PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[ 58 PA. CODE CH. 115 ]
Boating; Boats Carrying Passengers for Hire
[42 Pa.B. 4472]
[Saturday, July 14, 2012]The Fish and Boat Commission (Commission) proposes to amend Chapter 115 (relating to boats carrying passengers for hire). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code). The proposed amendments modify and update the Commission's boating regulations.
A. Effective Date
The proposed rulemaking, if approved on final-form rulemaking, will go into effect on January 1, 2013.
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 Chapter 115 are published under the statutory authority of section 5123(a)(1) of the code (relating to general boating regulations) and deemed necessary for the health and safety of passengers, operators and persons on, in or towed by boats on, in or along the waters of this Commonwealth.
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 proposal. On February 9, 2012, the Commission's Boating Advisory Board considered the proposal and recommended that the Commission approve the publication of this proposed rulemaking.
E. Summary of Proposal
The current regulations in Chapter 115 regarding the operation of boats carrying passengers for hire were adopted in 1994. With the exception of some minor procedural amendments in 1999 and 2003, significant changes have not been made to the regulations in the past 18 years. During this period, boat accidents involving passenger for hire vessels have occurred in other states, most notably the capsizing of the tour boat Ethan Allen on Lake George, New York in 2005, which prompted Commission staff to re-examine the Commission's current regulations. In July 2011, a workgroup consisting of Commission staff, a passenger for hire business owner and vessel operator met to discuss proposed amendments to the regulations.
The most significant proposed change to the current regulations involves a requirement that the passenger capacity of vessels in the program be determined through United States Coast Guard-approved stability testing. The current passenger for hire fleet in this Commonwealth numbers 18 vessels owned and operated by 13 businesses. The vessels are tour boats and range in size from 18 to 75 feet. Most are pontoon boats with the exception of four larger vessels operated on Lake Raystown and Conneaut Lake. Under the current regulations, only boats carrying more than 49 passengers or having more than 1 passenger carrying deck are required to undergo stability testing. In all other cases, passenger capacity is determined by means of manufacturer supplied capacity plates. In the Ethan Allen accident, the vessel was initially rated for 50 passengers but had been modified with the addition of a solid canopy and other superstructure. On the day of the accident, the Ethan Allen carried 47 passengers plus the operator and capsized after striking the wake of another vessel during a turn. Twenty passengers died as a result of the accident. The National Transportation Safety Board concluded that had the vessel undergone appropriate stability testing after modification, it would have been certified for only 14 passengers. Members of the workgroup agreed that requiring stability testing on passenger for hire boats is the most appropriate method to address concerns regarding capacity and loading. A marine surveyor who currently inspects 6 of the 18 boats in the program advised staff that with the assistance of the boat owner stability testing can be performed on boats in the program without excessive cost. After obtaining an initial test, boats will not be required to have a new stability test unless modified or involved in an accident.
Other proposed amendments to Chapter 115 include the following:
• Increasing the required amount of liability insurance to reflect more realistic damage and personal injury estimates in case of an accident.
• A housekeeping change to indicate that passenger for hire vessels are now a Bureau of Law Enforcement program area.
• Requiring passenger for hire vessel operators and crew members to maintain certification in CPR and basic first aid. These certifications are currently required for holders of fishing guide/charter boat permits.
• Requiring that the initial physical examination include a standard drug screen. This requirement is being proposed at the suggestion of two vessel owners.
• Eliminating the requirement that licensed operators disclose changes in their physical condition when applying for renewal of their license and instead requiring that operators obtain a new physical examination with each renewal of their license.
• Removing the requirement that the vessel operator license, currently an 8 1/2" x 11" paper certificate, be displayed on the boat next to the certificate of inspection in favor of the issuance of a wallet sized identification card that the operator will be required to carry and display while in operation of the boat.
• Adding language indicating that operator licenses are good on water under the jurisdiction of the Commonwealth for vessels up to and including the size listed on the license and thereby clarifying the intent that operators may work on any passenger for hire vessel certified by the Commission and are not limited to one employer.
• Eliminating the requirement that the Commission maintain an approved list of marine surveyors in favor of a requirement that marine surveys be conducted by individuals accredited through one of the National marine surveyors associations.
• Adding language indicating that individuals with United States Coast Guard certification appropriate to the size and type of boat they intend to operate in the Commission's program will be able to obtain a waiver of the state licensing requirements upon presentation of their Coast Guard credentials and certification in CPR and first aid.
The Commission proposes that Chapter 115 be amended to read as set forth in Annex A.
F. Paperwork
The proposed rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The proposed rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will impose increased costs on the private sector for marine surveys and stability tests. The proposed rulemaking will increase the frequency of dry dock examinations from once every 6 years to once every 3 years. Examinations are estimated to cost between $500 and $800 depending upon the boat. Stability testing will be a one-time expense unless the boat is modified or involved in an accident. Testing is estimated to cost between $600 and $1,500 for most boats. Testing for boats with hulls 65 feet or longer or unusual hull designs may range from $3,500 to $10,000. The proposed rulemaking will not impose new costs on 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-235. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart C. BOATING
CHAPTER 115. BOATS CARRYING PASSENGERS FOR HIRE § 115.1. Purpose.
This chapter establishes regulations for boats carrying passengers for hire [to protect the health and safety of the passengers and operators]. The regulations in this chapter are promulgated under section 5123(a)(1) of the code (relating to general boating regulations) and deemed necessary for the health and safety of passengers, operators and persons on, in or towed by boats on, in or along the waters of this Commonwealth. The definition ''passenger-carrying boat'' as set forth [at] in section 102 of the code (relating to definitions) applies to this chapter and to the term ''boats carrying passengers for hire.''
§ 115.2. Initial certification.
* * * * * (b) An applicant shall submit the following documentation in addition to the application form:
(1) Form PFBC-291c. A Form PFBC-291c, Vessel Characteristic Report, has two parts. Part A is to be completed and signed by the owner. Part B is to be completed by a qualified [licensed] accredited marine surveyor[, approved by the Commission,] who conducted the inspection within 6 months preceding the date of the application. The inspection report shall include a statement by the marine surveyor as to whether or not the boat is suitable for the use intended, or if not suitable, the requirements necessary to bring about compliance. The report shall also include the opinion of the marine surveyor as to the total number of persons who may be carried on the boat. [If the boat is to carry more than 49 passengers or have more than one passenger carrying deck, this opinion shall be based on the performance of the boat in an incline experiment. This does not waive the requirement for an incline experiment for other boats if the marine surveyor determines a need for one because of other design conditions.] The opinion of the marine surveyor shall be based on a United States Coast Guard-approved stability test suitable for the type and size of boat.
(2) Proof of financial responsibility. An [owner of a boat carrying passengers for hire] applicant shall furnish the Commission proof of financial responsibility. The proof shall evidence the [licensee's] applicant's ability to respond in damages on account of accidents arising out of the maintenance or use of the passenger carrying boat. The minimum amount of coverage shall be [$250,000] $500,000 because of injury or death to one person in an accident and [$500,000] $1,000,000 because of injury or death to two or more persons in an accident and [$10,000] $25,000 because of damage to property of others in an accident. Proof of financial responsibility shall be in a form acceptable to the Commission and shall provide for notice to the Commission in the event of cancellation of liability insurance.
§ 115.3. Recertification.
(a) A boat carrying passengers for hire shall have reinspections and recertifications as follows:
(1) [A boat with a wooden formed hull. Inspection and dry dock examination by a qualified marine surveyor, approved by the Commission, at least once every 3 years.
(2) Other boats. In-water inspection at least once every 3 years and dry dock examination at least once every 6 years both to be conducted by a qualified marine surveyor approved by the Commission.] An in-water inspection and dry dock examination shall be conducted by a qualified accredited marine surveyor at least once every 3 years.
(2) A stability test shall be conducted by a naval architect or other qualified individual to maintain certification for passenger carrying boats certified as of January 1, 2013. The stability test shall be United States Coast Guard-approved, suitable for the type and size of boat and utilize the current Assumed Average Weight per Person standard adopted by the United States Coast Guard. Results of the stability test shall be forwarded to the Commission prior to the first commercial use of the boat in 2013. The Commission will accept results of a stability test conducted after December 1, 2011, if the boat was not involved in an accident or was not structurally modified since the stability testing.
(3) A new stability test shall be conducted whenever a boat has been involved in an accident or has been structurally modified.
* * * * * § 115.4. Annual safety inspections.
(a) Annual safety inspections are required every year after the year of initial certification. When the vessel is ready for inspection, the owner shall apply for an annual safety inspection [in writing] by electronic mail or telephone to the regional law enforcement office for the region in which the boat is to operate. The application shall be submitted at least 30 days prior to the requested date of inspection. This annual inspection shall be conducted prior to the first commercial use of the boat or within 30 days of the date of issue on the certificate of inspection if the boat operates year round.
* * * * * § 115.5. Certification of inspection.
* * * * * (c) Validation of certificates. The certificate of inspection will be valid with the original signatures of the Director, Bureau of [Boating] Law Enforcement or a designee, the inspecting officer and the owner.
(d) Compliance. It is unlawful to operate a boat carrying passengers for hire if the boat is not in compliance with the certificate of inspection. [Compliance with subsection (b)(10)—(13) and (16) is deemed necessary for the health and safety of passengers and operators as set forth at section 5123(a)(1) of the code (relating to general boating regulations).]
§ 115.7. [Approved] Accredited marine surveyors.
[The Commission will maintain a list of approved qualified marine surveyors. A marine surveyor may request approval by the Commission by submitting a letter listing education, licenses, registration, accreditation and other pertinent information which will attest to qualifications as a marine surveyor. Upon approval, the Commission will notify the surveyor that their name has been added to the list.] For purposes of this chapter, an accredited marine surveyor is a surveyor who has been accredited by one of the National marine surveyors associations.
§ 115.8. Personnel requirements of passenger carrying boats.
* * * * * (c) To qualify as a crew member, an individual shall meet the following conditions. The individual shall:
* * * * * (3) Possess a valid Boating Safety Education Certificate.
(4) Possess and maintain current certification in basic CPR and basic first aid skills. Crew members shall present proof of CPR or first aid certification upon request of the Commission.
§ 115.9. Licenses for operators.
(a) Eligibility. Persons, 18 years of age and older, [of good character and] in good physical condition and who possess a valid Boating Safety Education Certificate are eligible for licensing as operators of passenger-carrying boats.
(b) Physical examination. The physical condition of an applicant for an operator's license shall be certified by a physician after a physical examination. The physician's certification shall include a statement attesting [to unimpaired color sense of the applicant] that the applicant displays normal color vision. [The] This requirement [of unimpaired color sense] may be waived if the operation of vessels for which the license is sought will be limited to daylight hours. [Licensees shall notify the Commission of changes in physical condition that may affect their ability to operate a boat carrying passengers for hire.] The physician's certification must include a statement that the applicant was subject to and passed a standard drug screen as part of the physical examination.
(c) Application. An application for a boat operator's license shall be made on the form provided by the Commission. The completed form shall be submitted with the applicable fee as listed in section [5104(b)] 5104(a)(6) of the code (relating to fees).
(d) Examination. [Persons applying for a license to operate a boat carrying passengers for hire] An applicant for a boat operator's license shall pass a professional examination to demonstrate sufficient experience and capabilities to assume the responsibilities for operation of a passenger-carrying boat. Examination will include oral questions and a practical test of boating skills using the boat—or a boat of identical size and type—for which an operator's license is being requested. If the applicant does not pass the oral examination or the practical test, 30 days is required prior to taking a retest. A request for the retest shall be submitted on Form PFBC-292.
(e) CPR and first aid. An applicant for a boat operator's license shall possess current certification in basic CPR and basic first aid skills. A licensed boat operator shall maintain current certifications in these areas and present proof of CPR and first aid certification upon request of the Commission.
(f) Contents and display of boat operator's license. The operator's [certificate] license shall contain a photograph of the licensee[, approximately 2 inches by 2 inches in dimension]. In addition, it will list the name and the limitations on the operator with respect to size of vessel authorized to operate[,] and day or night restrictions [and area or body of water in which authorized to operate]. Licenses issued under this section are valid on any water under the sole jurisdiction of the Commonwealth for boats up to and including the size listed on the license. The Commission will validate the operator's [certificate] license. [The operator shall display the operator's certificate alongside the certificate of inspection required by § 115.3 (relating to recertification) onboard the boat. It is unlawful to fail to display the validated operator's certificate as provided in this section.] The operator shall carry and display the license while in actual operation of a passenger carrying boat and produce the license upon request of the Commission.
[(f)] (g) Expiration. [Operator certificates] Licenses issued under this section will expire on December 31, 5 years from the date of issuance.
(h) Waiver. The Commission will waive the licensing requirement of this section for an individual possessing a current valid United States Coast Guard certification appropriate for the size and type of boat he intends to operate upon presentation of proof of his Coast Guard Merchant Mariner Credential or other Coast Guard certification and proof of certification in basic CPR and first aid.
§ 115.10. Renewal of operator's license.
* * * * * (b) Applicants for renewal of licenses shall [disclose changes in their physical condition or operational capabilities that might affect their ability to operate a boat carrying passengers for hire] undergo a new physical examination and submit a new physician's certification as described in § 115.9(b) (relating to licenses for operators).
(c) If there are no changes to the limitations imposed by the original license, a practical [or written] examination is not required. An oral examination may be required if there have been significant changes to regulations concerning safe operation of boats, carriage requirements for safety equipment or carrying passengers for hire.
(d) A licensed operator who does not renew a license as required by subsection (a) shall reapply in accordance with § 115.9 [(relating to licenses for operators)].
§ 115.12. Applicability of other regulations.
The boats governed by this chapter shall comply with this subpart with regard to registration, equipment, accident reporting and operation. Also see Chapters 93, 95, 97, 101, 103, 105 and 107.
[Pa.B. Doc. No. 12-1302. Filed for public inspection July 13, 2012, 9:00 a.m.]
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