BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                       Bill No:  SB 
          1408
          
                 SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
                       Senator Roderick D. Wright, Chair
                           2011-2012 Regular Session
                                 Staff Analysis



          SB 1408  Author:  Blakeslee
          As Amended:  April 19, 2012
          Hearing Date:  April 24, 2012
          Consultant:  Art Terzakis


                                     SUBJECT  
          Bar Pilots: Monterey Bay and the Bays of San Francisco, San 
                                Pablo and Suisun

                                   DESCRIPTION
           
          SB 1408 adds the following substantive provisions to the 
          Harbors and Navigation Code relating to bar pilots for 
          Monterey Bay and the Bays of San Francisco, San Pablo and 
          Suisun:

             1.   Finds and declares that enhancement of navigational 
               safety is of the utmost concern in state pilotage and 
               to ensure and promote the highest level of safety the 
               Board of Pilot Commissioners (board) is empowered to 
               effectively monitor and oversee pilots in order to 
               prevent fatigue resulting from extended hours of 
               service, insufficient rest and disruption of physical, 
               mental and behavioral rhythms within a 24-hour period.

             2.   Stipulates that any continuing education program 
               adopted by the board must regularly inform pilots of 
               the hazards of fatigue and of effective strategies to 
               prevent it while on duty.

             3.   Prohibits the port agent from assigning any pilot 
               to work on any combination of vessels if the pilot 
               will have worked in excess of the limitations 
               established for mariners aboard tanker vessels, as 
               prescribed by the federal Oil Pollution Act of 1990.  




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               (As prescribed by federal law, on a tanker, a licensed 
               individual or seaman may not be permitted to work more 
               than 15 hours in any 24-hour period, or more than 36 
               hours in any 72-hour period, except in an emergency or 
               a drill - "work" includes any administrative duties 
               associated with the vessel whether performed on board 
               the vessel or onshore.)

             4.   Requires a pilot to refuse a pilotage assignment if 
               the pilot is physically or mentally fatigued and the 
               pilot has a reasonable belief that the assignment 
               cannot be carried out in a competent and safe manner.

             5.   Provides that if the executive director of the 
               board alerts the U.S. Coast Guard to a violation or a 
               likely violation of safety standards and has reason to 
               believe the violation or likely violation will not be 
               corrected prior to the vessel reaching its next port 
               of call, the executive director must request that the 
               U.S. Coast Guard report the suspected safety 
               violations to the port state control officer or a 
               pilot organization in a vessel's expected future port 
               of call.

             6.   Requires a pilot trainee applicant, a license 
               applicant, or a licensee applying for renewal of a 
               license to disclose to the board-appointed physician 
               conducting the physical examination certain medical 
               information relating to the applicant's or licensee's 
               ability to safely operate a vessel, including 
               information concerning prior substance abuse 
               (alcoholism or use of any drug) and medical conditions 
               characterized by lapses of consciousness that could 
               affect the safe operation of a vessel or motor 
               vehicle.

             7.   Permits the board to refuse to admit a trainee 
               applicant to the training program or to issue or renew 
               a license to any person when the board-appointed 
               physician conducting the physical determines that the 
               applicant or licensee habitually uses, or is addicted 
               to, alcoholic beverages, narcotics, or dangerous 
               drugs.  Also, stipulates that the board's proceedings 
               with respect to the issuance or renewal of a pilot 
               license must be conducted in accordance with the state 
               Administrative Procedures Act (APA) - Chapter 5 




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               (commencing with Section 11500) of Part 1 of Division 
               3 of Title 2 of the Government Code.

             8.   Also, permits the board to deny an application for 
               a license without a hearing, if within one year 
               previously, and after proceedings conducted pursuant 
               to the APA, an application from the same applicant has 
               been denied upon the same grounds.

             9.   Stipulates that costs resulting from continuing 
               education for currently licensed pilots relative to 
               the use of portable pilot equipment and software, if 
               determined to be necessary by the board, shall be 
               considered pilot continuing education expenses.  (This 
               provision applies to costs incurred after 01/01/2013.)

             10.  Requires the board and the port agent to 
               participate in a "pull-notice" system, pursuant to the 
               Vehicle Code, with respect to all pilot trainees and 
               all licensees for the purpose of obtaining a report 
               showing each pilot's public record as recorded by the 
               DMV and any subsequent convictions, failures to 
               appear, accidents, suspensions, license revocations, 
               or any other actions taken.  Also, exempts the board 
               from any fees required under the Vehicle Code 
               "pull-notice" system.  

                                   EXISTING LAW

           Existing law establishes in state government the Board of 
          Pilot Commissioners, with jurisdiction over Monterey Bay 
          and the Bays of San Francisco, San Pablo, and Suisun.  
          Existing law directs the Board to regulate pilotage and 
          provides for the licensing, regulation, and management of 
          pilots in these Bays.  The Board consists of 7 members 
          appointed by the Governor, with the consent of the Senate, 
          as follows:  (1) two members must be licensed pilots; (2) 
          two members must represent the industry and be substantial 
          users of Monterey Bay and any of the waters of the Bays of 
          San Francisco, San Pablo, or Suisun; and, (3) three must be 
          "public" members.  Additionally, the Secretary of Business, 
          Transportation & Housing Agency serves ex officio. The 
          Board currently has no vacancies. 

          The primary functions of the Board include the issuance and 
          renewal of pilot licenses; investigation of ship incidents, 




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          incidents, and misconducts by pilots; taking actions 
          against pilot licensees; operating a pilot continuing 
          education program and a pilot training program; overseeing 
          the administration of the Pilot Pension Plan; and, 
          conducting pilotage rate hearings.

          Existing law prescribes pilotage rates for vessels and 
          requires vessels spoken inward or outward bound to pay a 
          specified rate of bar pilotage through the Golden Gate and 
          into or out of the Bays of San Francisco, San Pablo and 
          Suisun and vessels navigating the waters of Monterey Bay 
          are also required to pay a specified rate.

          Existing law requires the Board to adopt a schedule of 
          pilotage rates applicable to pilots and inland pilots for 
          those operations that are not otherwise provided for under 
          existing law.  Existing law also requires the board to 
          establish a surcharge for each movement of a vessel using 
          pilot services to be used for the pilot and inland pilot 
          continuing education program established by the board.

          Existing law requires the pilots to appoint a port agent to 
          carry out the orders of the board, other applicable laws, 
          and otherwise administer the affairs of the pilots.

          Existing law provides that the board shall have sole 
          authority to determine the qualification for obtaining a 
          pilot's license, and requires the board to adopt, by 
          regulation, licensing standards that equal or exceed 
          standards for obtaining federal endorsements that conform 
          with and support state policy with regard to the safe 
          operation of vessels. 

          Existing law requires that an applicant for a pilot trainee 
          position, or for a pilot license, or a pilot seeking 
          renewal of his or her license to undergo a physical 
          examination by a board-appointed physician, in accordance 
          with prescribed standards, to determine the suitability of 
          a person to perform his or her duties as a pilot.

          Existing law requires the board to adopt training standards 
          and a training program for pilot trainees, and continuing 
          education standards and a continuous education program for 
          pilots.

          Existing law (Section 1808.1 of the Vehicle Code) requires 




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          the prospective employer of a driver who drives a vehicle, 
          as specified, to obtain a report showing the driver's 
          current public record as recorded by the Department of 
          Motor Vehicles, and requires the employer of a driver of 
          such a vehicle to participate in a pull-notice system, as 
          defined.  

          Existing law also requires that a request to participate in 
          the pull-notice system be accompanied by a fee determined 
          by the department to be sufficient to defray the entire 
          actual cost to the department for the notification system, 
          subject to specified fee exemptions.

                                         
                                   BACKGROUND
           
           Brief Historical Perspective:   Bar pilots have been guiding 
          ships into San Francisco Bay, one of the most treacherous 
          passages in the world, since at least 1835.  The work that 
          bar pilots performed was so important that one of the first 
          legislative enactments by the newly formed California 
          Legislature that met in San Jose in 1850 was to address the 
          regulation of bar pilots.

          California's history of piloting parallels to a large 
          extent the history of pilotage throughout the United 
          States.  Prior to the American Revolution, pilotage was 
          regulated by colonial legislatures.  They generally 
          provided for the commissioning of pilots, apprenticeship 
          requirements to become a pilot, specified the type and size 
          of pilot boats used in the service, and established fees to 
          be charged.  When the United States Constitution was 
          adopted, it recognized that pilotage fell within the domain 
          of the federal government because it involved regulation of 
          instruments of foreign commerce.  One of the first acts of 
          the newly formed Congress in 1789 was to recognize the 
          existing state laws regulating pilots and delegate to the 
          states the authority to continue to regulate pilotage 
          because of its unique character.

          Bar pilots are responsible for steering an arriving vessel 
          through the Golden Gate of San Francisco Bay, the Bay 
          waters and adjoining navigable waters, which include San 
          Pablo Bay, Suisun Bay, the Sacramento River and its 
          tributaries.  When a vessel approaches the "SF" buoy 
          several miles west of the Golden Gate Bridge, a bar pilot 




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          boards the ship and takes navigational control.  (Pilots in 
          San Francisco are called "Bar Pilots" because they board 
          and disembark ships just beyond a treacherous sand bar 
          which provides a natural obstacle to shipping.)  It becomes 
          the pilot's responsibility to guide the ship to its berth.  
          The bar pilots provide service to all types of vessels, 
          from 100-foot tugs to 1000-foot supertankers.

           Additional Background Information:   As noted above, the 
          Board of Pilot Commissioners has licensed individuals to 
          pilot vessels in the Bays of San Francisco, San Pablo and 
          Suisun (and the Sacramento and San Joaquin Rivers) for well 
          over 150 years.  Any mariner wanting to become a pilot in 
          the pilotage grounds under the jurisdiction of the Board 
          must apply to participate in the Board's pilot trainee 
          training program.  Eligible candidates must hold a U.S. 
          Coast Guard issued Master's license (1600 tons or greater 
          with a radar observer endorsement), two years of command 
          experience on tugs or deep draft vessels, and pass a 
          written exam and a simulator exam.  Based on cumulative 
          scores from experience, the written exam, and the simulator 
          exam, the top applicants are then put on a ranked list from 
          which trainees are drawn to participate in the training 
          program.  Trainees are brought into the program as needed 
          by attrition and retirement as determined by the Board.  By 
          law, the training program lasts a minimum of one year and a 
          maximum of three years.  When a trainee enters the program, 
          the Board enters into a contract with each trainee, who 
          receives a stipend of $5,000 per month while in the 
          training program.  Trainees who complete the training 
          program and subsequently are licensed may then legally 
          pilot vessels on the waters under the Board's jurisdiction. 
           

          The bar pilots are organized as an unincorporated 
          association, which operates as a business providing 
          pilotage services for the Bays.  The president of the San 
          Francisco Bar Pilots, who is elected by the pilots and 
          confirmed by the Board as Port Agent, assigns pilots to 
          ships and manages the day-to-day operations of the bar 
          pilots.  Once licensed, pilots are required to complete two 
          continuing education training programs every five years - 
          one is a bridge management course and the other is a 
          manned-model training course.

          This particular licensing system is common throughout the 




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          United State, though not universal.  Other western states, 
          such as Oregon, Washington, Alaska and the Canadian 
          Province of British Columbia all have state licensed pilots 
          in their respective pilotage grounds overseen by a state 
          board within the structure of the executive branch of 
          government.  However, other major ports in California have 
          different systems.  For example, pilots in Humboldt Bay, 
          Port Hueneme, the Port of Long Beach, the Port of Los 
          Angeles and the Port of San Diego operate under their 
          federal (U.S. Coast Guard) licenses only.  They receive 
          various levels of oversight and training by local 
          government authorities that are political subdivisions of 
          the county or city. 

           Purpose of SB 1408:   According to the author's office, this 
          measure is intended to strengthen the state's continued 
          promotion and provision of safe navigation in the San 
          Francisco Bay and River system and Monterey Bay.  
          Additionally, SB 1408 is intended to further enhance safety 
          and accountability in the state's existing oversight regime 
          for its licensed pilots - which will, in turn, ensure 
          continued and improved support of California's 
          comprehensive oil spill prevention and response regime, 
          improve public safety navigation, and protect both the 
          environment and California's maritime economy in the 
          process.  

          Proponents of this measure are concerned about issues 
          related to the safety of pilots and the instances in which 
          pilots may be too fatigued or compromised to pilot vessels 
          safely.  Proponents emphasize the fact that the vessel 
          owner remains fully liable for incidents resulting from a 
          pilot's negligence.

          According to the sponsor, the Pacific Merchant Shipping 
          Association, this measure would make the following safety 
          enhancements to pilotage in Monterey Bay, the Bays of San 
          Francisco, San Pablo and Suisun, as well as, the Sacramento 
          and San Joaquin Rivers:   

                 Conforms to National Transportation Safety Board's 
               recommendation that any continuing pilot education 
               training program include the hazards of fatigue and 
               effective strategies to prevent fatigue while on duty.

                 Conforms to the federal Oil Pollution Act of 1990 




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               by providing work hours structure to ensure effective 
               operation of vessels.

                 Conforms to the Business and Professions Code and 
               Medical Board safety provisions relating to 
               information about a pilot trainee's alcohol use or 
               drug use while on the job and other behavior disorders 
               that may impact his/her ability to safely operate a 
               vessel.

                 Provides that if the Board of Pilot Commissioners 
               refuses to issue or renew a license, the Board would 
               be required to use the APA process.

                 Requires the Board of Pilot Commissioners to 
               participate in the DMV pull notice program for all 
               pilot licensees and trainees.  This would allow the 
               Board to be notified if a pilot gets a DUI or if the 
               licensee's driver license is suspended or revoked.

           Arguments in Opposition:   The San Francisco Bar Pilot 
          Association (SFBP) remains opposed to this measure and 
          maintains that minimum work periods and pilot fatigue 
          issues require a thorough review by scientific experts and 
          maritime professionals. The SFBP argues that this measure 
          takes a step in the wrong direction by reducing SFBP's 
          ability to manage its business and labor operations - a 
          system that is safe, efficient and been in place for 
          decades.
           
          The SFBP argues that it currently implements a twelve-hour 
          pilot minimum rest period which is based on a thorough 
          scientific study that takes a San Francisco bar pilot's 
          work schedule into account (versus piloting operations in 
          other jurisdictions).  The SFBP contends that there has not 
          been a fatigue related incident reported for the San 
          Francisco Bay pilotage area - and, as a matter of policy, 
          the SFBP needs flexibility to manage its business 
          operations safely.  The SFBP also claims that the Board is 
          opposed to this measure's codification of work rules and 
          minimum rest proposal because it lacks the proper 
          scientific research to achieve a safe standard that is 
          specific for piloting in the San Francisco Bay. 
           
          The SFBP states that the minimum rest period offered in SB 
          1408 is allegedly in response to the National 




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          Transportation Safety Board (NTSB) investigation of a 
          fatigue related incident at Port Arthur, Texas. However, 
          following the NTSB report, the California Business, 
          Transportation and Housing agency consulted the Board and 
          concluded that SFBP meets the recommended safety objectives 
          proposed by the NTSB report.  The SFBP argues that this 
          measure ignores the findings of both state oversight 
          agencies by proposing a standard this is untested in its 
          application to the work schedule of a San Francisco bar 
          pilot - particularly since the Oil Pollution Act of 1990 
          applies to maritime professionals that operate on entirely 
          different routines.  The SFBP states that "attempting to 
          cut and paste from a system that may (or may not) work for 
          one maritime operation and forcing it onto another is 
          unsafe and ignores the fact that SFBP's current standards 
          are effective."  
           
          Furthermore, the SFBP points out that even though they 
          currently implement a rest period protocol that is above 
          industry standards - they are certainly open to working 
          with the author and other stakeholders to achieve an 
          appropriate rest protocol that is based on careful 
          scientific research and appropriate input by the Board.  In 
          conclusion, the SFBP states that "given the economic value 
          of goods and services carried by ships into the Bay Area 
          and the ever increasing size of those ships - such as the 
          recent visit of the 1200 foot MSC Fabiola - a thorough 
          fatigue study conducted by maritime and scientific experts 
          is a practical and necessary first step.  However, taking a 
          short cut and rushing towards a standard that has not been 
          endorsed by the state's oversight agencies is a dangerous 
          proposal."  

                                         


                           PRIOR/RELATED LEGISLATION
           
           AB 2287 (Swanson) 2011-12 Session.   Among other things, 
          would require that a minimum of 2 pilots be on board a 
          vessel that is subject to the payment of bar pilotage and 
          is inward or outward bound into or out of Monterey Bay, or 
          the Bays of San Francisco, San Pablo, or Suisun if the 
          movement of the vessel involves special circumstances or 
          operations, as described.  (Pending in Assembly Policy 
          Committee)




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          AB 2042 (Huber) 2011-12 Session.   Would sunset, as of 
          01/01/2022 the Board of Pilot Commissioners and transfer 
          its duties to the Secretary of BT&H.  (Pending in Assembly 
          Appropriations Committee)
           
          AB 1025 (Skinner) Chapter 324, Statutes of  2011.   Among 
          other things, required that the Board of Pilot 
          Commissioner's assistant director be appointed by the 
          Secretary of BT&H, instead of the Governor, and that the 
          assistant director to serve in a career executive 
          assignment at the pleasure of the Secretary.  Also, recast 
          certain provisions relating to violations of safety 
          standards to require the executive director instead of an 
          assigned commission investigator to perform investigations, 
          make findings and recommendations and report to the Board 
          and authorized the Board to charge an examination fee, as 
          specified, to each applicant to the pilot trainee training 
          program to cover administrative costs.

           AB 907 (Ma) 2011-12 Session.   Would have made specified 
          changes to various provisions of the Harbors and Navigation 
          Code relating to bar pilotage rates for Monterey Bay and 
          the Bays of San Francisco, San Pablo and Suisun.  (This 
          measure failed passage in Senate G.O. on June 14, 2011 on a 
          6-5 vote, reconsideration was granted. The measure was 
          subsequently gutted on March 19, 2012 to deal with the 
          processing of crushed grapes and was re-referred to the 
          Senate Agriculture Committee)
           
          AB 656 (Huber) 2011-12 Session.   Among other things, would 
          have eliminated the Board of Pilot Commissioners and 
          transferred its duties to the Secretary of BT&H, effective 
          January 1, 2011.  The bill was subsequently amended in the 
          Senate to remove all reference to the Board and its duties. 
           (Vetoed by Governor)
           
          AB 1888 (Ma) Chapter 455, Statutes of 2010.   Among other 
          things, revised the terms for members of the board who are 
          licensed pilots and members who represent the industry and 
          exempted from those pilotage fees and surcharges 
                                                                               noncommercial vessels that are maritime academy training 
          vessels and vessels owned and operated by nonprofit museums 
          or foundations. These vessels would be subject to the board 
          operations surcharge.
           




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          SB 300 (Yee) Chapter 497, Statutes of 2009.    Established a 
          surcharge for payment of navigational aids for bar pilots 
          and revised the pilotage rate based upon the current number 
          of bar pilots.
           
          SB 1627 (Wiggins) Chapter 567, Statutes of 2008.   Made 
          numerous substantive, clarifying and technical changes to 
          the body of law relating to the Board of Pilot 
          Commissioners.  Specifically, injected ongoing and 
          continuous legislative oversight and administrative 
          responsibility within the existing pilot licensing 
          framework, without altering the Board, its charge, or 
          composition and without changing current pilotage rates, 
          pilot pension benefits, or duties and responsibilities of 
          current, past or future licensed pilots.  Also, directed 
          the Bureau of State Audits to conduct a comprehensive 
          performance and financial audit of the Board.

           SB 1217 (Yee) Chapter 568, Statutes of 2008.   Required the 
          Board of Pilot Commissioners to appoint a physician or 
          physicians who are qualified to determine the suitability 
          of a person to perform his or her duties as a pilot, an 
          inland pilot, or a pilot trainee in accordance with 
          specified requirements.  Also, required the Board to 
          terminate a pilot trainee or suspend or revoke the license 
          of a pilot or an inland pilot who fails to submit the 
          prescribed medication information required by these 
          provisions.  

           AB 852 (Leno) Chapter 129, Statutes of 2005.   Among other 
          things, authorized revenue generated by the pilot boat 
          surcharge to be used to pay for pilot boat design and 
          engineering modifications intended to extend the service 
          life of existing boats, in addition to the existing purpose 
          of purchasing new pilot boats.
           
          SB 1303 (Torlakson) Chapter 560, Statutes of 2004.   Made a 
          minor change to an existing provision of law relative to 
          representation on the Board of Pilot Commissioners by 
          clarifying that the Board's two industry members must be 
          substantial users of any of the waters of the Bays of San 
          Francisco, San Pablo, Suisun, or Monterey.

           SB 1353 (Perata) Chapter 765, Statutes of 2002.   
          Established a schedule of incremental changes (through 
          January 1, 2006) to the rates and special surcharges that 




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          bar pilots may impose on vessels that move in and out of 
          the Bays of San Francisco, San Pablo and Suisun.  

          SB 637 (McPherson) Chapter 177, Statutes of 2001.   Allowed 
          San Francisco bar pilots to pilot commercial vessels 
          calling on ports in "Monterey Bay" by including Monterey 
          Bay within the system of state regulated pilotage for the 
          Bays of San Francisco, San Pablo and Suisun.  

          SB 2177 (McPherson) 1999-2000 Session.   Would have applied 
          existing provisions of law relative to the regulation, 
          licensing, and management of pilots for the Bays of San 
          Francisco, San Pablo and Suisun to persons who pilot 
          vessels into or out of the waters of Monterey Bay.  (Held 
          in Assembly policy committee at author's request) 
           SB 2144 (Perata) Chapter 394, Statutes of 2000.   Made 
          various modifications to provisions of law governing the 
          licensing of bar pilots.  
          
           SB 1109 (Burton) Chapter 786, Statutes of 2000.   Among 
          other things, required a vessel owner and its operators to 
          defend, indemnify, and hold harmless, a bar pilot from any 
          liability and expenses in connection with any civil claim 
          suit as action arising out of the pilot's performance of 
          the pilotage services, except for acts of willful 
          misconduct.  
           
          AB 951 (Wiggins) Chapter 261, Statutes of 1999.  Codified 
          the agreement on bar pilot rate increases reached between 
          the San Francisco Bar Pilots and the Pacific Merchant 
          Shipping Association.
           
          SB 1741 (Johnston) Chapter 1115, Statutes of 1996.   Among 
          other things, established a schedule of bar pilotage rate 
          increases that were phased in over a three-year period 
          (1997-99).

           SB 496 (M. Thompson) Chapter 711, Statutes of 1995.   
          Revised the formula the fiduciary uses to calculate the 
          quarterly adjustment for pilotage rates.  Also, changed the 
          schedule of pilotage fees for ship movements and internal 
          operations, as specified.
           
          SB 2068 (Johnston) Chapter 385, Statutes of 1994.   
          Increased the pilotage rate from 60.70 mills to 64.88 mills 
          and required the board to temporarily reduce the additional 




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          charge, as specified, if maintenance and repair costs of 
          two pilot boats are less than $200,000.
           
          SB 238 (Lockyer) Chapter 1192, Statutes of 1993.   Increased 
          the rate of the additional pilotage charge from 60.56 mills 
          per high gross registered ton to 60.70 mills.  Also, 
          included inland pilots, as defined, in the pension benefit 
          program. 

           AB 1768 (Papan) Chapter 1653, Statutes of 1984.   Among 
          other things, established a unified system of state 
          regulated pilotage whereby inland pilots became members of 
          the San Francisco Bar Pilots Association and the combined 
          group assumed joint responsibility for all pilotage moves 
          on the pilotage grounds (e.g., San Francisco, San Pablo, 
          and Suisun Bays and all other ports included therein.)  
           
           AB 1061 (Agnos) Chapter 1306, Statutes of 1983.   Increased 
          pilotage rates and pension benefits, as specified.

           AB 2027 (Felando) 1983 Session.   Among other things, would 
          have created three classes of pilots (pilots, inland 
          pilots, and company pilots) and would have repealed 
          existing law relative to the Legislature establishing 
          pilotage rates.  (Held in this Committee at author's 
          request)
           
           AB 3603 (Brown, W.) 1982 Session.   Would have provided a 
          unified system of state regulated bar and inland pilotage.  
          (Dropped at author's request in Senate Finance Committee)
          
           SUPPORT:   As of April 20, 2012:

          Pacific Merchant Shipping Association
          Matson Navigation Company
          Save The Bay

           OPPOSE:   As of April 20, 2012:

          San Francisco Bar Pilots

           FISCAL COMMITTEE:   Senate Appropriations Committee

                                   **********






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