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                              RNEY      GENEI~AI..
                           lF%ICXAS



                         September 28, 1972   _


Hon. Clayton T. Garrison          Opinion No. M- 1226
Executive Director
Parks & Wildlife Department       Re:   Whether Federal or State law
Austin, Texas 78711                     controls where Federal laws
                                        are adopted by Article 1722a,
                                        Vernon's Penal Code, and a
                                        conflict exists in the State
Dear Mr. Garrison:                      and Federal laws.

     You have requested our opinion as to a proper interpretation
of certain provisions df Article 1722a, Vernon's Penal Code, the
Water Safety Act, wherein that statute adopts Federal laws, rules
and regulations by reference. Your request for our opinion is
detailed, but in each of the four questions asked, your under-
lying inquiry is whether standards specified or the Federal rules
and regulations adopted control.

     You further ask whether state laws of Texas requiring a
more stringent lighting system on sailboats would govern over
Federal rules thereon.

      We state your questions together with our answersthereto:

      (1)   Is Article 1722a, V.P.C., Section 8, subsection
            (b) in conflict with Section 8, subsection (c)
            and Section 14 of this act as to the lighting
            requirements for Class A, 1, 2, 3 motorboats
            when propelled by sail alone.

      ANSWER:   No, the requirements of Section 8, subsection
                (b) (3) and Section 14 (The United States
                Coast Guard Inland Rules) are identical.

      (2)   Is Article 1722a, V.P.C., Section 9, subsection
            5 (second paragraph), relating to lighting
            requirements of sailboats, in conflict with Sec-
            tion 8, subsection (c) and with Section 14.
      ANSWER:   Yes.



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Hon. Clayton T. Garrison, page 2       (M-1226)


     On August 11, 1972, the Acting Commandant of the U.S. Coast
Guard, under authority of Section 9 of the Federal Boat Safety
Act of 1971, 46 U.S.C. 1458 and 49 C.F.R. 1.46(o), ruled that:
                11...I~hereby exempt the State of Texas and
           political subdivisions thereof from the pro-
           vision of Section 10 of the Federal Boat Safety
           Act of 1971 to the extent that they may continue
           in effect and enforce the following laws: Title
           19, Article 1722a, Texas Penal Code, amended by
           Acts 1971, 62nd Legislature, p. 2929, Chapter
           971, effective ~September 1, 1971, containing
           requirements for carrying and using approved
           lifesaving devices, ventilation equipment, light-
           ing equipment, sounding equipment, mufflers, back-
           fire flame arrestors, and fire extinguishers."
           Federal Register, Vol. 37, No. 161, p. 16691.

     Based upon the    above waiver or exemption, Section 9,
subsection 5, which    is more stringent than Section 14, controls,
and sailboats would    have to be lighted as Class A vessels.   Sec-
tion 8, subsection    (c) is not applicable because it concerns
motorboats only.

     (3)   Is Article 1722a, V.P.C., Section 9, subsection
           5 (second paragraph, relating to canoes, punts,
           rowboats and rubber rafts being required to be
           lighted as Class A vessels) in conflict with
           Section 8, subsection (c) and with Section 14.

     ANSWER:   Yes, the answer would be the same as that
               given to Question 2. Again, Section 8,
               subsection (c) is not applicable.

     (4)   Is there a conflict between the requirement in
           Section 9, subsection (S), (second paragraph)
           relating to the lights required "for Class A
           vessels...!' and the reference in that section
           to Section 8, subsection (b) (1) and with Sec-
           tion 14.

     ANSWER:    No, again the requirements of Section 8,
               subsection (b) (1) and Section 14 are
               identical.




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  .   .




Hon. Clayton T. Garrison, page 3      (M-1226)


     The foregoing requirements apply to vessels when not at
dock in all weather from sunset to sunrise. Art. 1722a,
Section 8, subsection (b).


                        SUMMARY

          When there is a conflict between Federal and
          State law standards.concerning the lighting
          of navigable vessels, both of which are set
          forth in Article 1722a, V.P.C., the more
          stringent Texas law applies on inland waters
          until the Commandant of the U.S. Coast Guard
          rescinds or terminates his waiver.




Prepared by Charles Lind
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Harold Kennedy
Bill Campbell
Mike Stark
Bill Flanary

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant



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