In the Matter of the New Jersey Maritime Pilot & Docking ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5176-13T1
APPROVED FOR PUBLICATION
IN THE MATTER OF THE NEW JERSEY
MARITIME PILOT & DOCKING PILOT December 29, 2015
COMMISSION'S DETERMINATION
REGARDING EXAMINATION REQUIREMENT APPELLATE DIVISION
FOR LICENSURE OF NEW JERSEY
DOCKING PILOTS
_________________________________
Argued November 30, 2015 – Decided December 29, 2015
Before Judges Messano, Simonelli and
Sumners.
On appeal from the adoption of N.J.A.C.
16:64-9.4(d) by the New Jersey Maritime
Pilot & Docking Pilot Commission.
Kellen F. Murphy argued the cause for
appellants Jeremy Harris and McAllister
Towing & Transportation (Riker Danzig
Scherer Hyland & Perretti, LLP, attorneys;
Stuart M. Lederman, of counsel and on the
briefs; Diane N. Hickey, on the briefs).
David M. Kahler, Deputy Attorney General,
argued the cause for respondent New Jersey
Maritime Pilot & Docking Pilot Commission
(John J. Hoffman, Acting Attorney General,
attorney; Lisa A. Puglisi, Assistant
Attorney General, of counsel; Elaine C.
Schwartz, Deputy Attorney General, on the
brief).
The opinion of the court was delivered by
SIMONELLI, J.A.D.
Appellant Jeremy Harris, a docking pilot apprentice, and
his employer, appellant McAllister Towing & Transportation
(McAllister), a maritime towing and transportation company,
challenge the validity of a regulation adopted by respondent New
Jersey Maritime Pilot & Docking Pilot Commission (Commission),
which requires docking pilot apprentices to take an examination
before licensure as a docking pilot. On appeal, appellants
contend that the examination requirement is inconsistent with
the New Jersey Maritime Pilot and Docking Act (Act), N.J.S.A.
12:8-1 to -53, which has no examination requirement for docking
pilot apprentices, contrary to the Legislature's intent to omit
such a requirement, and transgresses the Commission's enabling
legislation.
Alternatively, appellants contend that the examination
requirement is arbitrary, capricious and unreasonable because
the regulation fails to articulate clear regulatory standards.
We reject all contentions and hold that the regulation is valid.
We begin with a review of the relevant authority. The Act
governs two categories of pilots: maritime pilots, who pilot
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vessels in pilotage waters,1 N.J.S.A. 12:8-1.2; and docking
pilots, who dock or undock vessels; navigate vessels within the
harbor to and from anchorages or berths; navigate vessels
entering the Port of New York and New Jersey upon relieving the
maritime pilot; and navigate vessels departing the port until
relieved by the maritime pilot. N.J.S.A. 12:8-53(a)(1)-(2).
The State did not regulate docking pilots prior to enacting
the Act in 2004. See L. 1837, c. 61 (regulating maritime
pilots). In the aftermath of the terrorist attacks on September
11, 2001, the Legislature found and declared that:
The State of New Jersey has responsibility
for port security in the Port of New York
and New Jersey and, pursuant to federal law,
has the right and responsibility to regulate
maritime pilotage in the port.
1
"Pilotage waters" are defined as follows:
boundary waters of the states of New Jersey
and New York, ports on those boundary
waters, the Sandy Hook, Raritan, Upper and
Lower Bays of the Port of New York and New
Jersey; the rivers Raritan, Hackensack,
Passaic and Shrewsbury, Newark Bay, Arthur
Kill, Kill van Kull, the Bar at Sandy Hook
and waters easterly of the Bar on which
regulated vessels navigate when entering or
departing the port of New York and New
Jersey, ports south of Sandy Hook to
Atlantic City and waters easterly of these
ports which regulated vessels navigate when
entering or departing these ports.
[N.J.S.A. 12:8-1.2.]
3 A-5176-13T1
. . . .
Although efforts have been made to enhance
the defense of the New York and New Jersey
port area from terrorist attacks and to
implement improved immigration and customs
procedures, modernization and clarification
of New Jersey's laws relating to those who
pilot and dock foreign and domestic vessels
have not yet occurred.
There is a need to provide for a system that
will ensure the proper and consistent
identification, training, selection,
oversight and monitoring of both maritime
pilots and docking pilots.
[N.J.S.A. 12:8-1.1(a), (c) and (d) (emphasis
added).]
The Legislature also declared it was in the public interest "to
modernize, clarify, revise and expand New Jersey's maritime
pilotage laws, and to strengthen the New Jersey pilotage
[C]ommission by expanding its powers and duties and clarifying
that docking pilots are under its jurisdiction[,]" N.J.S.A.
12:8-1.1(e), and "that the [C]ommission be charged with the
concurrent responsibility to ensure the safe operation and
navigation of vessels, to protect the environment and enhance
the economic viability of the port." N.J.S.A. 12:8-1.1(f).
In accordance with this legislative intent, the Legislature
granted the Commission regulatory authority over maritime
pilots, docking pilots and maritime and docking pilot
4 A-5176-13T1
apprentices. See N.J.S.A. 12:8-1 to -53. The Legislature also
granted the Commission authority to
make and establish such rules, orders and
regulations, in accordance with the
"Administrative Procedure Act," [N.J.S.A.
52:14B-1 to -31], not inconsistent with the
constitutions or the laws of this state or
of the United States, for the better
government of the maritime pilots, docking
pilots, and apprentices, as defined in
[N.J.S.A. 12:8-1.2], to ensure safe
operation of vessels and safe navigation,
and to ensure the most current and exacting
levels of training and may provide for such
fines and penalties for the violation of
these rules, orders and regulations, as it
shall deem proper. [The Commission] may
from time to time revoke or amend any such
rule, order or regulation.
[N.J.S.A. 12:8-2 (emphasis added).]
The Act established the licensure requirements for maritime
pilots. N.J.S.A. 12:8-9 to -21. To obtain a maritime pilot
license, the applicant must serve an apprenticeship for four
years or longer, N.J.S.A. 12:8-11, and pass an examination
approved by the Commission, which "examines the applicant's
knowledge of the tides, soundings, bearings and distances of the
several shoals, rocks, bars and points of land, and such other
matters deemed by the [C]ommission as relevant to the safe
navigation of vessels in the navigation for which the applicant
applies for a license." N.J.S.A. 12:8-14.
5 A-5176-13T1
The Act also established the licensure requirements for
docking pilots. N.J.S.A. 12:8-49 to -53. To obtain a docking
pilot license, an applicant must satisfy the documentary
requirements set forth in N.J.S.A. 12:8-50 as well as the
following requirements:
a. Perform[] at least 25 dockings or
undocking movements of vessels not less than
10,000 gross tons on pilotage waters
assisted by a tugboat or tugboats on routes
for which the applicant applies to be
licensed as a docking pilot under the
supervision of a docking pilot;
b. Observe[] not less than 200 dockings or
undockings of seagoing vessels of not less
than 10,000 registered tons on pilotage
waters assisted by a tugboat or tugboats
under the close supervision of a docking
pilot;
c. Successfully complete[] a docking pilot
apprentice program approved by the
[C]ommission prior to application to the
[C]ommission for licensing as a docking
pilot; and
d. Submit[] an application to the
[C]ommission for review and approval.
[N.J.S.A. 12:8-51.]
The Act neither requires nor prohibits an examination for
docking pilot apprentices as a condition for licensure.
Pursuant to N.J.S.A. 12:8-2, in 2005, the Commission
adopted regulations establishing a maritime pilot apprenticeship
program. N.J.A.C. 16:64-2.1 to -2.7. The program requires a
6 A-5176-13T1
maritime pilot apprentice to complete a four-year
apprenticeship, during which the apprentice must satisfy the
requirements set forth in N.J.A.C. 16:64-2.3 and -2.4. After
completing those requirements, the apprentice must take and pass
a written examination prescribed by the Commission, which "shall
test the apprentice's qualifications for employment as a
maritime pilot and knowledge of pilotage routes." N.J.A.C.
16:64-2.7(a). The apprentice must achieve a passing grade of
"70 percent on all written sections, except Rules of the Road,
which shall be 90 percent. Any charts drawn by the apprentice
shall be graded on a pass/fail basis." N.J.A.C. 16:64-2.7(c).
In 2006, the Commission adopted rules and regulations
establishing a docking pilot apprenticeship program. N.J.A.C.
16:64-9.1 to -9.6 (2006).2 The program requires a docking pilot
apprentice to complete a minimum two-year apprenticeship and
satisfy the following requirements:
1. Observe a minimum of 200 dockings,
undockings, or in-harbor movements assisted
by a tugboat or tugboats on the bridge of a
ship not less than 10,000 gross tons in
pilotage waters, at least 50 of which shall
be done during hours of darkness. With
respect to each such docking, undocking, or
movement, the docking pilot apprentice shall
2
Recodified as N.J.A.C. 16:64-5.1 to -5.6 and amended by R.
2014, d. 116, effective July 21, 2014. We shall refer herein to
the regulations in effect on July 14, 2014, the date this appeal
was filed.
7 A-5176-13T1
remain on the bridge of the ship during the
entire time the ship is being piloted by a
docking pilot. If, in the judgment of the
docking pilot, the docking pilot apprentice
possesses the requisite skill to conduct a
docking, undocking, or transit under
supervision of the docking pilot, the
docking pilot may permit the apprentice to
do so;
2. After meeting the requirements of (c)1
above to the satisfaction of a docking
pilot, complete a minimum of 25 dockings,
undockings, or in-harbor movements, on
pilotage waters, assisted by a tugboat or
tugboats, of ships not less than 10,000
gross tons while under the supervision of a
licensed docking pilot, at least 25 percent
of which shall be performed during hours of
darkness.
i. With respect to each docking and
undocking, the apprentice shall, under the
supervision of a docking pilot, pilot the
ship to the satisfaction of a docking pilot;
3. Observe from the bridge the anchoring
of 20 vessels and the raising of anchor of
20 vessels of not less than 10,000 gross
tons in pilotage waters;
4. Provide written documentation signed by
the docking pilot under whose authority the
apprentice is working, of the movements
required by (c)1 through 3 above, on a form
proscribed by the Commission;
5. Comply with the annual medical
examination requirements in N.J.A.C. 16:64-
7.4;
6. Make annual appearances before the
Commission to review the docking pilot
apprentice's education, training, progress,
and state of health[.]
8 A-5176-13T1
[N.J.A.C. 16:64-9.4(c).]
After completing these requirements, the apprentice must "sit
for an examination conducted and approved by the Commission."
N.J.A.C. 16:64-9.4(d). A 2009 amendment required apprentices to
achieve a passing grade of "70 percent on all written sections,
except Rules of the Road,[3] which shall be 90 percent. Any
charts drawn by the apprentice shall be graded on a pass/fail
basis." N.J.A.C. 16:64-9.4(e). No one challenged N.J.A.C.
16:64-9.4(d) or (e) during their respective comment periods.
See 36 N.J.R. 4305(a), 41 N.J.R. 4455(a).
On October 29, 2013, the Commission notified Harris that he
was placed on the docking pilot apprentice list and that once
appointed, he must complete the docking pilot apprenticeship
program and successfully pass an examination. The Commission
notified Harris that the examination
includes five modules covering the following
areas:
I. Laws and Regulations of the Commission
and the United States Coast Guard
II. Rules of the Road, including, the
International Regulations for Preventing
Collisions at Sea (COLREGS) and the Inland
Navigation Rules
3
N.J.A.C. 16:64-1.3 defines "Rules of the Road" as "the
International Regulations for Preventing Collisions at Sea,
1972, [] 33 U.S.C.A. § 1602 and/or the Unified Inland Rules, 33
U.S.C.A. §§ 2001-71."
9 A-5176-13T1
III. Navigation and Seamanship (ship
maneuvering and handling)
IV. Local Knowledge and Piloting specific
to the Port of New York/New Jersey
V. Practical Piloting
In March 2014, the Commission appointed Harris as a docking
pilot apprentice. He declined to take the examination and
instead, he and McAllister filed the present appeal. On appeal,
they do not contend that some of the requirements in N.J.A.C.
16:64-9.4 exceed the requirements in N.J.S.A. 12:8-51. Rather,
they parse-out subsection (d), contending that because the Act
only requires an examination for maritime pilot apprentices, the
examination requirement for docking pilot apprentices is
contrary to the Act, contrary to the Legislature's intent to
omit such an examination requirement, and transgresses the
Commission's enabling legislation.
Alternatively, Harris and McAllister contend that the
examination requirement is arbitrary, capricious and
unreasonable because the regulation fails to articulate
regulatory standards related to the examination requirements for
docking pilot apprentices. They argue that the Commission
improperly vested itself with the discretion to determine the
content and administration of such examination without
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substantive guidance in the regulations to ensure that the
examination is consistent with the Act.
"Agency regulations are accorded a presumption of validity
and reasonableness." In re N.J.A.C. 7:1B-1.1, 431 N.J. Super.
100, 114 (App. Div.), cert. denied, 216 N.J. 8 (2013).
"Although not bound by an agency's determination on a question
of law, [we] give great deference to an agency's interpretation
of statutes within its scope of authority and its adoption of
rules implementing the laws for which it is responsible." Id.
at 114-15 (citations omitted); see also In re Freshwater
Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004). "'This
deference comes from the understanding that a state agency
brings experience and specialized knowledge to its task of
administering and regulating a legislative enactment within its
field of expertise.'" In re N.J.A.C. 7:1B-1.1, supra, 431 N.J.
Super. at 115 (quoting N.J. Ass'n of Sch. Adm'rs v. Schundler,
211 N.J. 535, 549 (2012)). Deference is particularly
appropriate where, as here, the agency must construe and
implement a new statute. In re N.J.A.C. 7:26E-1.13, 377 N.J.
Super. 78, 98-99 (App. Div. 2005), aff'd o.b., 186 N.J. 81
(2006).
We have held that
when reviewing an administrative agency's
promulgation of a rule, it is not our
11 A-5176-13T1
function to assess the wisdom of the
agency's decision, but only its legality.
Our function is to rule on whether the
subject matter falls within the substantive
authority delegated to the agency and
whether the rule was enacted in accordance
with applicable legal principles.
[In re N.J.A.C. 7:1B-1.1, 431 N.J. Super. at
115 (quoting N.J. Ass'n of Nurse
Anesthetists, Inc. v. N.J. State Bd. of Med.
Exam'rs, 183 N.J. 605, 610 (2005)).]
"Consequently, '[i]n reviewing agency action, the fundamental
consideration is that [we] may not substitute [our] judgment for
the expertise of an agency so long as that action is
statutorily authorized and not otherwise defective because
arbitrary or unreasonable.'" Id. at 116 (quoting Williams v.
Dep't of Human Servs., 116 N.J. 102, 107 (1989)). "In fact, a
court may not invalidate a regulation provided it is 'within the
fair contemplation of the delegation of the enabling statute.'"
Ibid. (quoting N.J. Guild of Hearing Aid Dispensers v. Long, 75
N.J. 544, 561-62 (1978)). "And in deciding whether a particular
agency action is authorized, [we] 'may look beyond the specific
terms of the enabling act to the statutory policy sought to be
achieved by examining the entire statute in light of its
surroundings and objectives.'" Ibid. (quoting N.J. Guild,
supra, 75 N.J. at 562).
Nevertheless, "an administrative agency may not give itself
authority not legislatively delegated. An agency possesses only
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'expressly granted' powers and 'those incidental powers which
are reasonably necessary or appropriate to effectuate the
specific delegation,' and 'to enable [it] to accomplish its
statutory responsibilities.'" Id. at 116-17 (quoting N.J.
Guild, supra, 75 N.J. at 562). "Regulations, however, 'cannot
alter the terms of a statute or frustrate the legislative
policy.'" Ibid. (quoting Med. Soc'y of N.J. v. N.J. Dep't of
Law & Pub. Safety, 120 N.J. 18, 25 (1990)).
"'Where there exists reasonable doubt as to whether [a
particular] power is vested in the administrative body, the
power is denied.'" Ibid. (quoting In re Closing of Jamesburg
High Sch., 83 N.J. 540, 549 (1980)). "And when an
administrative agency's rule or regulation contravenes the
statute which created it, the rule 'will be set aside.'" Ibid.
(quoting In re Freshwater Wetlands Prot. Act Rules, supra, 180
N.J. at 489). Accordingly, we have held that
the party challenging a regulation has the
burden of demonstrating an inconsistency
between the regulation and the statute it
implements, a violation of policy expressed
or implied by the Legislature, an extension
of the statute beyond what the Legislature
intended, or a conflict between the enabling
act and other statutory law that cannot be
harmonized.
[Id. at 118 (quoting N.J. Ass'n of Sch.
Adm'rs v. Cerf, 428 N.J. Super. 588, 595-96
(App. Div. 2012)).]
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Further, even if a regulation falls within the scope of the
agency's legislative authority, we will nonetheless invalidate
it if the agency "significant[ly]" fails "to provide . . .
regulatory standards that would inform the public and guide the
agency in discharging its authorized function." Lower Main St.
Assocs. v. N.J. Hous. & Mortg. Fin. Agency, 114 N.J. 226, 235
(1989) (citations omitted). As we have explained, the
"deference [we afford to agencies] does not require abdication
by the judiciary of its function to assure that agency
rulemaking conforms with basic tenets of due process, and
provides standards to guide both the regulator and the
regulated." Id. at 236. Applying all of the above standards,
we discern no reason to invalidate N.J.A.C. 16:64-9.4(d).
Here, the Legislature found and declared there was a need
to provide a system that will ensure the proper and consistent
training, selection, oversight and monitoring of docking pilots.
N.J.S.A. 12:8-1.1(d). The Legislature delegated those
responsibilities to the Commission and granted the Commission
broad authority to adopt rules and regulations "to ensure safe
operation of vessels and safe navigation, and to ensure the most
current and exacting levels of training[.]" N.J.S.A. 12:8-2.
Given the breadth of the discretion the Legislature afforded the
Commission, we conclude that the examination requirement fell
14 A-5176-13T1
well within the substantive authority vested in the Commission
to ensure that docking pilot apprentices have been properly
trained and can safely operate and navigate vessels in the New
York and New Jersey port area. The examination requirement is
consistent with and achieves the express legislative policies
and overall objective underlying the Act to provide a system for
the proper training of docking pilots.
In addition, the docking pilot regulations as a whole
provide sufficient regulatory standards that inform the public
and docking pilot apprentices of the content of the docking
pilot apprentice examination. First, to be considered for a
docketing pilot apprenticeship, the candidate must provide proof
of licensure by the United States Coast Guard (USCG)
"authorizing the piloting of vessels of any tonnage and endorsed
for at least one section of the waters for which pilotage
service may be required[.]" N.J.A.C. 16:64-9.3(b)(12). Thus,
an apprentice must know the laws and regulations of the USCG and
possess local knowledge and piloting specific to the Port of New
York and New Jersey. This addresses the first and fourth
modules of the examination -- the "Laws and Regulations of the
Commission and [USCG]," and "Local Knowledge and Piloting
specific to the Port of New York/New Jersey."
15 A-5176-13T1
Second, N.J.A.C. 16:64-9.4(e) unambiguously informs an
apprentice that he or she will be tested on the Rules of the
Road. This addresses the second module of the examination --
"Rules of the Road, including the International Regulations for
Preventing Collisions at Sea (COLREGS) and Inland Navigation
Rules."
Finally, N.J.A.C. 16:64-5.4(c)(1)-(3) require apprentices
to conduct certain ship maneuverings and handlings. This
addresses the third and fifth modules of the examination --
"Navigation and Seamanship (ship maneuvering and handling)," and
"Practical Piloting." Accordingly, the docking pilot
regulations conform with basic tenents of due process and
provide appropriate standards that are consistent with the Act
and guide the public and docking pilot apprentices.
In sum, we conclude that N.J.A.C. 16:64-9.4(d) is valid.
16 A-5176-13T1