PROPOSED RULEMAKINGS
[ 58 PA. CODE CHS. 53, 101 AND 105 ]
General Provisions and Boating
[43 Pa.B. 3238]
[Saturday, June 15, 2013]The Fish and Boat Commission (Commission) proposes to amend Chapters 53, 101 and 105 (relating to Commission property; boating accidents; and operational conditions). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The proposed amendments modify and update the Commission's property and boating regulations.
A. Effective Date
The proposed amendments to §§ 53.8, 101.6 and 105.3 (relating to boats; investigation reports by Commission officers; and unacceptable boating practices) and the proposed rescission of § 101.8 (relating to duties of operators involved in boating accidents), if approved on final-form rulemaking, will go into effect on January 1, 2014.
B. Contact Person
For further information on the proposed rulemaking, contact Wayne Melnick, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This proposed rulemaking is available on the Commission's web site at www.fish.state.pa.us.
C. Statutory Authority
The proposed amendment to § 53.8 is published under the statutory authority of section 741 of the code (relating to control of property). The proposed amendments to §§ 101.6 and 105.3 and the proposed rescission of § 101.8 are published under the statutory authority of section 5123 of the code (relating to general boating regulations).
D. Purpose and Background
The proposed rulemaking is designed to improve, enhance and update the Commission's property and boating regulations. The specific purpose of the proposed rulemaking is described in more detail under the summary of proposal. On February 7, 2013, the Boating Advisory Board considered these proposals and recommended that the Commission approve the publication of this proposed rulemaking.
E. Summary of Proposals
(1) Effective January 1, 2007, the Commission established a Regional Opening Day of Trout Season Program which allows the Executive Director, with approval of the Commission, to designate waters in certain regions of this Commonwealth to open for trout fishing beginning the first Saturday after March 28. In 2013, the regional opening day for trout season was March 30 for designated waters in the 18-county southeastern region while the rest of this Commonwealth opened April 13. Recently, the Commission proposed eliminating its Early Season Trout Stocked Waters Program and moved waters in that program to the Approved Trout Waters Open to Year-Round Fishing Program to allow angling to occur from March 1 through the opening day of trout season and increase recreational angling opportunities on these waters.
Section 53.8 permits the overnight mooring of boats at designated mooring areas from April 1 to November 30. This regulation prohibits trout anglers and others using boats from mooring their boats on Commission property for the early regional opening day of trout season or to take advantage of the year-round fishing designation during winter and early spring.
The Commission proposes that § 53.8 be amended to allow for mooring of boats on Commission property at the beginning of March to increase fishing and boating opportunities and encourage greater participation in the two regulatory fishing programs. The Commission proposes that § 53.8 be amended to read as set forth in Annex A.
(2) In accordance with § 101.6(a), Commission officers conduct an investigation when a recreational boating accident occurs involving loss of life, disappearance, medical treatment given beyond first aid or in other circumstances the Commission deems appropriate. A boating accident investigation report is completed for each boating accident investigated and is submitted by the Bureau of Law Enforcement to the Boating Accident Review Officer within the Bureau of Boating and Outreach.
Written reports are required to be submitted by operators or owners involved in recreational boating accidents when one or more of the following conditions exist: a person dies; a person is injured and requires medical treatment beyond first aid; damage to the vessels and other property totals $2,000 or more or there is complete loss of a vessel; or a person disappears from the boat under circumstances that indicate death or injury is likely. Owner/operator-submitted accident reports are submitted on Form PFBC 260 directly to the Boating Accident Review Officer and are for statistical purposes only. These reports are for the information of the Commission, maintained as confidential and not releasable to the public.
Section 101.6(b) currently states that Commission personnel will complete a boating accident investigation report without referring to the boating accident report (PFBC 260) submitted by the owner or operator of the boat. However, there are limited occasions when an investigating officer may need to reference information in the operator-submitted form (PFBC 260). These limited references by the officer are meant to assist with the completion of the investigation, not to supplant a step in the investigation process or supplement information gained in the investigative process. The Commission proposes to delete § 101.6(b) to read as set forth in Annex A.
(3) The act of November 1, 2012 (P. L. 1716, No. 211) (Act 211) updated the code. In particular, section 5507 of the code (relating to duties of operators involved in boating accidents) was added to be consistent with requirements and penalties for operators involved in motor vehicle accidents in 75 Pa.C.S. (relating to Vehicle Code).
Section 101.8 currently details the duties of operators involved in boating accidents. A violation of this section is a summary of the second degree. Act 211 increased the grading of the violation to a misdemeanor of the first degree and if a victim of an accident dies the violator commits a felony of the third degree. Since the duties detailed in § 101.8 are now law, and to bring the penalties in the Commission's regulations into conformance, the Commission proposes that § 101.8 be deleted in its entirety.
(4) In 2009, the Commission amended its regulations to prohibit passengers from riding outside the normal passenger carrying area of pontoon boats when the boat is travelling at any speed. Tragic boat accidents proved that riding outside of the passenger carrying area on a pontoon boat at any speed was an unsafe practice because the passenger can very easily fall overboard and will most likely be struck by the boat's propeller.
Waterways conservation officers encounter as many, if not more, boats travelling at high speeds with persons, most frequently children, riding on closed bow decking with ornamental railings or railings intended for use during docking, mooring or rafting. These railings are not intended to protect a passenger from falling overboard; however, there are not regulations to prohibit passengers from riding in this area of the boat at high speeds. Although, fortunately, the Commission has not had to investigate accidents of this nature, the Commission intends to take a proactive approach to prohibiting this activity before a tragedy occurs. In an effort to simplify and clarify unacceptable boating practices, the Commission proposes to amend § 105.3 to read as set forth in Annex A.
F. Paperwork
The proposed rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The proposed rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions and will not impose 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 Commis-sion, 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 com- pleting the form at www.fishandboat.com/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. Electronic comments submitted in any other manner will not be accepted.
JOHN A. ARWAY,
Executive DirectorFiscal Note: 48A-242. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 53. COMMISSION PROPERTY § 53.8. Boats.
* * * * * (b) Overnight mooring of boats is permitted at designated mooring areas from [April 1] March 1 to November 30. A boat utilizing mooring areas shall be registered and display the official registration number and current validation stickers described under Subpart C (relating to boating) and Part III of the code (relating to boats and boating). The mooring is at the sole risk of the owner.
* * * * *
Subpart C. BOATING
CHAPTER 101. BOATING ACCIDENTS § 101.6. Investigation reports by Commission officers.
* * * * * (b) [A boating accident investigation report will be completed without referring to the boating accident report submitted by the owner or operator of the boat.
(c)] Under section 324 of the code (relating to Commission records), boating accident investigation reports are not considered public records and they will not be released except for the following:
* * * * * § 101.8. [Duties of operators involved in boating accidents] (Reserved).
[(a) General rule. The operator of a watercraft involved in an accident shall immediately stop the watercraft at the scene of the accident or as close thereto as possible. Every stop shall be made without obstructing the safe navigation of other watercraft more than is necessary.
(b) Duty to give information. The operator of a watercraft involved in an accident resulting in injury to or death of a person or damage to property shall give his name, address and the registration number of his watercraft to:
(1) An officer authorized to enforce this title.
(2) The operator or occupants of any other watercraft involved in the accident.
(3) A person who owns or is in control of any property damaged in the accident.
(c) Duty to render aid. The operator of a watercraft involved in an accident involving injury or death shall render reasonable assistance to a person injured in the accident if the operator can reasonably do so without endangering persons or property.
(d) Duty to remain at or near scene. The operator of a watercraft involved in a watercraft accident involving injury to or death of a person other than the operator or a passenger of the operator's watercraft or damage to property other than the operator's watercraft or other property contained therein shall remain at or near the scene of the accident until he has fulfilled the duties described in subsection (b) if the operator can reasonably do so without obstructing navigation of other watercraft or endangering persons or property. When circumstances make it clearly impractical to remain at or near the scene of the accident on the water, the operator may fulfill the requirements of this subsection by going to shore at a location near the scene of the accident.
(e) Purpose. This section is designated as a regulation for the protection of the health and safety of persons under section 5123(a)(1) of the Code (relating to general boating regulations).]
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, no wake speed with a person riding outside the passenger carrying area or 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. For the purposes of this paragraph, the passenger carrying area is defined as the space intended by the manufacturer for persons to sit or stand while the boat is underway. This prohibition does not apply when the operator of the boat is docking, mooring, anchoring or rafting the boat.
* * * * * (9) Operate a pontoon boat while a person is riding outside the passenger carrying area. [The] For the purposes of this paragraph, 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.
* * * * *
[Pa.B. Doc. No. 13-1080. Filed for public inspection June 14, 2013, 9:00 a.m.]
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