acceptance among the boating public and approved the republication of a notice of proposed rulemaking seeking public comments on a phased approach. A notice of proposed rulemaking was republished at 34 Pa.B. 6425 (December 4, 2004).
Under the republished notice of proposed rulemaking, the minimum age of operation would be 13 years of age, effective immediately upon publication of the final-form rulemaking. 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 proposed rulemaking also increased the minimum age of any passenger on PWC operated by a person 15 years of age or younger to 18 years of age. This part of the regulation would become moot on January 1, 2008, if the rulemaking were adopted as proposed.
Upon consideration on final-form rulemaking, the Commission chose not to increase the minimum age of operation for PWC. The Commission also chose not to adopt the proposed amendment making it unlawful for a person 15 years of age or younger to operate PWC if there are any passengers onboard 17 years of age or younger. As set forth in the republished notice of proposed rulemaking, the Commission adopted the proposed amendment making it unlawful for a person 11 years of age or younger to operate a boat propelled by a motor greater than 25 horsepower instead of the current 10 horsepower restriction and determined that the requirement should apply to PWC operation as well. The Commission also deleted the requirement in subsection (b), as set forth in the notice of proposed rulemaking, that makes it unlawful for a person 12 years of age through 15 years of age to operate a boat propelled by a motor greater than 10 horsepower unless the person has obtained and has in his possession a certificate or at least one person 16 years of age or older is present onboard.
E. Summary of Changes.
Under § 91.4, as amended, a person 11 years of age or younger may not operate PWC or a boat propelled by a motor greater than 25 horsepower, and a person 12 years of age through 15 years of age may not operate PWC if there are any passengers onboard 15 years of age or younger. The Commission amended § 91.4 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
The Commission published a notice of proposed rulemaking at 34 Pa.B. 4151. A second notice of proposed rulemaking was republished at 34 Pa. B. 6425.
Prior to the formal public comment period for the republished notice of proposed rulemaking, the Commission received five comments concerning the proposal. Four support raising the minimum age of operation for PWC to 16 years of age, but three of the four do not support a phased approach. They believe that it is too complicated and that 16 years of age as the minimum age of operation should go into effect immediately. One believes that the minimum age of operation should be 14 years of age with the completion of a safe boating course. The Commission did not receive any public comments during the formal public comment period. The Commission received 16 public comments after the formal public comment period: one commentator believes that the minimum age should be 18 years of age, not 16 years of age; 13 support the proposed amendment, but at least one commentator recommends a ''grandfathering'' provision; and two commentators oppose the proposal. Copies of all public comments were provided to the Commissioners.
Findings
The Commission finds that:
(1) Public notice of intention to adopt the amendment 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 received were considered.
(3) The adoption of the amendment 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 Chapter 91, are amended by amending § 91.4 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-162 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 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 25 horsepower.
(b) 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.
[Pa.B. Doc. No. 05-1120. Filed for public inspection June 10, 2005, 9:00 a.m.]
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