Senate Bill No. 528

(By Senator Yoder)

____________

[Introduced February 19, 1996; referred to the Committee on Natural Resources.]
____________




A BILL to amend and reenact section eleven, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto fourteen new sections, designated sections twenty-three-a through twenty-three-n, inclusive, all relating to motorboating; definitions; recreational watercraft; license to operate; application for license; approval of application; issuance; license expiration and renewal; application fee; accident or collision upon waters of this state; requirements for operating a recreational watercraft; notification; recreational watercraft safety examination; records of examination and license application; display of license; waterways safety fund; restricted license; violations; and penalties.

Be it enacted by the Legislature of West Virginia:
That section eleven, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto fourteen new sections, designated sections twenty-three-a through twenty-three-n, inclusive, all to read as follows:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.

PART II. MOTORBOATING.

§20-7-11. Motorboats and other terms defined.
As used in this article, unless the context clearly requires a different meaning:
(a) "Watercraft," means any of the following when used or capable of being used for transportation on the water:
(1) A boat operated by machinery either permanently or temporarily affixed;
(2) A sailboat other than a sailboard;
(3) An inflatable, manually propelled boat having a hull identification number meeting the requirements of the United States coast guard;
(4) A canoe or row boat.
Watercraft does not include ferries. Watercrafts are divided into four classes as follows:
Class A: Less than sixteen feet in length;
Class 1: At least sixteen feet but less than twenty-six feet in length;
Class 2: At least twenty-feet but less than forty feet in length;
Class 3: At least forty feet but not more than sixty-five feet in length.
Any watercraft over sixty-five feet in length shall comply with federal regulations.
(b) "Vessel" includes every description of watercraft, including nondisplacement craft and seaplanes, used or capable of being used as a means of transportation on water.
(c) "Rowboat" means any vessel designed to be rowed and that is propelled by human muscular effort by oars or paddles and upon which no mechanical propulsion device, electric motor, internal combustion engine or sail has been affixed or is used for the operation of the vessel.
(d) "Sailboat" means any vessel, equipped with mast and sails, dependent upon the wind to propel it in the normal course of operation:
(1) Any sailboat equipped with an inboard engine is considered a powercraft with auxiliary sail;
(2) Any sailboat equipped with a detachable motor is considered a sailboat with auxiliary power; and
(3) Any sailboat being propelled by mechanical power, whether under sail or not, is considered a powercraft and subject to all laws and rules governing powercraft operation.
(e) "Powercraft" means any vessel propelled by machinery, fuel, rockets or similar device.
(f) "Person" includes any individual, firm, partnership, corporation, company, association or body politic, except the United States and this state and includes any agent, trustee, executor, receiver, assignee or other representative thereof.
(g) "Owner" includes any person who claims lawful possession of a vessel by virtue of legal title or equitable interest therein which entitled the person to the possession.
(h) "Operator" includes any person who navigates or has under his or her control a vessel or vessel and detachable motor, on the waters in this state.
(i) "Visible" means visible on a dark night with clear atmosphere.
(j) "Waters in this state" means all streams, rivers, lakes, ponds, marshes, watercourses, waterways and all other bodies of water, natural or manmade, that are situated wholly or partially within this state or within its jurisdiction, and are used for recreational boating.
(k) "Navigable waters" means waters that come under the jurisdiction of the department of the army of the United States and any waterways within or adjacent to this state, except inland lakes having neither a navigable inlet or outlet.
(l) "In operation" in reference to vessels means that the vessel is being navigated or otherwise used on the waters in this state.
(m) "Sewage" means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body waste.
(n) "Canoe" means a narrow vessel of shallow draft, pointed at both ends and propelled by human muscular effort and includes kayaks.
(o) "Coast guard approved" means bearing an approval number assigned by the United States coast guard.
(p) "Type one personal flotation device" means a device that is designed to turn an unconscious person floating in water from a face downward position to a vertical or slightly face upward position, and that has at least nine kilograms, approximately twenty pounds, of buoyancy.
(q) "Type two personal flotation device" means a device that is designated to turn an unconscious person in the water from a face downward position to a vertical or slightly face upward position and to have at least seven kilograms, approximately fifteen and four-tenths pounds, of buoyancy.
(r) "Type three personal flotation device" means a device that is designed to keep a conscious person in a vertical or slightly face upward position and to have at least seven kilograms, approximately fifteen and four-tenths pounds, of buoyancy.
(s) "Type four personal flotation device" means a device that is designed to be thrown to a person in the water and not worn, and is designed to have at least seven and five-tenths kilograms, approximately sixteen and five-tenths pounds, of buoyancy.
(t) "Recreational hybrid personal flotation device" means a type five personal flotation device that has one inflation chamber in combination with inherently buoyant material and is approved for use on a recreational boat. As used in this article, "type five personal flotation device" means a device that, unlike other personal flotation devices, has limitations on its approval by the United States coast guard.
(u) "Inflatable watercraft" means any vessel constructed of rubber, canvas or other material that is designed to be inflated with any gaseous substance, constructed with two or more air cells, and operated as a vessel. Inflatable watercraft propelled by a motor shall be classified as powercraft and shall be registered by length.
(v) "Idle speed" means the slowest possible speed needed to maintain steerage or maneuverability.
(w) "Diver's flag" means a red flag not less than one foot square having a diagonal white stripe extending from the masthead to the opposite lower corner that when displayed indicates that divers are in the water.
(x) "Muffler" means an acoustical filtering device containing a baffle or baffles, including water-cooled exhaust risers, elbows or both, that when installed in or on the exhaust pipe of an internal combustion engine results in a reduction of exhaust noise.
(y) "Law-enforcement vessel" means any vessel used in law enforcement and under the command of a law-enforcement officer.
(z) "Recreational watercraft" means any of the following when used or capable of being used for recreational transportation on water:
(1) A boat powered by machinery either permanently or temporarily affixed;
(2) A sailboat other than a sailboard;
(3) A personal watercraft powered by high pressure water jets.
(aa) "Driver's license" means a license to operate a commercial motor vehicle, a motor vehicle or motor driven cycle, other than a commercial motor vehicle, and includes a temporary license and a restricted license as provided in section twenty- three-d of this article.
(bb) "Recreational watercraft operator's license" means a license issued to any person to operate a recreational watercraft and includes an endorsement on a driver's license that authorizes the license holder to operate such a watercraft.
(cc) "Motorboat" means any vessel propelled by an electrical, steam, gas, diesel or other fuel propelled or driven motor, whether or not the motor is the principal source of propulsion, but does not include a vessel which has a valid marine document issued by the bureau of customs of the United States government or any federal agency successor thereto;
(dd) "Recreational watercraft operator's license or endorsement" means a license to operate a recreation watercraft and includes an endorsement on a driver's license or commercial driver's license that authorizes the license holder to operate a recreational watercraft.
(ee) "Commissioner" means the commissioner of the division of motor vehicles; and
(ff) "Director" means the director of the division of natural resources.
(gg) "Division" means the division of motor vehicles.
Unless otherwise provided, this article applies to all vessels operating on the waters in this state. Nothing in this chapter may be construed in contravention of any valid federal act or rule, but is in addition to the act or rule where not inconsistent.
The state reserves to itself the exclusive right to regulate the minimum equipment requirements of watercraft and vessels operated upon the waters in this state.
§20-7-23a. Accident or collision upon waters of this state.
In case of accident to or collision with a person or property on the waters of this state, due to the operation of any vessel, the operator having knowledge of the accident or collision shall immediately stop the vessel at the scene of the accident or collision, to the extent that it is safe and practical, and shall remain at the scene of the accident or collision until he or she has given his or her name and address and, in the case of a recreational watercraft operator, displayed the operator's recreational watercraft operator's license on request to any person injured in the accident or collision or to the operator, occupant, owner or attendant of any vessel damaged in the accident or collision, or to any law-enforcement officer at the scene of the accident or collision. If the operator is not the owner, the operator shall give the name and address of the owner of the vessel, together with the registration number of the vessel, if any, to any person injured in the accident or collision or to the operator, occupant, owner or attendant of any vessel damaged in the accident or collision, or to any law- enforcement officer at the scene of the accident or collision.
If the injured person is unable to comprehend and record the information required to be given by this section, the other operator involved in the accident or collision shall forthwith notify the nearest law-enforcement agency having authority concerning the location of the accident or collision, and the operator's name, address and the registration number, if any, of the vessel the operator was operating, and then remain at the scene of the accident or collision or at the nearest location from which notification is possible until a law-enforcement officer arrives, unless removed from the scene by an emergency vehicle operated by the state or a political subdivision or by an ambulance.
If the accident or collision is with an unoccupied or unattended vessel, the operator who collided with the vessel shall securely attach the information required to be given in this section, in writing, to a conspicuous place in or on the unoccupied or unattended vessel.
§20-7-23b. Operating a recreational watercraft; requirements.
(a) No person may operate a recreational watercraft on waters in this state unless the person holds a valid recreational watercraft operator's license issued pursuant to this chapter or a valid United States coast guard license issued under 46 C.F.R. 10.202, as amended.
(b) No person whose recreational watercraft operator's license has been suspended or revoked under this chapter may operate recreational watercraft on waters in this state during the period of suspension or revocation.
(c) No person who is under fourteen years of age may operate recreational watercraft on waters in this state. No person who is fourteen years of age or older, but is less than sixteen years of age may operate recreational watercraft on waters in this state unless the person is under the direct visual and audible supervision of a person holding a valid recreational watercraft operator's license.
(d) No person may permit the operation of recreational watercraft on waters in this state by a person who:
(1) Is under fourteen years of age; or
(2) Is fourteen years of age or older, but is less than sixteen years of age and is not under the direct visual and audible supervision of a person holding a valid recreational watercraft operator's license.
§20-7-23c. Notification of violations.
The trial judge of a court of record, in addition to or independent of all other penalties provided by law shall notify the division of motor vehicles of each conviction or guilty plea entered for a violation of subsection (d), section twenty-three-b of this article.
§20-7-23d. Recreational watercraft safety examination.
(a) Prior to being issued a recreational watercraft operator's license, the applicant shall complete a boating safety education program that includes first aid instruction and is approved by the commissioner.
(b) The commissioner, in accordance with the provisions of chapter twenty-nine-a of this code and subject to prior approval of the director, shall promulgate rules governing the content and administration of a recreational watercraft safety examination. The examination shall be written and shall test knowledge of first aid and provisions regarding watercraft safety contained in this chapter and rules promulgated by the commissioner. The commissioner shall make available to the public information regarding locations where, and dates and times when the examination will be conducted. The examination shall contain a statement signed and dated by each person taking it to certify that the person has completed the examination and understands the provisions regarding watercraft safety contained in this article and rules promulgated under it. Authorized personnel of the division or other persons designated by the commissioner shall conduct the examination and shall provide notice to each person taking it regarding whether the person completed it successfully.
(c) An examination application on a form furnished by the commissioner shall be filed with the commissioner by a person who wishes to obtain a recreational watercraft operation's license and who:
(1) Has not held a recreational watercraft operator's license;
(2) Held a recreational watercraft operator's license that was suspended or revoked and the suspension or revocation has ended.
(d) The application shall contain the applicant's full name; residence and, where applicable, business address; social security number, if one has been assigned; signature; and evidence satisfactory to the commissioner that the applicant has successfully completed a boating safety education program that includes first aid instruction and is approved by the commissioner.
§20-7-23e. Recreational watercraft operator's license; application.
(a) A licensure application on a form furnished by the commissioner shall be filed with the commissioner by the person applying for the recreational watercraft operator's license and who:
(1) Has not held a recreational watercraft operator's license; or
(2) Held a recreational watercraft operator's license that was suspended or revoked and the suspension or revocation has ended.
(b) The application shall include all of the following information:
(1) The applicant's full name; date of birth; social security number, if one has been assigned; sex; general physical description including height, weight, and hair and eye color; residence and, where applicable, business address, including county of residence; duration of residence in this state; country of citizenship; and occupation;
(2) Whether the applicant previously has been licensed as a recreational watercraft operator, and if so, the month and year of the licensure, the licensing entity, and, in the case of a license issued by an entity other than this state, any license suspension or revocation existing at the time of the application and the reason for it;
(3) Evidence satisfactory to the commissioner that the applicant has successfully completed the recreational watercraft safety examination required by section twenty-three-d of this article; and
(4) In the case of an applicant who holds a valid driver's license, any distinguishing number assigned to the applicant and specified on the driver's license.
(c) The applicant shall sign the application and include with it with a fee of fifteen dollars. All fees collected under this section shall be paid into the waterways safety fund established in this section twenty-three-j of this article and shall be used to pay expenses incurred by the division as a result of the requirements of this section.
§20-7-23f. Same; approval.
(a) The commissioner or designee may approve the licensure application filed by each applicant for a recreational watercraft operator's license who successfully completes the recreational watercraft safety examination. If the licensure application is made to the commissioner's designee and it shows that the applicant's recreational watercraft operator's license previously has been suspended or revoked, the designee shall forward the application to the commissioner, who shall determine whether to approve it.
(b) The commissioner or designee shall provide notice to each applicant of whether the licensure application has been approved.
(c) The commissioner or designee shall forward to the division all of the following information:
(1) A certifying statement regarding each application for a recreational watercraft operator's license that has been approved;
(2) In the case of an applicant who does not hold a valid driver's license, a copy of the licensure application required to be filed under section twenty-three-e of this article.
(3) In the case of an applicant who holds a valid driver's license, the applicant's full name, residence and, where applicable, business address, social security number, if one has been assigned and any distinguishing number assigned to the applicant and specified on the driver's license.
(4) Notice of each recreational watercraft operator's license that has been suspended or revoked, including the period of suspension or revocation.
§20-7-23g. Recreation watercraft operator;s license; expiration; renewal.
(a) In the case of an applicant whose application for a recreational watercraft operator's license is approved and who holds a valid driver's license, the recreational watercraft operator's license shall be in the form of an endorsement on the driver's license and shall expire and be renewable along with the driver's license.
(b) In the case of an applicant whose application for a recreational watercraft operator's license is approved and who does not hold a valid driver's license, the recreational watercraft operator's license shall be in the form of a restricted license as provided in section twenty-three-l of this article, and expires on the applicant's birthday in the fourth year after its date of issuance and is renewable like a driver's license. During a year in which there is no twenty-ninth day of February, the birthday of an applicant born on the twenty-ninth day of February shall be considered for the purpose of this section to be the first day of March.
§20-7-23h. Records of examination and license applications.
The commissioner or designee shall promulgate rules in accordance with the provisions of article three, chapter twenty- nine-a of this code to govern the manner in which examination applications and results, licensure applications and other records concerning recreational watercraft operator's licenses are filed and maintained. The commissioner or designee shall assign a number to each examination and licensure application for a recreational watercraft operator's license, file them, and index them by the applicant's last name and the number assigned. The commissioner or designee shall maintain a record of each recreational watercraft operator's license issued, each application for licensure that is denied, each violation by the licensee of subsection (d), section twenty-three-b of this article and each license that has been suspended or revoked pursuant to section twenty-three-c of this article.
§20-7-23i. Display of license.
A licensed recreational watercraft operator shall display the recreational watercraft operator's license on demand of a law-enforcement officer or a person damaged or injured by the operator in a collision on the waters in this state. Failure to display the license shall be prima-facie evidence of operating the recreational watercraft without a valid license.
§20-7-23j. Waterways safety fund.
There is hereby created in the state treasury the waterways safety fund for deposit of moneys collected pursuant to the provisions of this article.
§20-7-23k. Violations.
(a) Any person who violates a provision of this article or a rule promulgated as provided by this article, for which no penalty is otherwise provided, is guilty of a misdemeanor.
(1) If, within five years of the offense, the offender has not been convicted of or pleaded guilty to a violation of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane or similar device while under the influence of alcohol, drugs or both, of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane or similar device with a prohibited concentration of alcohol in the blood, breath or urine, in a case in which the court found that the offender was under the influence of alcohol, drugs or both, the court shall sentence the offender to a term of imprisonment of three consecutive days and may sentence the offender to a longer term of imprisonment. The court shall impose upon the offender a fine of not less than one hundred fifty nor more than one thousand dollars.
The court may suspend the execution of the mandatory three consecutive days of imprisonment required by this subdivision if the court, in lieu thereof, places the offender on probation and requires the offender to attend, for three consecutive days, a drivers' intervention program. The court also may suspend the execution of any part of the mandatory three consecutive days of imprisonment if the court places the offender on probation for part of the three consecutive days; requires the offender to attend, for that part of the three consecutive days, a drivers' intervention program; and sentences the offender to a term of imprisonment equal to the remainder of the three consecutive days that the offender does not spend attending the drivers' intervention program. The court may require the offender, as a condition of probation, to attend and satisfactorily complete any treatment or education programs, in addition to the required attendance at a drivers' intervention program, that the operators of the drivers' intervention program determine that the offender should attend and to report periodically to the court on his or her progress in the programs. The court also may impose any other conditions of probation on the offender that it considers necessary.
(2) If, within five years of the offense, the offender has been convicted of or pleaded guilty to a violation of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane or similar device while under the influence of alcohol, drugs or both, of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane or similar device with a prohibited concentration of alcohol in the blood, breath or urine, in a case in which the court found that the offender was under the influence of alcohol, drugs or both, the court shall sentence the offender to a term of imprisonment of ten consecutive days and may sentence the offender to a longer term of imprisonment. In addition, the court shall fine the offender not less than one hundred fifty nor more than one thousand dollars.
In addition to any other sentence, the court may require the offender to attend a drivers' intervention program.
(3) If, within five years of the offense, the offender has been convicted of or pleaded guilty to more than one violation of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane or similar device while under the influence of alcohol, drugs or both, of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane or similar device with a prohibited concentration of alcohol in the blood, breath or urine, in a case in which the court found that the offender was under the influence of alcohol, drugs or both, the court shall sentence the offender to a term of imprisonment of thirty consecutive days and may sentence the offender to a longer term of imprisonment of not more than one year. In addition, the court shall fine the offender not less than one hundred fifty nor more than one thousand dollars.
In addition to any other sentence, the court may require the offender to attend a drivers' intervention program.
(4) Upon a showing that imprisonment of an offender sentenced pursuant to subdivision (1), (2) or (3) of this subsection would seriously affect his or her ability to continue employment, the court may authorize that the offender be granted work release from imprisonment after the offender has served the three, ten or thirty consecutive days of imprisonment that is required by this subsection. No court may authorize work release from imprisonment during the three, ten or thirty consecutive days of imprisonment that is required by this subsection. The duration of the work release may not exceed the time necessary each day for the offender to commute to and from the place of employment and the place of imprisonment and the time actually spent under employment.
(5) Notwithstanding any provision of this code that authorizes the suspension of the imposition or execution of a sentence or the placement of an offender in any treatment program in lieu of imprisonment, no court may suspend the ten or thirty consecutive days of imprisonment required by this section or place an offender who is sentenced pursuant to subdivision (2) or (3) of this subsection in any treatment program in lieu of imprisonment until after the offender has served the ten or thirty consecutive days of imprisonment required by subdivision (2) or (3) of this subsection. Notwithstanding any provision of this code that authorizes the suspension of the imposition or execution of a sentence or the placement of an offender in any treatment program in lieu of imprisonment, no court, except as specifically authorized by subdivision (1) of this subsection, may suspend the three consecutive days of imprisonment required by that subdivision or place an offender who is sentenced pursuant to subdivision (1) of this subsection in any treatment program in lieu of imprisonment until after the offender has served the three consecutive days of imprisonment required.
(c) Any person who violates subsection (d), section twenty- three-b of this article is guilty of a misdemeanor for the first and second convictions. If the offender previously has been convicted of or pleaded guilty to three or more violations of that subsection, the court shall suspend for a period not to exceed six months the offender's recreational watercraft operator's license.
§20-7-23l. Restricted licenses.
The division of motor vehicles upon issuing a recreational watercraft operator's license may whenever good cause appears to impose restrictions suitable to the licensee's driving ability with respect to the type of or special mechanical control devices required on a recreational watercraft which the licensee may operate or such other restrictions applicable to the licensee as the division determines to be appropriate to assure the safe operation of recreational watercraft by the licensee.
The division may either issue a special restricted license or may set forth restrictions on the usual license form.
The division may upon receiving satisfactory evidence of any violation of the restrictions of the license suspend or revoke the license but the licensee shall be entitled to a hearing as upon a suspension or revocation under chapter seventeen-b of this code.
It is a misdemeanor for any person to operate a recreational watercraft in any manner in violation of the restrictions imposed in a restricted license issued to the person.
§20-7-23m. Recreational watercraft operator's license or
endorsement; issuance.

On receipt of notice provided pursuant to section twenty-three-f of this article that the commissioner or designee has approved a recreational watercraft operator's license application, the division of motor vehicles shall issue on the person's request a recreational watercraft operator's license or endorsement. No recreational watercraft operator's license may be issued if the division has received notice from the commissioner or designee pursuant to section twenty-three-e of this article that the person's recreational watercraft operator's license has been suspended or revoked and the period of suspension or revocation is in effect.
In the case of a person who holds a valid driver's license, a recreational watercraft operator's license shall be an endorsement in a form the registrar shall specify on the driver's license.
In the case of a person who does not hold a valid driver's license, a recreational watercraft operator's license shall be in the form of a restricted license as provided in section twenty- three-l of this article.
§20-7-23n. Recreational watercraft operator's license or renewal application fee.
Each application for a recreational watercraft operator's license or renewal shall be accompanied by a fee of six dollars. Each application for a duplicate recreational watercraft operator's license shall be accompanied by a fee of two dollars and fifty cents.



NOTE: The purpose of this bill is to require that a recreational watercraft operator's license be issued before operating a watercraft on the waters of this state; and to regulate the operation of recreational watercraft.

Section eleven has been completely rewritten and section twenty-three-a through twenty-three-n are new; therefore, strike-throughs and underscoring have been omitted.