RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 51 AND 63]
Boat and Fishing Guide Operations
[35 Pa.B. 6533] The Fish and Boat Commission (Commission) amends Chapters 51 and 63 (relating to administrative provisions; and general fishing regulations). 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 charter boat/fishing guide operations.
A. Effective Date
The final-form rulemaking will go into effect on January 1, 2006.
B. Contact Person
For further information on the final-form rulemaking, contact Laurie E. Shepler, Chief Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-form rulemaking is available on the Commission's website at www.fish.state.pa.us.
C. Statutory Authority
The new regulations in Chapter 51, Subchapter L (relating to charter boat/fishing guide operations) are published under the statutory authority of section 2907.3(d) of the code (relating to fishing guide and charter boat permits, regulations). The rescission of § 63.41 is published under the statutory authority of section 2102 of the code (relating to rules and regulations).
D. Purpose and Background
Under the act of November 29, 2004 (P. L. 1286, No. 159) (Act 159), persons operating charter boat or fishing guide operations on the waters of this Commonwealth are required to obtain a charter boat/fishing guide permit from the Commission. Act 159 went into effect on January 1, 2005. However, the Commission decided to defer implementation of the permit requirement pending the promulgation of rules and regulations for the new program.
The Executive Director established a workgroup consisting of Commission staff and 21 charter boat/fishing guides from across this Commonwealth and assigned them the task of developing draft regulations. The workgroup formally met in January and March 2005 to discuss issues pertaining to this new program. With tremendous input from the charter boat/fishing guides, proposed regulations were drafted. The draft regulations addressed the majority, if not all, of the concerns raised by the workgroup.
E. Summary of Changes
The Commission has adopted new regulations to implement the charter boat/fishing guide permitting program. These regulations define key terms and address the permit itself, including the application, the duration, renewals, suspension or revocation and display requirements. The final-form rulemaking also includes a requirement that when a boat is involved, the operator demonstrate proficiency in boating safety by possessing a boating safety education certificate acceptable to the Commission. The final-form rulemaking further includes provisions pertaining to insurance, CPR and first aid, fishing licenses and permits and compliance with laws and regulations.
Under section 2907.3 of the code, holders of charter boat/fishing guide permits may be designated as special issuing agents for the purpose of selling to their customers One-Day Fishing Licenses, Three-Day Tourist Fishing Licenses, Seven-Day Tourist Fishing Licenses and applicable permits. The final-form rulemaking allows for interested permitholders to become special issuing agents by completing and submitting an application along with a bond or other security in a form acceptable to the Commission in an amount equal to the value of the licenses, stamps and permits being requested. The one-time, nonrefundable application fee required of other issuing agents is waived, and the reporting requirements are less stringent.
The Commission adopted the proposed regulations as set forth in the notice of proposed rulemaking with one exception. On final-form rulemaking, the Commission added a requirement that all applicants for charter boat/fishing guide permits must be 16 years of age or older. The Commission amended § 51.122 to read as set forth in Annex A.
Last, the Commission rescinded § 63.41 that relates to the Commission's current voluntary recognition program. Under this program, fishing guide operators paid a $50 annual fee for which they received official recognition of their businesses. This official recognition, among other things, entitled guides to advertise that they were officially recognized by the Commission and gave them certain privileges with regard to the field dressing of fish. Because the mandatory permitting program will be in place on January 1, 2006, the voluntary program is no longer needed. Thus, the Commission deleted § 63.41 as set forth in the notice of proposed rulemaking.
F. Paperwork
The final-form rulemaking will increase paperwork and will create new paperwork requirements in that all persons wishing to operate charter boat or fishing guide operations on the waters of this Commonwealth will have to first apply for and obtain an annual permit from the Commission. The Commission estimates that there are approximately 250 charter boat/fishing guide operations in this Commonwealth. Under the voluntary program, the Commission officially recognized approximately 70 guides this year.
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. Under section 2715(a.1) of the code (relating to license, permit and issuing agent fees), the fee for a resident charter boat/fishing guide permit is $100 and the fee for a nonresident charter boat/fishing guide permit is $400.
H. Public Involvement
A notice of proposed rulemaking was published at 35 Pa.B. 3416 (June 18, 2005). The Commission received a total of 14 public comments primarily from charter boat captains. One comment was received prior to the formal public comment period, ten during and three after. The majority of the public comments raised two issues--namely, increasing the number of rods that may be lawfully used by charter boat customers from two to three and allowing charter boat captains to remove the skin from the fillets of fish caught by their customers. The Commission also received several comments regarding permit fees, which are established by statute, not by the regulations. Copies of all public comments were provided to the Commissioners.
Findings
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 the comments that were received were considered.
(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 51 and 63, are amended by amending §§ 51.121 and 51.123--51.130 and by deleting § 63.41 to read as set forth at 35 Pa.B. 3416 and by amending § 51.122 to read as set forth in Annex A.
(b) The Executive Director will submit this order, 35 Pa.B. 3416 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, 35 Pa.B. 3416 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect on January 1, 2006.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: Fiscal Note 48A-173 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 51. ADMINISTRATIVE PROVISIONS
Subchapter L. CHARTER BOAT/FISHING GUIDE OPERATIONS § 51.122. Permits.
(a) Application. A person desiring to be a charter boat operator or a fishing guide on the waters of this Commonwealth shall first apply for a permit on the form provided by the Commission. The applicant shall submit the completed form to the Commission along with the fee specified in section 2715 of the code (relating to license, permit and issuing agent fees). The applicant shall be 16 years of age or older.
(b) Duration. Charter boat/fishing guide permits are valid for a calendar year and expire on December 31 of the year for which it was issued.
(c) Renewal. A holder of a charter boat/fishing guide permit shall apply to the Commission for renewal of the permit by completing the renewal application form provided by the Commission and by submitting it along with the appropriate fee to the Commission.
(d) Suspension or revocation of permit. The Commission may suspend or revoke a charter boat/fishing guide permit for noncompliance with the terms and conditions of this chapter or when the charter boat operator or fishing guide is convicted or acknowledges guilt of a violation of the code or this chapter. Suspension or revocation procedures must comply with Chapter 51, Subchapter C (relating to suspension, denial or revocation of licenses, permits, registrations or privileges).
(e) Prima facie evidence. Advertising by any means, including, but not limited to, websites, business cards, brochures, newspapers, periodicals or billboards, that a person provides fishing guide or charter boat services shall be prima facie evidence of a commercial enterprise.
[Pa.B. Doc. No. 05-2204. Filed for public inspection December 2, 2005, 9:00 a.m.]
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