PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[ 58 PA. CODE CHS. 95, 109, AND 111 ]
Boating
[44 Pa.B. 4360]
[Saturday, July 12, 2014]The Fish and Boat Commission (Commission) proposes to amend Chapters 95, 109 and 110 (relating to manufacturer installed equipment; specialty boats and waterskiing activities; and special regulations counties). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code).
A. Effective Date
The proposed rulemaking, if approved on final-form rulemaking, will go into effect on January 1, 2015.
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 amendments to §§ 95.3, 109.2 and 109.4 (relating to lights for boats; paddleboards and sailboards; and waterskiing, aquaplaning, kiteskiing and similar activities) are published under the statutory authority of section 5123 of the code (relating to general boating regulations). The proposed amendment to § 111.49 (relating to Northumberland County) is published under the statutory authority of section 5124 of the code (relating to particular areas of water).
D. Purpose and Background
The proposed rulemaking is designed to improve, enhance and update the Commission's boating regulations. The specific purpose of the proposed amendments is described in more detail under the summary of proposals. On March 6, 2014, the Boating Advisory Board considered these proposals and recommended that the Commission approve the publication of a proposed rulemaking containing the proposed amendments.
E. Summary of Proposals
(1) Section 95.3 provides boaters with information on the requirements for types, configurations and locations of navigation lights on boats. These provisions are within the actual wording of the regulation and by reference to Appendix A (relating to lights required on boats less than 20 meters in length; inland and international waters) and the Inland Navigation Rules Act of 1980 (repealed).
Based on a recent review of § 95.3, the Commission determined that it should be amended for a number of reasons. While there is a reference in § 95.3 to the the Inland Navigation Rules Act of 1980, Pennsylvania courts have found there is not explicit language within the regulation that states a boater must comply with these specific Federal rules. In addition, the Inland Navigation Rules Act of 1980 was moved in 2010 to 33 CFR Part 83 (relating to rules).
Section 95.3 also does not specifically incorporate the language of 33 CFR 83.20(b) (relating to application), also referred to as Rule 20, which states:
Rules concerning lights complied with from sunset to sunrise; other lights. The Rules concerning lights shall be complied with from sunset to sunrise, and during such times no other lights shall be exhibited, except such lights as cannot be mistaken for the lights specified in these Rules or do not impair their visibility or distinctive character, or interfere with the keeping of a proper lookout.Pennsylvania courts have strictly construed the language of § 95.3 and have not interpreted it to mean that a boater must refrain from using other lights or if other lights are used they may not impair the visibility or distinctive character of the required lights. The Commission's waterways conservation officers have encountered challenges with successfully prosecuting more severe violations such as boating under the influence when lighting deficiencies have been cited as probable cause to conduct a boarding.
For these reasons, the Commission proposes to amend § 95.3 to more closely reflect the lighting requirements in 33 CFR Part 83 and eliminate the reference to Appendix A. The Commission further proposes to delete Appendix A and rely solely on the narrative. These amendments are not a substantive change to lighting requirements for recreational boaters.
The Commission proposes to amend § 95.3 to read as set forth in Annex A.
(2) In recent years, paddleboarding has been gaining popularity. Paddleboards were traditionally used to surf in the ocean but are now being used in lakes and rivers. Paddleboards resemble oversized surfboards and models are designed for use on various water conditions. Paddle-boards are primarily operated by a person standing on the board using a paddle in a manner similar to a canoe.
The United States Coast Guard, in a decisional memo dated October 3, 2008, classified paddleboards as vessels in accordance with 1 U.S.C.A. § 3. This classification means that when used beyond the narrow limits of a swimming, surfing or bathing area, a person may not use a paddleboard unless in compliance with 33 CFR Part 83 and applicable carriage requirements for this type of vessel. This includes a United States Coast Guard approved wearable life jacket for each person on board, a sound producing device, visual distress signals (if operating on Lake Erie) and proper navigation lights. An athletic coach's whistle and flashlight comply with these requirements. In addition, a Commission use permit, boat registration, or Pennsylvania State Parks launch permit or mooring permit is required if launching or retrieving a paddleboard at a Commission-owned or Commonwealth-controlled lake or access area, or State park or forest.
To address safety issues and concerns, and to provide clarity for operators regarding legal requirements for paddleboards, the Commission proposes to amend § 109.2 to read as set forth in Annex A.
(3) Several hydro flying devices have been designed and are available for consumer purchase and rental within recent years. These flying devices use pressurized water through jet ports to provide ''lift'' and allow the operator to become airborne to speeds of 30 miles per hour and heights up to 40 feet, or dive under the water's surface, while attached to a boat that may or may not be occupied by an operator. Trade names for these products include Jetlev, Aquaboard, Aquaflyer and Flyboard®.
The Jetlev is a device which straps to the operator and is attached by a hose to an independent power source that is pulled behind and pumps water to the actual device. Pressurized water supplied by the power source is forced out of several jets on the device and propels the operator through, under or over the surface of the water. Due to the configuration of the flying device's connection to its power source, the power source does not have the ability to be independently maneuvered. Under § 109.4(d), the Jetlev system is prohibited on Commonwealth waters. This subsection states that a ''person may not operate a device which is controlled by a person connected to the power source by means of an umbilical or remote control, or both, which tows the person on or through the water.''
The Flyboard® is a similar device that straps onto the operator's feet much like a snow board. The device is attached by a 55-foot hose to the rear of a personal watercraft (PWC) which may have an operator onboard for controlling the power. Pressurized water supplied by the PWC is forced out of two jets attached to the operator's feet and two more handheld jets which allow for directional movement through or under the water, or in the air. The Flyboard® is offered for sale with an optional electronic management kit which allows the throttle of the PWC to be remotely controlled by the airborne operator, thereby eliminating the need for an operator to be onboard the PWC for the flying device to be functional. Again, due to the configuration of the flying device's connection to its power source, the power source does not have the ability to be independently maneuvered. Under the Commission's regulations, the Flyboard® system is considered a towed watersport and is not prohibited on Commonwealth waters when the power source is a PWC with a capacity of at least three persons with an operator and competent observer onboard. All other provisions of waterskiing and PWC operation apply to this activity.
The Commission and boating safety professionals from across the Nation have safety concerns regarding these devices. The United States Coast Guard has not provided a determination regarding the definition of these flying devices and has advised states to manage their use within state laws or regulations.
To address safety issues and concerns with these specialized devices, the Commission proposes to amend § 109.4 to read as set forth in Annex A.
(4) Section 111.49 currently designates a slow, no wake zone on the southeastern shore of Packer's Island (incorrectly referred to as Packard's Island) in the Susque-hanna River adjacent to Shikellamy State Park in Sunbury. The river at Sunbury is dammed by an inflatable structure controlled by the Department of Conservation and Natural Resources. The water impounded by this dam forms a 3,060-acre lake known as Lake Augusta. The lake extends several miles up both the West Branch and the main stem of the Susquehanna River and provides a variety of angling and boating opportunities. Shikellamy State Park is located on the tip of Packer's Island, which is also the location of a number of homes, cottages, campsites, a boat club and an airport.
The current slow, no wake zone is approximately 1/3 mile in length and was established by regulation in 1995 due to the number and activity of motorboats in this area and the resulting congestion problem around the State Park launch ramp and boat club. The presence of two bridges immediately upstream of the State Park launch ramp limits visibility for boaters and provided additional justification for the slow, no wake designation. Buoys mark the upper and lower limits of the control zone, and appropriate intermediate points. The lengthy nature of this control zone results in boater confusion and unnecessarily inhibits use of a significant segment of the boating pool in this area.
The Commission proposes reducing the limits of the slow, no wake zone to be more easily identifiable, provide adequate protection for boaters and property owners, and reduce impediments to boating in this area. The State Park boat launch would remain the lower limit of the zone. The upper limit would be 200 feet above the Route 147 bridge, or the furthest upstream overhead power line. The State Park manager is supportive of this proposed amendment. Property owners outside of the limits of the modified slow, no wake zone may seek additional protections through the use of the Application for Permit to Install Floating Structures and Private Aids to Navigation (PFBC-277) rather than the rulemaking process to establish specific control zones.
In addition to the modification to the control zone, the Commission proposes correcting the name of the island.
The Commission proposes to amend § 111.49 to read as set forth in Annex A.
F. Paperwork
The proposed amendments will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The proposed amendments will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed amendments 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 Commission, P.O. Box 67000, Harrisburg, PA 17106-7000, within 30 days after publication of this proposed rulemaking in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.
Comments also may be submitted electronically by completing 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-258. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart C. BOATING
CHAPTER 95. MANUFACTURER INSTALLED EQUIPMENT § 95.3. Lights for boats.
[(a) General rule. A boat from sunset to sunrise and during periods of restricted visibility shall carry and exhibit the lights prescribed by the Inland Navigation Rules Act of 1980 (33 U.S.C.A. §§ 2001—2073). A boat owner may elect to carry and exhibit the lights prescribed by the International Rules in lieu of the Inland Rules but, in that event, the boat owner shall comply in all respects with those standards. See Appendix A.
(b) Boats less than 12 meters (39 feet 4.4 inches) in length while underway.
(1) Motorboats and sailboats using power may use the lighting arrangement in Appendix A, Figure 1, 2 or 3.
(2) Sailboats using sail alone may use the lighting arrangement in Appendix A, Figure 4, 5 or 6.
(3) A motorboat or sailboat using power underway on the Great Lakes may use the lighting arrangement in Appendix A, Figure 7D instead of the arrangements in Appendix A, Figure 1 and 2.
(4) A sailboat using sail alone, less than 7 meters (22 feet 11.6 inches) in length if impractical to display lights in Appendix A, Figure 4, 5 or 6, may display a single white light in time to prevent a collision. See Appendix A, Figure 7C.
(c) Boats 12 meters (39 feet 4.4 inches) but less than 20 meters (65 feet 7.4 inches) in length while underway.
(1) Motorboats and sailboats using power may use the lighting arrangements in Appendix A, Figure 1 or 2.
(2) Sailboats using sail alone may use the lighting arrangement in Appendix A, Figure 4, 5 or 6.
(d) Rowing or paddle boats while underway. One hand held or permanent all-around white light shall be ready to display in time to prevent a collision. Appendix A, Figure 7, A or B.
(e) Boat at anchor.
(1) A boat must display anchor lights when it is anchored where other vessels normally navigate. See Appendix A, Figure 7E.
(2) Exception: Anchor lights are not required on boats anchored in special anchorage areas.
(f) Locations of lights. Lights shall be located and have the characteristics as shown in Appendix A.
(1) The masthead light (forward white light in Appendix A, Figures 1, 2 and 7D) shall be at least 1 meter (3 feet 3.4 inches) higher than the colored lights on a boat less than 12 meters (39 feet 4.4 inches) and at least 2.5 meters (8 feet 2.4 inches) above the gunwale on a boat 12 meters (39 feet 4.4 inches) in length but less than 20 meters (65 feet 7.4 inches) in length. The after masthead light (Appendix A, Figure 1 only), if used, shall be higher than the forward masthead light so as to be seen as a separate, distinct light at a distance of 1,000 meters (1,093 yards 1.8 feet) ahead of the boat.
(2) The all-around white lights shown in Appendix A, Figures 3 and 7D shall be 1 meter (3 feet 3.4 inches) higher than the colored lights.
(3) An anchor light shall be displayed where it can best be seen.
(g) Docking lights. It is unlawful for a boat operator to use docking lights while underway except when docking and the boat is traveling at slow, no wake speed and is within 100 feet of approaching a dock, a mooring buoy or the shoreline. For purposes of this subsection, a docking light is a flood or spotlight type of light permanently installed or permanently mounted on a motorboat that is used to illuminate a boat's forward course of travel.]
(a) General rule. The navigation lights requirements in this section shall be complied with in all weather from sunset to sunrise on the waters of this Commonwealth. During these times other lights may not be exhibited, except lights that cannot be mistaken for the lights specified in this section, lights that do not impair their visibility or distinctive character, or interfere with the keeping of a proper lookout. The lights prescribed in this section must, if carried, be exhibited from sunrise to sunset in restricted visibility and may be exhibited in all other circumstances when it is deemed necessary. The lights specified in this section must comply with United States Coast Guard specifications.
(b) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
All-round light—A light showing an unbroken light over an arc of the horizon of 360°.
Docking light—A flood or spotlight type of light permanently installed or permanently mounted on a motorboat that is used to illuminate a boat's forward course of travel.
Flashing light—A light flashing at regular intervals at a frequency of 120 flashes or more per minute.
Masthead light—A white light placed over the fore and aft centerline of the boat showing an unbroken light over an arc of the horizon of 225° and fixed as to show the light from right ahead to 22.5° abaft the beam on either side of the boat, except that on a boat of less than 39.4 feet (12 meters) in length, the masthead light must be placed as nearly as practicable to the fore and aft centerline of the boat.
Restricted visibility—A condition in which visibility is restricted by fog, mist, falling snow, heavy rainstorms, sandstorms or other similar causes.
Sailboat—A boat under sail provided that propelling machinery, if fitted, is not being used.
Sidelights—A green light on the starboard (right) side and a red light on the port (left) side, each showing an unbroken light over an arc of the horizon of 112.5° and fixed as to show the light from right ahead to 22.5° abaft the beam on its respective side. On a boat of less than 65.6 feet (20 meters) in length, the side lights may be combined in one lantern carried on the fore and aft centerline of the boat. On a boat of less than 39.4 feet (12 meters) in length, the sidelights when combined in one lantern must be placed as nearly as practicable to the fore and aft centerline of the boat.
Special flashing light—A yellow light flashing at regular intervals at a frequency of 50 to 70 flashes per minute, placed as far forward and as nearly as practicable on the fore and aft centerline of the tow and showing an unbroken light over an arc of the horizon of not less than 180° nor more than 225° and fixed as to show the light from right ahead to abeam and no more than 22.5° abaft the beam on either side of the boat.
Sternlight—A white light placed as nearly as practicable at the stern showing an unbroken light over an arc of the horizon of 135° and fixed as to show the light 67.5° from right aft on each side of the boat.
Underway—A boat that is not at anchor, made fast to the shore or aground.
(c) Visibility of lights.—The lights prescribed in this section must have an intensity as specified by the United States Coast Guard so as to be visible at the following minimum ranges:
(1) In a boat of 164 feet (50 meters) or more in length: a masthead light, 6 miles; a sidelight, 3 miles; a sternlight, 3 miles; a towing light, 3 miles; a white, red, green or yellow all-round light, 3 miles; and a special flashing light, 2 miles.
(2) In a boat of 39.4 feet (12 meters) or more in length but less than 164 feet (50 meters) in length: a masthead light, 5 miles; except that when the length of the boat is less than 65.6 feet (20 meters), 3 miles; a sidelight, 2 miles; a sternlight, 2 miles; a towing light, 2 miles; a white, red, green or yellow all-round light, 2 miles; and a special flashing light, 2 miles.
(3) In a boat of less than 39.4 feet (12 meters) in length: a masthead light, 2 miles; a sidelight, 1 mile; a sternlight, 2 miles; a towing light, 2 miles; a white, red, green or yellow all-round light, 2 miles; and a special flashing light, 2 miles.
(4) In an inconspicuous, partly submerged boat or object being towed: a white all-round light, 3 miles.
(d) Motorboats underway.
(1) A motorboat underway must exhibit the following lights:
(i) A masthead light forward.
(ii) A second masthead light abaft of and higher than the forward one. A boat of less than 164 feet (50 meters) in length may exhibit this light.
(iii) Sidelights.
(iv) A sternlight.
(2) An air-cushion boat when operating in the nondisplacement mode must, in addition to the lights prescribed in paragraph (1), exhibit an all-round flashing yellow light where it can best be seen.
(3) A motorboat of less than 39.4 feet (12 meters) in length may, instead of the lights prescribed in paragraph (1), exhibit an all-round white light and sidelights.
(e) Sailboats underway and unpowered boats.
(1) A sailboat underway must exhibit the following lights:
(i) Sidelights.
(ii) A sternlight.
(2) In a sailboat of less than 65.6 feet (20 meters) in length, the lights prescribed in paragraph (1) may be combined in one lantern carried at or near the top of the mast where it can best be seen.
(3) A sailboat underway may, in addition to the lights prescribed in paragraph (1), exhibit at or near the top of the mast, where they can best be seen, two all-round lights in a vertical line, the upper being red and the lower green. These lights may not be exhibited in conjunction with the combined lantern permitted by paragraph (2).
(4) A sailboat of less than 23 feet (7 meters) in length must, if practicable, exhibit the lights prescribed in paragraph (1) or (2). If these lights are not exhibited, the sailboat must have ready at hand an electric torch or lighted lantern showing a white light that must be exhibited in sufficient time to prevent collision.
(5) A unpowered boat may exhibit the lights prescribed in this subsection for sailboats. If these lights are not exhibited, the unpowered boat must have ready at hand an electric torch or lighted lantern showing a white light that must be exhibited in sufficient time to prevent collision.
(f) Anchored boats and boats aground.
(1) A boat at anchor must exhibit an all-round white light where it can best be seen:
(i) In the fore part.
(ii) At or near the stern and at a lower level than the light prescribed in subparagraph (i).
(2) A boat of less than 164 feet (50 meters) in length may exhibit an all-round white light where it can best be seen instead of the lights prescribed in paragraph (1).
(3) A boat aground must exhibit the lights prescribed in paragraph (1) where they can best be seen.
(4) A boat of less than 65.6 feet (20 meters) in length, when at anchor in a special anchorage area designated by the United States Coast Guard, is not required to exhibit the anchor lights and shapes required under this subsection.
(g) Boats being towed. When, for any sufficient cause, it is impracticable for a boat or object being towed to exhibit the lights prescribed in this section, all possible measures shall be taken to light the boat or object towed or at least to indicate the presence of the unlighted boat or object.
(h) Docking lights. It is unlawful for a boat operator to use docking lights while underway except when docking and the boat is traveling at slow, no wake speed and is within 100 feet of approaching a dock, a mooring buoy or the shoreline.
(Editor's Note: As part of this proposed rulemaking, the Commission is proposing to delete Appendix A which appears in 58 Pa. Code page 95-8, serial page (213852).)
Appendix A. (Reserved)
CHAPTER 109. SPECIALTY BOATS AND WATERSKIING ACTIVITIES § 109.2. [Sailboards] Paddleboards and sail- boards.
(a) [Definition. A] Paddleboards. For purposes of this subsection, a paddleboard is a boat with no freeboard propelled by a paddle, oar, pole or other device. It is unlawful for a person to operate or attempt to operate a paddleboard on waters of this Commonwealth without having a United States Coast Guard approved wearable personal flotation device on board for each person, unless otherwise required to be worn in accordance with § 97.1 (relating to personal flotation devices). This prohibition does not apply to persons operating or attempting to operate a paddleboard in designated swimming, surfing or bathing areas.
(b) Sailboards. For purposes of this subsection, a sailboard is a type of single or double hulled boat equipped with an articulating mast and designed to be operated by a person standing on the board and maneuvering through the trim of the hand-held sail and distribution of body weight on the board.
[(b) Personal flotation devices.] It is unlawful for a person to operate or attempt to operate a sailboard on waters of this Commonwealth unless the person is wearing a [Type I, II, III or V] United States Coast Guard approved wearable personal flotation device. Inflatable personal flotation devices may not be used to meet this requirement.
§ 109.4. Waterskiing, aquaplaning, kiteskiing and similar activities.
* * * * * (k) Wake surfing. Boats engaged in the activity of wake surfing are limited to slow, no wake speed when within 200 feet of the following:
* * * * * (8) Other marked areas.
(l) Use of airborne devices prohibited. A person, while being towed by or otherwise attached to a watercraft, may not use a device, except for a parasail, for the purpose of becoming airborne over the waters of this Commonwealth. While operating a watercraft, a person may not tow behind or have attached to the watercraft a person using a device except for a parasail for the purpose of becoming airborne over the waters of this Commonwealth. This subsection does not apply to traditional aquaplaning activities when the aquaplaner momentarily leaves the water while jumping wakes or doing specialty tricks.
CHAPTER 111. SPECIAL REGULATIONS COUNTIES § 111.49. Northumberland County.
Susquehanna River. Boats are limited to slow, no wake speed from the vicinity of the Shikellamy State Park boat launch on the south side of [Packard's] Packer's Island upriver a distance of [1/3 mile] 200 feet above the Route 147 bridge.
[Pa.B. Doc. No. 14-1428. Filed for public inspection July 11, 2014, 9:00 a.m.]
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