FISH AND BOAT COMMISSION [ 58 PA. CODE CH. 115 ] Boating; Boats Carrying Passengers for Hire [42 Pa.B. 7690]
[Saturday, December 22, 2012]The Fish and Boat Commission (Commission) amends 58 Pa. Code Chapter 115 (relating to boats carrying passengers for hire). The Commission is publishing this final-form rulemaking under the authority of 30 Pa.C.S. (relating to Fish and Boat Code) (code).
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 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 final-form rulemaking is designed to improve, enhance and update the Commission's boating regulations. The specific purpose of the final-form rulemaking is described in more detail under the summary of changes.
E. Summary of Changes
Chapter 115, regarding the operation of boats carrying passengers for hire, was 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 amendments involved 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. 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 included 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.
• 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.
Notice of proposed rulemaking was published at 42 Pa.B. 4472 (July 14, 2012). The Commission received seven comments during and one comment after the formal public comment period mostly from current operators of passenger for hire vessels. The comments expressed concerns about the cost of implementing various aspects of the proposed rulemaking, including stability testing, first aid and CPR certification, and drug testing. Upon consideration of the public comments and further research, the Commission adopted the following modifications to the proposed rulemaking on final-form rulemaking:
• In § 115.3(a)(1) (relating to recertification), the Commission deleted the requirement for an in-water inspection and changed the frequency of the dry dock examination by a qualified accredited marine surveyor to at least once every 5 years from the proposed 3 years. This frequency was suggested by an operator and coincides with the recommendation in the National Association of State Boating Law Administrators' Model Act for Charter Boat Safety.
• In § 115.3(a)(2), the Commission removed the requirement that boats undergo stability testing to maintain certification and limit stability testing to only those boats that have been involved in an accident or have been structurally modified.
• The Commission withdrew the requirement for operators and crew to possess and maintain certification in CPR and first aid in §§ 115.8(c)(4) and 115.9(e) and (h) (relating to personnel requirements of passenger carrying boats; and licenses for operators).
• The Commission withdrew the requirement for standard drug screen for operators in § 115.9(b).
The Commission amends §§ 115.3 and 115.9 to read as set forth in Annex A. The Commission withdraws the proposed amendment to § 115.8. The Commission amends all other sections in Chapter 115 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 impose increased costs on the private sector for marine surveys and stability tests. The final-form rulemaking will increase the frequency of dry dock examinations from once every 6 years to once every 5 years. Examinations are estimated to cost between $500 and $800 depending upon the boat. Stability testing will be an expense if a 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 final-form rulemaking will not impose new costs on the general public.
H. Public Involvement
As previously noted, the Commission received a total of eight comments mostly from current operators of passenger for hire vessels. The comments expressed concerns about the cost of implementing various aspects of the proposed rulemaking including stability testing, first aid and CPR certification, and drug testing. Copies of the public comments were provided to the Commissioners.
Findings
The Commission finds that:
(a) 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 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 Chapter 115, are amended by amending §§ 115.1, 115.2, 115.4, 115.5, 115.7, 115.10 and 115.12 to read as set forth at 42 Pa.B. 4472 and by amending §§ 115.3 and 115.9 to read as set forth in Annex A.
(Editor's Note: The proposed amendment to § 115.8 has been withdrawn by the Commission.)
(b) The Executive Director will submit this order, 42 Pa.B. 4472 and Annex A 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, 42 Pa.B. 4472 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect on January 1, 2013.
JOHN A. ARWAY,
Executive DirectorFiscal Note: Fiscal Note 48A-235 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 115. BOATS CARRYING PASSENGERS FOR HIRE § 115.3. Recertification.
(a) A boat carrying passengers for hire shall have reinspections and recertifications as follows:
(1) A dry dock examination shall be conducted by a qualified accredited marine surveyor at least once every 5 years.
(2) A stability test shall be conducted whenever a boat has been involved in an accident or has been structurally modified. 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.
(b) The owner will forward to the Commission a copy of the recertification report along with other documents requested by the Commission.
§ 115.9. Licenses for operators.
(a) Eligibility. Persons, 18 years of age and older, 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 must include a statement attesting that the applicant displays normal color vision. This requirement may be waived if the operation of vessels for which the license is sought will be limited to daylight hours.
(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(a)(6) of the code (relating to fees).
(d) Examination. 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) Contents and display of boat operator's license. The operator's license shall contain a photograph of the licensee. 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. 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 license. 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) Expiration. Licenses issued under this section will expire on December 31, 5 years from the date of issuance.
(g) 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.
[Pa.B. Doc. No. 12-2472. Filed for public inspection December 21, 2012, 9:00 a.m.]
