IN THE MATTER OF NEW JERSEY MARITIME PILOT & DOCKING PILOT COMMISSION'S DECISION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1099-07T21099-07T2

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.

__________________________________

 

Argued December 17, 2008 - Decided:

Before Judges Waugh and Newman.

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

John M. Pellecchia argued the cause for appellants Christopher Baker, Mark Hershey and Kirk Pinto (Riker, Danzig, Scherer, Hyland & Perretti LLP, attorneys; Stuart M. Lederman, of counsel and on the briefs; Craig T. Moran, on the briefs).

Alvin R. Little, Deputy Attorney General, argued the cause for respondent New Jersey Maritime Pilot & Docking Pilot Commission (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Little, on the brief).

PER CURIAM

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).

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 the Commission, which also enclosed a copy of McAllister's proposed apprentice program. The proposal had previously been supplied to the Commission in April 2006.

The Commission responded by letter dated November 27, 2006. It rejected Hershey's application because he had not been an apprentice as of January 1, 2006, and was consequently not eligible to be considered a "current apprentice" under the provisions of N.J.A.C. 16:64-9.8. The letter also stated that the Commission anticipated that it would be accepting applications for new apprentices "by March 1, 2007."

In June 2007, the Commission adopted and issued its first biennial list of approved docking pilot apprentice candidates. Hershey, Baker, and Pinto were on the list. Each of the plaintiffs received a letter from the Commission, dated June 25, 2007, notifying them that they had been approved as applicants and that their names would be placed on a list that would be used as "a base for independent pilot associations and ship docking companies to draw from as the need for docking pilot apprentices presents itself." The Commission also sent a letter to McAllister, dated June 26, 2007, stating that its apprenticeship program had been approved, with the added requirement that the program last for a minimum of two years, and stating that if McAllister wished to "call any of the apprentices [on the approved candidate list] into service," it should contact the Commission.

On August 28, 2007, McAllister wrote to the Commission, noting its urgent need for additional docking pilots. The letter listed its approved candidates and their "documented start of program" dates. Appellants and their starting dates were listed as follows: Baker, March 8, 2007; Hershey, August 15, 2006; and Pinto, March 8, 2007. On the same date, the Commission wrote to McAllister, stating that the candidates' appointment as apprentices would "be acted upon at such time as [the Commission] receive[s] a letter from [McAllister] indicating the desire to call them into duty" and that the Commission would "consider their appointment" at its next regularly scheduled meeting.

On August 30, 2007, the Commission responded to McAllister's August 28, 2007, letter, as follows:

I was quite surprised to get your letter given our previous conversation on this topic. As I am sure you will recall, sometime ago I advised you that all the Commission required prior to appointment of the four individuals referenced in your letter was an indication from McAllister that they wish to call them into service. I will treat your August 28th letter as such a request and have placed their appointments on our September 18th agenda. Their two-year apprenticeship will begin on that date.

On the same date, the Commission wrote to each of the appellants stating that it would consider their appointment as docking pilot apprentices at its meeting on September 18, 2007.

On September 7, 2007, McAllister wrote to the Commission, setting forth its objections to the Commission's procedure.

I write on behalf of McAllister Towing of New York, LLC ("McAllister Towing") regarding your recent letters to us. As per our prior communications, we respectfully request the Commission arrange to have our apprentices called into service as soon as possible, although we believe this has already happened. Consistent with our earlier communications, we would also request that the Commission give credit for time already served by our apprentices in the McAllister Towing Docking Pilot Apprenticeship Program. In addition, we note that you have sent a letter to Capt. Steinruck advising him that he is required to attend the September 18 meeting of the Commission. However, as you have been previously advised, Capt. Steinruck has withdrawn from docking pilot apprenticeship and we request that you advise him that his presence before the Commission is not necessary.

Without placing any of the above requests in a state of suspense, we point out that your recent letters raise a number of issues for which we find no guidance in the regulations, and we request a clarification of those matters before September 18, 2007.

(1) Your recent letters seem to indicate that you and/or the Commission do not consider the apprentices that we have sponsored to be employees of McAllister Towing. In fact, your letter of June 26 seems to indicate that the apprentices who have been approved by the Commission and who are now being trained by McAllister Towing will have their names entered into a list from which any tug company or independent pilot association may hire the apprentice during his or her training period, or may do so after he or she has completed training and is issued a license. In other words, your letters imply that new apprentices, regardless of who sponsored their applications, will become part of an apprentice pool and may go to work for anyone that wants them. That is not the meaning we take from the Statute or the existing regulations. As we read the Rules of the Commission, it is clearly contemplated that the apprentice will be employed and trained by the entity that sponsors the applicant (See N.J.A.C. 16:64-9.3(b)(7)). Accordingly, we can find no justification in the Statute or the Regulations which would establish an apprentice "pool." If it is not the Commission's intent to create such an apprentice pool, then we ask that you clarify what the Commission's intentions are.

(2) Your letter on June 26, 2007, stated that, "At such time as you wish to call any of the apprentices into service please contact this office and the appropriate arrangements will be made." Your letter of August 28, 2007 further stated that their apprenticeship "will be acted upon at such time as I receive a letter from you indicating the desire to call them into duty." That statement is inconsistent with your simultaneous acknowledgement of our "previous correspondence indicating a desire to move forward," which specifically identified McAllister Towing's apprentices by name and communicated the fact that they are McAllister Towing employees. This raises the question that since the Commission has interviewed our employees, has approved the applications from our employees, and has notified our employees that they have been approved as apprentices, what more does the Statute or the regulations require either McAllister or the apprentices to do? I reiterate that the apprentices who were approved continue to work for McAllister Towing, and continue to receive training in the McAllister Towing Docking Pilot Apprenticeship Program, which program the Commission has approved. Thus, the apprentices have already been "called into service" and we see no valid regulatory reason for the Commission or McAllister Towing to do more at this point in time. We request a written explanation of the terms "calling into service," "swearing in," and "appropriate arrangements" and their legal basis, which will clarify the duties and obligations of the Commission, McAllister Towing, and the approved apprentices now and in the future.

(3) Your letter of August 28 raises the new issue that the apprentices have not yet been "appointed" by the Commission. This seems to be at odds with what has been communicated to McAllister Towing and the apprentices, that is, that they have been "approved as apprentices." We have researched the statute and regulations and find that the term "appointment" is not used anywhere in the controlling statute or regulations with reference to docking pilot apprentices. N.J.A.C. 16:64-9.2 only states that the Commission shall "approve" a list of candidates every two years, and that was done at a meeting held on June 19, 2007. We find no reference to any other procedures or formalities at the commencement of the apprenticeship in the Statute or in the regulations. In fact, the only mention of an appearance by an apprentice before the Commission is at N.J.A.C. 16:64-9.4(c)(5), which requires an annual appearance before the Commission after the apprenticeship has commenced. Accordingly, we request your sources of authority for these unpublished requirements for "appointment" of the apprentices. Of course, your specific reference to any statutory or regulatory requirements that now exist in this regard would be appropriate.

(4) Finally, your letter indicates that, "[t]he two year apprenticeship provided for in N.J.A.C. 16:64-9.4 begins on the date of Commission appointment." Aside from our questions about what "Commission appointment" means, this raises questions about training already received and time already served in our training program by the approved apprentices. We have been led to believe for some time that the Commission would consider retroactive credit for time served for Capt. Mark Hershey, one of our approved apprentices. As you are aware, we advised your office well over a year ago that Capt. Hershey was employed by McAllister, was undergoing training in the McAllister Towing Docking Pilot Apprenticeship Program and taking trips as an observer in order to qualify for licensing as a docking pilot. Our question is whether consideration for the time he has served, while the Commission was laboring on the apprentice regulations, is being withdrawn or not.

In closing, I advise that we are concerned with the harm to our operations caused by New Jersey's new docking pilot regime. We have one candidate who has withdrawn from pilot apprenticeship because of obstacles and uncertainties in moving forward with a career as a pilot. In fact, one of the questions foremost in the minds of our other approved apprentices is whether they will face more New Jersey-imposed hurdles and delays in getting their license to pilot in the Port of New York/New Jersey. These disruptions make it difficult to recruit or retain qualified and experienced people as pilots. The inability to provide a reliable docking pilot career path ultimately degrades the safety and security of ship docking operations in the port. Our apprentices deserve credit for the time they have served.

We again request that the Commission confirm in writing whether it will grant our apprentices credit for training they have already completed in our Commission-approved training program.

On September 17, 2007, the Commission responded to McAllister's objections.

With regard to your questions please be advised of the following:

1. The Commission fully understands, and always has, that the individuals you have requested to be appointed are your employees, under your supervision and will remain so, see N.J.A.C. 16:64-9.4(a).

2. The requirement that the individuals on the approved list be appointed comes from Resolution #07-04 (previously supplied) which provides that ". . . any of the individuals on the approval list are eligible for appointment as docking pilot apprentices at any such time that a ship docking company and/or an independent pilot association advises the Commission of the need for such apprentice." Thus, as I advised a number of your employees, including Mr. Kress and Captain Alleyne, the only additional requirement once an individual is on the approved list is a letter from yourself or another appropriate entity that they be appointed. You have now done so and the three listed applicants are to be appointed on September the 18th. Please note that the Commission takes official action only at its regular meetings.

3. I have communicated with Captain Steinruck that his attendance is not necessary at our meeting. However, I must point out to you that the only reason he was advised of the meeting was Mr. Krass' August 28, 2007 letter requesting that he be appointed an apprentice. That letter was subsequently withdrawn and replaced with a letter on August 30, 2007 indicating that Captain Steinruck had requested that he not be appointed owing to "personal reasons." We have now confirmed that fact and his name will not appear. Needless to say, this situation points out the need for the formal appointment process.

4. No retroactive time credit can be provided to any of the apprentices currently being appointed. Any effort at obtaining same would have required the individuals to apply either as Current Apprentices or under the Alternative Apprentice Program provided for at N.J.A.C. 7:64-9.7 to -9.8. Capt. Hershey did make such an application and, unfortunately, was found to not qualify. With regard to trips taken to date, I have consistently advised everyone in your organization, including the applicant apprentices, that I expect they will meet the required number of trips during their two-year apprenticeship. In the event that, for some unforeseen reason, they are unable to do so during those two years we will evaluate the reasons for that and the trips performed prior to their formal appointment.

I look forward to seeing Captains Baker, Hershey and Pinto tomorrow. At that time we will issue them their Certificates of Appointment and ID cards.

Thus, under the Commission's interpretation of its regulations and non-regulatory procedures, an aspiring apprentice who was not in an apprentice program on January 1, 2006, could not start the required two-year apprentice program until September 18, 2007, and, therefore, would not be able to seek licensure until September 2009, approximately five years after the Pilotage Act came into effect.

Baker, Hershey, and Pinto filed their notice of appeal on October 31, 2007.

II

Plaintiffs challenge the January 1, 2006, cut-off date in N.J.A.C. 16:64-9.8 for those eligible to be considered as "current apprentices" as arbitrary, capricious, and unreasonable because it unfairly prejudices those who were in apprentice programs prior to June 19, 2007, the date on which the Commission adopted its first list of apprentice candidates and first approved apprentice programs. They also challenge, as ultra vires, the Commission's requirements, not embodied in any regulations, that candidates be "called into service," "appointed," and "sworn in" before beginning their two-year apprentice program.

The Commission argues that none of the appellants can challenge the validity of N.J.A.C. 16:64-9.8 because (1) Hershey did not appeal the Commission's 2006 letter turning down his application for credit under the rule within forty-five days; and (2) neither Baker nor Pinto made such an application. We reject the Commission's argument, largely because we view appellants' appeal as challenging the validity of N.J.A.C. 16:64-9.8, rather than the correctness of the Commission's response to Hershey's application in 2006. The forty-five day provision does not apply to challenges to quasi-legislative actions such as rulemaking. Bergen Pines County Hosp. v. New Jersey Dept. of Human Servs., 96 N.J. 456, 471 n.10 (1984) ("Generally, the 45-day time limitation does not apply to an attack on the validity of a rule."). Consequently, our jurisdiction to consider the issue does not depend on whether Hershey made a timely appeal or whether Baker and Pinto made an application to the Commission.

As the Supreme Court held in New Jersey SPCA v. New Jersey Dep't of Agric., 196 N.J. 366, 384 (2008), "the general parameters of our review are not controversial."

Appellate courts ordinarily accord deference to final agency actions, reversing those actions if they are "arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Similarly, an appellate court generally will not reverse an agency action, including its action in promulgating regulations, unless: (1) the regulations at issue "violate[] the enabling act's express or implied legislative policies;" or (2) "there is [not] substantial evidence in the record to support the findings on which the agency based its action; or (3) "in applying the legislative policies to the facts the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors." In re Petition for Rulemaking, N.J.A.C. 10:82-1.2 & 10:85-4.1, 117 N.J. 311, 325 (1989).

Moreover, in our review of an agency's interpretation of statutes within its scope of authority and its adoption of rules implementing its enabling statutes, we afford the agency great deference. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004). As we have explained: "[s]uch deference is appropriate because it recognizes that 'agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are "particularly well equipped to read . . . and to evaluate the factual and technical issues that . . . rulemaking would invite."'" Ibid. (quoting New Jersey State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (quoting Bergen Pines County Hosp. v. New Jersey Dep't of Human Servs., 96 N.J. 456, 474 (1984))). For this reason, we begin with a presumption that an agency's regulations are both valid and reasonable and we place on the challenging party the burden of proving that the regulation violates the statute. N.J. State League of Muns., supra, 158 N.J. at 222.

Nevertheless, if a regulation is "inconsistent with the statute it purports to interpret," Smith v. Dir., Div. of Taxation, 108 N.J. 19, 26 (1987), it will be invalidated. As we have held, an agency "'may not under the guise of interpretation . . . give the statute any greater effect than its language allows.'" Kingsley v. Hawthorne Fabrics, Inc., 41 N.J. 521, 528 (1964). "Thus, if the regulation is plainly at odds with the statute, [the court will] set it aside." In re Freshwater, supra, 180 N.J. at 489 (citing New Jersey Turnpike Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997)).

Even if a regulation falls within the scope of the agency's legislative authority, it will nonetheless be invalidated 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. New Jersey Hous. & Mortgage Fin. Agency, 114 N.J. 226, 235 (1989) (citing Dep't of Envtl. Prot. v. Stavola, 103 N.J. 425, 436-38 (1986); Dep't of Labor v. Titan Constr. Co., 102 N.J. 1, 12-18 (1985)), because a failure of that magnitude raises due process concerns. See Crema v. New Jersey Dep't of Envtl. Prot., 94 N.J. 286, 301 (1983). 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." Lower Main St., supra, 114 N.J. at 236.

[Id. at 384-86 (alterations in original).]

See also General Motors Acceptance Corp. v. Cahill, 375 N.J. Super. 553, 562-63 (App. Div.), certif. denied, 183 N.J. 591 (2005).

We look first at the purposes the Legislature sought to accomplish through the regulation of docking pilots. According to N.J.S.A. 12:8-1.1(d), there was "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." The Legislature delegated that responsibility to the Commission, which is "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).

As outlined above, the Legislature delegated to the Commission the authority to approve docking pilot apprentice programs and made successful completion of such a program a prerequisite for licensure. N.J.S.A. 12:8-51(c). The only statutory exception to the apprentice program requirement was for those who were already acting as docking pilots at the time the Pilotage Act went into effect, provided they met certain experiential requirements and applied within one year of the effective date. N.J.S.A. 12:8-49. None of the appellants qualified for the statutory exemption.

A

Given the breadth of the discretion delegated to the Commission with respect to the approval of an apprentice program, we are satisfied that the Commission had the authority to adopt a regulation, such as N.J.A.C. 16:64-9.8, to allow apprentices already in a program to receive credit, as determined by the Commission, for work done in an existing apprentice program prior to the Commission's formal approval of the program. See New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978) ("[T]he grant of authority to an administrative agency is to be liberally construed in order to enable the agency to accomplish its statutory responsibilities and that the courts should readily imply such incidental powers as are necessary to effectuate fully the legislative intent."); Coal. for Quality Health Care v. New Jersey Dep't of Banking & Ins., 348 N.J. Super. 272, 294 (App. Div.), certif. denied, 174 N.J. 194 (2002).

Our problem in this case is that we are unable to discern from the record why the Commission chose January 1, 2006, as the cut-off date for N.J.A.C. 16:64-9.8. There is no explanation in the regulatory proposal, which was published on March 20, 2006. 38 N.J.R. 1402(a). Nor was there any explanation stated when the rule was adopted on August 21, 2006. 38 N.J.R. 3311(a). According to the response to one of the comments about the rule, "[t]he purpose behind proposed N.J.A.C. 16:64-9.8 . . . was to ensure that individuals currently serving as docking pilot apprentices could receive credit for their work to date in their apprenticeship." 38 N.J.R. 3311(a). The cut-off date, however, was not addressed. No explanation was offered by the Commission in its brief on appeal.

It is clear that plaintiffs bear the burden of demonstrating that a rule is "arbitrary, capricious or unreasonable." New Jersey State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999). Because "judicial deference to administrative agencies stems from the recognition that agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are 'particularly well equipped to read and understand the massive documents and to evaluate the factual and technical issues that . . . rulemaking would invite,'" the "scope of review of an administrative regulation is 'highly circumscribed,'" and "a reviewing court is not to substitute its judgment for that of the agency." Ibid. (citations omitted).

The lack of any explanation for the choice of date makes it impossible for us to accord the Commission's choice the sort of deference to which it would ordinarily be entitled. There does not appear to be any "technical" ramifications to the decision, especially inasmuch as the Commission retains the discretion to decide how much, if any, credit should be given.

The apparent unfairness of the January 1, 2006, date to plaintiffs and others in their position, i.e., delay in being licensed, is enhanced by the fact that it took the Commission three years from the effective date of the Pilotage Act to approve the first candidates and apprentice programs and then to "appoint" the first apprentices. Due to the two-year program requirement, the first apprentices will not be eligible for licensure until September 2009, five years after the Act's effective date.

Part of the lengthy delay was caused by the Commission's decision to adopt the docking pilot regulations in stages, with the regulations on the apprentice program proposed second. Consequently, those regulations were not even adopted until two years after the Pilotage Act was enacted. We note in that regard that, although the Legislature delayed the effective date of the Pilotage Act for 60 days after enactment, it specifically permitted the Commission to "take such anticipatory administrative action as shall be necessary for implementation." L. 2004, c. 72, 41. Clearly, the Legislature was not seeking regulatory delay or a lengthy hiatus in the training of docking pilot apprentices.

For all of these reasons, we hold that the January 1, 2006, eligibility date for the receipt of credit for participation in an apprentice program prior to the initial approvals by the Commission is arbitrary and capricious and must be set aside. Given the considerable length of time it took for the Commission to adopt its regulations, especially those relating to apprentice programs, and to approve the first candidates and programs, we hold that any apprentice who was in such a program on June 19, 2007, the date on which the Commission approved the first apprentice programs and candidates, will be eligible to seek credit for such participation, subject to the Commission's determination. We see no possibility that our ruling will interfere with the Commission's exercise of its delegated authority, inasmuch as the ultimate decision of whether to give the credit and how much credit to give will be left to the exercise of the Commission's sound discretion.

B

We now turn to appellants' challenge to the Commission's non-regulatory requirement that docking pilot apprentices be "called into service," "appointed," and "sworn in" before beginning their two-year apprentice program. We are satisfied that those requirements are not ultra vires, although they should be contained in the Commission's regulations in the future.

As noted above, the language of N.J.S.A. 12:8-50, by enumerating the documentary requirements for a candidate "[t]o be considered as a docking pilot apprentice," implicitly authorizes the Commission to engage in some sort of consideration process. It does not, however, specify how the Commission should do so. The Commission has generally modeled its procedure on the provisions of N.J.S.A. 12:8-51, which governs the licensing of successful apprentices, particularly the following language:

Upon having the application declared complete and acceptable by the commission, and endorsed by an independent pilot association, the applicant's name shall be added to a list of qualified docking pilots. After considering the need for additional qualified docking pilots, the commission may, in its sole discretion, thereafter appoint successful applicants as docking pilots. To ensure recency, prior to issuing a license under this section, the commission may require the applicant to conduct additional dockings, undockings and intra-harbor movements under the supervision of a licensed docking pilot.

The Commission's procedure is that, once candidates are approved by the Commission, they are placed on the approved list, N.J.A.C. 16:64-9.2, and, at the request of a ship docking company or independent pilot association, they are appointed as apprentices and administered an oath. Because the Legislature gave the Commission broad authority to regulate the apprenticeship process and because the Commission modeled its procedure on the Pilotage Act's provisions with respect to the licensing of those who complete an apprentice program, we are satisfied that the Commission's procedure is not ultra vires or "arbitrary and capricious."

The requirements are consistent with the Pilotage Act's legislative purpose to "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(d), and the legislative mandate, albeit in the context of licensure, to "consider[] the need for additional qualified docking pilots" before issuing licenses. N.J.S.A. 12:8-51(d). Inasmuch as N.J.S.A. 12:8-6 confers on the chair or a member of the Commission the authority to administer an oath to, among others, a "docking pilot or apprentice," we find that the Legislature contemplated that an oath would be administered to the apprentices.

We conclude, however, that those procedures must be incorporated into the Commission's regulations. In doing so, we disagree with the Commission's assertion that they are already found there. There is nothing in those regulations specifically stating that an individual on the list of approved candidates must be formally appointed by the Commission after being called into service by a ship docking company or independent pilot association. Although we have held that the Commission has the discretion to impose such a requirement, we hold that it is a "rule" within the meaning of the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -25. See Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331-32 (1984), holding:

[A]n agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

Because we have invalidated the cut-off date in N.J.A.C. 16:64-9.8, Baker, Hershey, and Pinto will have the opportunity to apply for credit toward their two-year apprentice period. They can also seek credit for the period from June 2007 to September 2007. The decision with respect to further credit is subject to the Commission's sound discretion.

III

In summary, we invalidate the January 1, 2006, eligibility date in N.J.A.C. 16:64-9.8 and require the Commission to afford appellants the opportunity to seek credit for time spent in a docking pilot apprentice program prior to September 2007. We also determine that the Commission can require that approved apprentice candidates be subject to appointment at the request of a ship docking company or an independent pilot association, but that they must do so through the regular rulemaking process.

 

N.J.S.A. 12:8-49 provided a "grandfather" provision, not applicable in this case, permitting certain individuals who had already been performing the duties of a docking pilot to be licensed without completing an apprenticeship program, as long as they did so within twelve months of the statute's effective date, which was August 30, 2004.

McAllister's August 28, 2007, letter referred to four candidates. Because one candidate had withdrawn, corrective letters were sent on August 30, 2007, referring only to the three appellants.

(continued)

(continued)

28

A-1099-07T2

February 6, 2009