OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. PKR-12-10-00003-P
Safe Boating Education Program
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Repeal of Part 451 and addition of new Part 451 to Title 9 NYCRR.
Statutory authority:
Parks, Recreation and Historic Preservation Law, section 3.09(8); and Navigation Law, sections 75-79
Subject:
Safe boating education program.
Purpose:
To update the boating education program and the instructor certification program.
Substance of proposed rule (Full text is posted at the following State website:www.nysparks.state.ny.us):
Section 451.1 summarizes the purposes and scope of the safe boating program administered by the Office of Parks, Recreation and Historic Preservation's (State Parks) Marine Services Bureau.
Section 451.2 explains that all unsupervised youth operators of vessels and all persons age 14 or older who operate personal watercraft must carry a commissioner-issued boating safety certificate (certificate) or qualify for an exemption.
Section 451.3 describes the application and New York State safe boating course (course) requirements for receiving a certificate.
Section 451.4 defines the temporary certificate that is issued by the instructor upon course completion and the permanent certificate that is subsequently issued by the commissioner. Explains that the permanent certificate is issued to adults only after payment of the $10 fee to State Parks and that youth operators do not pay that fee.
Section 451.5 describes who is exempt from carrying a certificate.
Section 451.6 outlines under what circumstances a certificate could be suspended or revoked by the commissioner.
Section 451.7 contains definitions.
Section 451.8 outlines the requirements and basic principles of the course.
Section 451.9 prescribes the requirements for record keeping for individual instructors or for certified commercial organizations administering the course on behalf of their affiliated commercial instructors.
Section 451.10 prescribes the requirements for instructor certification by State Parks.
Section 451.11 prescribes the requirements for certification of commercial organizations that offer the course on behalf of affiliated commercial instructors.
Section 451.12 describes the circumstances when an application for a commercial organization certificate will be denied or when the certificate will be suspended or revoked.
Section 451.14 establishes that failing to comply with this regulation is a violation under Section 73-c of the Navigation Law.
Section 451.15 contains the severability clause.
Text of proposed rule and any required statements and analyses may be obtained from:
Kathleen L. Martens, Associate Counsel, New York State Parks, Recreation and Historic Preservation, Empire State Plaza, Agency Building 1, 19th Floor, Albany, NY 12238, (518) 486-2921, email: rulemaking@oprhp.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory Authority:
OPRHP is repealing the boating safety regulation at 9 NYCRR Part 451 and adopting a new updated, expanded rule. Parks, Recreation and Historic Preservation [PRHP] Law § 3.09[8] authorizes the Office of Parks, Recreation and Historic Preservation (OPRHP or State Parks) to generally "adopt, amend or rescind" regulations. Section 10 of the Navigation (Nav.) Law authorizes the Commissioner to administer that statute and implement Navigation Law § § 75-79 through regulation. Navigation Law § 77 specifically authorizes the commissioner to adopt rules designed to result in further knowledge and observance of the principles of safe boating. The proposed rule continues the boating education program, certification of unsupervised youth operators and unsupervised personal watercraft (PWC or jet skis) operators age 14 or over, and certification of volunteer instructors and instructors who charge a fee for teaching the safe boating course: these are all elements of the existing program. The rule, however, now requires all instructors to use the New York Course materials (course), and allows the commissioner to certify commercial organizations to administer the program for commercial instructors who charge a fee for teaching the course. The rule continues voluntary participation in this boating education program by instructors or commercial organizations who request approval from the commissioner to teach the course to youths who must take the course and to adults who choose to take the course.
Navigation Law, Article 4 (Part 5) requires the Commissioner to
• Establish "a comprehensive educational program designed to advance boating safety" for youths, and for persons age 14 or over operating a PWC. (Nav. Law § 75).
• Prepare and disseminate water safety information. (Nav. Law § 76).
• Issue boating safety certificates and collect an initial $10 fee. (Nav. Law § 78).
• Use discretion in designating and certifying qualified instructors. (Nav. Law § 79).
Youths (between the ages of 10 and up to but not including age 18) may operate a motorized vessel if they first obtain a Commissioner-issued boating safety certificate under this rule or other (e.g., Coast Guard/Power Squadron) certification, or are supervised and accompanied in the vessel by an adult age 18 or older. (Nav. Law. § 49[1]). Additionally, all persons age 14 or older (youths and adults) may operate PWC1 if they first obtain a Commissioner-issued boating safety certificate under this rule, or obtain another (e.g., Coast Guard/Power Squadron) certification, or they are supervised and accompanied by an adult who has a certificate and has completed a Commissioner-approved safe boating course. Nav. Law § 49[1-a])
2. Legislative Objectives:
The State Legislature has required the Commissioner to protect and encourage "public interest in the prudent and equitable use of the waters of the state" (Nav. Law § 75) as well as to foster public interest in boating. The Commissioner may certify qualified instructors. (Nav. Law § 79). When Sections 77, 78 and 79 were first enacted in 1959, State Parks' staff and volunteers primarily taught the course. Today, there is increasing public demand for the course and for New York-issued boating safety certificates even though the State Legislature only requires the course and certificates for youths who operate vessels without adult supervision, and for all persons age 14 or over who operate PWCs. In addition, the State Legislature's decision to provide State-approved rate reductions in boating liability insurance obtained from qualified insurers has provided the incentive for many adult boaters to voluntarily take the safe boating course (Nav. Law § § 78-a). Finally, the State Legislature's decision in 2004 to allow instructors to charge a fee to youths taking the course has broadened the role of commercial entities that market and administer the course. (Nav. Law § 79). To meet public demand, the Commissioner has decided to continue and foster opportunities for the public to take free courses taught by volunteer instructors, but also to expand opportunities for the burgeoning industry that offers the course for a fee to children and adults. Under the rule the commissioner may certify qualified commercial organizations to manage affiliated commercial instructors to teach the course. But, individual commercial instructors would not be precluded from continuing to operate and teach the course as sole proprietors.
3. Needs and Benefits:
Although the Agency is required to foster an interest in boating, it also recognizes that inexperience and lack of proper operator training often contribute to accidents and fatalities on the water. Therefore, we have designed a safe boating program that will continue to protect the public health and welfare of all New York residents through standards that will ensure youth operators, PWC operators and other adults who opt to take the course are propertly trained. The existing regulation was last amended ten years ago in 1999 and requires updating. Under this proposal, the Commissioner would
1. provide boating safety certificates to qualified students,
2. certify qualified volunteer and commercial instructors,
3. certify commercial organizations that manage and administer instructional materials for more than one affiliated instructor,
4. clarify roles and responsibilities,
5. standardize course instruction and materials, and
6. provide sanctions for non-compliance.
The proposed regulation balances the public's continuing demand for free courses conducted by certified volunteer instructors with the public's increased willingness to pay commercial entities for this service. Additionally, the new regulation could accommodate a mandatory phased-in boating safety program for all adult operators should the State Legislature require one in the future.
4. Cost:
a. Costs to regulated parties: State Parks would continue to provide free application forms, instructional and examination documents, and course materials to certified volunteer and commercial instructors. Volunteer instructors would continue to teach the course without requiring a fee and could continue to request a nominal donation for the not-for-profit or public entity sponsoring the course or offering space in the training facility. Commercial instructors or commercial organizations would continue to charge a fee for the course but could not charge students for the text books they may receive from State Parks. Students age 18 and over would continue to pay the statutory $10.00 fee to State Parks for the boating safety certificate. State Parks would continue to assess boaters a $10.00 processing fee for replacing certificates.
b. Costs to agency, state and local governments: State Parks' costs for the program would remain the same. Instructors would continue to receive the textbook from this Agency. We are investigating ways to make the New York safe boating textbook prepared by Agency staff available to students including on line through State Parks' website. There would be no costs to local governments.
c. Source: The I Love New York Waterway Fund would continue as the revenue source for the program. This revenue source is funded by the $10 fee for the boating safety certificate - a self-sustaining program.
5. Local Government Mandates:
The proposed amendment would not impose any program service, duty or other responsibility upon any county, city, town, village, school district or other special district.
6. Paperwork:
State Parks would continue to provide applications and course materials directly to instructors or managers of commercial organizations. All students would continue to fill out the applications that State Parks provides to instructors or to the managers/owners of commercial organizations. Instructors or managers of commercial organizations would continue to send State Parks the completed forms for the youth operators. Adults would continue to send their applications and completed forms directly to State Parks. The instructors or managers would continue to issue temporary boating safety certificates to students and account to State Parks for unused forms and materials. State Parks would continue to issue permanent boating safety certificates to students.
7. Duplication:
None.
8. Alternatives:
The alternatives considered were (1) to directly administer the program and attempt to provide the service solely through State Parks' employees and through volunteers or (2) to completely privatize the program and issue an RFP and contract to the winning bidder. Neither option would implement statutory requirements. State Parks does not have the manpower to teach the program, and there are not enough volunteer instructors to adopt a purely volunteer program. On the other hand, State Parks is not authorized to administer a safe boating program using only commercial for-profit entities. Also, complete privatization of the program (requiring everyone to pay a fee for instruction) would shut out those who cannot afford to pay for it, thereby impeding the State's goal of requiring all unsupervised youth operators and all PWC operators age 14 and over to received instruction on how to safely operate vessels and practice safe boating principles.
9. Federal Standards:
None, however, New York's standards are consistent with the U.S. Coast Guard's and the National Association of State Boating Law Administrators' (NASBLA) uniform nationwide standards.
10. Compliance Schedule:
The regulation would take effect on the date established in the Notice of Adoption.
1 The term Personal Watercraft (PWC) for purposes of this RIS also includes specialty prop-craft which are uncommon in NY and defined separately by statute (compare the definitions in subdivisions 30 and 31 of Navigation Law Section 2).
Regulatory Flexibility Analysis
1. Effect of rule:
The State Legislature in New York requires youths (between the age of 10 up to but not including age 18) who operate vessels without adult supervision and all persons age 14 and over who operate personal watercraft (jet skis) to successfully complete a safe boating course. The rule continues the Office of Parks, Recreation and Historic Preservation's (State Parks') boating safety education program that presently allows volunteer instructors or commercial (paid) instructors to participate.
Small businesses that currently provide boating education as a sideline to driver education classes that are regulated by the Department of Motor Vehicles, and small businesses associated with the boating industry that provide classes as a courtesy to their customers could be affected by the rule. The rule officially recognizes these business entities as commercial instructors or commercial organizations and facilitates their teaching of the course to members of the public who are willing to pay a fee for their services. The rule allows the commissioner to certify qualified commercial organizations to manage affiliated commercial instructors to teach the course. Individual commercial instructors could also continue to operate as sole proprietors.
2. Compliance requirements:
Reporting, recordkeeping and requirements for transmitting application and course completion materials to State Parks for the students of volunteer or commercial instructors would not increase under the new rule.
3. Professional services:
None required.
4. Compliance costs:
None. State Parks will continue to provide the applications, course materials and a hard copy textbook to instructors, and is investigating how to provide the textbook on line for students.
5. Economic and technological feasibility:
Small business participation in this program is not required by the Navigation Law. Compliance with the rule is simple. Both volunteer and commercial instructors must meet the same certification standards and requirements under the rule or qualify for an exemption.
6. Minimizing adverse impact:
The program is designed to implement the State Legislature's decision to allow instructors to charge both adults and children a fee for teaching the course, it is intended to standardize boating safety instruction statewide and accommodate the increased interest commercial instructors have expressed in teaching the program. The rule should encourage qualified commercial instructors and qualified commercial organizations to market and provide the appropriate instruction and course materials.
7. Small business and local government participation:
About 159 commercial instructors or 92 small businesses currently provide the safe boating class. For outreach purposes before finalizing the proposed rule, State Parks sent out 690 emails and letters notifying volunteer and commercial instructors, small businesses and other organizations that the draft regulation was posted on our website for informal preliminary comments. Twenty comments were received. Five of the 19 comments were from small businesses and 15 were from individuals. After reviewing and discussing the comments internally, State Parks staff made about 15 revisions to the draft proposed regulation.
Applicability
Several comments said the regulation should be applied to all boaters or that supervision should be better defined. These changes would require statutory amendments.
Passing Grade on Examination
The passing grade was changed from 75 to 76 in response to a comment that a grade of 75 was not attainable under the test currently given.
Exemptions
In response to many comments from instructors on exemptions, the section was clarified to encompass all applicable certifications, licenses, memberships and statuses. We rejected the suggestion that the original exemption document should be carried at all times in favor of allowing a copy to be carried on the water with follow-up production of originals if requested by a law enforcement or judicial officer.
Boating Course Requirements
Comments on the boating course requirements and use of State Parks textbook were reviewed. References to a minimum (6 pre-registered) and maximum (30 per instructor) class sizes were clarified. Comments suggesting use of other state or commercial textbooks or other state examinations as substitutes for the New York course were rejected so that we will be able to ensure consistent, quality and up-to-date instruction statewide through use of our own materials. Other comments on break times and lead instructor requirements are not appropriate for including in the regulation and will be addressed in the instructor manual. The agency will continue to require at least two weeks notice and pre-registration of classes so sufficient time is available to mail out the forms and materials. Therefore, the program can not accommodate the comment that instructors be allowed to teach classes on demand to any number of students.
Paperwork
One comment objected to perceived new paperwork requirements; however, the major paperwork changes involve new applications for instructors and commercial organization certifications. Comments were received on the amount of student record forms the agency should be making available for pre-registered classes. Some said the number should be less than 250 others said more than 250. The language was changed to state "batches of no more than 250 maximum" would be sent for pre-registered courses. The time frame for returning the forms to State Parks was extended to 21 days after course conclusion to accommodate instructors affiliated with a commercial organization that manages the paperwork for them.
Instructor Certification
Some comments criticized the time it takes to receives instructor certification as being too long and asked to have the instructor course given more frequently. The Agency begun processing instructor certifications more quickly and encourages applications be submitted prior to the busy summer season when staff have other duties to the public. The rule also commits the Agency to offering the "Introduction to the New York Safe Boating Safety Course" to potential instructors at least once a month in Albany.
Commercial Organizations
Questions were raised about the status of the new commercial organizations that would be certified under the rule with respect to business auditing, insurance and standards for owners, managers and instructors. Since the rule would recognize an entity that has already been delivering this service to the public, the Agency decided to consider suggested alternatives and retain flexibility to address these issues on a case-by-case basis in subsequent guidance documents and in the instructor's manual.
Suspension or Revocation of Certificates and Instructor and Commercial Organization Certifications
In response to comments the procedures for suspension or revocation were clarified.
Training Facilities
We received many comments critical of the new definition of "training facility;" however, the Agency will not allow courses to be taught in private homes or substandard rooms. The quality of the physical space where the course is taught affects the students' ability to learn the material. Although private homes may be adequate, the time and space requirements of the course can be easily manipulated and not easily monitored in those locations. Furthermore, all training facilities must be accessible to persons with disabilities. It must be comfortable and provide easy access to the public and agency staff.
Fees
Several comments said the agency lacked authority for the new fees contained in the draft for fingerprinting and background checks, and processing instructor or commercial organization certifications. Consequently, those fees were removed and State Parks will seek statutory approval to assess them. Other comments stated that the regulation would result in fewer volunteer instructors teaching the course. In general, the Agency believes that, taken as a whole, the proposed rule strikes the appropriate balance between encouraging volunteer and commercial instructors to teach the course. Some commented that volunteer instructors could abuse the provision allowing nominal donations to not-for-profits and governments for their programs or use of their facilities. In response, volunteer instructors will be required to keep additional records about these charges.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas affected:
County
Total Reg Boats
Classes
Students
Instructors
Albany
9910
40
689
35
Allegany
1893
4
65
4
Broome
7424
18
427
10
Cattaraugus
2961
4
85
4
Cayuga
5504
16
431
6
Chautauqua
6935
20
376
8
Chemung
4332
6
83
1
Chenango
2358
3
32
2
Clinton
5925
15
258
7
Columbia
2997
7
75
11
Cortland
2199
2
15
4
Delaware
1333
2
19
3
Dutchess
7799
17
410
16
Erie
25348
57
945
22
Essex
4480
7
95
8
Franklin
4275
12
128
6
Fulton
4525
23
374
4
Genesee
2280
0
0
1
Greene
2440
8
78
6
Hamilton
2071
6
53
6
Herkimer
3720
10
157
8
Jefferson
10827
14
271
13
Lewis
1986
3
77
4
Livingston
3920
8
234
7
Madison
4418
8
199
7
Monroe
28588
23
604
2
Montgomery
2127
1
21
49
Niagara
8788
6
148
13
Oneida
11094
30
569
18
Onondaga
22521
35
865
7
Ontario
7505
8
187
8
Orange
9902
25
528
1
Orleans
2186
0
0
12
Oswego
9343
16
329
4
Otsego
2769
8
61
25
Putnam
3256
12
199
5
Rensselaer
6197
10
181
20
Saratoga
13792
34
518
26
Schenectady
6327
21
295
10
Schoharie
1187
3
40
6
Schuyler
1720
14
156
4
Seneca
2962
8
128
11
St Lawrence
10142
9
157
3
Steuben
5370
7
278
4
Sullivan
3378
12
202
8
Tioga
2555
4
70
4
Tompkins
3689
0
0
1
Ulster
5988
28
403
11
Warren
7559
27
523
10
Washington
3556
5
34
5
Wayne
6812
7
189
8
Wyoming
1726
0
0
2
Yates
2687
8
219
6
2. Reporting, recordkeeping and other compliance requirements; and professional services:
Reporting, recordkeeping and transmission of application and course completion materials to State Parks by volunteer or commercial instructors for their students would not increase under the new rule. The rule would now require all instructors to distribute the textbook provided by State Parks to their students. Services of professionals would not be required under the rule.
3. Costs:
None. State Parks will continue to provide the applications and course materials to instructors and will also now provide the textbooks for students.
4. Minimizing adverse impact:
There will be no adverse impacts to rural areas.
5. Rural area participation:
For outreach purposes before finalizing the proposed rule, State Parks sent out emails and letters notifying volunteer and commercial instructors and small businesses and other organizations in rural areas that the draft regulation was posted on our website for informal preliminary comments.
Job Impact Statement
The purpose of the rule is to continue a boating safety education program that is implemented by volunteer instructors and also by commercial instructors who may charge a fee for teaching the course. The rule will allow the commissioner to certify commercial organizations to set up training facilities and process forms and paperwork for commercial instructors. It will not have a substantial adverse impact on jobs or employment opportunities and could facilitate job creation.
