Section 310.151, Florida Statutes 2009
310.151 Rates of pilotage; Pilotage Rate Review Board.--
(1)(a) For the purposes of this section, "board" means the Pilotage Rate Review Board.
(b)1. To carry out the provisions of this section, the Pilotage Rate Review Board is created within the Department of Business and Professional Regulation. Members shall be appointed by the Governor, subject to confirmation by the Senate. Members shall be appointed for 4-year terms, except as otherwise specified in this paragraph. No member may serve more than two consecutive 4-year terms or more than 11 years on the board. The board shall consist of seven members. No member may have ever served as a state pilot or deputy pilot, and no member may currently serve or have served as a direct employee, contract employee, partner, corporate officer, sole proprietor, or representative of any vessel operator, shipping agent, or pilot association or organization, except that one member shall be or have been a person licensed by the United States Coast Guard as an unlimited master, without a first-class pilot's endorsement, initially appointed to a 2-year term. One member shall be a certified public accountant with at least 5 years' experience in financial management, initially appointed to a 3-year term. One member shall be a former hearing officer or administrative law judge of the Division of Administrative Hearings, as defined in s. 120.65, or a former judge who has served on the Supreme Court or any district court of appeal, circuit court, or county court, initially appointed to a 4-year term. Except as otherwise provided in subparagraph 2., the remaining members shall be appointed by the Governor from among persons not prohibited pursuant to this paragraph. Members of the board shall be appointed so as to be geographically distributed, with the southern, central, northeastern, and northwestern regions of the state having at least one member each.
2. Three members shall be the consumer members of the Board of Pilot Commissioners serving on that board as of January 1, 1994. Of those members, one shall be appointed to a 1-year term, one shall be appointed to a 2-year term, and one shall be appointed to a 3-year term. Each of those members shall be eligible for reappointment in the same fashion as other members of the board, but, thereafter, no member of the board shall be a current or former member of the Board of Pilot Commissioners. The service of the consumer members of the Board of Pilot Commissioners on this board, while they are maintaining concurrent membership with the Board of Pilot Commissioners, shall be considered duties in addition to and related to their duties on the Board of Pilot Commissioners. In the event that any of the three board members stipulated according to this subparagraph are unable to serve, the Governor shall fill the position or positions by appointment from among persons not prohibited pursuant to this paragraph.
(c) The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of this section conferring duties upon it. The department shall provide the staff required by the board to carry out its duties under this section.
(d) All funds received pursuant to this section shall be placed in the account of the Board of Pilot Commissioners, and the Board of Pilot Commissioners shall pay for all expenses incurred pursuant to this section.
(2) Any pilot, group of pilots, or other person or group of persons whose substantial interests are directly affected by the rates established by the board may apply to the board for a change in rates. However, an application for a change in rates shall not be considered for any port for which rates have been changed by this board in the 18 months preceding the filing of the application. All applications for changes in rates shall be made to the board, in writing, pursuant to rules prescribed by the board. In the case of an application for a rate change on behalf of a pilot or group of pilots, the application shall be accompanied by a consolidated financial statement, statement of profit or loss, and balance sheet prepared by a certified public accountant of the pilot or group of pilots and all relevant information, fiscal and otherwise, on the piloting activities within the affected port area, including financial information on all entities owned or partially owned by the pilot or group of pilots which provide pilot-related services in the affected port area. In the case of an application for a rate change filed on behalf of persons other than a pilot or group of pilots, information regarding the financial state of interested parties other than pilots shall be required only to the extent that such financial information is made relevant by the application or subsequent argument before the board. The board shall have the authority to set, by rule, a rate review application fee of up to $1,000, which must be submitted to the board upon the filing of the application for a rate change.
(3) The board shall investigate and determine whether the requested rate change will result in fair, just, and reasonable rates of pilotage pursuant to rules prescribed by the board. In addition to publication as required by law, notice of a hearing to determine rates shall be mailed to each person who has formally requested notice of any rate change in the affected port area. The notice shall advise all interested parties that they may file an answer, an additional or alternative petition, or any other applicable pleading or response, within 30 days after the date of publication of the notice, and the notice shall specify the last date by which any such pleading must be filed. The board may, for good cause, extend the period for responses to a petition. Multiple petitions filed in this manner do not warrant separate hearings, and these petitions shall be consolidated to the extent that it shall not be necessary to hold a separate hearing on each petition. The board shall conclude its investigation, conduct a public hearing, and determine whether to modify the existing rates of pilotage in that port within 60 days after the filing of the completed application, except that the board may not be required to complete a hearing for more than one port within any 60-day period. Hearings shall be held in the affected port area, unless a different location is agreed upon by all parties to the proceeding.
(4)(a) The applicant shall be given written notice, either in person or by certified mail, that the board intends to modify the pilotage rates in that port and that the applicant may, within 21 days after receipt of the notice, request a hearing pursuant to the Administrative Procedure Act. Notice of the intent to modify the pilotage rates in that port shall also be published in the Florida Administrative Weekly and in a newspaper of general circulation in the affected port area and shall be mailed to any person who has formally requested notice of any rate change in the affected port area. Within 21 days after receipt or publication of notice, any person whose substantial interests will be affected by the intended board action may request a hearing pursuant to the Administrative Procedure Act. If the board concludes that the petitioner has raised a disputed issue of material fact, the board shall designate a hearing, which shall be conducted by formal proceeding before an administrative law judge assigned by the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57(1), unless waived by all parties. If the board concludes that the petitioner has not raised a disputed issue of material fact and does not designate the petition for hearing, that decision shall be considered final agency action for purposes of s. 120.68. The failure to request a hearing within 21 days after receipt or publication of notice shall constitute a waiver of any right to an administrative hearing and shall cause the order modifying the pilotage rates in that port to be entered. If an administrative hearing is requested pursuant to this subsection, notice of the time, date, and location of the hearing shall be published in the Florida Administrative Weekly and in a newspaper of general circulation in the affected port area and shall be mailed to the applicant and to any person who
has formally requested notice of any rate change for the affected port area.
(b) In any administrative proceeding pursuant to this section, the board's proposed rate determination shall be immediately effective and shall not be stayed during the administrative proceeding, provided that, pending rendition of the board's final order, the pilot or pilots in the subject port deposit in an interest-bearing account all amounts received which represent the difference between the previous rates and the proposed rates. The pilot or pilots in the subject port shall keep an accurate accounting of all amounts deposited, specifying by whom or on whose behalf such amounts were paid, and shall produce such an accounting upon request of the board. Upon rendition of the board's final order:
1. Any amounts deposited in the interest-bearing account which are sustained by the final order shall be paid over to the pilot or pilots in the subject port, including all interest accrued on such funds; and
2. Any amounts deposited which exceed the rates sustained in the board's final order shall be refunded, with the accrued interest, to those customers from whom the funds were collected. Any funds that are not refunded after diligent effort of the pilot or pilots to do so shall be disbursed by the pilot or pilots as the board shall direct.
(5)(a) In determining whether the requested rate change will result in fair, just, and reasonable rates, the board shall give primary consideration to the public interest in promoting and maintaining efficient, reliable, and safe piloting services.
(b) The board shall also give consideration to the following factors:
1. The public interest in having qualified pilots available to respond promptly to vessels needing their service.
2. A determination of the average net income of pilots in the port, including the value of all benefits derived from service as a pilot. For the purposes of this subparagraph, "net income of pilots" refers to total pilotage fees collected in the port, minus reasonable operating expenses, divided by the number of licensed and active state pilots within the ports.
3. Reasonable operating expenses of pilots.
4. Pilotage rates in other ports.
5. The amount of time each pilot spends on actual piloting duty and the amount of time spent on other essential support services.
6. The prevailing compensation available to individuals in other maritime services of comparable professional skill and standing as that sought in pilots, it being recognized that in order to attract to the profession of piloting, and to hold the best and most qualified individuals as pilots, the overall compensation accorded pilots should be equal to or greater than that available to such individuals in comparable maritime employment.
7. The impact rate change may have in individual pilot compensation and whether such change will lead to a shortage of licensed state pilots, certificated deputy pilots, or qualified pilot applicants.
8. Projected changes in vessel traffic.
9. Cost of retirement and medical plans.
10. Physical risks inherent in piloting.
11. Special characteristics, dangers, and risks of the particular port.
12. Any other factors the board deems relevant in determining a just and reasonable rate.
(c) The board may take into consideration the consumer price index or any other comparable economic indicator when fixing rates of pilotage; however, because the consumer price index or such other comparable economic indicator is primarily related to net income rather than rates, the board shall not use it as the sole factor in fixing rates of pilotage.
(6) The board shall fix rates of pilotage pursuant to this section based upon the following vessel characteristics:
(c) Net tonnage, gross tonnage, or dead weight tonnage.
(d) Freeboard or height above the waterline.
(e) Draft or molded depth.
(f) Any combination of the vessel characteristics listed in this subsection or any other relevant vessel characteristic or characteristics.
History.--s. 2, ch. 75-201; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 14, 16, ch. 78-140; s. 2, ch. 81-318; s. 6, ch. 83-329; ss. 2, 3, ch. 84-185; ss. 10, 11, ch. 86-280; s. 2, ch. 89-262; s. 4, ch. 91-429; s. 351, ch. 94-119; s. 65, ch. 96-410; s. 59, ch. 98-200; s. 3, ch. 2000-356.