PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[58 PA. CODE CHS. 51 AND 53]
Boat and Fishing Guide Operations
[35 Pa.B. 3416] The Fish and Boat Commission (Commission) proposes to amend Chapters 51 and 63 (relating to administrative provisions; and general fishing regulations). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The proposed amendments relate to charter boat/fishing guide operations.
A. Effective Date
The proposed rulemaking, if approved on final-form, will go into effect on January 1, 2006.
B. Contact Person
For further information on the proposed rulemaking, contact Laurie E. Shepler, Chief Counsel, P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7827. This proposal is available electronically through the Commission's website at www.fish.state.pa.us.
C. Statutory Authority
The Commission is adding Chapter 51, Subchapter L (relating to charter boat/fishing guide operations) under the statutory authority of section 2907.3(d) of the code (relating to fishing guide and charter boat permits, regulations). The proposed amendments to § 63.41 (relating to recognition of fishing guide operations) are published under the statutory authority of section 2102 of the code (relating to rules and regulations).
D. Purpose and Background
Under the act of November 29, 2004 (P. L. 1286, No. 159), persons operating charter boat or fishing guide operations on the waters of this Commonwealth are now required to obtain a charter boat/fishing guide permit from the Commission. The new law went into effect on January 1, 2005. However, the Commission has decided to defer implementation of the permit requirement pending the promulgation of rules and regulations for the new program.
The Executive Director established a workgroup consisting of Commission staff and 21 charter boat/fishing guides from across this Commonwealth and assigned them the task of developing draft regulations. The group formally met in January and March 2005 to discuss issues pertaining to this new program. With tremendous input from the charter boat/fishing guides, proposed regulations were drafted. The draft regulations address the majority, if not all, of the concerns raised by the workgroup.
E. Summary of Proposals
The Commission proposes new regulations to implement the charter boat/fishing guide permitting program. These proposed regulations define key terms and address the permit itself, including the application, the duration, renewals, suspension or revocation and display requirements. The proposal also includes a requirement that when a boat is involved, the operator demonstrate proficiency in boating safety by possessing a boating safety education certificate acceptable to the Commission. The proposed regulations further include provisions pertaining to insurance, CPR and first aid, fishing licenses and permits and compliance with laws and regulations.
Under section 2907.3 of the code (relating to fishing guide and charter boat permits), holders of charter boat/fishing guide permits may be designated as special issuing agents for the purpose of selling to their customers One-Day Fishing Licenses, Three-Day Tourist Fishing Licenses, Seven-Day Tourist Fishing Licenses and applicable permits. The proposed regulations allow for interested permit holders to become special issuing agents by completing and submitting an application along with a bond or other security in a form acceptable to the Commission in an amount equal to the value of the licenses, stamps and permits being requested. The one-time, nonrefundable application fee required of other issuing agents is waived, and the reporting requirements are less stringent. The Commission proposes that the new regulations read as set forth in Annex A.
Last, the Commission proposes to delete § 63.41 (relating to recognition of fishing guide operations) that relates to the Commission's current voluntary recognition program. Under this program, fishing guide operators may pay a $50 annual fee for which they receive official recognition of their businesses. This official recognition, among other things, entitles guides to advertise that they have been officially recognized by the Commission and gives them certain privileges with regard to the field dressing of fish. When the mandatory permitting program is in place, the voluntary program will no longer be needed. Thus, the Commission proposes to delete § 63.41 as set forth in Annex A.
F. Paperwork
The proposed rulemaking will increase paperwork and will create new paperwork requirements in that all persons wishing to operate charter boat or fishing guide operations on the waters of this Commonwealth will have to first apply for and obtain an annual permit from the Commission. The Commission estimates that there are approximately 250 charter boat/fishing guide operations in this Commonwealth. Under the voluntary program, the Commission officially recognized approximately 70 guides this year.
G. Fiscal Impact
The proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will impose no new costs on the private sector or the general public. Under section 2715(a.1) of the code (relating to license, permit and issuing agent fees), the fee for a resident charter boat/fishing guide permit is $100, and the fee for a nonresident charter boat/fishing guide permit is $400.
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 notice 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.state.pa.us/Fish/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.
DOUGLAS J. AUSTEN, Ph.D.,
Executive DirectorFiscal Note: 48A-173. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 51. ADMINISTRATIVE PROVISIONS
Subchapter L. CHARTER BOAT/FISHING GUIDE OPERATIONS Sec.
51.121. Definitions. 51.122. Permits. 51.123. Display of permits. 51.124. Boating safety education. 51.125. Insurance. 51.126. CPR and first aid. 51.127. Fishing license and permits. 51.128. Compliance with laws and regulations 51.129. Special issuing agents. 51.130. Boundary waters. § 51.121. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Charter boat--A boat operated as a commercial enterprise which carries passengers for hire for the purpose of fishing on the waters of this Commonwealth.
Charter boat operator--A person who operates or is in actual physical control of the movement of a charter boat.
Commercial enterprise--An operation where a person provides fishing guide or charter boat services in exchange for any consideration, including money, goods or services.
Fishing guide--A person who operates a commercial enterprise whereby he guides or leads others persons for the purpose of fishing on the waters of this Commonwealth.
§ 51.122. Permits.
(a) Application. A person desiring to be a charter boat operator or a fishing guide on the waters of this Commonwealth shall first apply for a permit on the form provided by the Commission. The applicant shall submit the completed form to the Commission along with the fee specified in section 2715 of the code (relating to license, permit and issuing agent fees).
(b) Duration. Charter boat/fishing guide permits shall be valid for a calendar year and expire on December 31 of the year for which they were issued.
(c) Renewal. A holder of a charter boat/fishing guide permit shall apply to the Commission for renewal of the permit by completing the renewal application form provided by the Commission and by submitting it along with the appropriate fee to the Commission.
(d) Suspension or revocation of permit. The Commission may suspend or revoke a charter boat/fishing guide permit for noncompliance with the terms and conditions of this chapter or when the charter boat operator or fishing guide is convicted or acknowledges guilt of a violation of the code or this chapter. Suspension or revocation procedures shall comply with Subchapter C (relating to suspension, denial or revocation of licenses, permits, registrations or privileges).
(e) Prima facie evidence. Advertising by any means, including websites, business cards, brochures, newspapers, periodicals or billboards, that a person provides fishing guide or charter boat services shall be prima facie evidence of a commercial enterprise.
§ 51.123. Display of permits.
(a) Display of permit on outer garment. While operating a charter boat or fishing guide operation, charter boat operators and fishing guides shall display their permits on a hat or an outer garment in plain view. The charter boat operator and fishing guide may carry and display the permit in the same holder containing a fishing license.
(b) Officers designated to check permits. Charter boat operators and fishing guides shall present their charter boat/fishing guide permits upon the request of an officer authorized to enforce the code.
(c) Display of decal on charter boats. When a boat is used in the charter boat/fishing guide operation, the charter boat operator shall display a decal supplied by the Commission on both sides of the boat hull above the waterline and below the gunwale near the stern of the boat or on each side window of the cockpit of the boat. While onboard a boat displaying a decal, the charter boat operator is exempt from the permit display requirements of this section provided the permit is onboard the boat. When, due to exigent circumstances, a charter boat operator must use a boat that does not display a charter boat/fishing guide decal, the charter boat operator shall display the permit on a hat or outer garment as required by this section.
§ 51.124. Boating safety education.
When a boat is used in the charter boat/fishing guide operation, the charter boat operator shall possess a boating safety education certificate issued by the Commission or by another state in accordance with criteria of the National Association of State Boating Law Administrators or a boat operator's license issued by the United States Coast Guard. Applicants and holders of charter boat/fishing guide permits shall provide proof of certification of boating safety education upon the request of the Commission.
§ 51.125. Insurance.
Charter boat operators and fishing guides shall possess and maintain in full force and effect general liability insurance for all periods during which they are operating a charter boat/fishing guide operation on the waters of this Commonwealth. The minimum amount of coverage is $250,000 for each occurrence and $500,000 in the aggregate. Applicants and holders of charter boat/fishing guide permits shall provide proof of insurance upon the request of the Commission.
§ 51.126. CPR and first aid.
Charter boat operators and fishing guides shall possess and maintain current certification in basic CPR and basic first aid skills. Applicants and holders of charter boat/fishing guide permits shall provide proof of CPR or basic first aid certification upon the request of the Commission.
§ 51.127. Fishing license and permits.
Charter boat operators and their crewmembers and fishing guides shall possess valid fishing licenses and the stamps and permits required for the waters in which they fish. Charter boat operators and fishing guides are responsible for ensuring that their employees, passengers and customers possess a valid fishing license and the appropriate stamps and permits.
§ 51.128. Compliance with laws and regulations.
Charter boat operators and fishing guides shall comply with all Federal, State and local laws and regulations. Charter boat operators and fishing guides are responsible for ensuring that their employees, passengers and customers comply with all fishing and boating laws and regulations.
§ 51.129. Special issuing agents.
(a) The Commission may designate holders of charter boat/fishing guide permits as special issuing agents for the purpose of selling to their customers One-Day Fishing Licenses, Three-Day Tourist Fishing Licenses, Seven-Day Tourist Fishing Licenses and trout/salmon permits and special permits for fishing Lake Erie and tributaries.
(b) A holder of a charter boat/fishing guide permit may seek to become a special issuing agent by completing and submitting to the Commission an application on the form prescribed by the Commission. Applications to become a special issuing agent shall be accompanied by a bond or other security in a form satisfactory to the Commission in an amount equal to the value of the licenses, stamps and permits being requested by the applicant. The one-time, nonrefundable fee required by § 51.35 (relating to operation of the issuing agency) is waived.
(c) Special issuing agents shall file quarterly reports of all fishing licenses, stamps and permits sold during the quarter in the manner determined by the Commission. Special issuing agents may file reports more frequently at the discretion of the agent.
(1) Special issuing agents shall include in their quarterly report detailed sales information and remittance for all licenses, stamps and permits sold during the reporting period.
(2) Special issuing agents shall file their reports so that they are received in the Harrisburg office by the 15th of the month following the reportable quarter.
(3) Special issuing agents shall file a report even if there is no sales activity to report for the quarter. Failure to file a report places the agency in a delinquent status.
(4) Special issuing agents shall indicate their agent number on the report, as well as the remittance.
(d) Special issuing agents shall maintain a bond or other security in a form satisfactory to the Commission in an amount equal to the value of all licenses, stamps and permits they wish to possess at each location where they issue licenses, stamps and permits.
(e) Except as otherwise provided by this section, Chapter 51, Subchapter D (relating to issuing agents) applies to special issuing agents under this section.
§ 51.130. Boundary waters.
(a) Residents of this Commonwealth who operate charter boats or fishing guide operations on boundary waters under the jurisdiction of the Commonwealth shall possess a resident charter boat/fishing guide permit.
(b) Nonresidents of this Commonwealth who operate charter boats or fishing guide operations on boundary waters under the jurisdiction of the Commonwealth shall possess a nonresident charter boat/fishing guide permit.
(c) For purposes of this section, there shall be a rebuttable presumption that a person operating a charter boat or fishing guide operation is operating on the waters of this Commonwealth if the person uses a boat launch in this Commonwealth.
Subpart B. Fishing
CHAPTER 63. GENERAL FISHING REGULATIONS § 63.41. [Recognition of fishing guide operations] (Reserved).
[(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Charter boat--A boat operated as part of a fishing guide operation on the waters of this Commonwealth.
Concurrent jurisdiction waters--Those waters of this Commonwealth over which the Commonwealth and the United States Coast Guard exercise concurrent jurisdiction, including Lake Erie and the Ohio, Monongahela, Allegheny, Delaware and North Branch, Susquehanna and West Branch, Susquehanna (below Williamsport) Rivers.
Fishing guide operation--A commercial enterprise operated for the purpose of guiding or leading persons fishing on the waters of this Commonwealth by boat or otherwise.
(b) Voluntary official recognition. The Executive Director may upon application grant official recognition of fishing guide operations. Applications for recognition shall be made on forms provided by the Commission and contain information the Executive Director may require. Denial of official recognition may be appealed in accordance with Chapter 51, Subchapter E (relating to permit procedures).
(c) Charter boats. When charter boats are used, applicants for official recognition shall submit the following evidence along with their applications:
(1) For charter boats carrying six or fewer passengers for hire on concurrent jurisdiction waters:
(i) A copy of a valid boat registration certificate, showing the boat use classification as ''commercial passenger.''
(ii) A copy of the Federal documentation certificate if the boat is required to be documented for commercial service by the United States Coast Guard.
(iii) A copy of the operator's license issued by the United States Coast Guard appropriate for the waters on which the boat will operate.
(2) For charter boats carrying seven or more passengers for hire on concurrent jurisdiction waters:
(i) A copy of a valid boat registration certificate, showing the boat use classification as ''commercial passenger.''
(ii) A copy of the Federal documentation certificate if the boat is required to be documented for commercial service by the United States Coast Guard.
(iii) A copy of the operator's license issued by the United States Coast Guard appropriate for the waters on which the boat will operate.
(iv) A copy of the most recent inspection report for the vessel.
(3) For charter boats carrying six or fewer passengers for hire on waters other than concurrent jurisdiction waters:
(i) A copy of a valid boat registration certificate, showing the boat use classification as ''commercial passenger.''
(ii) A copy of a boating safety education certificate for all operators.
(4) For charter boats carrying seven or more passengers for hire on waters other than concurrent jurisdiction waters:
(i) A copy of a valid boat registration certificate, showing the boat use classification as ''commercial passenger.''
(ii) A copy of a boating safety education certificate for all operators.
(iii) A certificate of inspection issued under Chapter 115 (relating to boats carrying passengers for hire).
(d) Duration and fee. Official recognition of fishing guide operations shall be valid for a calendar year and shall expire on December 31 of the year of issuance. The annual fee for official recognition is $50.
(e) Use of official recognition. Fishing guide operations recognized under this section may indicate that they have been ''Officially Recognized by the Pennsylvania Fish and Boat Commission'' in advertisements and by other means.
(f) Compliance with regulations. Persons who receive official recognition for fishing guide operations are responsible for ensuring that their employees, passengers and customers comply with fishing and boating regulations. The individual who submits and signs the application shall be the fishing guide or the owner/lessee/captain of the charter boat, and the individual shall be considered the individual party responsible for compliance with regulations. An application for official recognition shall include a provision whereby applicants agree that they will be responsible and are subject to prosecution for any violation of this part that occurs in connection with their operations.
(g) Reports. Officially-recognized fishing guide operations shall provide periodic reports to the Commission on the number of passengers or customers, number and species of fish caught and their disposition and other matters the Executive Director may require. Reports shall be submitted on forms approved by the Commission in numbers and at intervals determined by the Executive Director. Not more than four nor less than one report will be required per calendar year.
(h) Field dressing of fish.
(1) Notwithstanding § 63.15 (relating to field dressing of fish), fish caught pursuant to officially-recognized fishing guide operations may be filleted and have the head and tail removed before arrival at the place of consumption. The skin shall remain attached to the fillet for species subject to a minimum size limit. The minimum fillet size shall be 75% of the minimum size limit of the fish being filleted.
(2) The fishing guide operation shall give the person who receives the field dressed fish a signed, dated receipt indicating the species and number of fish on a form acceptable to the Commission. A person in possession of the field dressed fish shall carry the receipt with him and display it upon request to an officer authorized to enforce this title until the fish have arrived at the place of consumption. It is the responsibility of the officially-recognized fishing guide operation to ensure that a fish field dressed pursuant to the authority of this subsection complies with applicable season, size and creel limits.
(i) Holder of official recognition. Official recognition for a fishing guide operation that does not involve operation of a charter boat will be issued to an individual fishing guide. Each individual fishing guide shall apply for and receive official recognition. Official recognition for charter boats will be issued to the owner/lessee/captain of the boat. Individuals employed as crew members for a charter boat may, but need not necessarily, apply for and receive individual recognition as fishing guides. The operators of charter boats and the crew members shall comply with the licensing and training requirements in subsection (c).
(j) Suspension or revocation of official recognition. The Commission may suspend or revoke the official recognition of a fishing guide operation for noncompliance with the terms and conditions of this section or when the guide operation, the individual fishing guide, charter boat owner/lessee/captain or employee or crew member of the guide operation is convicted or acknowledges guilt of a violation of the code or this part related to the fishing guide operation. Suspension or revocation procedures shall comply with Chapter 51, Subchapter C (relating to suspension, denial or revocation of licenses, permits, registration or privileges).]
[Pa.B. Doc. No. 05-1172. Filed for public inspection June 17, 2005, 9:00 a.m.]
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