Alan Sanders Richard

I am writing to provide comments on the provision in the proposed regulation for notifying the public when the security zone is activated. Specifically, paragraph (b) (3) provides that this notification will be given “by the display of a red flag on a 50- foot pole located at the east end of Cruise Ship terminal 10.” The problems with this method of notification include: 1) Use of a red flag for such notification is outside the knowledge or experience of both professional mariners and recreational boaters; 2) This use is inconsistent with the United States Aids to Navigation System; and 3) Use of the proposed red flag will interfere with effective enforcement of the security zone. These comments are based on 31 years of experience as a maritime law enforcement officer, 25 years of experience as a Coast Guard licensed Master, and 47 years of experience as a recreational boater. These comments are also based on knowledge gained as a member and past chair of the Florida Bar Admiralty Law Committee, as an adjunct professor of Admiralty Law at the Florida State University’s College of Law, and as a member serving on the Coast Guard’s Navigation Safety Advisory Council. Traditionally, red flags are flown to denote the use of live ammunition in training exercises. See, e.g., 33 C.F.R. § 165.514(b)(1). Such an occurrence is most unlikely to take place in the west basin of Port Canaveral. The “BRAVO” flag, a red swallow-tailed flag representing the letter “B,” means that explosives or other dangerous cargo is being loaded, discharged, or carried. This signal is also flown aboard ship during gunnery practice. See, e.g., U.S. Navy, “Signal Flags,” Boatswain’s Mate 3&2, 3rd. ed. NAVPERS 10121-D, page 164; see also 33 C.F.R. § 165.1401(c)(1). Again, it is most unlikely that this will occur on a cruise ship or at a cruise terminal. The only red flag with which most vessel operators are familiar is the “divers-down” flag. It is red with a white diagonal strip and, when displayed from a vessel, indicates that divers are in the water. Its display is required by law, even for diving that does not restrict the vessel’s ability to maneuver. § 327.331, Fla. Stat.; compare 33 U.S.C. § 2027(e)(ii). When flown ashore, its only significance is to show support for recreational diving or to mark the location of a dive shop. Unless a moderate breeze (Beaufort force 4) or higher is blowing, the proposed flag will hang limply on the pole and be indistinguishable from a “divers-down” flag. The proposed use of the red flag will be confusing, even under the best circumstances. Those who understand what a red flag is supposed to mean will undoubtedly misunderstand its intended meaning in this proposed regulation. Most vessel operators, both professional and recreational, will have absolutely no idea that the proposed flag has any meaning at all, much less that it indicates an active security zone. The flag specified in this proposed regulation has never meant that close-range sightseeing and photographing of cruise ships is prohibited. It should not be adopted for that purpose in this regulation. In light of the points of potential conflict and misconstrued meaning, I respectfully submit that the United States Aids to Navigation System, 33 C.F.R. Part 62, has a specified regulatory mark that is to be used to notify operators “that vessels are excluded from the marked area.” 33 C.F.R. § 62.33(2). The applicable U.S. Coast Guard manual provides: (5) Information and Regulatory. Information and Regulatory Marks are used to alert the mariner to various warnings or regulatory matters. These marks have orange geometric shapes against a white background. When lighted, these marks display a white light with any rhythm not reserved for other types of aids. The meanings associated with the orange shapes are as follows: . . . . (b) A vertical diamond shape having a cross centered within indicates that vessels are excluded from the marked area. Aids to Navigation Manual – Administration, COMDTINST M16500.7A, page 4-6. See also: “Data Sheet 5-E(9),” Aids to Navigation Manual – Technical, COMDTINST M16500.3A, page 5-21. Vessel operators, particularly those operating in the vicinity of Port Canaveral, encounter regulatory markers daily and are well acquainted with their purposes and meanings. They are familiar with manatee protection zones and other boating restricted areas that are active only at specified times. For example, there is on the St. Johns River in Jacksonville, Florida, a boating speed restriction that becomes “active and enforceable only during periods of unusually high vessel traffic density” such as holidays, regattas, and other marine events. Fla. Admin. Code R. 68D-24.016(1)(a)4.b. It is marked with standard regulatory marks bearing a circular geometric shape that indicates certain operating restrictions, speed in this case, are in effect within the marked area. Vessel operators are placed on notice when the zone is active by “amber or yellow lights on both sides of the circle geometric shape . . . [that] alternately flash whenever the zone is active.” Id. Also, many manatee protection zones throughout Florida are marked with standard regulatory marks that are hinged in the middle, allowing the dayboards to be easily reconfigured as the zones periodically become active or the regulations within the zones periodically change. Vessel operators are familiar with regulatory markers, including those that flash or change. The proposed regulation should therefore be modified to adopt a method of notifying vessel operators that is consistent with the United State Aids to Navigation System and that conforms to the Coast Guard’s Commandant Instruction Manuals. The red flag proposed in this regulation should not be adopted as it inconsistent and nonconforming. In addition to professional mariners and recreational boaters, law enforcement officers, prosecutors, and judges are also familiar with standard regulatory marks and are unaccustomed to the use of a red flag in place thereof. Paragraph (c) of the proposed regulation clearly anticipates the use of “state and local law enforcement officers designated by or assisting the COTP in the enforcement of the security zone.” Such officers will be reluctant to enforce the proposed regulation against vessel operators who claim not to have understood the flag as a signal, particularly when the officer also finds the flag to be an unfamiliar signal. Moreover, state and local officers will enforce this regulation under color of state law. Florida Statutes adopt the security zones in 33 C.F.R. Part 165 by reference and provide for state enforcement against any “person who knowingly operates a vessel, or authorizes the operation of a vessel, in violation of the restrictions of such a . . . security zone.” § 327.461(2), Fla. Stat. The use of a red flag instead of standard regulatory markers will make it much more difficult to prove the element of knowledge. Because of this, prosecutors will be less likely to accept these cases and judges more likely to dismiss the charges. Finally, the use of the red flag in this proposed regulation violates the applicable standards in section 3 of Executive Order 12988, Civil Justice Reform, dated February 5, 1996. As presently drafted, the proposed regulation will create rather than eliminate ambiguity; it will increase rather than reduce the burdens associated with enforcement and adjudication; it will exacerbate rather than minimize litigation by encouraging violators to contest the charges and to sue the officers and agencies enforcing the security zone. I hope that these points illustrate effectively the potential ramifications of the proposed notification procedure for this security zone, and that the recommendations will prompt appropriate reconsideration and amendment.