The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/CS/SB 426
INTRODUCER: Rules Committee; Community Affairs Committee; Transportation Committee; and
Senator Boyd
SUBJECT: State Preemption of Seaport Regulations
DATE: April 15, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Price Vickers TR Fav/CS
2. Paglialonga Ryon CA Fav/CS
3. Price Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/CS/SB 426 prohibits a local ballot initiative or referendum from restricting maritime
commerce in Florida’s seaports. The prohibition applies, but is not limited, to restricting such
commerce based on any of the following:
 Vessel type, size, number, or capacity.
 Number, origin, nationality, embarkation, or disembarkation of passenger or crew or their
entry into this state of any local jurisdiction.
 Source, type, loading, or unloading of cargo.
 Environmental or health records of a particular vessel or vessel line.
Any conflicting local ballot initiative or referendum adopted before, on, or after the effective
date of the act, and any local law, charter amendment, ordinance, resolution, regulation, or
policy adopted in such an initiative or referendum is prohibited, void, and expressly preempted to
the state.
The bill also prohibits a local government, or a political subdivision or special district thereof,
from restricting maritime commerce in any Florida seaport located in or adjoining an area
designated as an area of critical state concern before, on, or after the effective date of the act with
respect to any federally authorized passenger cruise vessel based on any of the following:
BILL: CS/CS/CS/SB 426 Page 2
 Vessel type, size, number, or capacity, except when the port, by virtue of the physical
limitations of its docking, berthing, or navigational capabilities, is unable to accommodate a
passenger cruise vessel pursuant to applicable federal or state laws or regulations.
 Number, origin, nationality, embarkation, or disembarkation of passengers or crew or their
entry into this state or any local jurisdiction.
 Source, type, loading, or unloading of cargo related or incidental to its use as a passenger
cruise vessel.
 Environmental or health records of a particular passenger cruise vessel or cruise line.
The bill prohibits and voids, and expressly preempts to the state, any conflicting provision of a
local law, a charter, an ordinance, a resolution, a regulation, a policy, an initiative, or a
referendum existing before, on, or after the effective date of the act. These provisions do not
apply to a special district established for port management by special act of the Legislature and,
except for the prohibition against a local ballot initiative or referendum restricting maritime
commerce in Florida’s seaports, do not otherwise limit the authority of a subject local
government, or political subdivision or special district thereof, to manage seaport commerce as
provided by Florida law, issue and enforce tariffs, and enter into contracts related to the port
facilities.
The bill includes a severability clause and takes effect upon becoming law.
The fiscal impact to state and local governments and the private sector is indeterminate. See the
“Fiscal Impact Statement” heading below.
BILL: CS/CS/CS/SB 426 Page 3
II. Present Situation:
Regulation of Vessels and Maritime Commerce
Generally, federal law controls1 the regulation of maritime commerce2, navigation,3 seaport
security4, the regulation of commercial vessels, shipping5 and common carriers, vessel-related
environmental and pollution standards,6 disease and quarantine efforts,7 and other aspects of
admiralty law in and upon the navigable waters of the United States. The U.S. Supreme Court
1
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). Where Congress has explicitly preempted state law in an area,
federal law supplants all state regulation in that area. Even in the absence of express congressional intent to preempt state
law, federal preemption is implied where (1) state law “actually conflicts with federal law” or (2) federal law so thoroughly
occupies a legislative field “as to make reasonable the inference that Congress left no room for the States to supplement it.”
2
United States v. Locke, 529 U.S. 89, 103 (2000). (“The existence of the treaties and agreements on standards of shipping is
of relevance, of course, for these agreements give force to the longstanding rule that the enactment of a uniform federal
scheme displaces state law, and the treaties indicate Congress will have demanded national uniformity regarding maritime
commerce.”)
3
See 33 U.S.C. §§ 1221 et seq. The Ports and Waterways Safety Act of 1972 (PWSA) authorizes the U.S. Coast Guard to
establish vessel traffic service/separation schemes (VTSS) for ports, harbors, and other waters subject to congested vessel
traffic. The VTSS apply to commercial ships, other than fishing vessels, weighing 300 gross tons (270 gross metric tons) or
more. The Oil Pollution Act amended the PWSA to mandate that appropriate vessels must comply with the VTSS. The
PWSA was amended by the Port and Tanker Safety Act (PTSA) of 1978 (Public Law 95-474). Under the PTSA, Congress
found that increased supervision of vessel and port operations was necessary to reduce the possibility of vessel or cargo loss,
or damage to life, property or the marine environment and ensure that the handling of dangerous articles and substances on
the structures in, on, or immediately adjacent to the navigable waters of the United States is conducted in accordance with
established standards and requirements. NOAA, Ports and Waterways Safety Act, PortsandWaterwaysSafetyAct.pdf
(noaa.gov) (last visited March 3, 2021).
4
For example, the Maritime Transportation Security Act of 2002 created a broad range of programs to improve the security
conditions at the ports and along American waterways, such as identifying and tracking vessels, assessing security
preparedness, and limiting access to sensitive areas.
5
See Shipping Act of 1984. 46 U.S.C. §§ 40101(1), 40101(2). One purpose of the Act is to ‘establish a nondiscriminatory
regulatory process for the common carriage of goods by water in the foreign commerce of the United States with a minimum
of government intervention and regulatory costs.’ A second purpose is to ensure that U.S.-flag ships are on a level playing
field with foreign vessels.
6
In 1973, the International Maritime Organization (IMO) adopted the International Convention for the Prevention of
Pollution by Ships and subsequently modified it by Protocol in 1978. The Convention is widely known as MARPOL 73/78.
Its objective is to limit ship-borne pollution by restricting operational pollution and reducing the possibility of accidental
pollution. MARPOL specifies standards for stowing, handling, shipping, and transferring pollutant cargoes, as well as
standards for discharge of ship-generated operational wastes. Acceptance of the convention by national government obliges
them to make the requirements part of domestic law. USCG, Office of Commercial Vessel Compliance,
https://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Inspections-Compliance-
CG-5PC-/Commercial-Vessel-Compliance/Domestic-Compliance-Division/MARPOL/ (last visited Mar. 1, 2021).
7
See John T. Oliver, Legal and Policy Factors Governing the Imposition of Conditions on Access and Jurisdiction Over
Foreign-Flag Vessels in U.S. Ports, 5 S.C. J. Int'l. L. & Bus. 209, 2 (2009) footnotes 153 & 154. 42 U.S.C. § 267(a): “[The
Surgeon General] shall from time to time select suitable sites for and establish such additional ... anchorages in the States and
possessions of the United States as in his judgment are necessary to prevent the introduction of communicable diseases into
the States and possessions of the United States.” “It shall be the duty of the customs officers and of Coast Guard officers to
aid in the enforcement of quarantine rules and regulations ....” U.S.C. § 268(b). Congress has provided statutory authority for
controlling infectious diseases, including quarantining of suspect vessels and their crews and passengers. 42 U.S.C. §§ 264-
272. The President regularly updates the list of communicable diseases subject to quarantine. Exec. Order No. 13,295, Apr. 4,
2003, 68 Fed. Reg. 17,255 (Apr. 9, 2003), reprinted in 42 U.S.C. § 264, as amended by Exec. Order No. 13,375, Apr. 1,
2005, 70 Fed. Reg. 17299 (Apr. 5, 2005). He has also delegated to the Secretary of Health and Human Services his authority
to carry out duties under the statute.
BILL: CS/CS/CS/SB 426 Page 4
has consistently determined that federal supremacy principles mandate preemption of efforts of
state and local governments to impose conditions on port entry that federal laws already cover.8
The United State Coast Guard (USCG) regulates all commercial vessels, including cruise
vessels, calling on U.S. ports, regardless of the vessel’s county of origin, and inspect each
foreign-flagged cruise vessel calling on a U.S. port at least twice a year to ensure compliance
with certain treaties and U.S. regulations governing safety, security, and environmental
protections.9
Federal law does allow a state to regulate its ports and waterways, so long as the regulation is
based on the peculiarities of local waters that call for special precautionary measures.10 For
example, Title I of the Ports and Waterways Safety act does not preempt a state regulation
directed to local circumstances and problems, such as water depth and narrowness, idiosyncratic
to a peculiar port or waterway, if the USCG has not adopted regulations on the subject or
determined that regulation is unnecessary or inappropriate.11 A review of relevant case law
suggests, however, that clear identification of the extent of a state’s authority to regulate its ports
and waterways is nonetheless elusive.
As for county and municipal governments, even when a state has authority concurrent with
federal law, sometimes counties and cities do not. As an example, federal law relating to marine
sanitation devices and discharges, 33 U.S.C. §1322(f)(A) provides that “no State or political
subdivision” may adopt and enforce a statute or regulation that is more stringent than those
promulgated under that section, while 33 U.S.C. §1322(f)(B) provides that “a State” may adopt
and enforce a statute or regulation with respect to the design, manufacture, installation, or use of
any marine sanitation device on a houseboat.
Federal Preemption
With respect to interstate commerce, the U.S. Supreme Court has discussed the historical
development of and the modern test for any challenge to a state’s authority to regulate:
Modern precedents rest upon two primary principles that mark the
boundaries of a State’s authority to regulate interstate commerce. First,
state regulations may not discriminate against interstate commerce; and
second, States may not impose undue burdens on interstate commerce.
State laws that discriminate against interstate commerce face “a virtually
per se rule of invalidity.” State laws that “regulat[e] even-handedly to
effectuate a legitimate local public interest…will be upheld unless the
8
See United States v. Locke, 471 U.S. 84 (1985).
9
U.S. House of Representatives, Subcommittee on Coast Guard and Maritime Transportation, Hearing on “Commercial and
Passenger Vessel Safety: Challenges and Opportunities, p. 4 (Nov. 9 2019), available at
https://www.congress.gov/116/meeting/house/110181/documents/HHRG-116-PW07-20191114-SD001.pdf (last visited April
13, 2021).
10
Ports and Waterways Safety Act of 1972, 33 U.S.C. §1223(a) (2006). There is no pre-emption by operation of Title I of the Ports
and Waterways Safety Act if the state regulation is directed to local circumstances and problems, such as water depth and narrowness,
idiosyncratic to a particular port or waterway, and if the Coast Guard has not adopted regulations on the subject or determined that
regulation is unnecessary or inappropriate.
11
See United State v. Locke, 529 U.S. 89,109 (2000).
BILL: CS/CS/CS/SB 426 Page 5
burden imposed on such commerce is clearly excessive in relation to the
putative local benefits.” Although subject to exceptions and variations,
these two principles guide the court in adjudicating cases challenging state
laws under the Commerce Clause.12
State Preemption
Municipalities and counties derive broad home rule authority from the Florida Constitution and
general law. Local governments have broad authority to legislate on any matter that is not
inconsistent with federal or state law. A local government enactment may be inconsistent with
state law if (1) the Legislature "has preempted a particular subject area" or (2) the local
enactment conflicts with a state statute. Where state preemption applies it precludes a local
government from exercising authority in that particular area.13
Florida law recognizes two types of preemption: express and implied. Express preemption
requires a specific legislative statement; it cannot be implied or inferred.14 Express preemption of
a field by the Legislature must be accomplished by clear language stating that intent.15 In cases
where the Legislature expressly or specifically preempts an area, there is no problem with
ascertaining what the Legislature intended.16 In cases determining the validity of ordinances
enacted in the face of state preemption, the effect has been to find such ordinances null and
void.17
Florida Ports
Florida is home to 15 deep-water seaports, including: Port Canaveral, Port Citrus, Port
Everglades, Port of Fernandina, Port of Fort Pierce, Port of Jacksonville, Port of Key West, Port
Manatee, Port of Miami, Port of Palm Beach, Port of Panama City, Port of Pensacola, and Port of
Port St. Joe, Port of St. Petersburg, and Port of Tampa.18
12
See South Dakota v. Wayfair, Inc., 138 S.Ct. 2080, 2091 ((2018). Citations and internal quotation marks omitted. Emphasis
added.
13 Wolf, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009). Historically, certain types of
local action have been found to frustrate the purpose of state law, and, thus, conflict has resulted. Specifically, Florida jurisprudence makes
clear that local action cannot 1) provide for more stringent regulation than the state legislation in violation of the express wording of the
statute; 2) provide for a more stringent penalty than that allowed by state statute; 3) prohibit behavior otherwise allowed by state
legislation; 4) allow behavior otherwise prohibited by state statute; or 5) provide for a different method for doing a particular act than the
method proscribed by state legislation. Generally, a local government can pass more stringent regulations than those provided for by
statute. However, if the state legislation expressly forbids a stricter regulation or if the imposition of a stricter regulation frustrates the
purpose of the statute, the local government must abstain. As an example of express prohibition, current law recognizes that the legislative
body of each municipality has the power to enact legislation concerning any subject matter upon which the State Legislature may act,
except among other items, “Any subject expressly preempted to state or county government by the constitution or by general law.” Section
166.021(3)(c), F.S.
14
See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d
1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008).
15
Mulligan, 934 So. 2d at 1243.
16
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886 (Fla. 2010).
17
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
18
For a map of Florida’s deep-water seaports which indicates the primary streams of commerce (i.e. cargo, cruise passenger, other, or a
combination thereof) see DOT, Seaport System, https://www.fdot.gov/seaport/seamap.shtm (last visited April 13, 2021).
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Approximately half of Florida’s deep-water ports are organized as