Requirements for Applications, Procedures for Reviewing Applications, Procedures for Providing for Public Notice and Participation, Criteria for Approval of Ordinances

FISH AND WILDLIFE CONSERVATION COMMISSION
Vessel Registration and Boating Safety

Rule No.: RULE TITLE
68D-21.001: Requirements for Applications
68D-21.002: Procedures for Reviewing Applications
68D-21.003: Procedures for Providing for Public Notice and Participation
68D-21.004: Criteria for Approval of Ordinances

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 36 No. 21, May 28, 2010 issue of the Florida Administrative Weekly.

The following reflects proposed rule changes intended to improve clarity and consistency within the rule and in response to public comments received during an open period for comments. The Florida Fish and Wildlife Conservation Commission, sitting as agency head, approved the changes at its public meeting held on June 23-24, 2010, in Winter Park, Florida. Amendments were also made in response to comments provided by the Joint Administrative Procedures Committee on July 12, 2010.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

68D-21.001 Requirements for Applications.

(1) Approval by the Florida Fish and Wildlife Conservation Commission is not required for ordinances adopted pursuant to paragraph 327.46(1)(b), F.S. Florida Statutes Regulatory markers necessary for implementing those ordinances must be permitted as required in Sections 327.40 and 327.41, F.S. Florida Statutes, and as provided in Chapter 68D-23, F.A.C.

(2) Any municipality or county application for approval of an ordinance establishing a boating-restricted area pursuant to paragraph 327.46(1)(c), F.S. Florida Statutes, must be submitted to: Florida Fish and Wildlife Conservation Commission, Division of Law Enforcement, Boating and Waterways Section.

(3) Each application must include:

(a) through (c) No change.

(d) A statement identifying the provision within paragraph 327.46(1)(c), F.S., Florida Statutes authorizing regulation of vessel speed or operation by the ordinance.

(e) One or more scaled drawings no larger than 8 1/2 inches by 11 inches, reproducible in black and white on standard office photocopying equipment which clearly show the following:

1. through 4. No change.

5. The location of any of the following within a proposed boating-restricted area or used as a basis for establishing a boating restricted area:

a. through c. No change.

d. Any bend or other intervening obstruction to visibility that may obscure other vessels or other users of the waterway in a narrow channel, fairway, or other similar area within the meaning of Inland Navigation Rule 9 (33 U.S.C. § 2009) as adopted by Section 327.33, F.S. Florida Statutes.

e. Any specific hazards to navigation (with a label or legend describing the hazard).

6. If relied upon as a basis for establishing the boating-restricted area, the location and description of any of the following:

a. Any specific area subject to unsafe levels of vessel traffic congestion.

b.f. Any specific area subject to hazardous water levels or currents.

g. Any specific hazards to navigation (with a label or legend describing the hazard).

c.h. Any reported boating accident, if relied upon as a basis for establishing the boating-restricted area.

d.i. Any issuance of a Uniform Boating Citation, if relied upon as a basis for establishing the boating-restricted area.

7.6. The shoreline-to-shoreline width of the body of water upon which the boating restricted area is to be established and, if the water body is a lake or pond, the total surface area expressed in acres.

(f) Documentation that the ordinance was developed, prior to presenting language for adoption to the governing body, in consultation and coordination with:

1. The governing body of every other the county or municipality sharing jurisdiction over the area in which the boating-restricted area is located.

2. The United States Coast Guard if the boating-restricted area is to be established on navigable waters of the United States as defined in 33 C.F.R. § 2.36(a) (2009), which is adopted by reference and is available at http://www.gpoaccess.gov/cfr/index.html.

3. The United States Army Corps of Engineers if the boating-restricted area is to be established on navigable waters of the United States as defined in 33 C.F.R. § 329.4 (2009), which is adopted by reference and is available at http://www.gpoaccess.gov/cfr/index.html.

(g) through (h) No change.

(i) Proof that the applicant has at its own cost published, as provided by Sections 50.011-50.031, F.S. Florida Statutes, once a week for 2 consecutive weeks, prior a notice of the public hearing on the ordinance application in a newspaper of general circulation in the area(s) affected by the ordinance. The notices must be published at least 7 days, but not more than 30 days, before the application is submitted.

(j) through (k) No change.

(4) through (5) No change.

Rulemaking Authority 327.04, 327.46 FS. Law Implemented 327.46 FS. History–New_________.

 

68D-21.002 Procedures for Reviewing Applications.

(1) No change.

(2) Within 30 days following receipt of a completed application, the Boating and Waterways Section will provide notice of such receipt: to the applicant by mail or by email using the same method by which the application was submitted and to the public as provided in Rule 68D-21.003, F.A.C.

(a) To the applicant by mail or by email using the same method by which the application was submitted and to the public as provided in Rule 68D-21.003.

(b) In order to receive further notifications pertaining to an application, including copies of notices and correspondence, a person must so notify the Boating and Waterways Section within 21 days following the publication of the notice of receipt in the Florida Administrative Weekly.

(3) The Boating and Waterways Section will within 90 days following receipt of a completed application, review and act upon the application as follows:

(a) The Boating and Waterways Section will determine whether or not each boating-restricted area created in the ordinance is authorized under paragraph 327.46(1)(b) or (c), F.S. Florida Statutes. If any boating-restricted area created in the ordinance is not authorized pursuant to one of those paragraphs, the application will be denied. As provided in subsection 68D-21.001(1), F.A.C., approval is not required for ordinances in which every boating-restricted area established therein is authorized under paragraph 327.46(1)(b), F.S. Florida Statutes.

(b) The Boating and Waterways Section will determine whether or not each boating-restricted area established in the ordinance was developed prior to adoption the first reading of the ordinance:

1. through 3. No change.

(c) The Boating and Waterways Section will determine whether or not the application and appendix establish a prima facie showing that the ordinance is necessary to protect public safety by evaluating if at least one of the criteria in Rule 68D-21.004, F.A.C., has been met.

(d) If there is a prima facie showing that the ordinance is necessary to protect public safety and that at least one of the criteria in Rule 68D-21.004, F.A.C., has been met, the Boating and Waterways Section will:

1. Review all written public comments received within 21 days following the notice provided to the public as required in Rule 68D-21.003, F.A.C., publication in the Florida Administrative Weekly of the notice of receipt of a complete application and all testimony, evidence, and exhibits presented at a public hearing if one was requested;

2. No change.

3. Conduct a public hearing within the applicant’s jurisdiction if a written request for such a hearing is received within 21 days following the notice provided to the public as required in Rule 68D-21.003, F.A.C publication in the Florida Administrative Weekly of the notice of receipt of the application.

(e) Based on the totality of the information received, the Boating and Waterways Section will determine whether or not there is substantial competent evidence that the ordinance is necessary to protect public safety.

1. An ordinance will be considered necessary to protect public safety only if it is required for the purposes of protecting human life and limb, vessel traffic safety, and, as defined in Rule 68D-23.103, F.A.C., maritime property.

2. No ordinance establishing a boating restricted area will be approved for the purpose of noise abatement or for the protection of shoreline, shore-based structures, or upland property from vessel wake or shoreline wash. As provided in Section 327.33(2), F.S. Florida Statutes, “vessel wake and shoreline wash resulting from the reasonable and prudent operation of a vessel shall, absent negligence, not constitute damage or endangerment to property.” The wake resulting from the reasonable and prudent operation of a vessel is a force which should be anticipated by the owners of property adjacent to the navigable waters of this state.

(4) The Boating and Waterways Section will act to approve or deny the application within the time limits specified in Section 327.46(1)(c), F.S. Florida Statutes. Upon approval or denial of the application, the Boating and Waterways Section will provide notice of the approval or denial as provided in Rule 68D-21.003, F.A.C. If no request for review is timely received, this notice will constitute final agency action.

(5) The Florida Fish and Wildlife Conservation Commission, sitting as agency head at its next available regularly scheduled meeting, will review any approval or denial determination made by the Boating and Waterways Section upon timely receipt of a request for review. Any substantially affected person may request review of the approval or denial; the request must be received by the Boating and Waterway Section within 21 days following the notice provided to the public as required in Rule 68D-21.003, F.A.C publication in the Florida Administrative Weekly of the notice of approval or denial.

Rulemaking Authority 327.04, 327.46 FS. Law Implemented 327.46 FS. History–New________.

 

68D-21.003 Procedures for Providing for Public Notice and Participation.

(1) Public Notice. The Boating and Waterways Section will provide notice of complete applications received, public meetings or hearing concerning applications, and denial or approval of applications: on the Boating and Waterways Section’s web page at http://www.myfwc.com/RECREATION/boat_index.htm and to all parties listed in the “Boating and Waterways Section’s Public Distribution List – Ordinances” in which any member of the public may join by a request to the mailing or email address found below in paragraph 68D-21.003(2)(a), F.A.C.

(2) Public Participation.

(a) No change.

(b) If a public hearing is requested under subparagraph 68D-21.002(3)(d)3., F.A.C. or review by the agency head is requested under subsection 68D-21.002(5), F.A.C., members of the public may:

1. through 2. No change.

Rulemaking Authority 327.04, 327.46 FS. Law Implemented 327.46 FS. History–New________.

 

68D-21.004 Criteria for Approval of Ordinances Adopted Pursuant to Section 327.46(1)(c), Florida Statutes.

(1) Any ordinance submitted pursuant to Section 327.46(1)(c), F.S. Florida Statutes, and in compliance with Chapter 68D-21, F.A.C., is subject to review and approval by the Commission.

(2) An ordinance establishing either an “idle speed, no wake” or a “slow speed, minimum wake” boating restricted area will be approved for areas not more than 300 feet from a confluence (intersection) of water bodies presenting a blind corner, a bend in a narrow channel or fairway, or such other area if an intervening obstruction to visibility may obscure other vessels or other users of the waterway.

(a) No change.

(b) A bend 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. Florida Statutes, 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.

Any ordinance submitted for approval under this subsection must also contain the following provision: The operator of every vessel within this boating-restricted area must navigate with particular alertness and caution as required by Navigation Rule 9(f) and must, upon entering this boating-restricted area, sound a 4 to 6 second blast on the vessel’s horn or whistle as required by Navigation Rules 9(f) and 34(e). This signal must be answered with a 4 to 6 second blast by the operator of any approaching vessel that may be within hearing around the bend or behind the intervening obstruction as required by Navigation Rule 34(e).

(3) An ordinance establishing a “slow speed, minimum wake” boating-restricted area or numerical speed limit boating-restricted area regulated at 25 or 30 miles per hour will be approved for areas:

(a) No change.

(b) Containing a documented navigational hazard of a nature that vessel operation in its vicinity at speed in excess of slow speed, minimum wake endangers the vessel or its occupants. Navigational hazards are presumed to exist within the marked boundaries of mooring fields as permitted by Section 327.40, F.S. Florida Statutes.

(c) Subject to unsafe levels of vessel traffic congestion, seasonal or year-round, such that:

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

2. It presents a significant risk of collision or a significant threat to boating safety.

3. Unsafe levels of vessel traffic congestion, a significant risk of collision, or a significant threat to boating safety may be demonstrated by:

a. Accident reports – The following reports of boating accidents are acceptable if prepared contemporaneously with the boating accident being reported and if vessel traffic congestion or the speed or wake of a vessel involved in the accident caused or contributed to the accident:

i. Florida Boating Accident Investigation Report, form FWCDLE 146, or Florida Boating Accident Report Self Report, form FWCDLE 146C, supplied by the Ccommission as provided in Section 327.302, F.S. Florida Statutes; United States Coast Guard Recreational Boating Accident Report, form CG-3865, as provided in 33 C.F.R. §§ 173.55, 173.57; United States Coast Guard Report of Marine Casualty, Injury or Death, form CG-2692, as provided in 46 C.F.R. § 4.05-10. The current versions of these forms are adopted by reference in subsection (5)(3); prior editions of these forms are also acceptable.

ii. A law enforcement agency’s official offense or incident report prepared and signed by an officer authorized under Section 327.70, F.S. Florida Statutes, to enforce the provisions of chapters 327 and 328, F.S. Florida Statutes.

iii. No change.

b. Uniform boating citations issued on citation forms supplied by the Ccommission as provided in Section 327.74, F.S. Florida Statutes, if the violation alleged in the citation is related to the cited vessel’s speed or wake.

c. No change.

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. Florida Statutes.

(d) Areas Tthat could have been established as an idle speed, no wake boating-restricted area under paragraph 327.46(1)(b)1, F.S. Florida Statutes, provided the applicant demonstrates by competent substantial evidence how the specific regulation will adequately solve public safety concerns in the area.

(4) An ordinance establishing a vessel exclusion zone (an area from which all vessels or certain classes of vessels are excluded) will be approved if the area is reserved exclusively:

1. As a canoe trail or otherwise limits vessel propulsion if the applicant demonstrates by competent substantial evidence how the restriction is necessary to protect public safety pursuant to Section 327.46, F.S., and limited to vessels under oars or under sail if:

a. One of the following restrictions, as defined in Rule 68D-23.103, F.A.C. is imposed: “No Motorized Vessels” or “No Motorboats” or “Motorboats Prohibited”; “No Power-driven Vessels”; “No Internal Combustion Motors”; “Manually Propelled Vessels Only” and

b. No change.

2. No change.

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

(a) Florida Boating Accident Investigation Report, form FWCDLE 146 (07/2010 10/08), and Florida Boating Accident Report Self Report, form FWCDLE 146C (07/2010 12/06), supplied by the Ccommission as provided in Section 327.302, F.S. Florida Statutes. These forms may be obtained from the Boating and Waterways Section, 620 South Meridian Street, Tallahassee, FL 32399-1600.

(b) United States Coast Guard Recreational Boating Accident Report, form CG-3865 (Rev. 07/08), as provided in 33 C.F.R. §§ 173.55, 173.57. This form may be obtained from Commandant (CG-5422), U.S. Coast Guard Headquarters, 2100 Second St. SW, S. W., Stop 7581, Washington, DC 20593-7581, or downloaded at http://www.uscgboating.org/assets/1/Publications/cg3865barform2008.pdf.

(c) No change.

Rulemaking Authority 327.04, 327.302, 327.46 FS. Law Implemented 327.302, 327.46 FS. History–New________.