68D-23.101: Intent
68D-23.102: Scope
68D-23.103: Definitions
68D-23.104: Placement of Markers
68D-23.105: Criteria for Approval of Regulatory Markers
68D-23.106: Permit Conditions
68D-23.107: Federal System Adopted
68D-23.108: Specifications for Markers
68D-23.109: Additional Specifications for Information and Regulatory Markers
68D-23.110: Inspections and Certification
68D-23.111: Enforcement
68D-23.112: Exemptions
PURPOSE AND EFFECT: The purpose of the rule amendments is to implement waterway management changes resulting from the passage of Chapter 2009-86 (CS/CS/HB/1423), Laws of Florida, which modified Sections 327.40, 327.41, and 327.46, Florida Statutes, as it relates to the establishment of boating restricted areas.
SUMMARY: The rule amendments will provide consistency with the proposed adoption of Chapter 68D-21, F.A.C. and repeal of Chapter 68D-18, F.A.C. to implement waterway management issues as a result of the statutory changes to Sections 327.40, 327.41, and 327.46, Florida Statutes. In addition, the rule amendments are intended to further clarify information that needs to be submitted with a uniform waterway marker permit application and municipal or county ordinance review, update United States Coast Guard referenced material as it relates to Aids to Navigation, provide definitions, and clarify exemptions to permitting and designate agency contact.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that these rules will not have an impact on small business. A SERC has not been prepared by the agency.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 327.04, 327.40, 327.41, 327.46, 379.2431 FS.
LAW IMPLEMENTED: 327.22, 327.40, 327.41, 327.46, 327.60, 327.70, 327.71, 379.2431 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: June 23-24, 2010, 8:30 a.m. – 5:00 p.m., each day
PLACE: Orlando Marriott Lake Mary, 1501 International Parkway, Lake Mary, FL 32746
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: ADA Coordinator, at (850)488-6411. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Captain Richard Moore, Florida Fish and Wildlife Conservation Commission, Division of Law Enforcement, Boating and Waterways Section, 620 South Meridian Street, Tallahassee, Florida 32399-1600, (850)488-5600, richard.moore@myfwc.com.
THE FULL TEXT OF THE PROPOSED RULE IS:
68D-23.101 Intent.
(1) through (2) No change.
(a) No change.
(b) To provide a means by which the Fish and Wildlife Conservation Commission Division and its officers and all other law enforcement officers charged with the enforcement of this chapter may determine with reasonable certainty which boating restricted areas are lawfully established and marked;
(c) To insure that regulatory markers noticing boating restricted areas created pursuant to Sections 327.46 and 379.2431 327.22, 327.60 and 370.12, F.S., are authorized only for the purposes of protecting human life and limb, vessel traffic safety and maritime property, and manatees.
(3) No change.
(4) The Fish and Wildlife Conservation Commission Division will not issue any permit authorizing the placement of regulatory markers implementing municipal or county ordinances that for:
(a) Are in violation of Section 327.60, F.S.; Ordinances that apply within the Florida Intracoastal Waterway, in violation of Section 327.60(2), F.S.;
(b) Establish boating-restricted areas pursuant to Section 327.46(1)(c), F.S., until such ordinances have been reviewed and approved by the Boating and Waterways Section in accordance with Chapter 68D-21, Florida Administrative Code; Ordinances adopted pursuant to Section 370.12(2)(p), F.S., until such ordinances have been reviewed and approved by the commission, and provided that such ordinances do not apply within the marked navigation channel of the Florida Intracoastal Waterway nor to the waters within 100 feet of said channel;
(c) Regulate vessel speed or operation for manatee protection purposes pursuant to Section 379.2431(2)(p), F.S., until such ordinances have been reviewed and approved by the commission, coordinated through the Imperiled Species Management Section, and provided that such ordinances do not apply within the marked navigation channel of the Florida Intracoastal Waterway nor to the waters within 100 feet of said channel; Ordinances that Discriminate against personal watercraft, in violation of Section 327.60(1), F.S.;
(d) Ordinances that Discriminate against airboats, unless adopted by a two-thirds vote of the governing body enacting such ordinance, as provided in Section 327.60(1), F.S.
(e) Ordinances regulating the anchoring of non-live-aboard vessels in navigation, in violation of Sections 327.60(2), F.S., when such vessels are outside the marked boundaries of mooring fields permitted as provided in Section 327.40, F.S., and this rule.
(5) No change.
(6) Regulatory markers placed and maintained pursuant to a permit issued as provided herein shall be prima facie evidence of the boundaries of boating-restricted areas and the speed or operational restrictions imposed therein.
Rulemaking Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41, 379.2431 FS. History–New 12-23-01, Amended 10-5-06,________.
68D-23.102 Scope.
The provisions of this chapter prescribe the procedures by which the Division of Law Enforcement’s Boating and Waterways Section permits and regulates the placement of markers in, on, and over the waters of this state and the shores thereof. This chapter also provides for the design, construction, characteristics and coloring, construction, placement, and maintenance of all markers placed in, on, and over the waters of this state and the shores thereof by adopting by reference the United States Aids to Navigation System, Part 62 of Title 33 of the Code of Federal Regulations, and the United States Coast Guard’s manuals pertaining to aids to navigation and other waterway markers.
Rulemaking Specific Authority 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended________.
68D-23.103 Definitions.
(1) For purposes of this chapter and Chapters 68C-22 and 68D-24, F.A.C., the following definitions shall apply:
(a) through (b) No change.
(c) “Regulatory marker” means a device used to alert the mariner to various warnings or regulatory matters such as horsepower, speed, or wake, or entry restrictions.
(d) “Special mark” means a marker not primarily intended to assist safe navigation, but to indicate special areas or features referred to in charts or other nautical publications. They may be used, for example, to mark anchorages, mooring fields, park boundaries, cable or pipeline areas, marine events, etc.
(e)(d) “Mooring buoy” means a device that is permanently secured to the bottom of a body of water and to which a vessel may be secured when not underway.
(f)(e) “Buoy” means any device designed to float which is anchored in the waters of the state and which is used to convey a message, or carry a sign, or support a mooring pennant.
(g)(f) “Sign” means an object which displays a message and which is attached to another object such as a piling, buoy, structure, or the land itself.
(h)(g) “Symbol” means the orange geometric shape displayed on a danger, an information, or regulatory marker. The meanings associated with the orange geometric shapes are as follows:
1. through 4. No change.
(i)(h) “Display area” means the area on an information marker or regulatory marker within which the symbol is displayed.
(j)(i) “Boating-restricted area” means an area of the waters of the state within which the operation of vessels is subject to specified restrictions or from which vessels are excluded.
(k)(j) “Shore” means that area of land immediately adjacent or contiguous to the waters of the state such that a sign or marker erected thereon is readily visible to the operator of a vessel who might reasonably believe that the sign or marker displays navigational, regulatory or other information relevant to the operation of the vessel.
(l)(k) “Florida Intracoastal Waterway” means:
1. All waters within the right-of-way of the Atlantic Intracoastal Waterway, the Georgia state line north of Fernandina to Miami; the Port Canaveral lock and canal to the Atlantic Intracoastal Waterway; the Atlantic Intracoastal Waterway, Miami to Key West; the Okeechobee Waterway Route 1 across Lake Okeechobee and Route 2 along the southern perimeter of the lake, from Port Myaca to Clewiston; the Gulf Intracoastal Waterway, Anclote to Fort Myers; the Gulf Intracoastal Waterway, Carrabelle to Tampa Bay; the Gulf Intracoastal Waterway, Carrabelle to Anclote open bay section (using the Gulf of Mexico); and the Gulf Intracoastal Waterway, Carrabelle to the Alabama state line west of Pensacola; and
2. All waters from shoreline to shoreline within the Okeechobee Waterway, Stuart to Fort Myers, not including Route 1 across Lake Okeechobee and Route 2 along the southern perimeter of the lake, from Port Myaca to Clewiston; the St. Johns River, Jacksonville to Sanford; and, the Apalachicola, Chattahoochee, and Flint Rivers in Florida.
(m)(l) “Uniform State Waterway Marking System” means the system of aids to navigation, information markers, regulatory markers, and mooring buoys, as specified in Part 66 of Title 33 of the Code of Federal Regulations.
(n)(m) “United States Aids to Navigation System” means the system of aids to navigation, information markers, regulatory markers, and mooring buoys, as specified in Part 62 of Title 33 of the Code of Federal Regulations.
(o)(n) “Private Aid to Navigation” means an aid to navigation the establishment of which is authorized by a permit issued by the United States Coast Guard pursuant to Part 66 of Title 33 of the Code of Federal Regulations.
(p)(o) “Maritime property” means vessels and their engines, tackle, gear, equipment, appurtenances, furnishings, cargoes, stores, personal property then on board belonging to the vessels’ occupants, and such other similar property as is consistent with the general maritime law of the United States. This definition does not include littoral or riparian property, the shores thereof, seawalls, docks, wharfs, or other property intentionally and permanently attached to the shore.
(q)(p) “Inland lake” means a naturally occurring or man-made fresh water lake or pond. The term does not include reservoirs, impoundments, or any portion of the Florida Intracoastal Waterway.
(r)(q) “Associated canal” means a man-made canal that is directly attached to an inland lake and that does not connect to other waters or that connects only to another inland lake. The term does not include any portion of a state or federally funded navigation project or any portion of the Florida Intracoastal Waterway.
(s)(r) “In writing” means any written or printed form of communication and includes electronic mail, files transferred as attachments to electronic mail, and telefacsimiles.
(2) When used on markers, the terms:
(a) No change.
(b) “Slow Speed” and “Slow Speed Minimum Wake” may be used interchangeably and mean that a vessel must be fully off plane and completely settled into the water. The vessel must then proceed at a speed which is reasonable and prudent under the prevailing circumstances so as to avoid the creation of an excessive wake or other hazardous condition which endangers or is likely to endanger other vessels or other persons using the waterway. At no time is any vessel required to proceed so slowly that the operator is unable to maintain control over the vessel or any other vessel or object that it has under tow. A vessel that is:
1. through 4. No change.
(c) No change.
(d) “No Power-driven Vessels” – All vessels equipped with any mechanical means of propulsion must turn off the mechanical means of propulsion and, if possible to do so, tilt or raise the mechanical means of propulsion out of the water. The use of any motor, including an electric motor, is prohibited.
(e) No change.
(f) “Vessel-exclusion zone” means an area from which all vessels or certain classes of vessels are excluded. The following list includes the most common examples of vessel exclusion zones. Whenever the following messages are displayed on vessel-exclusion zone markers, they have the meaning provided. Other messages on vessel-exclusion zone markers are permissible, so long as the markers display language that accurately describes the vessels or classes of vessel that are excluded from the area. All vessel-exclusion zones must be marked with the crossed-diamond symbol as specified in subparagraph (1)(h)(g)2., above.
1. through 4. No change.
(g) No change.
(h) “Wake,” only when used in conjunction with a numerical size limit, means all changes in the vertical height of the water’s surface caused by the passage of a vessel including, but not limited to, a vessel’s bow wave, stern wake, and propeller wash, measured from the ambient tide level to the crest of the vessel’s wake at a distance of not less than 25 feet from the vessel.
(i) No change.
(3) The Boating and Waterways Section will division may authorize the use of other terminology on regulatory markers if the message is clear, unambiguous, and accurately describes a lawfully imposed restriction.
Rulemaking Specific Authority 327.04, 327.40, 327.41, 327.46, 379.2431 FS. Law Implemented 327.40, 327.41, 327.46, 379.2431 FS. History–New 12-23-01, Amended 10-5-06,__________.
(Substantial rewording of Rule 68D-23.104 follows. See Florida Administrative Code for present text.)
68D-23.104 Permits Required; Application for Permits Placement of Markers.
(1) Except as provided in subsection 68D-23.112(4), F.A.C., no person, municipality, county or other governmental entity shall place, cause to be placed, or maintain in place any marker in, on or over the waters of the state or the shores thereof without a permit from the Boating and Waterways Section.
(2) Any person, municipality, county, or other governmental entity desiring to place a marker shall apply to the Boating and Waterways Section on the Florida Uniform Waterway Marker Application form, FWCDLE 153 (04/2010), which is adopted and incorporated herein by reference. Application forms may be obtained by submitting a request to: Florida Fish and Wildlife Conservation Commission, Division of Law Enforcement, Boating and Waterways Section, 620 South Meridian Street, Tallahassee, Florida 32399-1600 or by downloading the application from the Commission website at: http://www.myfwc.com/RECREATION/boat_waterways_index.htm. Each application must include:
(a) One or more scale drawings no larger than 8 1/2 inches by 11 inches, reproducible on standard office photocopying equipment, showing the intended locations for the placement of all proposed markers with each proposed marker labeled to correspond to the list required in paragraph (b) below.
1. If the application is for regulatory markers, the drawing must also depict the exact boundaries of the area within which regulation or restriction is to be in effect.
2. If the application is for the following information markers the drawing must also depict:
a. The location of the danger, hazard to navigation, or obstruction if the application is for a danger marker, isolated danger mark, or inland waters obstruction mark. the drawing must also depict.
b. Water depths within and adjacent to the area being marked if the application is for lateral marks, preferred channel marks, or safe water marks.
c. The location and boundaries of the anchorage, mooring field, park, cable or pipeline area, marine event, or other special area or feature for which the markers are proposed if the application is for special marks.
3. If the application is for mooring buoys of any type, the drawing must also depict the watch circle and water depth for each mooring and any channels or fairways within 500 feet of the proposed mooring buoys.
(b) A list of the markers proposed, labeled to correspond to the drawing(s) required above.
(c) A statement of the specifications for the markers proposed, including:
1. A description giving the type, size, shape, color, material, height above mean high water for each marker sign or buoy, and the number, letter or message displayed thereon;
2. A description of the type, size, and material used for:
a. Any structure which will support a marker sign;
b. Any anchor, anchoring system, chain, tether, rode, or other ground tackle which will secure a marker buoy, including a mooring buoy, to the bottom;
3. A statement of the color, characteristic, height above mean high water, intensity, and nominal range of any light which will be placed on the markers;
4. A statement of the type signal (whistle, horn, bell, etc.) and characteristic for any audible signal.
5. The latitude and longitude of the location where each marker will be placed, expressed in degrees and decimal minutes and referenced to the WGS-84 datum.
(d) A statement of the purpose for placing the proposed markers.
1. If the application is for regulatory markers, this statement must include the purpose for regulating or restricting vessel speed or operation in sufficient detail to permit the Boating and Waterways Section to ascertain whether there are a proper number of markers proposed to be installed in proper locations so that the boating public is given adequate notice of the regulation or restriction on vessel speed or operation.
2. If the application is for a danger marker, isolated danger mark, or inland obstruction mark, this statement must include a description of the danger, hazard to navigation, or obstruction in sufficient detail to permit the Boating and Waterways Section to ascertain whether there are a proper number of markers proposed to be installed in proper locations so that the boating public is given adequate notice of the danger, hazard to navigation, or obstruction.
3. If the application is for lateral marks, preferred channel marks, or safe water marks, this statement must include a description of the channel, fairway, or other area of safe water in sufficient detail to permit the Boating and Waterways Section to ascertain whether there are a proper number of markers proposed to be installed in proper locations so that the boating public is given adequate notice of channel, preferred channel, fairway, or safe water area.
4. If the application is for mooring buoys, this statement must include the following:
a. A statement of the type, maximum overall length, and maximum draft of vessels that will be allowed to moor at each buoy.
b. An estimate of the average daily weekday traffic and average daily weekend and holiday traffic that will be arriving or departing the proposed moorings.
c. A description of any navigation channels or fairways within 500 feet of the proposed mooring buoys and a description of nature and volume of vessel traffic within such channels or fairways.
d. A description of any upland amenities that will be provided to vessels moored at the proposed mooring buoys.
e. A list of any rules, regulations, requirements, or prohibitions that will be imposed on vessels moored at the proposed mooring buoys.
f. A statement of whether the area in which the mooring buoys are proposed to be located has been designated by the United States Coast Guard as a special anchorage area (i.e., vessels moored there will not need to display anchor lights) or whether the applicant intends to seek such a designation.
g. A statement of whether the mooring buoys will be managed together as a mooring field and, if so, whether the applicant intends to seek the adoption of an ordinance prohibiting anchoring within the marked boundaries of the mooring field. This information must be provided in sufficient detail to permit the Boating and Waterways Section to ascertain whether the placement of mooring buoys and the mooring of vessels at the proposed locations may be safely accomplished and whether the mooring of vessels at the proposed locations will unreasonably or unnecessarily constitute a navigational hazard or otherwise obstruct, impede, or interfere with the navigation of other vessels.
5. If the application is for special marks, this statement must include a description of the anchorage, mooring field, park, cable or pipeline area, marine event, or other special area or feature for which the markers are proposed in sufficient detail to permit the Boating and Waterways Section to ascertain whether there are a proper number of markers proposed to be installed in proper locations so that the boating public is given adequate notice of the area’s or feature’s nature, location, and boundaries.
(e) A list of the names or titles of the individuals responsible for the placement and maintenance of the markers along with an address and a contact telephone number for each individual.
(f) If the application is for regulatory markers, the applicant must include proof of the lawful imposition of a regulation or restriction on the speed or operation of vessels for which the regulatory markers are proposed, as follows:
1. For regulatory markers to implement boating-restricted areas established by a municipal or county ordinance:
a. A copy of an ordinance adopted pursuant to Section 327.46(1)(b), F.S., which imposes the restriction for reasons of vessel traffic safety or public safety; or
b. A copy of an ordinance approved by the commission pursuant to paragraph 327.46(1)(c), F.S.; or
c. A copy of an ordinance approved by the commission pursuant to paragraph 379.2431(2)(p), F.S., such approval shall be coordinated through the commission’s Imperiled Species Management Section.
2. For all other regulatory markers, a copy of the statute, special act, rule, regulation, order, or other instrument which imposes the regulation or restriction and a statement of the specific authority under which the restriction is imposed.
Rulemaking Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended 10-5-06,________.
(Substantial rewording of Rule 68D-23.105 follows. See Florida Administrative Code for present text.)
68D-23.105 Criteria for Approval of Regulatory Markers.
(1) Upon receipt of a completed application, the Boating and Waterways Section will determine:
(a) For all markers, whether or not:
1. The proposed markers conform to the United States Aids to Navigation System and this chapter.
2. The proposed markers, if placed in the proposed locations, would create an unreasonable hazard to navigation.
(b) For regulatory markers only, determine whether or not:
1. The markers as proposed would clearly mark the location in which the regulation or restriction is in effect and adequately notice mariners of the regulation or restriction imposed on vessel speed or operation.
2. The regulation or restriction to be implemented by the proposed markers and the message to be displayed thereon are supported by statute, special act, rule, ordinance, or other enactment or order.
(c) For danger markers, isolated danger marks, or inland obstruction marks only, whether or not the danger, hazard to navigation, or obstruction actually exists and, if so, whether or not there are a proper number of markers proposed to be installed in proper locations so that mariners are given adequate notice of the danger, hazard to navigation, or obstruction.
(d) For lateral marks, preferred channel marks, or safe water marks only, whether or not there are a proper number of markers proposed to be installed in proper locations so that the boating public is given adequate notice of channel, preferred channel, fairway, or safe water area.
(e) For mooring buoys only, whether the placement of mooring buoys and the mooring of vessel at the proposed locations may be safely accomplished and whether the mooring of vessels at the proposed locations will unreasonably or unnecessarily constitute a navigational hazard or otherwise obstruct, impede, or interfere with the navigation of other vessels.
(f) For special marks only, whether or not there are a proper number of markers proposed to be installed in proper locations so that the boating public is given adequate notice of the area’s or feature’s nature, location, and boundaries.
(2) The Boating and Waterways Section is authorized to consult, coordinate, or cooperate with any other governmental entity having concurrent jurisdiction over the waters for which the permit is applied.
Rulemaking Specific Authority 327.40, 327.41 FS. Law Implemented 327.40, 327.41, 379.2431 FS. History–New 12-23-01, Amended ________.
68D-23.106 Marker Placement Requirements Conditions.
(1) All persons placing or maintaining in place any markers must comply with the following requirements and all permits issued pursuant to this chapter are subject to the following conditions:
(a) Placement of these markers must be exactly as requested in the application. Any deviation will require that the permittee applicant apply to have the permit amended.
(b) The permittee applicant must display the permit number (except as provided below) on each marker and the ordinance number, code section number, statute number, regulation or rule number (etc.) on each regulatory marker. These numbers must be displayed in black, block characters approximately one inch in height.
1. through 2. No change.
3. Information Informational markers placed by counties, municipalities, or other governmental entities on inland lakes and their associated canals are exempt from permitting under this rule. Such markers, if not permitted, must display in lieu of a permit number, the name of the county, municipality, or other governmental entity that placed the marker.
(c) Upon completion of the installation of markers, the permittee applicant must notify the Boating and Waterways Section in writing within 30 days. If the latitude and longitude of each marker, as installed, is different from that listed in the application, this notification must include the correct latitude and longitude in degrees and decimal minutes as referenced to the WGS-84 installed and the datum along with a request for the permit to be amended in which the coordinates are expressed.
(d) All markers must be maintained in proper condition at all times. A discrepancy exists whenever a marker is not exactly as described in the approved application or is destroyed, damaged, moved, or is otherwise unserviceable or not watching properly. The permittee applicant must immediately report any discrepancy in the marker to the Boating and Waterways Section by telephone, telefacsimile or other similarly rapid means of communication. The permittee Unless the applicant’s permit expressly provides for a longer period, the applicant must correct any discrepancy within not more than 30 days and must notify the Boating and Waterways Section when the correction is accomplished.
(e) A permit Authorization by the division for the placement of a marker does not authorize any invasion of private rights, nor grant any exclusive privileges, nor does it obviate the necessity of complying with any other federal, state or local laws or regulations.
(f) through (g) No change.
(h) It is unlawful to place markers, buoys, or signs on submerged lands, or other property or structure not owned by the person or governmental entity placing them without first receiving the written consent of the owner of the submerged lands, other property, or structure to the placement of said markers, buoys, or signs. For markers, buoys, or signs placed pursuant to a permit issued under this rule, the permit is contingent upon the permittee applicant providing a copy of such consent to the Boating and Waterways Section.
(i) By accepting any permit and placing the markers authorized therein, the permittee applicant other than a governmental entity, to the extent authorized by law, agrees and promises to hold harmless the State of Florida and its agencies, employees, agents, or successors from fault with respect to any claim or claims arising from alleged negligence in the placement, maintenance, operation and removal of any and all markers placed by the permittee applicants pursuant to such permits. The permittee applicant other than a governmental entity further agrees to indemnify the State of Florida for any and all legal fees and costs incurred in defense of any suit brought against the State as a result of alleged negligence by the permittee applicant in the placement, maintenance, operation or removal of the markers.
(j) Applicants for permits to place regulatory markers or the governmental entities establishing the rules, ordinances, or other actions imposing the regulations must provide for the enforcement of operating restrictions noticed by said markers.
(2) Additional requirements conditions for regulatory markers.
(a) No change.
(b) If the regulatory instrument supporting a regulatory marker is amended or if it is repealed, rescinded, revoked, or otherwise becomes a nullity, the permit holder must within 30 days notify the Boating and Waterways Section of the change and must also:
1. In the case of an amendment to the regulatory instrument, the file an and amended permit application showing the markers that will be removed, replaced, modified, or added in order to implement the amendment to the regulatory instrument.
2. No change.
(c) Applicants for permits to place regulatory markers or the governmental entities establishing the rules, ordinances, or other actions imposing the regulations must provide for the enforcement of regulations or operating restrictions noticed by said markers. The issuance of a permit authorizing the placement of regulatory markers does not obligate the Fish and Wildlife Conservation Commission or its officers to enforce the regulations or operating restrictions noticed by said markers.
(3) After obtaining the requested permit, the permittee must install, inspect, maintain, and remove the permitted marker at its own expense and as directed by the Boating and Waterways Section.
(4) Discontinuance and removal. Any permitted waterway marker may be discontinued and removed by the permittee owner after 30 days notice to the Boating and Waterways Section. Upon completion of the removal of the marker, the permittee must notify the Boating and Waterways Section in writing within 30 days.
(5) The division and its officers and all other law enforcement officers charged with the enforcement of Chapter 327, F.S., have the authority to remove or cause the removal of any marker found in violation of the requirements conditions imposed under this section or conditions otherwise imposed in the permit authorizing the placement of the marker if the violation is not corrected within 30 days following notification of the permittee of the violation.
Rulemaking Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41, 327.70 FS. History–New 12-23-01, Amended 10-5-06,________.
68D-23.107 Federal System Adopted.
(1) The following are adopted and incorporated by reference as they existed on December 23, 2001:
(a) The United States Aids to Navigation System, Part 62 of Title 33 of the Code of Federal Regulations (April 1, 2010);
(b) The United States Coast Guard Aids to Navigation Manual – Administration (COMDTINST Manual Comdtinst M16500.7A, March 2, 2005);
(c) The United States Coast Guard Aids to Navigation Manual – Technical Manual (COMDTINST Comdtinst M16500.3A, February 11, 2005);
(d) The United States Coast Guard Aids to Navigation Manual – Structures (COMDTINST M16500.25, November 7, 2005).
(2) No change.
(a) Any marker All markers in, on or over the waters of the state or the shores thereof that does not must conform to the United States Aids to Navigation System and all other provisions of this chapter, must be brought into conformity or be removed from the waters or shores of the state.
(b) through (c) No change.
Rulemaking Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended 10-5-06,________.
68D-23.108 Specifications for Markers.
(1) through (4) No change.
(5) Retroreflective materials must shall be used for all displays on markers that are required to be international orange and as otherwise required in the United States Coast Guard Aids to Navigation Manual – Technical (COMDTINST Manual Comdtinst M16500.3A). The white background dayboard film material for all information, danger, exclusion, and regulatory signs installed or replaced after July 1, 2006, shall be retroreflective. Retroreflective materials may be used for any other portion of a marker.
(6) No change.
(7) All buoys other than mooring buoys must be attached to the water body waterbody bottom using anchors, sinkers, chains, shackles, swivels, and bridles that meet or exceed the specifications in the United States Coast Guard Aids to Navigation Manual – Technical (COMDTINST Manual Comdtinst M16500.3A).
(8) Mooring buoys are white cylindrical or spherical with a blue band located near the top of the buoy. All mooring buoys must be attached to the water body waterbody bottom using anchors, sinkers, chains, shackles, and swivels, and must be equipped with pennants, that are of sufficient size, strength, and holding power for their intended purpose. Anchors or anchoring systems for mooring buoys must embed in the water body bottom. The use of a sinker (a weight, usually metal or concrete, that rests on the bottom without embedding) to anchor a mooring buoy is prohibited.
Rulemaking Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended 10-5-06,________.
68D-23.109 Additional Specifications for Information and Regulatory Markers.
(1) through (4) No change.
Rulemaking Specific Authority 327.04, 327.40, 327.41, FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended 10-5-06.
68D-23.110 Inspections and Certification.
(1) Each person holding a permit to place and maintain one or more markers must inspect all markers for which the permit was issued triennially (every three years).
(2) No change.
(3) The permit holder must maintain the inspection documentation until it is replaced by a subsequent inspection and documentation. The inspection documentation must be available for inspection by any law enforcement officer during the permittee’s normal business hours. Failure to inspect a marker and to maintain documentation of the results of the inspection during the specified time period is grounds for rescinding the permit authorizing placement of the marker and for removing or ordering the removal of the marker.
(4) No change.
(a) No change.
(b)(c) A dayboard or buoy must be replaced if any of the deteriorations noted above is observed or, if for any reason, it cannot function as intended (including significant fading or other discoloration) until the next regularly scheduled inspection. Onsite repairs are permitted if they do not interfere with or detract from the intended signal function of the marker.
(5) Within 5 business days following the completion of the triennial inspection, the permittee must notify the Boating and Waterways Section that the inspection has been performed and whether or not any markers were determined to be discrepant. All discrepancies documented during an inspection must be reported to the Boating and Waterways Section and corrected within 30 days, as provided in paragraph 68D-23.106(1)(d), F.A.C.
Rulemaking Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41, 379.2431 FS. History–New 12-23-01, Amended 10-5-06,________.
68D-23.111 Enforcement.
This chapter shall be enforced by the division and its officers, the sheriffs of the various counties and their deputies, municipal police officers, and any other authorized law enforcement officer as defined in Section 943.10, F.S., as provided in Section 327.70, F.S., all of whom shall have the authority to remove or cause the removal of any marker found to be in violation of this chapter.
Rulemaking Specific Authority 327.40, 327.41 FS. Law Implemented 327.22, 327.40, 327.41, 327.46, 327.60, 327.70, 379.2431 FS. History–New 12-23-01, Amended________.
68D-23.112 Exemptions.
(1) through (2) No change.
(3) Except as provided in subparagraph 68D-23.106(1)(b)3., F.A.C., Every regulatory marker without a properly displayed permit number, in place in, on or over the waters of the state or shores thereof is declared a nuisance. The division and its officers and all other law enforcement officers charged with the enforcement of Chapter 327, F.S., have the authority to remove or cause the removal of any unpermitted regulatory marker. Markers authorized by the former Florida Department of Natural Resources prior to January 1, 1988, for which no permit number was assigned shall be issued a permit number upon receipt by the Boating and Waterways Section of the following:
(a) through (b) No change.
(4) Counties, municipalities and other government entities are exempt from permitting under this Chapter only when placing information markers on inland lakes and their associated canals. However, nothing herein shall prevent counties, municipalities or other governmental entities from choosing to voluntarily apply for waterway marker permits for such information markers. Markers placed by local governments on inland lakes and their associated canals.
(a) The placement of information or danger markers by counties, municipalities, or other governmental entities, in, on, or over the waters or shores of inland lakes and their associated canals is exempt from permitting under this section and such markers need not display any permit number. These markers include, but are not limited to, those providing information or warnings concerning: ends of boat ramps, no swimming, swimming area, lake names, canal names, trash receptacles, public health notices, underwater hazards, regulatory matters, emergencies, and special events.
(b) These markers, with the exception of swimming area and special event markers, must be placed on land or within 50 feet from the ordinary high-water line.
(c) This exception from the permitting requirement does not relieve any county, municipality, or other governmental entity from compliance with any other state or federal rule, regulation, or law.
(d) The Commission finds that federal law imposes less restrictive requirements than provided herein on the placement of markers indicating the ends of boat ramps, no swimming, swimming area, lake name, trash receptacle, public health notice, canal, emergency, and other similar markers directed to persons on land, swimmers, and other persons using the waters of this state who are not the operators or occupants of vessels. Such markers were not considered waterway markers prior to June 13, 2005, and were not subject to the provisions of this rule or Section 327.40, F.S., prior to that date. The Commission temporarily exempts such markers from the provisions of this rule and Section 327.40, F.S. This temporary exemption shall expire and this paragraph shall stand repealed on December 31, 2006, unless repromulgated.
(5) No change.
Rulemaking Specific Authority 327.04, 327.40, 327.41, 327.71 FS. Law Implemented 327.40, 327.41, 327.46, 327.71, 379.2431 FS. History–New 12-23-01, Amended 10-5-06,________.