                NOT FOR PUBLICATION WITHOUT THE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




                                       2                               A-5176-13T1
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




                                           10                                   A-5176-13T1
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



                                        12                                 A-5176-13T1
'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)).]




                                             13                                     A-5176-13T1
      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
