RULES AND REGULATIONS
Title 58--RECREATION
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 91, 109 AND 111]
Boating Safety Education Certificates; Personal Watercraft; Waterskiing
[32 Pa.B. 1865] The Fish and Boat Commission (Commission) by this order amends Chapters 91, 109 and 111 (relating to general provisions; specialty boats and water skiing activities; and special regulations counties). The Commission is publishing these amendments under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The amendments concern boating.
A. Effective Date
The amendments will go into effect upon publication of this order adopting the amendments in the Pennsylvania Bulletin.
B. Contact Person
For further information on the amendments, contact Laurie E. Shepler, Assistant Counsel, (717) 705-7815, P. O. Box 67000, Harrisburg, PA 17106-7000. This final-form rulemaking is available electronically through the Commission's website (http://www.fish.state.pa.us).
C. Statutory Authority
The amendments to §§ 91.6, 109.3 and 109.4 (relating to Boating Safety Education Certificates; personal watercraft; 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 amendments to §§ 111.13, 111.27 and 111.43 (relating to Carbon County; Forest County; and Mercer County) are published under the statutory authority of section 5124 of the code (relating to particular areas of water).
D. Purpose and Background
The amendments are designed to update, modify and improve the Commission's regulations pertaining to boating. The specific purpose of the amendments is described in more detail under the summary of changes. The Commission's Boating Advisory Board (BAB) considered all of the amendments prior to the Commission's consideration of them on final-form rulemaking and recommended that the Commission adopt them as set forth in the notice of proposed rulemaking with the changes described in this Preamble.
E. Summary of Changes
(1) Sections 91.6 and 109.3. Both of these sections refer to temporary Boating Safety Education Certificates. Section 91.6(d) refers to a 90-day temporary certificate. Section 109.3(h)(3) refers to one that is valid for at least 90 days and no more than 180 days from the date of purchasing a personal watercraft. The National Association for State Boating Law Administrators (NASBLA), in its Model Act for Mandatory Boating Safety Education adopted September 13, 2000, recommends that temporary certificates (called temporary operators' permits in the NASBLA model) be issued for a duration not to exceed 60 days. To encourage uniformity and reciprocity between states, the Commonwealth's regulations should comply whenever possible with National reciprocity standards. Accordingly, the Commission has amended these sections as proposed.
(2) Section 109.4. To clarify its regulations, the Commission proposed to amend this section by adding a definition of ''waterskiing.'' After the publication of the notice of proposed rulemaking, the Commission received one written comment and at least one oral suggestion that the definition of waterskiing should be modified to include barefoot waterskiing. The Commission, on final-form rulemaking, adopted the definition to read as set forth in Annex A.
(3) Section 111.13. The Commission received a petition from boaters who use Beltzville Lake in Carbon County to amend the waterskiing regulations. Beltzville Lake is a relatively small lake within the Beltzville State Park. Waterskiing type activities are currently restricted to 18% or 170 acres of the 950-acre lake. In the petition, the petitioners requested two changes: (1) to change the hours of skiing from 10 a.m. to sunset to sunrise to sunset; and (2) to open the entire lake to waterskiing.
The Commission accepted the petition for further review, and on June 4, 2001, the Commission held a public meeting at the park to obtain public input on the petition to change the regulation on Beltzville Lake. The meeting was well attended and gave Commission staff an opportunity to hear many views on how the lake should be regulated. Commission staff then prepared a report with input from the Bureau of State Parks.
Staff considered five possible options and recommended to the Commission that it consider a compromise solution that will allow waterskiing to begin at sunrise within the existing designated ski area only. This proposal would have little impact on other users and should not negatively affect boating safety. It allows skiers the opportunity to ski on calm water early in the day before wakes form and should have the additional benefit of reducing congestion in the ski zone, making that area safer. Accordingly, the Commission has amended this section as proposed.
(4) Section 111.27. Tionesta Lake was authorized by the Flood Control Act of 1936 and has been in full operation since December 1940. This reservoir project is part of the flood control system operated by the Corps of Engineers for the Allegheny and Upper Ohio Rivers. The pool elevation at Tionesta Lake is generally maintained between elevations 1,089--1,090, which creates a recreational pool of about 450 acres. The flood pool stretches 6 miles up Tionesta Creek from the dam. Much of the recreational pool is very narrow and is peppered with stumps from trees that were left standing when the impoundment was created.
Sometime in the early 1960s, project managers began to install and enforce a 10 mph zone on the portion of the lake from the confluence of Little Piney Run upstream, a distance of about 2 miles. This restriction was never adopted by the Commission as a regulation. In 1974, the Commission was asked by the project manager to make this area slow, no wake. At a series of meetings, the BAB declined to recommend this change. The minutes of these meetings indicate that the BAB felt that the area did not need this strict restriction. The 10 mph zone was continued, but no regulations were passed to enable enforcement.
The Commission's Bureau of Law Enforcement, along with the Corps Project Manager, again requested that this area of the lake be regulated at slow, no wake and that this restriction be adopted as a regulation so that it may be enforced. The request cited the numerous shoals and tree stumps in this area that preclude most high speed operation and a desire to create an area for boating anglers free from other types of operation. It should be noted that there are two boat launch facilities on the lake. The Commission operates the Nebraska Bridge access near the upper limits of the proposed slow, no wake zone. The Corps of Engineers operates a boat launch near the dam that facilitates water skiers and other high-speed boats. The Commission has amended § 111.27 as proposed.
(5) Section 111.43. The Commission received a request from the Shenango Lake Water Safety Council to consider imposing restrictions on the towing of aquaplanes and similar devices in certain slow no wake areas on Shenango River Lake in Mercer County. Shenango River Lake is a Corps of Engineers impoundment that was constructed on the Shenango River in 1965 and became operational in 1967. The lake was created for the purpose of flood control, low flow augmentation and recreation. At the top of its recreational pool, the lake has a length of 11 miles and provides 3,500 acres of water surface.
The Water Safety Council (Council), which is comprised of representatives of the Corps of Engineers, the Commission and various users of the lake, makes recommendations concerning the operation of the recreational facilities on the lake. The Council has identified a potential safety problem with the operation of boats in two areas of the lake where boat traffic is directed through bridge piers. These areas have long been designated slow, no wake in recognition of the potential danger. Recently, project managers have observed an increasing number of people who are towing passengers through these areas on aquaplanes, tubes and similar devices. While the operators are maintaining a slow, no wake speed with their boats, the towing of devices behind the boats in the congested areas has resulted in several close calls for persons on the devices. Additionally, the presence of towlines in the water in the areas increases the potential for entanglement in propellers. Accordingly, the Commission has amended § 111.43, as proposed, to prohibit waterskiing in the slow, no wake zones.
F. Paperwork
The amendments will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The amendments will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The amendments will impose no new costs on the private sector or the general public.
H. Public Involvement
A notice of proposed rulemaking was published at 31 Pa.B. 5797 (October 20, 2001). Although the Commission received in excess of 20 public comments (including a petition signed by 1,143 individuals) regarding the amendment to § 111.13, none of the comments were received during the formal comment period. Most of the comments were received prior to the formal comment period and support changing the hours of waterskiing from 10 a.m. to sunset to sunrise to sunset and opening the entire lake to waterskiing. A group that identified itself as ''Concerned Lake Users'' submitted a petition signed by 1,143 individuals. These users oppose unrestricted waterskiing. Only two public comments support the changes as proposed.
Prior to the formal public comment period, the Commission received one public comment from the Corps of Engineers, Pittsburgh District, which fully supports the amendment to § 111.43. The Commission also received one written comment and at least one oral suggestion that the definition of ''waterskiing'' in § 109.4 should be modified to include barefoot water skiing. Copies of all public comments have been provided to the Commissioners.
The Commission did not receive any public comments concerning the other proposals.
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 91, 109 and 111, are amended by amending §§ 91.6, 109.3, 111.13, 111.27 and 111.43 to read as set forth at 31 Pa.B. 5797 and by amending § 109.4 to read as set forth in Annex A, with ellipses referring to the existing text of the regulation.
(b) The Executive Director will submit this order, 31 Pa.B. 5797 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, 31 Pa.B. 5797 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
PETER A. COLANGELO,
Executive DirectorFiscal Note: Fiscal Note 48A-123 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart C. BOATING
CHAPTER 109. SPECIALTY BOATS AND
WATER SKIING ACTIVITIES§ 109.4. Waterskiing, aquaplaning, kiteskiing and similar activities.
(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Competent observer--A person who has the ability to assess when a skier is in trouble, knows and understands the waterskiing hand signals and is capable of helping a skier.
PFD--Personal Flotation Device.
Trick skier--A water-skier who can be identified by body movements and skiing positions, which readily differentiate the trick-skier from the ordinary ''forward'' skier engaged in straight skiing or slalom and jump events, and also by the following:
(i) Skies. Short (38 inches--40 inches) and wide (8 inches--9 inches) with no keels on bottom.
(ii) Speed of tow. Slow (12--18 miles per hour).
(iii) Rope. Short (40 to 50 feet) and often with toehold strap attached to handle.
Water ski--A device used by a person to be towed through or on water behind a boat. The term includes conventional water skis, aquaplanes, kneeboards, inner tubes, inflatable hot dogs, air mattress, parasails, kite skis and similar devices.
Waterskiing--A competitive or recreational water sport in which a person is towed across the water's surface behind a boat in any fashion on a water ski as defined in this subsection or on his bare feet.
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[Pa.B. Doc. No. 02-570. Filed for public inspection April 12, 2002, 9:00 a.m.]
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