Authority of the Office of Marine Safety to acquire and operate a tugboat as part of an emergency response system, and to fund the program by assessing a fee

OFFICE OF MARINE SAFETY--OIL TANKERS--FEES--Authority of the Office of Marine Safety to acquire and operate a tugboat as part of an emergency response system, and to fund the program by assessing a fee.

1.  RCW 88.46.130 authorizes the Office of Marine Safety to establish an emergency response system to prevent oil spills in the Strait of Juan de Fuca.  This includes the authority to acquire and operate a tugboat as part of the response system.

2.  RCW 82.23B.020(2) imposes an oil spill administration tax.  This tax is to be used, in part, to fund the costs of administration of chapter 88.46 RCW, which includes the Office of Marine Safety emergency response system.  Nowhere has the Legislature delegated to the Office the authority to impose a fee and, since the Legislature has provided a funding source for the Office, the authority to impose a fee cannot be reasonably implied from other authority delegated to the Office.

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                                                                February 16, 1994

Barbara Herman, Administrator
Office of Marine Safety
711 State Avenue NE, MS 42407                                                       
Olympia, WA 98504-2407

                                                                                                Cite as:  AGO 1994 No. 2

Dear Ms. Herman:

            By letter previously acknowledged you have requested our opinion on questions we paraphrase as:

            1.         Does the Office of Marine Safety have the authority to establish an emergency response system to prevent oil spills in the Strait of Juan de Fuca, including the acquisition, maintenance, and operation of a tugboat?

            2.         If the answer to Question 1 is yes, does the Office of Marine Safety have the authority to assess fees on vessels transiting the Strait of Juan de Fuca in order to fund the purchase and operation of the tugboat referred to in Question 1?

            As set forth in the analysis below, we answer your first question in the affirmative and your second question in the negative.

                                                                BACKGROUND

            In order to protect Washington's waters from oil spills, the Legislature enacted the Oil and Hazardous Substance Spill Prevention and Response Act of 1991 (Laws of 1991, ch. 200) and, as part of that enactment, created the Office of Marine Safety.  RCW 43.21Iet seq.; RCW 88.46 et seq.  The Office of Marine Safety (hereinafter OMS) has a number of responsibilities related to the prevention of oil spills.  These include inspection of tank vessels, the approval of oil spill prevention plans, and the development of an emergency response system.  RCW 88.46.030-.040, .130.  As part of that process, OMS was directed to consider the recommendations of the regional marine safety committees[1]and to consult with the Province of British Columbia regarding its participation in the development of an emergency response system.  RCW 88.46.130.

            Correspondingly, the regional marine safety committees were, in RCW 88.46.110(9), directed by the Legislature to present to OMS recommendations regarding the "need for, and the structure and design of, an emergency response system for the Strait of Juan de Fuca and the Pacific coast".  Additionally, the Legislature also directed the contemporaneously created Marine Oversight Board to review the need for, and the structure and design of, an emergency response system for the Strait of Juan de Fuca and the Pacific Coast, and to make recommendations to OMS.  RCW 90.56.450(2)(a).

            In April 1992, OMS created the required regional marine safety committees for the Strait of Juan de Fuca/Northern Puget Sound and for Grays Harbor/Pacific Coast.  These two committees issued a report outlining the recommended structure of an emergency response system for the Strait of Juan de Fuca.  Contained in their report was the recommendation that a tugboat be located and maintained at either Port Angeles or Neah Bay, Washington, for the purpose of responding to emergencies.  The tugboat is intended to provide 24-hour response capability for the Strait of Juan de Fuca and the Pacific Coast in the event a vessel becomes disabled.  The committees further recommended that the acquisition, operation, and maintenance of the tugboat be paid for through a "user" fee assessed on all vessels of 300 gross tons or more transiting the Strait of Juan de Fuca.

            With this background in mind we turn to your question.

                                                                    ANALYSIS

            Question 1:

            Does the Office of Marine Safety have the authority to establish an emergency response system to prevent oil spills in the Strait of Juan de Fuca, including the acquisition, maintenance, and operation of a tugboat?

            Agencies are created by statute and have only those powers which are expressly granted or which are necessarily implied from statutory grants of authority.  Green River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 112, 622 P.2d 826 (1980),adhered to and modified, 95 Wn.2d 962, 633 P.2d 1324 (1981);Municipality of Metro. Seattle v. Public Empl. Relations Comm'n, 118 Wn.2d 621, 826 P.2d 158 (1992).  An agency cannot legislate; its rules must be within the ambit of its statutory framework.  Green River, 95 Wn.2d at 112.  However, "[a]n agency may fill in the gaps of a statutory framework if necessary to effectuate a general statutory scheme".  Asarco, Inc. v. Puget Sound Air Pollution Control Agency, 112 Wn.2d 314, 322, 771 P.2d 335 (1989), citing Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975).

            Your first question asks whether OMS has the statutory authority to establish an emergency response system, including the purchase and operation of a tugboat.  In our judgment the answer to this question is yes.  RCW 88.46.130 provides:

                        An emergency response system for the Strait of Juan de Fuca shall be established by July 1, 1992.  In establishing the emergency response system, the administrator shall consider the recommendations of the regional marine safety committees.  The administrator shall also consult with the province of British Columbia regarding its participation in the emergency response system.

We believe this authorizes OMS to actually establish an emergency response system as one of its duties.  This reading is consistent with the legislative findings when RCW 88.46.130 was enacted.  The Legislature stated:

                        (3)        The legislature also finds that:

                        (a)        Recent accidents in Washington, Alaska, southern California, Texas, and other parts of the nation have shown that the transportation, transfer, and storage of oil have caused significant damage to the marine environment;

                        (b)        Even with the best efforts, it is nearly impossible to remove all oil that is spilled into the water;

                        (c)        Washington's navigable waters are treasured environmental and economic resources that the state cannot afford to place at undue risk from an oil spill; and

                        (d)        The state has a fundamental responsibility, as the trustee of the state's natural resources and the protector of public health and the environment to prevent the spill of oil.

                        (4)        In order to establish a comprehensive prevention and response program to protect Washington's waters and natural resources from spills of oil, it is the purpose of this chapter:

                       . . .

                        (b)        To prevent spills of oil and to promote programs that reduce the risk of both catastrophic and small chronic spills[.]

Laws of 1991, ch. 200, § 101, p. 944.  Thus, the purpose of the law was to put in place a system to prevent oil spills.  The emergency response system is part of that system.

            In addition to specifically authorizing OMS to establish an emergency response system, the Legislature granted OMS the power to operate the system.  RCW 43.21I.010 vests the Office of Marine Safety "with all powers and duties transferred to it and such other powers and duties as may be authorized by law".  Additionally, RCW 43.21I.030 states that OMS has the power to "[a]dopt, in accordance with chapter 34.05 RCW, rules necessary to carry out the provisions of this chapter and chapter 88.46 RCW".  Along with its general grants of authority, OMS has also been vested with the specific power to enter into contracts and to expend funds for goods, services, and equipment necessary to carry out the purposes of chapter 88.46 RCW.  RCW 43.21I.030(5), 90.56.510(7).  Further, as mentioned above, RCW 88.46.130 specifically requires OMS to consider the recommendations of the regional marine safety committees when establishing an emergency response system for the Strait of Juan de Fuca.

            The appropriate regional marine safety committees have recommended, as one component of the emergency response system, that a rescue tugboat be stationed at either Port Angeles or Neah Bay.  While the Legislature has not expressly delegated to OMS the power to purchase the recommended tugboat, OMS does have the implied authority to carry out the Legislature's general goals.  Additionally, OMS has been expressly granted the power to expend funds on goods, services, and equipment to carry out the directives of chapter 88.46 RCW et seq.  This, together with the mandate to create an emergency response system and to consider the recommendations of the regional marine safety committees, delegate to OMS the power to acquire a tugboat as part of the establishment of an emergency response system for the Strait of Juan de Fuca.

            Question 2:

            If the answer to Question 1 is yes, does the Office of Marine Safety have the authority to assess fees on vessels transiting the Strait of Juan de Fuca in order to fund the purchase and operation of the tugboat referred to in Question 1?

            In order to assess and collect fees to fund the purchase and operation of the recommended tugboat, OMS would be required to promulgate rules establishing such a fee.  As mentioned in connection with Question 1 above, an agency has only those powers expressly granted or necessarily implied from statutory grants of authority.  Green River, 95 Wn.2d at 112.  Moreover, an agency cannot by rulemaking amend or modify legislative enactments.  Fisher Flouring Mills Co. v. State, 35 Wn.2d 482, 492, 213 P.2d 938 (1950);Somer v. Woodhouse, 28 Wn. App. 262, 623 P.2d 1164 (1981).

            As was also noted above, RCW 88.46.110(9) requires the regional marine safety committees to make recommendations to the Office of Marine Safety regarding the "need for, and the structure and design of, an emergency response system for the Strait of Juan de Fuca and the Pacific coast".  An emergency response system must then be established by OMS.  RCW 88.46.130.  However, an examination of the Oil and Hazardous Substance Spill Prevention and Response Act,supra, indicates that the Legislature apparently intended that OMS' activities would be funded through a tax contemporaneously created in section 802 (now codified as RCW 82.23B.020(2)) of the act.  That section of the enactment levies a "barrel tax" on the first owner of crude oil or petroleum products after the substance has been transferred to an on-shore facility.  That barrel tax is denominated as the oil spill administration tax and is to be deposited in a specially created trust fund (i.e., the oil spill administration account).  RCW 82.23B.020(9).

            The statutory section creating the oil spill administration account provides, in pertinent part, the following:

                        90.56.510.  Oil spill administration account.  The oil spill administration account is created in the state treasury.  All receipts from RCW 82.23B.020(2) shall be deposited in the account.  Moneys from the account may be spent only after appropriation. . . . Expenditures from the oil spill administration account shall be used exclusively for the administrative costs related to the purposes of this chapter, and chapters 90.48, 88.40, and88.46 RCW. Costs of administration include the costs of:

                        (1)        Routine responses not covered under RCW 90.56.500;

                        (2)        Management and staff development activities;

                        (3)        Development of rules and policies and the state-wide plan provided for in RCW 90.56.060;

                        (4)        Facility and vessel plan review and approval, drills, inspections, investigations, enforcement, and litigation;

                        (5)        Interagency coordination and public outreach and education;

                        (6)        Collection and administration of the tax provided for in chapter 82.23B RCW; and

                        (7)        Appropriate travel, goods and services, contracts, and equipment.

(Emphasis added.)  Accordingly, it appears that the Legislature intended to meet OMS' funding needs (including goods, services, and equipment) through the oil spill administration tax.  The Oil and Hazardous Substance Spill Prevention and Response Act is conspicuously silent as to any other revenue raising mechanism relevant to the question under consideration.

            In addition to the fact that the Legislature provided a funding source for OMS' activities, we also find nothing in the law to indicate that the Legislature delegated to OMS the authority to collect a fee.  Nor do we believe that the authority to impose a fee may be implied from the other authority granted OMS.  The power to impose a fee may not be reasonably implied from OMS' other grants of authority in light of the fact that the Legislature already provided a source of funding.  Also, such a reading would run afoul of the rules established for proper delegation of authority by the Legislature.

            The current test for determining whether an agency has been properly delegated a particular rulemaking authority was established in Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 159, 500 P.2d 540 (1972), appeal dismissed, 410 U.S. 977, 36 L. Ed. 2d 173, 93 S. Ct. 1503 (1973), in which the court stated:

            [T]he delegation of legislative power is justified and constitutional, and the requirements of the standards doctrine are satisfied, when it can be shown (1) that the legislature has provided standards or guidelines which define in general terms what is to be done and the instrumentality or administrative body which is to accomplish it; and (2) that procedural safeguards exist to control arbitrary administrative action and any administrative abuse of discretionary power.

            Barry & Barry involved the Department of Motor Vehicles' promulgation of rules establishing a schedule of maximum fees to be charged by employment agencies.  In that case, the court ruled that the department did have the power to create and promulgate a fee schedule based on a statute that granted the department the power to "approve fee schedules" and to issue reasonable rules and regulations to implement the relevant chapter of law.  Id.  Applying the above quoted test, and finding that the Administrative Procedure Act (then chapter 34.04 RCW) satisfied the procedural standards requirement, the court held that the Legislature had in that instance provided sufficient standards and procedural safeguards.  Accordingly, the court found that the Legislature had adequately delegated the necessary rulemaking authority to the department.

            The issue of whether OMS has been delegated the power to promulgate fee assessment rules to fund the purchase and operation of the recommended tugboat depends upon whether the Legislature has set out statutory standards or guidelines defining (1) what OMS is to do (with regard to fees), and (2) procedural safeguards to protect against arbitrary action.  Unlike the statutory scheme under consideration in Barry & Barry, neither chapter 88.46 RCW nor chapter 43.21I RCW mentions or necessarily implies any authority to promulgate rules regarding fees.[2]  While OMS has the authority to establish an emergency response system for the Strait of Juan de Fuca, and in doing so must consider the recommendations of the regional marine safety committees, the Legislature has not expressly or impliedly provided OMS with standards or guidelines regarding the establishment and assessment of fees.  Without such standards or guidelines, any assertion by OMS that it has been impliedly delegated the authority to promulgate fee assessment rules would fail the first prong of the test set out in Barry & Barry.

            Therefore, the answer to Question 2 is no.  OMS does not have the statutory authority to collect a fee on vessels transiting the Strait of Juan de Fuca.

            We trust the foregoing will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        WILLIAM B. COLLINS
                                                                        Senior Assistant Attorney General

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