Judges: K. N. AYERS
Agency: Department of Business and Professional Regulation
Latest Update: Jan. 11, 1985
Summary: It is reasonable for state to require a state pilot on foreign flag vessels moving among the ports in Tampa Bay.
84-3864STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAPTAIN DAVID RABREN and ) TAMPA BAY TRI-COUNTY PILOTS ) ASSOCIATION, )
)
Petitioners, )
)
vs. ) CASE NO. 84-3864RX
) BOARD OF PILOT COMMISSIONERS and ) DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondents. )
) CAPTAIN GARY MURPHY, CAPTAIN ) STEPHEN CROPPER, and CAPTAIN ) MICHAEL FARRELL, )
)
Petitioners, )
)
vs. ) CASE NO. 84-3866RX
) BOARD OF PILOT COMMISSIONERS and ) DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondents. )
)
ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a consolidated public hearing in the above-styled cases on December 12, 1984, at Tallahassee, Florida.
APPEARANCES
For Petitioners: J. Michael Shea, Esquire
312 South Brevard Boulevard Tampa, Florida 33606
For Respondent: John E. Griffin, Esquire
Room 1601, The Capitol Tallahassee, Florida 32301
By Amended Petitions dated December 7, 1984, Captain David Rabren and Tampa Tri-County Pilots Association, Petitioners in Case 84-3864RX, and Captain Gary Murphy, Captain Steven Cropper, and Captain Michael Farrell, Petitioners in Case 34-3866RX, challenge the validity of Rule 21SS-8.10, Florida Administrative Code. As grounds therefor it is, alleged that the promulgation of Rule 21SS- 8.10, an invalid exercise of delegated legislative authority.
At the commencement of the hearing Respondent, Department of Professional Regulation's motion to be dismissed as a party to these proceedings was granted. Thereafter, Captain Gary Murphy testified on behalf of Petitioners; and Respondent's Exhibit 1, which comprised Rule 21SS-8.10, the history of its adoption, and an economic impact statement, was admitted into evidence.
Proposed findings submitted by the parties, to the extent incorporated herein, are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached. Actually, there was no dispute regarding the material facts in this case. Legal issues raised by the parties are discussed in the conclusions of law.
FINDINGS OF FACT
Tampa Tri-County Pilots Association (TRICO) was founded January 1, 1984, by Captain Rabren to provide piloting and shifting services in Tampa Bay in competition with the Tampa Bay Pilots Association. Captains Murphy, Cropper, and Farrell are members of TRICO and hold U. S. Coast Guard issued unlimited pilots' licenses for Tampa which authorize them to pilot vessels enrolled in the coastwise trade which enter or leave Tampa Bay. Captain Rabren holds a state pilot's license for Tampa Bay in addition to his federal unlimited pilot's license for Tampa Bay.
In 1984 the Chairman of the Board of Pilot Commissioners received a letter from Captain Valenti, U. S. Coast Guard, the captain of the Port of Tampa, calling attention to the Board that certain pilots within Tampa Bay were asserting that neither the State of Florida nor the Coast Guard had jurisdiction over shifting activities of foreign flag vessels.
Vessels engaged in the coastwise trade (which generally must be built in the United States and carry the U. S. flag) are piloted, while in waters requiring a pilot, by a U. S. Coast Guard licensed pilot for those waters; and a foreign flag vessel on similar waters is piloted by a state pilot licensed for those waters. Since state licensed pilots also provide piloting services for U.
S. flag vessels, all of the state licensed pilots also hold federal pilot licenses. The only pilots that could claim neither the state nor federal government had jurisdiction over their activities were those pilots holding only federal licenses who were piloting foreign flag vessels while being shifted within Tampa Bay.
Within Tampa Bay there are four separate and distinct ports as well as several anchorages to which vessels are taken from these ports and from which vessels are taken to these ports. Additionally, vessels are shifted from port to port within Tampa Bay. The distance vessels are shifted within Tampa Bay varies from a few feet alongside the dock to more than 20 miles a vessel would travel from a berth in upper Tampa Bay to the Port of St. Petersburg.
Having a tug alongside a ship for a short move of less than one mile is prudent and, perhaps, necessary. However, for a longer trip a tug alongside is unnecessary, dangerous (to the tug) and an unnecessary and unwarranted expense to the ship owner.
Prior to the adoption of Rule 21SS-8.10, Florida Administrative Code,
members of TRICO performed piloting services on both United States and foreign flag vessels shifting moorings within Tampa Bay. Since its formation TRICO has been in competition with the Tampa Bay Pilots Association to obtain exclusive contracts with shipping companies to perform piloting services on the company vessels while the vessels are shifted to different moorings in Tampa Bay.
Upon Rule 21SS-8.10 becoming effective, TRICO members, not holding a state pilot's License, are precluded from shifting foreign flag vessels between moorings in Tampa Bay except when in the docking mode.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 310.141, Florida Statutes (1983), provides in pertinent part:
All vessels, except vessels exempted by the laws of the United States or vessels drawing less than 7 feet of water, shall have a licensed state pilot or certificated deputy pilot on board when entering or leaving ports of this state.
Section 310.061, Florida Statutes, in establishing a maximum number of
22 state pilots for Tampa Hay therein includes the ports of Tampa, Port Tampa, Manatee, and St. Petersburg. Section 301.002, Florida Statutes, defines "port" to mean "any place in the state into which vessels enter or depart and includes,
. . . Tampa, Port Tampa, Manatee, St. Petersburg. "
Vessels exempted by the laws of the united States from the requirement they take state licensed pilots are those described in 46 USCS s. 8502 which provides in pertinent part:
A coastwise seagoing vessel, when not sailing on register and when underway (except on the high seas) shall be under the direction and control of a pilot licensed under Section 7101 of this title [46 USCS s. 57101] if the vessel is--
propelled by machinery and subject to inspection under part B of this subtitle [46 USCS ss. 3101 et seq.]; or
subject to inspection under Chapter 37 of this title [46 USCS ss. 3701 et seq.].
The fees charged for pilotage by pilots required under this section may not be more than the customary or legally established rates in the States in which the pilotage is performed.
A State or political subdivision of a State may not impose on a pilot licensed under this subtitle (46 USCS s. 52101 et seq.] an obligation to procure a State or other license, or adopt any other regulation that will impede the pilot in the performance of the pilot's duties under the laws of the United States.
A State or political subdivision of a State may not levy pilot charges on a vessel lawfully piloted by a pilot required under this section.
Those vessels subject to inspection by the U. S. Coast Guard are United States flag vessels. Foreign flag vessels are not subject to inspection by the U. S. Coast Guard and pilotage of those vessels is regulated by the state. Accordingly, there is no federal impediment to a rule promulgated by the Board of Pilot Commissioners regulating the taking of pilots on foreign flag vessels.
The rule here under attack, Section 21SS-8.10, F.A.C., provides:
Any vessel requiring a state pilot that is underway on the navigable waters of the State of Florida shall have a state pilot aboard except when in the docking or undocking mode. Docking or undocking mode is when the tugs are alongside and the vessel is under the direction of the master, docking master, or state pilot or deputy pilot.
Proposed conclusions of law 1 through 5 submitted by Petitioners are approved; however, proposed conclusion of law No. 6 is not concurred with. Foreign flag vessels may not engage in the coastwise trade. Coastwise trade occurs when cargo is picked up at one port in the United States and discharged at another United States port. A foreign flag vessel may deliver foreign cargo to a United States port, pick up domestic cargo, proceed to another United States port, deliver foreign cargo, and pick up domestic cargo; however, it may not deliver domestic cargo picked up at Jacksonville, Florida, to its next port of call, Savannah, Georgia. Accordingly, a move from one of the four Tampa Bay ports to another Tampa Bay port by a foreign flag vessel does not constitute engaging in coastwise trade. A vessel departing one of these Tampa Bay ports and proceeding to an anchorage or another berth outside that port is clearly leaving the port as that word is generally understood.
The starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Products Safety Commission v. (GTE Sylvania, 447 U. S. 102, 100 S. Ct. 2051, 64 L. Ed 2d 766 (1980). In statutory construction legislative intent is determined primarily from the language of the statute, and the Legislature is presumed to know the meaning of the words and to have expressed its intent in using them in the enactment. SRG Corp. v. Department of Revenue, 365 So. 2d 687 (Fla. 1978).
Petitioners' conclusions of law No. 10 appears to result from a clerical error insofar as it states a vessel drawing less than 7 feet is required to take a pilot.
Petitioners place their greatest emphasis in this rule challenge on the statutory language in which the Legislature requires state licensed pilots on all vessels, except those exempted by the laws of the United States, while entering or leaving ports of this state. It is contended the rule language, that prescribes a state pilot be carried on any vessel requiring a state pilot that is underway on the navigable waters of the state, is in conflict with the statute. To bolster this position, Petitioners refer to the language in
proposed legislation that was rejected when Section 310.141, Florida Statutes (1975), was enacted. The proposed language requiring state licensed pilots included in the requirement vessels "operating on the pilot waters of the state." This phrase was deleted and, as enacted in 1975, vessels subject to pilotage were the same as they are today.
Petitioners contend that by deleting "pilot waters of this state" from the requirement the Legislature intended only to require state pilots on vessels entering or leaving ports of the state. Petitioners also refer to legislation proposed in 1976 and 1977 which introduced the phrases "pilot waters of the state" and "navigable waters of the state" as those areas requiring state pilots. Petitioners argue that by failure to pass this language the Legislature intended to strictly limit the requirement for a state pilot only on foreign flag vessels entering or leaving a port in this state.
A better reason for deleting the phrase "pilot waters of the state" from the 1975 legislation may be found in Section 310.002, Florida Statutes (1975), which provides:
(5) The term 'pilotage waters of state' means the navigable waters within the boundaries of the state.
This definition includes the high seas within the boundaries of the state. United States laws guarantee the right of innocent passage to foreign flag merchant vessels in these waters and preclude the state from requiring these vessels to take pilots while on the high seas. 46 USCS s. 8502, above- quoted, limits state regulations on pilotage to bays, rivers, harbors, and ports. 46 USCS s. 8304 provides:
. . . 'high seas' means water seaward of the Boundary Line.
The Boundary Line divides the waters in which Inland and International Rules of the Road apply. This boundary line is established by the Commandant,
U. S. Coast card and, in the vicinity of a port, generally runs from the entrance sea buoy towards the nearest prominent landmark north and south of the entrance sea buoy.
Accordingly, little weight is given to the omission of either phrase "pilot waters of the State" or "navigable waters of the State" from the statute providing which vessels are required to take a state pilot. The phrase used "except vessels exempted by the laws of the United States" is a more accurate description of the vessels that may be required to take state pilots in bays, harbors, rivers, and ports of a state.
Section 310.001, Florida Statutes (1983) , provides it is the legislative intent to regulate pilots and pilotage on navigable waters of this state in order to protect the resources, environment, life, and property to the fullest extent possible.
Rule 21SS-8.10, Florida Administrative Code, is a simplistic rule that states any vessel requiring a state pilot shall, while underway, have such pilot on board, except when in the docking or undocking mode. It does not conflict with Section 310.141, Florida Statutes, which requires a state pilot on all vessels entering or leaving a port, except these vessels exempted by United States law and vessels drawing less than seven feet of water.
The strictest interpretation of this rule, if necessary to conform to the statute, would result in state pilots being required on all foreign flag vessels leaving any of the ports in Tampa Bay or entering any of the ports in Tampa Bay either from an anchorage or a mooring facility if such a facility is located outside any of the four ports in Tampa Bay.
It is somewhat incongruous to hold the state has plenary power to require state pilots on foreign flag vessels entering or leaving Tampa Bay but is without any authority to require state pilots on those vessels after they clear customs and proceed through the channels of Tampa Bay. This is especially true when the legislative intent is clearly expressed to require state pilots on foreign flag vessels so as to protect the resources, environment, life, and property of the state and its citizens to the fullest extent possible. Those vessels moving through congested channels of Tampa Bay pose the same threat to life, property, etc. whether entering or leaving a port or shifting anchorages.
Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and is not arbitrary and capricious. The burden is on the petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515, 517; Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So. 2d 759 ( Fla. 1st DCA 1978); Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975). Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretation. Durrani, supra, at p. 517.
In the instant rule challenge the statute clearly requires a state pilot on foreign flag vessels entering and leaving a port. This would cover any vessel movement within Tampa Bay which commenced or terminated at any of the four ports within Tampa Bay, with the exception of vessels in the docking or undocking mode. If Respondent interprets the rule to require a state pilot on foreign flag vessels moving between anchorages in Tampa Bay where none of the ports is involved, this would constitute a reasonable interpretation of the statute to require state pilots on foreign flag vessels in Florida ports for the protection of the environment, life, property, and resources of the state and the citizens thereof.
From the foregoing it is concluded that petitioners have failed to prove, by a preponderance of the evidence, that Rule 21SS-8.10, Florida Administrative Code, is an invalid exercise of delegated legislative authority. It is
ORDERED that the Petitions of Captain David Rabren, and the Tampa Tri- County Pilots Association in DOAH Case No. 84-3864RX and of Captain Gary Murphy, Captain Stephen Cropper, and Captain Michael Farrell in DOAH Case No. 84-3866RX, be DISMISSED.
DONE AND ORDERED this 11th day of January, 1985, at Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985.
COPIES FURNISHED:
J. Michael Shea, Esquire
312 South Brevard Boulevard Tampa, Florida 33606
John E. Griffin, Esquire Room 1601, The Capitol Tallahassee, Florida 32301
Fred Varn, Executive Director Board of Pilot Commissioners Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Liz Cloud, Chief
Bureau of Administrative Code Department of State
1802 The Capitol
Tallahassee, Florida 32301
Carroll Webb, Executive Director Joint Administrative Procedures
Committee
120 Holland Building Tallahassee, Florida 323021
Docket for Case No: 84-003864RX
Orders for Case No: 84-003864RX
| Issue Date |
Document |
Summary |
|
Jan. 11, 1985 |
DOAH Final Order
|
It is reasonable for state to require a state pilot on foreign flag vessels moving among the ports in Tampa Bay.
|
