RULES AND REGULATIONS
Title 58—RECREATION
FISH AND BOAT COMMISSION
[ 58 PA. CODE CHS. 53, 101 AND 105 ]
General Provisions and Boating
[43 Pa.B. 7083]
[Saturday, December 7, 2013]The Fish and Boat Commission (Commission) amends Chapters 53, 101 and 105 (relating to Commission property; boating accidents; and operational conditions). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The amendments modify and update the Commission's property and boating regulations.
A. Effective Date
The final-form rulemaking will go into effect on January 1, 2014.
B. Contact Person
For further information on the final-form rulemaking, contact Wayne Melnick, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-form rulemaking is available on the Commission's web site at www.fish.state.pa.us.
C. Statutory Authority
The amendment to § 53.8 (relating to boats) is published under the statutory authority of section 741 of the code (relating to control of property). The amendments to §§ 101.6 and 105.3 (relating to investigation reports by Commission officers; and unacceptable boating practices) and the 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 final-form rulemaking is designed to improve, enhance and update the Commission's property and boating regulations. The specific purpose of the final-form rulemaking is described in more detail under the summary of changes.
E. Summary of Changes
(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 eliminated 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 amends § 53.8 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 amends § 53.8 to read as set forth in the proposed rulemaking published at 43 Pa.B. 3238 (June 15, 2013).
(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 therefore deletes § 101.6(b) to read as set forth in the proposed rulemaking.
(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 detailed 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 rescinds § 101.8.
(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 were 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 amends § 105.3 to prohibit persons from riding outside the passenger carrying area of motorboats and to define this area for motorboats and pontoon boats. The Commission amends this section to read as set forth in the proposed rulemaking.
F. Paperwork
The final-form rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The final-form 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 Involvement
The proposed rulemaking was published at 43 Pa.B. 3238. The Commission did not receive public comments.
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 public comments were not 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 53, 101 and 105, are amended by deleting § 101.8 and by amending §§ 53.8, 101.6 and 105.3 to read as set forth at 43 Pa. B. 3238.
(b) The Executive Director will submit this order and 43 Pa.B. 3238 to the Office of Attorney General for approval as to legality and form as required by law.
(c) The Executive Director shall certify this order and 43 Pa.B. 3238 and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect on January 1, 2014.
JOHN A. ARWAY,
Executive DirectorFiscal Note: Fiscal Note 48A-242 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 13-2258. Filed for public inspection December 6, 2013, 9:00 a.m.]
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