REGULATION OF CERTAIN OIL TANKERS

OFFICES AND OFFICERS ‑- STATE ‑- UTILITIES AND TRANSPORTATION COMMISSION ‑- REGULATION OF CERTAIN OIL TANKERS

The utilities and transportation commission is not authorized by chapter 125, Laws of 1975, 1st Ex. Sess. to adopt rules and regulations governing the operation of oil tankers or their escorting tug boats on Puget Sound and adjacent waters.

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                                                                    July 31, 1975

Honorable Donald H. Brazier, Chairman
Utilities & Transportation Commission
Highway-Licenses Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 67

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Does the utilities and transportation commission have any authority under chapter 125, Laws of 1975, 1st Ex. Sess., to adopt rules and regulations governing the operation of oil tankers or their escorting tug boats on Puget Sound and adjacent waters?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Chapter 125, Laws of 1975, 1st Ex. Sess., which was passed by both houses of the legislature as Substitute House Bill No. 527, relates to the operation of so-called "super-tankers" on Puget Sound and adjacent waters.  The basic substantive directive of the act is set forth in § 2, by which the legislature added the following new section to chapter 88.16 RCW, the "Pilotage Act":

            "Notwithstanding the provisions of RCW 88.16.070, any oil tanker, whether enrolled or registered, of fifty thousand deadweight tons or greater, shall be required to take a Washington state licensed pilot while navigating Puget Sound and adjacent waters and shall be liable for and pay pilotage rates pursuant to RCW 88.16.030 as now or hereafter amended."

            In addition, by § 3, the legislature further amended the "Pilotage Act" to include the following regulatory provisions:

             [[Orig. Op. Page 2]] "(1) Any oil tanker, whether enrolled or registered, of greater than one hundred and twenty-five thousand deadweight tons shall be prohibited from proceeding beyond a point east of a line extending from Discovery Island light south to New Dungeness light.

            "(2) An oil tanker, whether enrolled or registered, of forty to one hundred and twenty-five thousand deadweight tons may proceed beyond the points enumerated in subsection (1) if such tanker possesses all of the following standard safety features:

            "(a) Shaft horsepower in the ratio of one horsepower to each two and one‑half deadweight tons; and

            "(b) Twin screws; and

            "(c) Double bottoms, underneath all oil and liquid cargo compartments; and

            "(d) Two radars in working order and operating, one of which must be collision avoidance radar; and

            "(e) Such other navigational position location systems as may be prescribed from time to time by the board of pilotage commissioners:

            "PROVIDED, That, if such forty to one hundred and twenty-five thousand deadweight ton tanker is in ballast or is under escort of a tug or tugs with an aggregate shaft horsepower equivalent to five percent of the deadweight tons of that tanker, subsection (2) of this section shall not apply:  PROVIDED FURTHER,That additional tug shaft horsepower equivalencies may be required under certain conditions as established by rule and regulation of the Washington utilities and transportation commission pursuant to chapter 34.04 RCW:  PROVIDED FURTHER, That a tanker of less than forty thousand deadweight tons is not subject to the provisions of this act."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]   As passed by the legislature, SHB No. 527 also contained, in § 4 thereof, the following correlative authorization:

            "The Washington utilities and transportation commission is authorized to make rules and regulations necessary to implement the provisions of this act."

            When the bill reached the desk of the governor, however, he vetoed this last-quoted section in its entirety, in accordance with the authority vested in him under Article III, § 12 of the state constitution.  In his accompanying veto message, he explained this action as follows:

            "Section 4 of the bill authorizes the Utilities and Transportation Commission to implement the provisions of the act by rules and regulations.  I am puzzled over this delegation of major responsibility to the commission, which has had no previous experience or expertise in the area.  Nor is there funding provided which might allow the commission to do a creditable job in this new field of responsibility.  Elsewhere in the bill a study is authorized on the desirability of transferring the duties and responsibilities of the Board of Pilotage Commissioners to the Utilities and Transportation Commission or any other appropriate state agency.  Until there are findings determined in such study which confirm the need to assign the responsibility of implementing and enforcing the provisions of this act to the commission, I am not willing to allow a situation to exist where separate agencies in state government have substantially overlapping duties in this area of increasing importance without clear direction from the Legislature."

            Had the vetoed provisions of § 4, supra, never been in the bill at all, we would probably conclude that the second proviso in § 3 (which we have underscored in quoting that section above) constituted a sufficient grant of authority for the utilities and transportation commission to exercise rule‑making authority with respect to the aggregate shaft horsepower of tug boats escorting super-tankers on the waters covered by this 1975 act.  See,  [[Orig. Op. Page 4]] Barry & Barry v. Dep't of Motor Veh., 81 Wn.2d 155, 500 P.2d 540 (1972).  In actuality, however, we are not at liberty to thus ignore the legislative history of this measure, including the governor's veto.  As stated inShelton Hotel Co., Inc. v. Bates, 4 Wn.2d 498, 506, 104 P.2d 478 (1940):

            "When referring to what the legislature intended, we must not forget that the governor, when acting upon bills passed by both houses of the legislature, is a part of the legislature, and acting in a legislative capacity, and we cannot therefore consider the intent of the house and the senate apart from the intent of the governor. . . ."

            Likewise, as stated inLynch v. Dept. Labor & Industries, 19 Wn.2d 802, 809, 145 P.2d 265 (1944), with respect to legislative history, generally:

            "It is a rule of statutory construction that resort may be had to the history of the passage of a law under consideration.  State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 Pac. 120; State ex rel. Northwest Airlines, Inc. v. Hoover, 200 Wash. 277, 93 P.(2d) 346;Shelton Hotel Co. v. Bates, 4 Wn.(2d) 498, 104 P.(2d) 478;Ayers v. Tacoma, 6 Wn.(2d) 545, 108 P.(2d) 348; Crawford, Statutory Construction 383, § 216; 2 Sutherland, Statutory Construction (3rd ed.) chapter 50, p. 481.

            "In fact, from the record before this court, the 'legislative intent' becomes clearly evident from the history of the passage of the law under consideration, and to disregard that history would be to ignore the above expressed principle that legislative intent is the paramount factor in construing a law."

            When SHB No. 527 was passed by the House of Representatives and received by the Senate, it contained no reference at all to the utilities and transportation commission.  Instead, § 4 of the bill, the section ultimately vetoed by the governor, placed the rule‑making powers which were to be granted by it in the state board of pilotage commissioners ‑ the agency which has long been responsible for the administration of the "Pilotage Act."  And the second proviso to § 3, as it now appears in the enacted measure, did not appear in the bill at all.

             [[Orig. Op. Page 5]]   On May 6, 1975, however, the Senate Transportation and Utilities Committee proposed an amendment designed to substitute the utilities and transportation commission for the pilotage commission in § 4 of the bill.  This amendment was approved by the full Senate, and then, three days later, the Senate approved another amendment by which the pertinent second proviso to § 3 was added; i.e., repeated for ease of reference, the proviso which states that:

            ". . . additional tug shaft horsepower equivalencies may be required under certain conditions as established by rule and regulation of the Washington utilities and transportation commission pursuant to chapter 34.04 RCW: . . ."

            From this legislative history of the measure, it appears clear that this proviso was simply intended to complement, and to gain its legal significance from, § 4 of the bill as it had earlier been amended in the Senate.  In other words, the reference to the utilities and transportation commission in the proviso was simply a recognition that the substantive power to adopt rules and regulations had previously been granted by the Senate's amendment to § 4.  Therefore, the reference in § 3 was not, itself, a substantive grant of authority to adopt rules and regulations but was rather a recognition that rules adopted under § 4 could also affect the conditions set forth in § 3.

            The governor, however, vetoed § 4.  He clearly stated that his reasons for so doing involved an objection to the transferring of rule‑making authority from the state board of pilotage commissioners, which had long been operating in the field, to the utilities and transportation commission, which had not.1/

             [[Orig. Op. Page 6]]   Applying the principles of construction to which we have above referred in this opinion, we therefore directly answer your question, as paraphrased, in the following manner:

            In view of the governor's veto of § 4 of Substitute House Bill No. 527, and his stated reasons therefor, together with the legislative history of the act as passed by the House of Representatives and amended by the Senate, the utilities and transportation commission does not have any authority under chapter 125, Laws of 1975, 1st Ex. Sess., to adopt rules or regulations governing the operation of oil tankers and their escorting tug boats on Puget Sound and adjacent waters.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General