FISH AND BOAT COMMISSION [ 58 PA. CODE CHS. 93, 99, 105 AND 109 ] Boating [42 Pa.B. 7688]
[Saturday, December 22, 2012]The Fish and Boat Commission (Commission) amends Chapters 93, 105 and 109 (relating to boat registration and numbering; operational conditions; and specialty boats and waterskiing activities) and rescinds Chapter 99. The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The amendments modify and update the Commission's boating regulations.
A. Effective Date
The final-form rulemaking will go into effect on January 1, 2013.
B. Contact Person
For further information on the final-form rulemaking, contact Wayne Melnick, Esq., P. O. Box 67000, Harrisburg, PA 17106-7000, (717) 705-7810. This final-form rulemaking is available on the Commission's web site at www.fish.state.pa.us.
C. Statutory Authority
The amendments to §§ 93.2 and 93.3 (relating to permanent and temporary registration; and application for boat registration) and the rescission of Chapter 99 are published under the statutory authority of section 5122 of the code (relating to registrations, licenses, permits, plates and statistics). The amendment to § 93.13 (relating to issuing agents) is published under the statutory authority of section 5304 of the code (relating to issuing agents). The amendment to § 93.102 (relating to application procedure and contents of applications for certificates of title) is published under the statutory authority of section 5325 of the code (relating to rules and regulations). The amendments to §§ 105.3 and 109.4 (relating to unacceptable boating practices; and waterskiing, aquaplaning, kiteskiing and similar activities) are published under the statutory authority of section 5123 of the code (relating to general boating regulations).
D. Purpose and Background
The final-form rulemaking is designed to improve, enhance and update the Commission's administrative and boating regulations. The specific purpose of the amendments is described in more detail under the summary of changes. Prior to final adoption, the Commission solicited the advice and opinion of the Commission's Boating Advisory Board (BAB).
E. Summary of Changes
(1) On June 1 and 2, 2011, the United States Coast Guard's (USCG) Boating Safety Division conducted an onsite program review of the Commonwealth's Recreational Boating Safety (RBS) program. Onsite program reviews are used by the USCG to help determine a state's eligibility to receive funding made available under the Recreational Boating Safety Act (46 U.S.C.A. §§ 13101—13110) for the state RBS program.
During the program review, the USCG identified a deficiency that required corrective action. Specifically, the issuance of a temporary registration certificate and decal that remains valid in excess of 60 days is not in compliance with Federal regulations. Currently, the Commission's regulations allow for temporary boat registrations to be valid for up to 90 days. Failure to correct this deficiency may jeopardize the Commission's eligibility for funding through the USCG-administered RBS program.
To correct the deficiency, the Commission amends §§ 93.2 and 93.13 to reflect the USCG's application. These amendments will limit the validity of temporary registration certificates and decals to a maximum of 60 days and require issuing agents to enter the expiration date (month/date/year) to ensure that the 60-day maximum is not exceeded. The Commission amends these sections to read as set forth in the notice of proposed rulemaking published at 42 Pa.B. 3446 (June 16, 2012).
(2) Due to changing Federal regulations at the time, the Commission made large-scale amendments to its capacity plate regulations in 1975 to conform to Federal regulations. The Commission again made modifications to its capacity plate regulations in 1994 as part of a year-long comprehensive review and update of the Commonwealth's boating regulations.
During the past 2 years, Commission staff have dealt with a number of capacity plate applications and inquiries that have revealed conflicts between the Commission's regulations and Federal regulations. Further research revealed that the Commonwealth is the only state that had capacity plate regulations that differed from Federal regulations and issued capacity plates. The Commission processed capacity plate applications for boats registered in this Commonwealth as well as boats registered in other states that may not be operated on waters in this Commonwealth. The Commission utilized a capacity plate calculator provided by the USCG that was intended to provide guidance to boaters rather than to be used to meet State or Federal regulations. In fact, the USCG recently informed the Commission that it should discontinue its use of the capacity plate calculator for these purposes.
Federal capacity plate requirements apply to manufacturers and are enforced by the USCG. Therefore, it is unnecessary for the Commission to promulgate regulations regarding capacity plate requirements. The Commission accordingly rescinds Chapter 99. As a result of rescinding Chapter 99, the references to capacity plate information in §§ 93.3(2)(x) and 93.102(b)(11), which required applicants to provide capacity plate information for boat registrations and certificates of title, respectively, is also deleted. The Commission rescinds Chapter 99 and amends §§ 93.3(2)(x) and 93.102(b)(11) to read as set forth in the notice of proposed rulemaking.
(3) Based on information presented at its February 8, 2011, meeting, the BAB recommended amending §§ 105.3 and 109.4 regarding the operation of boats engaged in the activity of wake surfing. Specifically, the BAB recommended that the Commission adopt a 300-foot slow, no-wake zone for boats engaged in the activity of wake surfing, exclude wake surfing from the 20-foot minimum tow rope requirement, adopt a definition of ''wake surfing,'' and allow wake surfing participants to wear a specifically designed wetsuit instead of the USCG-approved personal flotation device.
To date, there have not been propeller strike accidents reported Nationwide for participants in wake surfing activities. Boats with inboard motors are the preferred configuration for wake surfing activity. The propellers of inboard motors are located in front of the boat's transom and pose less risk to a person being towed. Outboard and inboard/outboard motors pose a much greater risk to persons being towed since the propeller is located aft of the transom. Outboards and inboard/outboards used for wake surfing are often trimmed up to create more wake which increases exposure to the propeller. The Water Sports Industry Association has been working with states to encourage the use of ''model language'' in crafting legislation or regulations to protect the safety of towed watersport participants, such as wake surfers. The Commission therefore adopts this model language in § 105.3(12) in addition to the changes previously recommended by the BAB to § 105.3(11). Additionally, the Commission clarifies the 20-foot measurement for tow ropes as being measured from the transom of the boat.
As previously noted, the BAB previously recommended the Commission adopt a 300-foot slow, no-wake zone for boats engaged in the activity of wake surfing. This recommendation was made in an effort to limit disturbance and damage resulting from excessive wakes created by boats engaged in wake surfing activity. However, upon further research of other states' regulations and a United States Naval Academy study on wave height and energy, Commission staff concluded that a 300-foot slow, no-wake zone will provide minimal additional benefits and unnecessarily limit wake surfing activity as compared to a 200-foot slow, no-wake zone. The Commission therefore adds § 109.4(k) to contain additional regulations specific to wake surfing, including a slow, no-wake zone of 200 feet. The Commission amends §§ 105.3 and 109.4 to read as set forth in the notice of proposed rulemaking.
F. Paperwork
The final-form rulemaking will not increase paperwork and will not create new paperwork requirements.
G. Fiscal Impact
The final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form rulemaking will not impose new costs on the private sector or the general public.
H. Public Involvement
Notice of proposed rulemaking was published at 42 Pa.B. 3446. The Commission did not receive public comments concerning the proposed amendments to §§ 93.2, 93.3, 93.13 and 93.102 or the proposed rescission of Chapter 99. The Commission received a total of eight comments concerning the proposed amendments to §§ 105.3 and 109.4—one prior to, six during and one after the formal comment period. The majority of comments supported the amendments with the primary reasons being enhanced safety for the participants and the rapid growth of the sport.
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 public comments 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 93, 99, 105 and 109, are amended by deleting §§ 99.1—99.7 and amending §§ 93.2, 93.3, 93.13, 93.102, 105.3 and 109.4 to read as set forth at 42 Pa.B. 3446.
(b) The Executive Director will submit this order and 42 Pa.B. 3446 to the Office of Attorney General for approval as to legality and form as required by law.
(c) The Executive Director shall certify this order and 42 Pa.B. 3446 and deposit them with the Legislative Reference Bureau as required by law.
(d) This order takes effect January 1, 2013.
JOHN A. ARWAY,
Executive DirectorFiscal Note: Fiscal Note 48A-236 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 12-2471. Filed for public inspection December 21, 2012, 9:00 a.m.]
