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MORAN MARITIME ASSOCS. v. USCG

July 15, 1981

MORAN MARITIME ASSOCIATES, et al., Plaintiffs,
v.
UNITED STATES COAST GUARD, Defendant



The opinion of the court was delivered by: GASCH

MEMORANDUM

This suit is brought by Moran Maritime Associates (Moran) and American Waterways Operators, Inc. (AWO) to challenge action taken by the United States Coast Guard allegedly in violation of the informal rulemaking procedures of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1976). The matter is currently before the Court on the parties' cross-motions for summary judgment. Plaintiffs contend that the defendant's decision to enforce a federal pilotage statute, 46 U.S.C. § 364 (1976), and regulation, 46 C.F.R. § 157.30-40 (1980), against certain unmanned, oil-carrying "tank barges" in tow by tugboats constitutes a new regulation, interpretation, or policy and, therefore, triggers the notice and comment procedures of § 553 of the APA. In addition, plaintiffs allege that the defendant's enforcement action was arbitrary and capricious.

 The defendant denies any change in its interpretation of federal pilotage regulations and asserts that, at most, it has not enforced the pilotage requirements vigorously in the past. The defendant contends that its present enforcement efforts are consistent with prior interpretation and do not trigger a duty to utilize the notice and comment procedures of § 553 of the APA. For the reasons set forth below, the Court concludes that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law.

 I. BACKGROUND.

 Moran owns and operates tugboats, including the tug ALICE MORAN, and oil-carrying tank barges, including the tank barge NEW YORK. AWO is a trade association whose members own and operate tugs and oil-carrying tank barges. (Moran is not a member of AWO.) The controversy between these parties and the Coast Guard stems from the Coast Guard's decision to institute enforcement actions against owners of oil-carrying tank barges, including Moran and members of AWO, for failure to comply with federal law mandating federally-licensed pilots on board certain seagoing vessels when these vessels are within the coastal waters of the United States. Plaintiffs contend that, in the past, all tank barges have been exempt from federal pilotage requirements pursuant to Coast Guard regulation 46 C.F.R. § 157.30-40 (1980). They allege, therefore, that the Coast Guard's attempt to subject certain tank barges carrying petroleum products to the pilotage requirements is invalid because the service neglected to comply with the notice and comment procedures of § 553 of the APA. At this point, an examination of the statutory and regulatory provisions dealing with federal pilotage requirements will illuminate the precise issue before the Court on these cross-motions for summary judgment.

 Congress has enacted various statutes designed to ensure the safe operation of vessels within the coastal waters of the United States. Within this statutory scheme is the federal pilotage statute, 46 U.S.C. § 364 (1976), which provides in part that all "coastwise seagoing steam vessel(s) subject to the navigation laws of the United States ... not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the Coast Guard." (Emphasis added). The purpose of the pilotage statute is to ensure the safety of life and property in confined harbor waters by placing "coastwise seagoing steam vessels" under the control of pilots specially licensed by the Coast Guard to assure the pilots' intimate knowledge with local navigational conditions. See Jackson v. Marine Exploration Co., 583 F.2d 1336, 1338-39 (5th Cir. 1978).

 In the statutory scheme, moreover, the term "steam vessel" is not limited to vessels propelled by steam engines; rather, Congress has expanded the definition of "steam vessel" to include other types of vessels, including, in some circumstances, tank barges. Whether a particular tank barge is a "steam vessel" for the purposes of the federal pilotage requirements of 46 U.S.C. § 364 depends upon the type of cargo the tank barge contains. Under 46 U.S.C. § 391a(3) (Supp. III 1979), as amended by Pub.L.No. 96-478, § 13(a)(2) (1980), any U.S. vessel, "regardless of tonnage, size, or manner of propulsion ... which is constructed or adapted to carry, or which carries, oil or any hazardous materials in bulk as cargo" constitutes a "steam vessel" under § 364. In light of this provision, tank barges that carry oil or other hazardous substances are "steam vessels" under § 364 and must operate under the control of Coast Guard licensed pilots when in coastal waters (e.g., when entering, navigating in, or leaving U.S. ports and harbors). Because the tank barges at issue in this case carry oil and oil-related products, see Plaintiffs' Statement of Material Facts as to which there is no Genuine Issue P 6, they clearly fall within the statutory definition of "steam vessel" contained in 46 U.S.C. § 391a(3).

 
Vessels not more than 1,000 gross tons.
 
For the purposes of § 157.20-40 (the regulation that implements § 364, the federal pilotage statute), a person holding a license as master or mate is a licensed pilot of a vessel of not more than 1,000 gross tons, within the limitation and restriction of his license, on which he is employed as master or mate.

 In practical effect, the regulation designates as a federally licensed pilot all masters and mates of vessels under 1,000 gross tons, provided the master or mate acts within the limitations of his license. *fn1"

 Under this regulation, the master or mate of most tugboats may also serve as the federally-licensed pilot of the tugboat on which he serves because the vast majority of tugboats weigh less than 1,000 gross tons. The tugboat ALICE MORAN, for example, weighs only 277 gross tons. Affidavit of Leonard G. Goodwin P 6. Thus, the master or mate of the ALICE MORAN may serve as the Coast Guard licensed pilot of the tugboat whenever it enters coastal waters. The crux of this suit, however, pertains not to the pilotage requirements for tugboats, but to the pilotage requirements for the oil-carrying tank barges that are towed by tugboats. For example, the tugboat ALICE MORAN tows the oil-carrying tank barge NEW YORK. Although the ALICE MORAN weighs less than 1,000 gross tons, the NEW YORK weighs far in excess of the 1,000 gross ton limitation contained in 46 C.F.R. § 157.30-40 (14,817 gross tons, to be exact). Affidavit of Leonard G. Goodwin P 6.

 The issue thus raised is whether the master or mate of the tugboat ALICE MORAN (or of any other tugboat of under 1,000 gross tons) can serve as the pilot not only of the tug, but also of the oil-carrying tank barge NEW YORK (or of any other oil-carrying tank barge in excess of 1,000 gross tons). Plaintiffs contend that the established Coast Guard interpretation of 46 C.F.R. § 157.30-40 (and its predecessor regulation, 46 C.F.R. § 10.05-6 (1968)), until very recently, has permitted the master or mate of a tugboat of less than 1,000 gross tons to pilot both the tug and the tank barge in tow, regardless of the weight of the particular tank barge. They allege that the decision to require a federally-licensed pilot on board tugboats towing oil-carrying tank barges in excess of 1,000 gross tons represents a new interpretation of 46 C.F.R. § 157.30-40 and therefore requires informal rulemaking procedures under § 553 of the APA. They also allege that the Coast Guard's action is arbitrary and capricious because the agency failed to adduce any evidence that a federally-licensed pilot, in addition to a tugboat's master or mate, is necessary or will enhance the safety of tugboat-tank barge combinations in which the tank barge weighs in excess of 1,000 gross tons.

 The sole issue for the Court to resolve in this dispute is whether the Coast Guard, in fact, previously interpreted 46 C.F.R. § 157.30-40 to permit the master or mate of a tugboat to serve as pilot both of the tugboat and of any oil-carrying tank barge, regardless of the weight of the tank barge. The Coast Guard concedes that a rulemaking in compliance with 5 U.S.C. § 553 would be required if it "substantively altered" the regulation through a change in policy or interpretation. Memorandum of Points and Authorities in Support of Defendant's Cross-motion for Summary Judgment at 13, 20. The service vigorously denies, however, that its interpretation of 46 C.F.R. § 157.30-40 has ever permitted the master or mate of a tugboat to act as the pilot of an oil-carrying tank barge in excess of 1,000 gross tons. See Affidavit of Scott D. McCowan P 5; Affidavit of Henry H. Bell P 7. To the contrary, the Coast Guard argues that its current efforts to compel owners of oil-carrying tank barges in excess of 1,000 gross tons to retain federally-licensed pilots are consistent with-and indeed mandated by-prior interpretations of the federal pilotage regulations and, therefore, do not necessitate rulemaking procedures. The Coast Guard also asserts that its decision to require ...


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