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In re New Jersey Maritime Pilot & Docking Pilot

February 6, 2009

IN THE MATTER OF NEW JERSEY MARITIME PILOT & DOCKING PILOT COMMISSION'S DECISION REGARDING APPOINTMENT OF CHRISTOPHER BAKER, MARK HERSHEY AND KIRK PINTO AS DOCKING PILOT APPRENTICES.


On appeal from Final Decision of the New Jersey Maritime Pilot & Docking Pilot Commission.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 17, 2008

Before Judges Waugh and Newman.

This appeal requires us to review the validity of certain regulations and administrative actions implementing the provisions of L. 2004, c. 72 (Pilotage Act), which provided for the regulation of "docking pilots" who oversee the movement of vessels within the confines of the Port of New York and New Jersey. Appellants Christopher Baker, Mark Hershey, and Kirk Pinto, all of whom are docking pilot apprentices, challenge the provisions of N.J.A.C. 16:64-9.8 and certain administrative procedures adopted by the New Jersey Maritime Pilot and Docking Pilot Commission that they contend have improperly delayed their ability to become licensed docking pilots. We invalidate the cut-off date for grandfathering contained in N.J.A.C. 16:64-9.8 as arbitrary and capricious and hold that the challenged procedures, while permissible, must be contained in regulations.

I.

Before turning to the particular facts of this case, some historical and statutory background will be of assistance.

A.

As of August 30, 2004, the Pilotage Act continued the Board of Commissioners of Pilotage of the State of New Jersey, with all of its functions and duties, as the New Jersey Maritime Pilot and Docking Pilot Commission (Commission). N.J.S.A. 12:8-1. At the same time, the Legislature delegated to the revised Commission the authority to regulate docking pilots, who had not previously been regulated by the State. N.J.S.A. 12:8-51.

Docking pilots are primarily responsible for intra-port activities within the Port of New York and New Jersey (Port), such as the guiding of vessels to and from anchorages within the Port and the docking and undocking of vessels entering or leaving the Port. N.J.S.A. 12:8-53. Although also authorized to oversee intra-port movements, maritime pilots, also known as Sandy Hook pilots, are solely responsible for guiding vessels into and out of the Port of New York and New Jersey across the Bar of Sandy Hook. N.J.S.A. 12:8-1.2; N.J.S.A. 12:8-35; N.J.S.A. 12:8-53(b), (c).

B.

N.J.S.A. 12:8-51 sets forth the educational and experiential requirements for licensure as a docking pilot. Pursuant to N.J.S.A. 12:8-51(c), one of those requirements is that the candidate have "[s]uccessfully completed a docking pilot apprentice program approved by the commission prior to application to the commission for licensing as a docking pilot." The Commission has adopted regulations setting forth the requirements for the apprentice programs, which are to be conducted by "an independent pilot association or ship docking company or both." N.J.A.C. 16:64-9.4(a).

N.J.S.A. 12:8-50 enumerates the documentary requirements for a candidate "[t]o be considered as a docking pilot apprentice." N.J.S.A. 12:8-50(f) specifically authorizes the Commission to require additional documentation through regulations. Although the requirement that certain documents be submitted to the Commission so that candidates can be "considered" as an apprentice suggests that there will be some further action by the Commission, the statute itself contains no specifics as to the nature or parameters of such action.

That lacuna is addressed by the regulations governing the docking pilot apprenticeship program, N.J.A.C. 16:64-9.1 to -9.8. Those regulations were adopted by the Commission pursuant to N.J.S.A. 12:8-2, which authorizes it to adopt regulations to provide for "the better government of the maritime pilots, docking pilots, and apprentices . . . to ensure safe operation of vessels and safe navigation, and to ensure the most current and exacting levels of training."

N.J.A.C. 16:64-9.3 sets forth the requirements for "a person wishing to be considered by the Commission as an apprentice," including a filing fee and an expanded list of the documentation to be submitted to the Commission, as permitted by N.J.S.A. 12:8-50(f). N.J.A.C. 16:64-9.2 sets forth the approval process for prospective apprentices as follows:

A list of docking pilot applicants shall be approved by the Commission once every two years. Prior to approval the applicants shall be screened through an independent testing and review process. The testing and review process shall be done by a selection committee consisting of the Commission's Executive Director, one Commissioner appointed by the President [of the Commission] and two docking pilots appointed by the President. The availability of openings for applicant apprentices shall be posted on the Commission's website . . . and advertised in an appropriate trade journal. Qualified applicants shall be considered without discrimination because of race, color, religion, national origin, sex or marital status. Docking pilot applications approved in any year may remain on the list for subsequent years, so long as they remain qualified under N.J.A.C. 16:64-9.3.

N.J.S.A. 12:8-51 provides the specific requirements for docking pilot licensure. The apprentice program must be completed prior to making application to the Commission for licensure. N.J.S.A. 12:8-51(c)-(d). Pursuant to N.J.A.C. 16:64-9.4(d), successful completion of an apprentice program includes passing an examination "conducted and approved by the Commission."

The statute sets out a three-step procedure for an applicant who has successfully completed an apprentice program to become a licensed docking pilot: (1) approval of the application by the Commission; (2) endorsement by "an independent pilot association"; and (3) "appointment" as a docking pilot by the Commission based upon the "need" for such pilots. N.J.S.A. 12:8-51(d).*fn1

Although the statute regulating docking pilots came into effect at the end of August 2004 and the initial set of regulations were adopted on August 10, 2005, the Commission did not propose regulations with respect to docking pilot apprentice programs until March 2006. They were adopted on July 20, 2006, following the required comment period. The Commission did not approve any apprentice programs until June 2007. Consequently, it was not possible for an aspiring docking pilot to enter an approved docking pilot apprentice program until June 2007 at the earliest.

N.J.A.C. 16:64-9.8, one of the challenged regulatory provisions, authorizes an individual who was serving as a docking pilot apprentice with an independent docking pilot association or ship docking company on January 1, 2006, to "petition the Commission to recognize their services to date in partial satisfaction" of the statutory and regulatory requirements, including participation in an apprentice program, as long as the request to do so was made by September 20, 2006.

C.

We now turn to the facts of the case before us. McAllister Towing of New York, LLC (McAllister) is a "ship docking company" that operates an approved docking pilot apprentice program. Its program was among the first such programs formally approved by the Commission in June 2007. Hershey began working for McAllister as a docking pilot apprentice on May 20, 2006, and was formally accepted into McAllister's apprentice program in August 2006. In September 2006, Hershey submitted his application to be considered a "current apprentice" to the Commission. That submission was confirmed by McAllister in a November 3, 2006, letter to ...


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