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PA Bulletin, Doc. No. 14-2620

RULES AND REGULATIONS

Title 58—RECREATION

FISH AND BOAT COMMISSION

[58 PA. CODE CHS. 95, 109 AND 111]

Boating

[44 Pa.B. 7872]
[Saturday, December 20, 2014]

 The Fish and Boat Commission (Commission) amends Chapters 95, 109 and 111 (relating to manufacturer installed equipment; specialty boats and waterskiing activities; and special regulations counties). 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, 2015.

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 §§ 95.3 and 109.2 (relating to lights for boats; and paddleboards and sailboards) are published under the statutory authority of section 5123 of the code (relating to general boating regulations). The amendment to § 111.49 (relating to Northumberland County) is published under the statutory authority of section 5124 of the code (relating to particular areas of water).

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 amendments is described in more detail under the summary of changes. The Commission solicited the advice and opinion of its Boating Advisory Board on the proposed amendments prior to final adoption.

E. Summary of Changes

 (1) Section 95.3 provides boaters with information on the requirements for types, configurations and locations of navigation lights on boats. These provisions are within the actual wording of the regulation and by reference to former Appendix A and the Inland Navigation Rules Act of 1980 (repealed).

 Based on a recent review of § 95.3, the Commission determined that it should be amended for a number of reasons. While there is a reference in § 95.3 to the Inland Navigation Rules Act of 1980, Pennsylvania courts have found there is not explicit language within the regulation that states a boater must comply with these specific Federal rules. In addition, the Inland Navigation Rules Act of 1980 was moved in 2010 to 33 CFR Part 83 (relating to rules).

 Section 95.3 also does not specifically incorporate the language of 33 CFR 83.20(b) (relating to application (Rule 20)), also referred to as Rule 20, which states:

Rules concerning lights complied with from sunset to sunrise; other lights. The Rules concerning lights shall be complied with from sunset to sunrise, and during such times no other lights shall be exhibited, except such lights as cannot be mistaken for the lights specified in these Rules or do not impair their visibility or distinctive character, or interfere with the keeping of a proper lookout.

 Pennsylvania courts have strictly construed the language of § 95.3 and have not interpreted it to mean that a boater must refrain from using other lights or if other lights are used they may not impair the visibility or distinctive character of the required lights. The Commission's waterways conservation officers have encountered challenges with successfully prosecuting more severe violations such as boating under the influence when lighting deficiencies have been cited as probable cause to conduct a boarding.

 For these reasons, the Commission amends § 95.3 to more closely reflect the lighting requirements in 33 CFR Part 83 and delete the reference to Appendix A. The Commission further deletes Appendix A and relies solely on the narrative. These amendments are not a substantive change to lighting requirements for recreational boaters. The Commission amends § 95.3 to read as set forth in Annex A.

 (2) In recent years, paddleboarding has been gaining popularity. Paddleboards were traditionally used to surf in the ocean but are now being used in lakes and rivers. Paddleboards resemble oversized surfboards and models are designed for use on various water conditions. Paddleboards are primarily operated by a person standing on the board using a paddle in a manner similar to a canoe.

 The Commission amends § 109.2 to classify paddle- boards as boats, to address safety issues and concerns, and to provide clarity for operators regarding legal requirements for paddleboards that include a United States Coast Guard approved wearable life jacket for each person on board, a sound producing device, visual distress signals (if operating on Lake Erie) and proper navigation lights. In addition, a Commission use permit, boat registration, or Pennsylvania State Parks launch permit or mooring permit is required if launching or retrieving a paddleboard at a Commission-owned or Commission-controlled lake or access area or State park or forest. The Commission amends § 109.2 to read as set forth in Annex A.

 (3) The Commission did not take action on the proposed amendments to § 109.4 (relating to waterskiing, aquaplaning, kiteskiing and similar activities) with respect to the use of airborne devices.

 (4) Section 111.49 designates a slow, no wake zone on the southeastern shore of Packer's Island (incorrectly referred to as Packard's Island) in the Susquehanna River adjacent to Shikellamy State Park in Sunbury. The river at Sunbury is dammed by an inflatable structure controlled by the Department of Conservation and Natural Resources. The water impounded by this dam forms a 3,060-acre lake known as Lake Augusta. The lake extends several miles up both the West Branch and the main stem of the Susquehanna River and provides a variety of angling and boating opportunities. Shikellamy State Park is located on the tip of Packer's Island, which is also the location of a number of homes, cottages, campsites, a boat club and an airport.

 The current slow, no wake zone is approximately 1/3 mile in length and was established by regulation in 1995 due to the number and activity of motorboats in this area and the resulting congestion problem around the Shikell- amy State Park launch ramp and boat club. The presence of two bridges immediately upstream of the Shikellamy State Park launch ramp limits visibility for boaters and provided additional justification for the slow, no wake designation. Buoys mark the upper and lower limits of the control zone, and appropriate intermediate points. The lengthy nature of this control zone results in boater confusion and unnecessarily inhibits use of a significant segment of the boating pool in this area. The Commission therefore proposed changing the upper limit of the slow, no wake zone to a distance of 200 feet above the Route 147 bridge.

 In this final-form rulemaking, the Commission amends § 111.49 with one point of clarification in addition to the amendments in the proposed rulemaking. The Commission clarifies that the downriver boundary is 250 feet downriver from the Shikellamy State Park boat launch. The Commission adopts the upper limit as being 200 feet above the Route 147 bridge and corrects the name of the island as proposed. The Commission amends § 111.49 to read as set forth in Annex A.

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 44 Pa.B. 4360 (July 12, 2014). The Commission did not receive comments regarding the proposed amendments to §§ 95.3 and 109.2. Regarding the proposed amendment to § 111.49, the Commission received 6 public comments before and 39 during the formal comment period supporting the amendment. Copies of all public comments were provided to the Commissioners. In addition, the Commission held a meeting at Shikellamy State Park on July 31, 2014, to gather public input on the proposed amendment.

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 all public 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 95, 109 and 111, are amended by amending §§ 95.3, 109.2 and 111.49 and deleting Chapter 95, Appendix A to read as set forth in Annex A.

 (Editor's Note: The proposed amendments to § 109.4 published at 44 Pa.B. 4360 are not adopted in this final-form rulemaking.)

 (b) The Executive Director will submit this order 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 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (d) This order shall take effect on January 1, 2015.

JOHN A. ARWAY, 
Executive Director

Fiscal Note: Fiscal Note 48A-258 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 95. MANUFACTURER INSTALLED EQUIPMENT

§ 95.3. Lights for boats.

 (a) General rule. The navigation lights requirements in this section shall be complied with in all weather from sunset to sunrise on the waters of this Commonwealth. During these times other lights may not be exhibited, except lights that cannot be mistaken for the lights specified in this section, lights that do not impair their visibility or distinctive character, or interfere with the keeping of a proper lookout. The lights prescribed in this section must, if carried, be exhibited from sunrise to sunset in restricted visibility and may be exhibited in all other circumstances when it is deemed necessary. The lights specified in this section must comply with United States Coast Guard specifications.

 (b) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

All-round light—A light showing an unbroken light over an arc of the horizon of 360°.

Docking light—A flood or spotlight type of light permanently installed or permanently mounted on a motorboat that is used to illuminate a boat's forward course of travel.

Flashing light—A light flashing at regular intervals at a frequency of 120 flashes or more per minute.

Masthead light—A white light placed over the fore and aft centerline of the boat showing an unbroken light over an arc of the horizon of 225° and fixed as to show the light from right ahead to 22.5° abaft the beam on either side of the boat, except that on a boat of less than 39.4 feet (12 meters) in length, the masthead light must be placed as nearly as practicable to the fore and aft centerline of the boat.

Restricted visibility—A condition in which visibility is restricted by fog, mist, falling snow, heavy rainstorms, sandstorms or other similar causes.

Sailboat—A boat under sail provided that propelling machinery, if fitted, is not being used.

Sidelights—A green light on the starboard (right) side and a red light on the port (left) side, each showing an unbroken light over an arc of the horizon of 112.5° and fixed as to show the light from right ahead to 22.5° abaft the beam on its respective side. On a boat of less than 65.6 feet (20 meters) in length, the side lights may be combined in one lantern carried on the fore and aft centerline of the boat. On a boat of less than 39.4 feet (12 meters) in length, the sidelights when combined in one lantern must be placed as nearly as practicable to the fore and aft centerline of the boat.

Special flashing light—A yellow light flashing at regular intervals at a frequency of 50 to 70 flashes per minute, placed as far forward and as nearly as practicable on the fore and aft centerline of the tow and showing an unbroken light over an arc of the horizon of not less than 180° nor more than 225° and fixed as to show the light from right ahead to abeam and no more than 22.5° abaft the beam on either side of the boat.

Sternlight—A white light placed as nearly as practicable at the stern showing an unbroken light over an arc of the horizon of 135° and fixed as to show the light 67.5° from right aft on each side of the boat.

Underway—A boat that is not at anchor, made fast to the shore or aground.

 (c) Visibility of lights.—The lights prescribed in this section must have an intensity as specified by the United States Coast Guard so as to be visible at the following minimum ranges:

 (1) In a boat of 164 feet (50 meters) or more in length: a masthead light, 6 miles; a sidelight, 3 miles; a sternlight, 3 miles; a towing light, 3 miles; a white, red, green or yellow all-round light, 3 miles; and a special flashing light, 2 miles.

 (2) In a boat of 39.4 feet (12 meters) or more in length but less than 164 feet (50 meters) in length: a masthead light, 5 miles; except that when the length of the boat is less than 65.6 feet (20 meters), 3 miles; a sidelight, 2 miles; a sternlight, 2 miles; a towing light, 2 miles; a white, red, green or yellow all-round light, 2 miles; and a special flashing light, 2 miles.

 (3) In a boat of less than 39.4 feet (12 meters) in length: a masthead light, 2 miles; a sidelight, 1 mile; a sternlight, 2 miles; a towing light, 2 miles; a white, red, green or yellow all-round light, 2 miles; and a special flashing light, 2 miles.

 (4) In an inconspicuous, partly submerged boat or object being towed: a white all-round light, 3 miles.

 (d) Motorboats underway.

 (1) A motorboat underway must exhibit the following lights:

 (i) A masthead light forward.

 (ii) A second masthead light abaft of and higher than the forward one. A boat of less than 164 feet (50 meters) in length may exhibit this light.

 (iii) Sidelights.

 (iv) A sternlight.

 (2) An air-cushion boat when operating in the nondisplacement mode must, in addition to the lights prescribed in paragraph (1), exhibit an all-round flashing yellow light where it can best be seen.

 (3) A motorboat of less than 39.4 feet (12 meters) in length may, instead of the lights prescribed in paragraph (1), exhibit an all-round white light and sidelights.

 (e) Sailboats underway and unpowered boats.

 (1) A sailboat underway must exhibit the following lights:

 (i) Sidelights.

 (ii) A sternlight.

 (2) In a sailboat of less than 65.6 feet (20 meters) in length, the lights prescribed in paragraph (1) may be combined in one lantern carried at or near the top of the mast where it can best be seen.

 (3) A sailboat underway may, in addition to the lights prescribed in paragraph (1), exhibit at or near the top of the mast, where they can best be seen, two all-round lights in a vertical line, the upper being red and the lower green. These lights may not be exhibited in conjunction with the combined lantern permitted by paragraph (2).

 (4) A sailboat of less than 23 feet (7 meters) in length must, if practicable, exhibit the lights prescribed in paragraph (1) or (2). If these lights are not exhibited, the sailboat must have ready at hand an electric torch or lighted lantern showing a white light that must be exhibited in sufficient time to prevent collision.

 (5) An unpowered boat may exhibit the lights prescribed in this subsection for sailboats. If these lights are not exhibited, the unpowered boat must have ready at hand an electric torch or lighted lantern showing a white light that must be exhibited in sufficient time to prevent collision.

 (f) Anchored boats and boats aground.

 (1) A boat at anchor must exhibit an all-round white light where it can best be seen:

 (i) In the fore part.

 (ii) At or near the stern and at a lower level than the light prescribed in subparagraph (i).

 (2) A boat of less than 164 feet (50 meters) in length may exhibit an all-round white light where it can best be seen instead of the lights prescribed in paragraph (1).

 (3) A boat aground must exhibit the lights prescribed in paragraph (1) where they can best be seen.

 (4) A boat of less than 65.6 feet (20 meters) in length, when at anchor in a special anchorage area designated by the United States Coast Guard, is not required to exhibit the anchor lights and shapes required under this subsection.

 (g) Boats being towed. When, for any sufficient cause, it is impracticable for a boat or object being towed to exhibit the lights prescribed in this section, all possible measures shall be taken to light the boat or object towed or at least to indicate the presence of the unlighted boat or object.

 (h) Docking lights. It is unlawful for a boat operator to use docking lights while underway except when docking and the boat is traveling at slow, no wake speed and is within 100 feet of approaching a dock, a mooring buoy or the shoreline.

Appendix A. (Reserved)

CHAPTER 109. SPECIALTY BOATS AND WATERSKIING ACTIVITIES

§ 109.2. Paddleboards and sailboards.

 (a) Paddleboards. For purposes of this subsection, a paddleboard is a boat with no freeboard propelled by a paddle, oar, pole or other device. It is unlawful for a person to operate or attempt to operate a paddleboard on waters of this Commonwealth without having a United States Coast Guard approved wearable personal flotation device on board for each person, unless otherwise required to be worn in accordance with § 97.1 (relating to personal flotation devices). This prohibition does not apply to persons operating or attempting to operate a paddleboard in designated swimming, surfing or bathing areas.

 (b) Sailboards. For purposes of this subsection, a sailboard is a type of single or double hulled boat equipped with an articulating mast and designed to be operated by a person standing on the board and maneuvering through the trim of the hand-held sail and distribution of body weight on the board. It is unlawful for a person to operate or attempt to operate a sailboard on waters of this Commonwealth unless the person is wearing a United States Coast Guard approved wearable personal flotation device. Inflatable personal flotation devices may not be used to meet this requirement.

CHAPTER 111. SPECIAL REGULATIONS COUNTIES

§ 111.49. Northumberland County.

Susquehanna River. Boats are limited to slow, no wake speed from 250 feet downriver of the Shikellamy State Park boat launch on the south side of Packer's Island upriver a distance of 200 feet above the Route 147 bridge.

[Pa.B. Doc. No. 14-2620. Filed for public inspection December 19, 2014, 9:00 a.m.]



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