PROPOSED RULEMAKING
[58 PA. CODE CH. 105]
Unacceptable Boating Practices
[31 Pa.B. 1379] The Fish and Boat Commission (Commission) proposes to amend Chapter 105 (relating to operational conditions). The Commission is publishing this amendment as a notice of proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The proposed amendment relates to boating.
A. Effective Date
The proposed amendment, if approved on final rulemaking, will go into effect on January 1, 2002, or upon publication of an order adopting the amendment in the Pennsylvania Bulletin, whichever occurs later.
B. Contact Person
For further information on the proposed amendment, contact Laurie E. Shepler, Assistant Counsel, (717) 705-7815, P. O. Box 67000, Harrisburg, PA 17106-7000. This proposal is available electronically through the Commission's website (http://www.fish.state.pa.us).
C. Statutory Authority
The proposed amendment is published under the statutory authority of section 5123 of the code (relating to general boating regulations).
D. Purpose and Background
The proposed amendment is designed to update, modify and improve the Commission's regulations pertaining to boating. The specific purpose of the proposed amendment is described in more detail under the summary of proposal. The Commission's Boating Advisory Board has considered the proposal and has recommended that the Commission publish a notice of proposed rulemaking containing the amendment.
E. Summary of Proposal
Under the code, negligent operation of watercraft represents a deviation from the ordinary standard of care that a reasonable operator would observe under the circumstances. Reckless operation adds the component of willfulness and wanton disregard for the safety of persons or property. The Commission's regulations in § 105.3 (relating to unacceptable boating practices) contain a lesser offense defined as ''unacceptable boating practices.'' This section lists operations that, while unsafe, do not always fall within the definition of negligent or reckless operation.
Section 105.3(1) prohibits the operation of a boat not equipped with railings or other safeguards at a speed of greater than slow minimum height swell speed when any person is riding on the bow, decking, gunwales, transom or motor cover. While this definition has served the safety of boaters well, recent court cases indicate a need to further define this regulation. The majority of boats are equipped with railings intended to keep the occupants of the boats within the confines of the boat. A person riding in a bow rider is on the inside of the railings and in the cockpit of the boat. A person riding on a sailboat deck is within the area encompassed by the railings. The most prevalent exception to this general boat construction is the pontoon boat. Quite often, the railings of the pontoon boat do not entirely encompass the bow deck of the boat. Frequently, 3 or 4 feet of deck remain outside the railings. This is to facilitate docking and to keep passengers back from the bow to help balance the boat while underway. Certain courts have interpreted § 105.3 to mean that there is no requirement that persons must remain behind safety rails. The Commission therefore proposes amending this section as set forth in Annex A.
F. Paperwork
The proposed amendment will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The proposed amendment will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed amendment will impose no 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 amendment to the Executive Director, Pennsylvania Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000, within 30 days after publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.
Comments also may be submitted electronically at ''ra-pfbcregs@state.pa.us.'' A subject heading of the proposal and a return name and address must be included in each transmission. In addition, all electronic comments must be contained in the text of the transmission, not in an attachment. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
PETER A. COLANGELO,
Executive DirectorFiscal Note: 48A-114. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart C. BOATING
CHAPTER 105. OPERATIONAL CONDITIONS § 105.3. Unacceptable boating practices.
It is unlawful to:
* * * * * (9) Operate a pontoon boat while a person is riding outside the passenger carrying area. 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 or when the pontoon boat is underway at slow minimum height swell speed or less.
[Pa.B. Doc. No. 01-407. Filed for public inspection March 9, 2001, 9:00 a.m.]
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