This rule is being amended to better describe the data and information to be considered by the Commission when evaluating whether to establish a boating restricted area pursuant to s. 327.46(1), FS., for purposes of protecting ....

 

FISH AND WILDLIFE CONSERVATION COMMISSION

Vessel Registration and Boating Safety

RULE NO.:RULE TITLE:

68D-24.003Management Provisions

PURPOSE AND EFFECT: This rule is being amended to better describe the data and information to be considered by the Commission when evaluating whether to establish a boating restricted area pursuant to s. 327.46(1), FS., for purposes of protecting public safety. The rule is also being amended to remove outdated rule references. The effect will be to update the rule and clarify the specific information and data the Commission will consider when evaluating whether public safety necessitates the creation of a boating restricted area.

SUMMARY: The proposes rule amendments identify specific factors, reports, and data relevant to considering whether boating accidents, visibility, hazardous currents or water levels, vessel traffic congestion, or other navigational hazards warrant establishing a boating restricted area to protect the public, as set forth in s. 327.46(1), FS.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The nature of the rule and the preliminary analysis conducted to determine whether a SERC was required

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.

RULEMAKING AUTHORITY: 327.04, 327.46, FS.

LAW IMPLEMENTED: 327.46, FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Captain Travis Franklin, Fish and Wildlife Conservation Commission, 620 South Meridian Street, Tallahassee, Florida 32399-1600,[e-mail]; [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

68D-24.003 Criteria for Establishing Boating Restricted Areas Management Provisions.

(1) Appropriate boating restricted areas are established for the purpose of regulating the speed and operation of vessel traffic for the safety of the public.

(2) Such boating restricted areas shall be marked in accordance with Chapter 68D- 23 18, F.A.C., Florida Intracoastal Waterway Markers.

(3) Boating restricted areas established by the Commission will be the least restrictive necessary to maintain public safety, and may be year-round, seasonal, or limited to holidays and weekends. Boating Restricted Areas established by the Commission will be either “Idle Speed, No Wake or Slow Speed, Minimum Wake.”

(4) When the Commission is determining whether a boating restricted area is necessary to protect public safety under the statutory criteria of boating accidents, visibility, hazardous water levels or currents, vessel traffic congestion, and/or other navigational hazard, the following data, as applicable, will be considered.

(a) Visibility:

1. A blind corner is presented where an intervening obstruction to visibility prevents the operator of a vessel on one of the water bodies from seeing a vessel on the other water body at a distance of 300 feet or less from the confluence.

2. A bend, intersection, or other intervening obstruction to visibility in a narrow channel, fairway, or other similar water body within the meaning of Inland Navigation Rule 9 (33 U.S.C. §2009) as adopted by Section 327.33, F.S., is presented where a decision sight distance of less than 300 feet exists and prevents the operator of a vessel from seeing other vessels or other users of the waterway.

(b) Hazardous Water Levels or Currents:

1. A boating-restricted area may be established only when the water levels are at or above flood stage on a river gauge operated or reported by the National Weather Service’s River Forecast Center (http://www.srh.noaa.gov/serfc/) or at the equivalent level on a river gauge operated or reported by the United States Geological Survey’s National Water Information System (http://waterdata.usgs.gov/fl/nwis/rt) and the specific gauge and flood stage water level is specified in the rule.

2. A navigation chart published by the National Oceanic and Atmospheric Administration’s National Ocean Service identifies the area as being subject to hazardous tides or currents.

3. Competent substantial data demonstrates that the area is subject to water levels or currents that endanger vessels operating in the area or the occupants of such vessels.

(c) Other Navigational Hazards:

1. For the purposes of this section, Hazard to Navigation is as defined in 33 CFR 64.06, and means an obstruction, usually sunken, that presents sufficient danger to navigation so as to require expeditious, affirmative action such as marking, removal, or redefinition of a designated waterway to provide for navigational safety.

(d) Vessel Traffic Congestion:

1. Traffic density, including concentration of fishing vessels or any other vessels, requires that vessels slacken speed under Inland Navigation Rule 6(a)(ii) (33 U.S.C. §2006) as adopted by Section 327.33, F.S. or

2. The traffic density establishes a significant risk of collision or a significant threat to boating safety.

3. Unsafe levels of vessel traffic density or congestion for purposes of this subsection shall be considered based upon one or more of the following:

a. Accident reports – The following reports of boating accidents will be considered if prepared contemporaneously with the boating accident being reported and if such reports establish that vessel traffic congestion or the speed, wake, or operation of a vessel involved in the accident was a primary contributing factor in the accident:

I. Florida Boating Accident Investigation Reports, FWCDLE form146, or Florida Boating Accident Self Reports, FWCDLE form146C; United States Coast Guard Recreational Boating Accident Report, form CG-3865; United States Coast Guard Report of Marine Casualty, Injury or Death, form CG-2692. The current versions of these forms are adopted by reference in subsection (7); prior editions of these forms are also acceptable. II. Law enforcement agency’s official offense or incident reports prepared and signed by an officer authorized under Section 327.70, F.S., to enforce the provisions of Chapters 327 and 328, F.S.

b. Multiple Uniform Boating Citations issued on citation forms supplied by the Commission as provided in Section 327.74, F.S., or written warnings if the violation alleged in the citation or warning is related to the cited vessel’s speed, wake, or operation. Citations and written warnings unrelated to vessel speed, wake, or operation will not be considered, nor will verbal warnings. In no event will citations or written warnings issued for violations of Chapter 328, or Sections 327.50, 327.53, 327.54, 327.65, 327.66, F.S., be considered.

c. Vessel traffic studies substantially demonstrating that vessel traffic congestion or the speed, wake, or operation of vessels in the area create unsafe levels of vessel traffic congestion, a significant risk of collision, or a significant threat to boating safety. The Commission may rely upon vessel traffic studies under this rule, video surveillance made during a vessel traffic study shall include a corresponding log documenting the number of vessels, vessel types, examples of careless or reckless operation of vessels, navigation rule violations, actions taken to avoid collisions, unsafe vessel speeds, near misses of navigational hazards by vessels, or any other specific criteria the applicant wants considered, along with relevant video time stamps for each item. present sufficient facts or data, are the product of reliable principles and methods, and apply the principles and methods reliably to the facts or data considered.

1.When vessel traffic studies alone are relied upon to establish a boating restricted area, the Commission shall, at a minimum, rely on documentation of vessel traffic within the area for a minimum of fourteen (14) consecutive days.

2. Vessel traffic studies will not be considered unless they identify the number of vessels transiting the proposed boating restricted area each hour for no less than six hours out of each twenty-four-hour period documented and identify the area of the study by longitude and latitude. When this minimum threshold is met, the Commission will evaluate the area taking all other relevant factors into consideration, including width of the waterway, vessel types using the waterway, navigational hazards, and other conditions specific to the proposed boating restricted area.

3.In assessing the creditability of a vessel traffic study, the following factors (as applicable) shall be among those considered:

I. Whether the study’s methodology can be or has been tested (i.e., whether the study’s methodology can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability);

II. Whether the study’s methodology has been subject to peer review and publication;

III. The known or potential rate of error of the study’s methodology;

IV. The existence and maintenance of standards and controls; and,

V. Whether the methodology has been generally accepted in the scientific community.

d. Other creditable data. For the purposes of this subparagraph, “other creditable data” means facts or data that are of a type reasonably relied upon by experts in the fields of boating safety, maritime safety, navigation safety, ports and waterways safety assessments, or vessel traffic management, as contemplated in section 90.704, F.S.

(5) The following forms are adopted and incorporated by reference:

1.Florida Boating Accident Investigation Report, form FWCDLE 146 (07/2010), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-13212 and Florida Boating Accident Self Report, form FWCDLE 146C (07/2010), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-13213 supplied by the Commission as provided in Sections 327.301 and 327.302, F.S. These forms may also be obtained from the Boating and Waterways Section, 620 South Meridian Street, Tallahassee, FL 32399-1600. 

2. United States Coast Guard Recreational Boating Accident Report, form CG-3865 (Rev. 09/18), as provided in 33 C.F.R. §§173.55, 173.57, available at https://www.flrules.org/Gateway/reference.asp?No=Ref-13214. This form may also be obtained from Commandant (CG-5422), U.S. Coast Guard Headquarters, 2100 Second St. S.W., Stop 7581, Washington, DC 20593-7581.

3. United States Coast Guard Report of Marine Casualty, Commercial Diving Casualty, or OCS Related Casualty, form CG-2692 (Rev. 07/19), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-13215. This form may also be obtained from the Coast Guard Sector Office, Coast Guard Marine Inspection Office or Coast Guard Group Office nearest the scene of the marine casualty, or from Commander, USCG Seventh District, Brickell Plaza Federal Building, 909 S.E. 1st Avenue, Miami, FL 33131-3050.

(63) The drawings provided in this chapter are intended to provide information to assist the boat operator in locating the boating restricted areas depicted. The drawings are not to scale and should not be used for navigation purposes. The text of these rules is controlling and dispositive of the exact location of the boundaries of each boating restricted area.

(4) The executive director may approve for adoption rules establishing boating restricted areas. This delegation of authority is subject to the following criteria:

(a) A local government has passed a resolution requesting or endorsing a request that a boating restricted area be established;

(b) The area is designed to protect public safety;

(c) The requested area is in the vicinity of a bridge, public boat ramp, public dock, public marina, public fueling facility, public sewage pump-out facility, or a specific navigational hazard;

(d) Personnel from the Fish and Wildlife Conservation Commission’s Division of Law Enforcement confirm that the proposed area presents a danger to public safety if it remains unregulated;

(e) The rule regulates the boating restricted area at one of the following levels – “Idle Speed No Wake,” “Slow Speed Minimum Wake,” or “30 miles per hour;”

(f) No written objection to the establishment of the proposed restricted area has been received from the United States Coast Guard, the Army Corps of Engineers, or a Navigation District established under Chapter 374, F.S.

(g) No timely request for a public hearing is received and no timely challenge to the proposed rule is filed; (h) No correspondence or other written communication is received showing organized public opposition to the proposed rule

Rulemaking Authority 327.04, 327.46 FS. Law Implemented 327.46 FS. History–New 8-30-83, Formerly 16N-24.03, Amended 6-14-93, Formerly 16N-24.003, 62N-24.003, Amended 6-12-00, 3-16-06, History __________________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Captain Travis Franklin

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Florida Fish and Wildlife Conservation Commission

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 04, 2023

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 8, 2023