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AGO 1984 No. 3 - February 02, 1984
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- PARKS AND RECREATION COMMISSION ‑- BOATS ‑- PROMULGATION OF RECREATIONAL BOATING STANDARDS

 The Washington State Parks and Recreation Commission does not now have the authority, under § 52, chapter 3, Laws of 1983, 2nd Ex. Sess., to promulgate and enforce rules of general state‑wide applicability prescribing recreational boating safety standards and equipment, consistent with Coast Guard regulations and standards.

                                                               - - - - - - - - - - - - - 

                                                                 February 2, 1984 

Honorable Jan Tveten, Director
Washington State Parks and Recreation Commission
7150 Cleanwater Lane
Olympia, Washington 98504 

Cite as:  AGO 1984 No. 3                                                                                                                  

 Dear Sir:

             By letter previously acknowledged you requested the opinion of this office on a question which we paraphrase as follows:

             Does the Washington State Parks and Recreation Commission have authority to promulgate and enforce rules of general state‑wide applicability prescribing recreational boating safety standards and equipment, consistent with Coast Guard regulations and standards, pursuant to § 52, chapter 3, Laws of 1983, 2nd Ex. Sess?

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

                                                                      ANALYSIS

             Your inquiry specifically focuses on the authority of the Washington State Parks and Recreation Commission to adopt certain recreational boating safety regulations.1/

             Therefore, in  [[Orig. Op. Page 2]] responding, we are guided by the principle that the commission, as a state agency, has only those powers granted to it by the legislature, expressly or by necessary implication.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956);State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).  Moreover, in particular regard to an agency's authority to adopt regulations, our State Supreme Court has said:

             "An agency may not legislate under the guise of the rule making power.  Rules must be written within the framework and policy of the applicable statutes.  State ex rel. West v. Seattle, 50 Wn.2d 94, 309 P.2d 751 (1957).  They may not amend or change enactments of the legislature.  Pringle v. State, 77 Wn.2d 569, 464 P.2d 425 (1970), Pierce County v. State, 66 Wn.2d 728, 404 P.2d 1002 (1965)."2/

             In this instance, the statute involved is RCW 43.51.400‑-codifying § 52, chapter 3, Laws of 1983, 2nd Ex. Sess.; and it reads as follows:

             "The state parks and recreation commission shall:

             "(1) Coordinate a state‑wide program of boating safety education using to the maximum extent possible existing programs offered by the United States power squadron and the United States coast guard auxiliary;

             "(2) Adopt rules in accordance with chapter 34.04 RCW, consistent with United States coast guard regulations, standards, and precedents, as needed for the efficient administration and enforcement of this section;

             "(3) Develop by January 31, 1984, a state‑wide inventory of marine state parks and recreational facilities operated by other state and local agencies that are available for marine‑related use by persons owning boats in this state;

              [[Orig. Op. Page 3]]

           "(4) Enter into agreements aiding the administration of this chapter;

             "(5) Adopt and administer a casualty and accident reporting program consistent with United States coast guard regulations;

             "(6) Coordinate with local and state agencies the development of biennial plans and programs for the enhancement of boating safety, safety education, and enforcement of safety rules and laws; allocate money appropriated to the commission for these programs as necessary; and accept and administer any public or private grants or federal funds which are obtained for these purposes under chapter 43.88 RCW; and

             "(7) Take additional actions necessary to gain acceptance of a program of boating safety for this state under the federal boating safety act of 1971."

             This statute does not expressly authorize the Commission to adopt recreational boating safety regulations consistent with Coast Guard regulations.3/ Subsection (2) is an express delegation of rule‑making power, but it does not confer authority to adopt any specific regulations except those which may be necessary to implement the substantive provisions found elsewhere in the statute.  See, Anderson, Leech & Morse v. Liquor Control Board, 89 Wn.2d 688, 575 P.2d 221 (1978);Weyerhaeuser v. Department of Ecology, 86 Wn.2d 310, 545 P.2d 5 (1976).  Any authority the commission has to adopt boating safety regulations must therefore be derived, instead, from subsection (7) which directs the commission to:

             "[t]ake additional actions necessary to gain acceptance of a program of boating safety for this state under the federal boating safety act of 1971."

             The Federal Boat Safety Act of 1971, 46 U.S.C.A. § 1451, et. seq., was enacted in recognition of ever increasing recreational boating activities and attendant safety hazards.  It  [[Orig. Op. Page 4]] encourages, through federal aid programs, state involvement in all aspects of boating safety education and the enforcement of uniform safety regulations and standards.  See, 1980 U.S. Code Cong. and Adm. News, p. 4215.  As last amended prior to the passage of RCW 43.51.400, supra, the federal act established minimum requirements for state boating safety programs in order to qualify for federal funding, as follows:

             "The secretary shall accept a State recreational boating safety program, and such program shall be eligible to receive funds authorized to be expended pursuant to section 30(a) of this Act, if such program includes‑-

             "(1) a vessel numbering system, either approved or administered by the Secretary under this Act;

             "(2) a cooperative boating safety asssistance [assistance] program with the Coast Guard in that State;

             "(3) sufficient patrol and other activity to insure adequate enforcement of applicable State boating safety laws and regulations; and

             "(4) an adequate State boating safety education program;

             "His action in doing so shall be deemed a contractual obligation of the United States for the payment of the proportional share of the cost of implementing the program."  (46 U.S.C.A. § 1475(b))

             In order for any delegation of legislative or rule‑making power to withstand constitutional muster, the legislature must provide standards or guidelines which define in general terms what is to be done.  Northwest Gillnetters Ass'n v. Sandison, 95 Wn.2d 638, 628 P.2d 800 (1981);Barry & Barry v. Dep't of Motor Veh., 81 Wn.2d 155, 500 P.2d 540 (1972).  Our inquiry, then, is whether, in light of 46 U.S.C.A. § 1475(b), there are sufficient standards or guidelines contained in RCW 43.52.400(7) [43.51.400(7)] to provide the commission with authority to adopt boating safety standards and requirements consistent with Coast Guard regulations.

             Our Supreme Court said, inYelle v. Bishop, 55 Wn.2d 286, 303, 374 P.2d 1081 (1959):

             "Whether to accept or reject federal funds under federal-aid programs is a matter of legislative choice.

              [[Orig. Op. Page 5]]

            When a federal-aid program sets forth certain conditions precedent to the receipt of such funds, the legislature may properly take cognizance of such conditions.  There is no reason to conclude that the legislature cannot require administrative officers and agencies to take cognizance of the same conditions as a standard limiting their rule‑making power."

             The conditions precedent to the receipt of federal funds for state recreational boating safety programs, as found in 46 U.S.C.A. § 1475(b), do not expressly require states to adopt and enforce Coast Guard recreational boating safety regulations.  Rather, those conditions require state programs to include:

             "(3) sufficient patrol and other activity to insure adequate enforcement ofapplicable State boating laws and regulations. . ."  (Emphasis supplied) (46 U.S.C.A. 1475(b)(3))

             The only state laws potentially applicable in this context are RCW 88.02.020(2) (prohibiting negligent use of any vessel on state waters); RCW 88.12.020 (requiring motor boats to be driven in a careful and prudent manner and at a safe rate of speed under prevailing conditions); RCW 88.12.030 (requiring a white light visible from 300 feet during hours of darkness); and RCW 88.12.040 (requiring a muffler or other device to reduce exhaust noise).  These laws are not akin to the Coast Guard safety equipment standards and regulations contained in Titles 33 and 46 CFR4/ ‑-with the possible exception of the latter two statutes which are, nevertheless, likely to be unenforceable on waters over which the state and federal governments have concurrent jurisdiction since they are not identical to federal regulations issued under 46 U.S.C.A. § 1454.  See, 46 U.S.C.A. § 1459.

             We are aware of no federal regulations further implementing 46 U.S.C.A. § 1475(b), existing at the time of enactment of RCW 43.51.400 which required states to adopt recreational boating safety and equipment regulations consistent with Coast Guard regulations and standards as a condition precedent to receipt of federal funds under the Federal Boat Safety Act of 1971.

             Moreover, assumingarguendo that the federal government (through whatever auspices) now requires the adoption of such  [[Orig. Op. Page 6]] regulations as a condition of approval for a state boating safety program, the legislature would have exceeded its constitutional powers in delegating authority to the commission to adopt regulations first required by federal rule promulgated after passage of the state law.  See State v. Dougall, 89 Wn.2d 118, 570 P.2d 135 (1977) in which the Court held that the legislature may enact statutes which adopt existing federal rules, regulations or statutes; however, legislation which attempts to adopt or acquiesce in future federal rules, regulations or statutes is an unconstitutional delegation of legislative power and thus void.

             Furthermore, even if federal policy at the time our legislature passed RCW 43.51.400 required states to adopt Coast Guard boating safety regulations as part of a state boating safety program, the fact that such policy was not expressed in the Federal Boat Safety Act nor in published federal regulations implementing the act would, in our opinion, preclude a finding that the legislature intended the commission to have authority to adopt such regulations since RCW 43.51.400 contains no express or implied standards or guidelines to that effect.  Barry & Barry v. Dep't of Motor Vehicles,supra.

             If we should assume that the language of RCW 43.51.400 and construction of legislative intent in adopting the statute is susceptible of two interpretations, one constitutional and the other unconstitutional, the constitutional interpretation must be adopted. Yelle v. Bishop, supra.  Hence, we conclude that the legislature did not delegate to the commission authority to adopt recreational boating safety and equipment standards consistent with Coast Guard regulations by virtue of RCW 43.51.400.  If, in order to gain acceptance of a state program of boating safety under the federal act as it is being administered, the commission should find it needs more latitude than it has been given by the legislature in RCW 43.51.400, its remedy is not to circumvent its grant of authority but rather to seek a broader mandate through the legislature.  See,State Employees v. Personnel Bd, 87 Wn.2d 823, 557 P.2d 336 (1976).5/

              [[Orig. Op. Page 7]]

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

 Very truly yours,
 KENNETH O. EIKENBERRY
Attorney General

ROBERT C. HARGREAVES
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/The substance of your inquiry reflects a concern with a much broader scope of authority than the commission might otherwise have under other provisions in chapter 43.51 RCW pertaining generally to the use of state parks and parkways, i.e., RCW 43.51.040.  This opinion does not, therefore, purport to address the commission's authority to adopt certain boating safety regulations applicable only in that limited context.

 2/Kitsap-Mason Dairymen v. Tax Commission, 77 Wn.2d 812, 815, 467 P.2d 312 (1970).a0

 3/By the examples given in your letter, we assume the Coast Guard regulations or standards you refer to are those adopted pursuant to 46 U.S.C.A. § 1454 and codified in Titles 33 and 46 C.F.R.

 4/See footnote 3, supra.

 5/We note, in that regard, the current pendency of Senate Bill No. 4578, § 4 of which would amend RCW 43.51.400, supra, to expressly authorize the Parks and Recreation Commission to "Adopt and enforce recreational boating safety rules, including but not necessarily limited to equipment and navigating requirements, consistent with United States Coast Guard regulations."

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