The proposed changes to rules within this chapter are to: (1) correct and update statutory cross-references that have been changed since the current rule was promulgated in 2001; (2) improve clarity and consistency of language and definitions; (3) ...

FISH AND WILDLIFE CONSERVATION COMMISSION
Vessel Registration and Boating Safety

RULE NO: RULE TITLE
68D-23.101: Intent
68D-23.103: Definitions
68D-23.104: Placement of 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-23.112: Exemptions
PURPOSE AND EFFECT: The proposed changes to rules within this chapter are to: (1) correct and update statutory cross-references that have been changed since the current rule was promulgated in 2001; (2) improve clarity and consistency of language and definitions; (3) remove or revise obsolete provisions and cross-references; and (4) respond to requests for revisions received from stakeholders and from other governmental entities. The anticipated effects include the relaxation of certain reporting requirements and other reductions to the regulatory burden on permittees where possible. Other anticipated effects include the provision to applicants of greater flexibility in the size of and messages displayed on waterway regulatory and information markers.
SUMMARY: These rule amendments: Clarify the Commission’s intent to conform to applicable federal regulations and international conventions; clarify and rearrange existing definitions and provide two definitions for “inland lake, “associated canal,” and “in writing”; implement certain exemptions for governmental entities and clarify that these entities may voluntarily continue to apply for and obtain marker permits; clarify permitting procedures; establish general marker permit conditions in rule; eliminate obsolete deadlines; provide more complete installation details in conformance with U.S. Coast Guard technical requirements; provide specifications for marker inspection and eliminate the current inspection reporting requirement in favor of a record retention requirement; implement the provisions of chapter 2005-217, Laws of Florida.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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, 327.71 FS.
LAW IMPLEMENTED: 327.40, 327.41, 327.46, 327.71, 370.12 FS.
A HEARING WILL BE HELD AT THE TIME, DATE AND PLACE SHOWN BELOW:
TIME AND DATE: June 7 and 8, 2006, 8:30 A.M. TO 5:00 P.M., each day.
PLACE: Marriott West Palm Beach, 1001 Okeechobee Boulevard, West Palm Beach, Florida, 33401.
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: the Agency ADA Coordinator at [phone]. If you are hearing or speech impaired, please contact the agency by calling 800-955-8771 (TDD) or 850-488-9542, within the Tallahassee area. 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 Alan Richard, Assistant General Counsel, 850-487-1764, Florida Fish and Wildlife Conservation Commission, 620 South Meridian Street, Tallahassee, Florida 32399.

THE FULL TEXT OF THE PROPOSED RULE IS:

68D-23.101 Intent.

        (1) This Chapter is consistent and conforms to 33 C.F.R. 62.21 - The navigable waters of the United States and non-navigable State waters after December 31, 2003, are marked to assist navigation using the United States Aids to Navigation System, a system consistent with the International Association of Lighthouse Authorities (IALA) Maritime Buoyage System. The IALA Maritime Buoyage System is followed by most of the world's maritime nations and will improve maritime safety by encouraging conformity with buoyage systems used worldwide.

        (2) It is the intent of this chapter:

        (a) To provide for uniformity in design, construction and coloring of markers so that all vessel operators may readily recognize, identify and distinguish between authorized markers and unlawfully placed markers;

        (b) To provide a means by which the 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 provide a grace period until December 31, 2003, during which time all markers shall be brought into conformity with the provisions of Chapter 327, F.S., this chapter, and Part 62 of Title 33 of the Code of Federal Regulations, and to provide for the removal of all nonconforming markers after that date; and

        (d) To ensure that regulatory markers noticing boating restricted areas created pursuant to Sections 327.22, 327.60 and 370.12, FS., are authorized only for the purposes of protecting human life and limb, vessel traffic safety and maritime property, and manatees.

        (2), (3), (4), and (5) ARE RENUMBERED AS (3), (4), (5), AND (6) BUT ARE NOT CHANGED

 

Specific Authority 327.04, 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:

        PARAGRAPHS (a) THROUGH (o), NO CHANGE

        (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.

        (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.

        (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) through (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.

        (e) “No Internal Combustion Motors” or “No Motor Zone” – All vessels equipped with internal combustion motors (e.g.: gasoline or diesel motors) for propulsion must turn off the internal combustion motor and, if possible to do so, tilt or raise the internal combustion motor out of the water. The use of electric motors is not prohibited.

        (f) (d) “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 paragraph (1)(g)2, above. Examples include:

        1. “No Vessels” or “Swim Area” – All vessels of any type are prohibited from entering the marked area.

        2. “No Motorized Vessels” or “No Motorboats” or “Motorboats Prohibited” – All vessels equipped with any mechanical means of propulsion are prohibited from entering the marked area, even if the mechanical means of propulsion is not in use.

        3. “No Power-driven Vessels” – All vessels equipped with any mechanical means of propulsion are prohibited from entering the marked area unless the mechanical means of propulsion is not in use and, if possible to do so, is tilted or raised out of the water.

        4. “No Internal Combustion Motors” – All vessels equipped with internal combustion motors (e.g.: gasoline or diesel motors) for propulsion are prohibited from entering the marked area, even if the motor is not in use.

        5. “Manually Propelled Vessels Only” – All vessels other than those propelled by oars, paddles, or poles are prohibited from entering the marked area. Vessels equipped with sails or a mechanical means of propulsion may enter the marked area only if the sails or mechanical means of propulsion are is not in use and, if possible to do so, the mechanical means of propulsion is tilted or raised out of the water.

        4. 6. “No Entry Area” – All vessels and all persons, either in vessels or swimming, diving, or wading, are prohibited from entering the marked area.

        (e) AND (f) ARE RENUMBERED AS (g) AND (h), BUT ARE NOT CHANGED

        (i) (g) “Holiday” means:

        1. New Year’s Day.

        2. Birthday of Martin Luther King, Jr., the third Monday in January.

        3. Memorial Day.

        4. Independence Day, the Fourth of July.

        5. Labor Day.

        6. Columbus Day.

        7. Veterans’ Day, November 11.

        8. Thanksgiving Day.

        9. Friday after Thanksgiving.

        10. Christmas Day.

        11.

 

If any of these holidays falls on Saturday, the preceding Friday shall be observed as a holiday. If any of these holidays falls on Sunday, the following Monday shall be observed as a holiday.

 

        (3) NO CHANGE

 

Specific Authority 327.04, 327.40, 327.41, 327.46, 370.12 FS. Law Implemented 327.40, 327.41, 327.46, 370.12 FS. History–New 12-23-01, Amended           .

 

        68D-23.104 Placement of Markers.

        (1) (a) Except as provided below, 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 shores thereof without a permit from this division.

        (b) Counties, municipalities and other government entities are exempt from permitting under this rule when placing:

        1. Swimming Area Markers or Special Event Markers on inland lakes and their associated canals.

        2. Informational markers other than Swimming Area Markers or Special Event Markers, when placed on the shores of inland lakes and their associated canals or on such waters within fifty feet (50’) of the ordinary high water line.

        (c) Nothing herein shall prevent counties, municipalities or other governmental entities from choosing to voluntarily apply for waterway marker permits.

        (2) Any person, municipality, county, or other governmental entity desiring to place a marker must shall make application to the division on the Florida Uniform Waterway Marker Application form, FWC/DLE 153(01/2006 2001), 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 download the application from the Commission website at http://www.myfwc.com/boating/waterways/index.htm. Each application must include:

        (a) A scale drawing no larger than 8½ inches by 11 inches, reproducible on standard office photocopying equipment, showing the approximate placement of the proposed markers with each proposed marker labeled to correspond to the list required below. If the application is for regulatory markers, the drawing must also depict the exact boundaries of the proposed boating restricted area.

        (b) A list of the markers proposed, labeled to correspond to the drawing required above.

        (c) A statement of the specifications for the markers proposed, including:

        1. A deion giving each marker’s 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 deion of the type, size, shape, and material used for:

        a. Any structure which will support a the markers 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 fog signal.

        5. The latitude and longitude expressed in degrees, minutes, and seconds or degrees and decimal minutes of the location where each marker will be placed, and the datum in which the coordinates are expressed (WSG-84, NAD-83, etc).

        (d) A statement of the purpose for placing the proposed markers. If the application is for regulatory markers, this statement must include the purpose for regulating vessel operation and a statement of the facts and circumstances justifying the establishment of the restriction on speed or operation.

        (e) A statement listing 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 enclose therewith proof of the lawful imposition of restrictions on the speed or operation of vessels for which the regulatory markers are requested, as follows:

        1. A copy of an ordinance adopted pursuant to Section 327.22, FS., which imposes the restriction only upon vessels resident within the county or municipality imposing the restriction; or

        2. A copy of an ordinance adopted pursuant to Section 327.60, FS., which imposes the restriction for reasons of vessel traffic safety or public safety; or

        3. A copy of an ordinance adopted by a county or municipality and approved by the Commission pursuant to paragraph 370.12(2)(p), FS., which imposes the restriction for reasons of manatee protection; or

        4. A copy of the statute, special act, rule, regulation, order, or other instrument which imposes the restriction for reasons other than public safety or manatee protection, and a statement of the specific authority under which the restriction is imposed.

        (3) Upon receipt of all statements and other documents specified above, the division will:

        (a) Determine whether:

        1. The proposed markers conform to the United States Aids to Navigation System and this chapter; and

        2. The proposed markers and any support structures or moorings conform to the United States Coast Guard Aids to Navigation – Technical Manual (Comdtinst M16500.3A).

        (b) Determine whether or not the placement of the proposed markers in the proposed locations would create an unreasonable hazard to navigation.

        (c) For danger markers only, determine whether or not the markers as proposed would clearly mark the hazard or danger and adequately notice mariners of the hazard or danger.

        (d) For regulatory markers only:

        1. Determine whether or not the markers as proposed would clearly mark the area as a boating restricted area and adequately notice mariners of the restriction imposed on vessel speed or operation.

        2. Based on the authority under which the restriction is imposed:

        a. Determine whether or not the restriction applies only to vessels resident in the ordaining municipality or county, for ordinance adopted pursuant to section 327.22, FS.; or

        b. Determine whether or not there exists a conflict with the provisions of Chapter 327, FS., or any amendments thereto or regulations thereunder, for ordinances adopted pursuant to Section 327.60, FS.; or

        c. Forward the request to the Imperiled Species Management Section for review and approval pursuant to paragraph 370.12(2)(o), FS., for ordinances adopted thereunder; or

        d. For all other regulatory markers, determine whether or not the restriction to be implemented by the proposed markers is supported by statute, special act, rule, ordinance, or other enactment or order.

        (a) Determine whether or not there exists a conflict with the provisions of Chapter 327, F.S., or any amendments thereto or regulations thereunder, for ordinances adopted pursuant to Section 327.60, F.S.

        (b) Forward the request to the Bureau of Protected Species Management for review and approval pursuant to paragraph 370.12(2)(o), F.S., for ordinances adopted thereunder.

        (c) For regulatory markers, determine whether or not the markers as proposed would clearly mark the area as a boating restricted area and adequately notice mariners of the restrictions imposed on vessel speed or operation.

        (d) Determine whether or not the placement of the proposed markers in the proposed locations would create an unreasonable hazard to navigation.

        (e) Determine whether the proposed markers conform to the United States Aids to Navigation System.

        (4), and (5) NO CHANGE

        (6) Discontinuance and removal.– Any permitted waterway marker may be discontinued and removed by the owner after 30 days notice to the Boating and Waterways Section. Upon completion of the removal of the marker, the applicant must notify the Boating and Waterways Section in writing within 30 working days.

 

Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended           .

 

        68D-23.106 Marker Placement Permit Conditions.

        (1) All markers must comply with the following requirements and all permits issued pursuant to this chapter are subject to the following requirements as permit conditions:

        (a) Placement of these markers must be as requested in the application. Any deviation will require that the applicant apply to have the permit amended.

        (b) The applicant must display the permit number (except as provided below) on each marker and the ordinance number, municipal 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. On all regulatory markers, the permit number must be displayed in the lower left corner on the face of each regulatory marker. The ordinance number, municipal code section number, statute number, regulation or rule number, (etc.) must be displayed in the lower right corner on the face of each regulatory marker.

        2. On all markers other than regulatory markers, must display the permit number must be displayed on the marker. This display shall be placed at any location on the marker where it can easily be read, including the reverse side of a sign, provided that it does not interfere with the message of the marker.

        3. 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 applicant must notify the Boating and Waterways Section division in writing within 30 10 working 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 installed and the datum in which the coordinates are expressed, minutes, and seconds.

        (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 applicant must immediately report any discrepancy in the marker to the Boating and Waterways Section division by telephone, telefacsimile or other similarly rapid means of communication. 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 division when the correction is accomplished.

        (e) 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) All permits issued pursuant to this chapter are contingent upon the consent of and, if necessary, the issuance of appropriate permits by the United States Army Corps of Engineers authorizing the placement of structures for the support of the proposed markers. Consent may be by nationwide permit, regional permit, letter permit, authorization letter, statement of no objection, or other similar means.

        (g) All permits issued pursuant to this chapter are contingent upon the consent of and, if necessary, the issuance of appropriate permits by the United States Coast Guard authorizing the establishment of private aids to navigation pursuant to Part 66 of Title 33 of the Code of Federal Regulations.

        (h) It is unlawful to place All permits issued pursuant to this chapter authorizing the placement of markers, buoys, or signs on submerged lands, or other property or structure not owned by the person or governmental entity placing them without first applicant are contingent upon the applicant 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 applicant and providing a copy of such consent to the Boating and Waterways Section division.

        (i) By accepting any permit and placing the markers authorized therein, the 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 applicants pursuant to such permits. The 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 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 conditions for regulatory markers.

        (a) All regulatory markers must be supported by a statute, special act, rule, regulation, ordinance, order, or other similar regulatory instrument which imposes the restriction displayed on the marker.

        (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 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. In the case of the repeal, rescission, revocation, or other nullification of the regulatory instrument, remove from the waters of this state and the shores thereof all regulatory markers implementing that regulatory instrument.

        (3) The division and its officers and all other law enforcement officers charged with the enforcement of Chapter 327, FS., have the authority to remove or cause the removal of any marker found in violation of the conditions imposed under this section or 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. For just cause shown, one or more 30 day extensions may be granted for the permittee to correct the violations.

 

Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended           .

 

        68D-23.107 Federal System Adopted.

        (1) The following are adopted and incorporated by reference:

        (a) The United States Aids to Navigation System, Part 62 of Title 33 of the Code of Federal Regulations;

        (b) The United States Coast Guard Aids to Navigation – Administration Manual (Comdtinst M16500.7);

        (c) The United States Coast Guard Aids to Navigation – Technical Manual (Comdtinst M16500.3A).

        (2) All markers, including and mooring buoys, placed or maintained in, on or over the waters of the state or the shores thereof must shall conform to the United States Aids to Navigation System.

        (a) Until December 31, 2003, channel markers and obstruction markers conforming to the Uniform State Waterway Marking System may continue to be used on waters of this state that are not navigable waters of the United States.

        (b) No person, municipality, county or other governmental entity shall place any new marker or replace any existing marker unless such new or replacement marker or mooring buoy conforms to the United States Aids to Navigation System and all other provisions of this chapter.

        (c) On or before December 31, 2003, All markers in, on, or over the waters of the state or the shores thereof must conform to shall be brought into conformity with the United States Aids to Navigation System and all other provisions of this chapter, or be removed from the waters or shores of the state.

        (b) (d) After December 31, 2003, No person, municipality, county, or other governmental entity shall place, maintain, or permit to remain in, on or over the waters of the state or shores thereof any nonconforming marker.

        (c) (e) After December 31, 2003, All nonconforming markers in place in, on, or over the waters of the state or shores thereof are shall be declared a nuisance. The division and its officers and all other law enforcement officers charged with the enforcement of Chapter 327, FS., shall have the authority to remove or cause the removal of any such nonconforming marker.

 

Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended           .

 

        68D-23.108 Specifications for Markers.

        (1) through (4) NO CHANGE

        (5) Retroreflective materials 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 – Technical 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) Every pile used in waters of this state to support signs for waterway marking purposes must have two bands of white tape placed around it. The bands of tape must be placed separately around each pile for dolphins, clusters, and other structures using multiple piles for support. The tape must be 6 inches wide and made of self-adhesive (pressure sensitive), diamond-grade, white, retroreflective material. The top of the first band must be placed 6” from the bottom of the sign; the top of the second band must be placed 8” from the bottom of the first band. The tape must be installed with a minimum overlap of 1 inch over the entire 6” width of the band. On wooden piles, the tape must be additionally secured using not less than 4 stainless steel, 1-inch staples driven through the area of the overlap. If the tape becomes delaminated, cracked, checked, weathered, or abraded so as to have a dull or roughened surface, it must be replaced. Any existing tape must be removed before applying the replacement tape.

        (7) All buoys other than mooring buoys must be attached to the waterbody bottom using anchors, sinkers, chain, shackles, swivels, and bridles that meet or exceed the specifications in the United States Coast Guard Aids to Navigation – Technical 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 waterbody bottom using anchors, sinkers, chain, shackles, swivels, and must be equipped with pennants, that are of sufficient size, strength, and holding power for their intended purpose.

 

Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended           .

 

        68D-23.109 Additional Specifications for Information and Regulatory Markers.

        (1) and (2) NO CHANGE

        (3) When a sign is used for an information or regulatory marker it must shall be square or rectangular. It must shall be white with an international orange border. The display area is shall be that portion of the sign within the border. Symbols must shall be centered within the display area. The size of the sign must shall be appropriate to the size of the waterway where the sign is located and the nature of the vessels transiting the waterway, however, no such sign shall be smaller than three feet by three feet.

        (4) NO CHANGE

 

Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41 FS. History–New 12-23-01, Amended           .

 

        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 and report such inspection to the division triennially, beginning 36 months from the date the permit was issued or 36 months after this rule becomes effective, whichever comes later. The report must be submitted at least thirty but not more than ninety days prior to expiration of the three-year period.

        (2) The required inspection must be documented in writing and must include report shall consist of the following:

        (a) The name of the permit holder and permit number of the markers being inspected;

        (b) The name of the person or persons currently responsible for the placement and maintenance of the markers; and

        (c) A photograph of each marker taken in close enough proximity to legibly show all symbols, borders, and letters and numbers, including the text of any message, the permit number, and the ordinance number, code section number, statute number, regulation or rule number, (etc.). For marker installations with two or more signs, a sufficient number of photographs must be taken to legibly show the information on each sign. Digital photography is acceptable for this purpose. Photographs must be labeled with the location of the marker depicted and the date the photograph was taken.

        (d) A statement certifying that the markers placed pursuant to the permit have been inspected during the ninety days preceding the statement and that:

        1. The markers are properly maintained and in serviceable condition;,

        2. The markers conform to the requirements of this chapter;,

        3. The markers are still properly on station;, and

        4. The date or dates on which the markers were inspected.

        (3) The permit holder must maintain the inspection documentation until it is replaced by a subsequent inspection and documentation. Failure to inspect a marker and to maintain documentation of report the results of the inspection to the division during the specified time period is shall be grounds for rescinding the permit authorizing placement of the marker and for removing or ordering the removal of the marker.

        (4) Dayboard and buoy surfaces and dayboard backing materials will deteriorate because of the effects of weathering. Wind, rain, freezing temperatures, and sunlight cause delamination (separation), cracking, peeling, and fading. Attention must be given to these conditions during inspections.

        (a) Markers will be considered discrepant under the following guidelines:

        1. Backing materials. Delamination of the plies on a plywood dayboard backing must not effect more than 25 percent of the surface area. Any warpage must not visibly detract from the signal or message presented to the mariner. The backing must not be softened or otherwise deteriorated around the mounting points to a degree that the board could come loose in a storm typical for the area in which the marker is placed.

        2. Elastomeric films, numerals, letters, symbols, and borders. Delamination of films and retroreflective markings on dayboards and buoys must not affect more than 10 percent of the surface of the material. Films and retroreflective markings must not be cracked, checked, weathered, or abraded so as to have a dull or roughened surface. Peeling of the film or markings from the dayboard or buoy must not affect more than 10 percent of the surface area. Letters, numerals, symbols, and borders must not be faded or weathered so as to visibly detract from the signal or message presented to the mariner.

        (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) 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).

 

Specific Authority 327.04, 327.40, 327.41 FS. Law Implemented 327.40, 327.41, 370.12 FS. History–New 12-23-01,

Amended                 .

 

        68D-23.112 Exemptions.

        (1) Nothing herein shall apply to the United States Government or its agencies, nor to any aid to navigation, marker, mooring buoy, or other similar device placed thereby.

        (2) Persons establishing private aids to navigation other than regulatory markers and mooring buoys on waters of concurrent state/federal jurisdiction pursuant to the provisions of 33 CFR § 66.01 may shall submit to the Boating and Waterways Section division a copy of their United States Coast Guard permit (CG-2554) in lieu of the materials required under Rule 68D-23.104, F.A.C. Upon receipt by this section division of said copy of their permit, such private aids to navigation are shall be exempt from further permitting and need not display a permit number.

        (3) Except as provided in rule 68D-23.106(1)(b)3 Regulatory markers authorized by the former Florida Department of Natural Resources prior to January 1, 1988, are exempt until December 31, 2003, from the requirement that they display a permit number. After that date, every regulatory marker without a permit number, in place in, on or over the waters of the state or shores thereof is shall be declared a nuisance. The division and its officers and all other law enforcement officers charged with the enforcement of Chapter 327, FS., shall 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 division of the following:

        (a) A copy of the correspondence authorizing placement of said markers;

        (b) A statement of the specifications for the markers, including:

        1. A list of the markers;

        2. A deion giving each marker’s markers size and message, and

        3. The latitude and longitude coordinates in degrees and decimal minutes degrees-minutes-seconds of the location of each marker and the datum in which those coordinates are expressed;

        4. A statement that the markers have been inspected during the ninety days preceding the instant request and that:

        a. The markers are properly maintained and in serviceable condition;,

        b. The markers conform to the requirements of this chapter;,

        c. The markers are still properly on station;, and

        d. The date or dates on which the markers were inspected.

        (4) 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, FS., prior to that date. The Commission temporarily exempts such markers from the provisions of this rule and section 327.40, FS. This temporary exemption shall expire and this paragraph shall stand repealed on December 31, 2006, unless repromulgated. The inspection and certification requirements in Rule 68D-23.110, F.A.C., shall not apply to markers maintained by an Inland Navigation District pursuant to Section 374.997, F.S., but shall instead be specified in each permit.

        (5) The restrictions displayed on regulatory markers shall not apply:

        (a) In the case of an emergency;

        (b) To law enforcement patrol vessels or firefighting vessels; or

        (c) To any rescue vessel owned or operated by a governmental entity.

 

Specific Authority 327.04, 327.40, 327.41, 327.71 FS. Law Implemented 327.40, 327.41, 327.46, 327.71, 370.12 FS. History–New 12-23-01, Amended           .

NAME OF PERSON ORIGINATING PROPOSED RULE: Ms. Tara Alford, Management Analyst, Boating and Waterways Section, Division of Law Enforcement, 850-410-0656, extension 17169, Florida Fish and Wildlife Conservation Commission, 620 South Meridian Street, Tallahassee, Florida 32399.
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Colonel Julie Jones, Director, Division of Law Enforcement, Florida Fish and Wildlife Conservation Commission, 620 South Meridian Street, Tallahassee, Florida 32399.
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 2, 2006
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 23, 2004.