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. SB 1408 (Blakeslee) continued Page 2 (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 SB 1408 (Blakeslee) continued Page 3 (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, SB 1408 (Blakeslee) continued Page 4 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 SB 1408 (Blakeslee) continued Page 5 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 SB 1408 (Blakeslee) continued Page 6 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 SB 1408 (Blakeslee) continued Page 7 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 SB 1408 (Blakeslee) continued Page 8 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 SB 1408 (Blakeslee) continued Page 9 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) SB 1408 (Blakeslee) continued Page 10 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. SB 1408 (Blakeslee) continued Page 11 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 SB 1408 (Blakeslee) continued Page 12 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 SB 1408 (Blakeslee) continued Page 13 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 ********** SB 1408 (Blakeslee) continued Page 14