BILL ANALYSIS �
Bill No: AB
2042
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2011-2012 Regular Session
Staff Analysis
AB 2042 Author: Huber
As Introduced: February 23, 2012
Hearing Date: June 12, 2012
Consultant: Art Terzakis
SUBJECT
Bar Pilots: Monterey Bay and the Bays of San Francisco, San
Pablo and Suisun
DESCRIPTION
AB 2042 sunsets, as of January 1, 2022, the Board of Pilot
Commissioners and transfers, as of that date, the Board's
duties to the Secretary of Business, Transportation and
Housing.
EXISTING LAW
Existing law establishes the Joint Legislative Sunset
Review Committee to identify and eliminate waste,
duplication, and inefficiency in government agencies and to
conduct a comprehensive analysis of every "eligible agency"
to determine if the agency is still necessary and cost
effective.
Existing law requires each eligible agency scheduled for
repeal to submit a report to the Committee containing
specified information and requires the Committee to take
public testimony and evaluate the eligible agency prior to
the date the agency is scheduled to be repealed. The law
requires that an eligible agency be eliminated unless the
Legislature enacts a law to extend, consolidate, or
reorganize the agency.
Existing law establishes in state government the Board of
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Page 2
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,
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
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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.
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
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several miles west of the Golden Gate Bridge, a bar pilot
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.
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
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 AB 2042: The author's office notes that the
Legislature creates new boards, commissions, agencies and
departments to solve a problem, but far too often there is
no ongoing oversight of a newly created bureaucracy to
ensure it actually solved the problem it was created to
solve. The author's office believes that this systematic
dysfunction can be fixed by conducting comprehensive,
regular review of state government to ensure taxpayer
dollars are being used wisely.
The author's office also references a1989 report conducted
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by the Milton Marks "Little Hoover" Commission on
California State Government Organization and Economy
entitled, "Boards and Commissions: California's Hidden
Government," which found that, California's multi-level,
complex governmental structure includes more than 400
boards, commissions, authorities, associations, councils
and committees. These plural bodies operate to a large
degree autonomously and outside of the normal checks and
balances of representative government. The Little Hoover
Commission concluded that "the state's boards, commissions
and similar bodies are proliferating without adequate
evaluation of need, effectiveness and efficiency."
The author's office states that the Board of Pilot
Commissioners has been in continuous existence for over 150
years yet has never been subjected to external review until
2009, when the California Bureau of State Audits (BSA)
conducted a comprehensive review of the Board's performance
and finances. The author indicates that after BSA
criticized the Board's administrative and regulatory
functioning, it responded promptly to the report and began
reforming many of its operations.
The author's office also notes that the Joint Sunset Review
Committee (JSRC) provided a review of the Board and
submitted a report at their hearing on February 15, 2012.
In the course of their sunset review, the JSRC staff
determined that the Board "continues to be a necessary
regulatory agency for the state-licensed bar pilots, and
has suggestions to increase its cost effectiveness and
transparency."
The author's office states that AB 2042 would simply
establish a January 1, 2022 sunset date for the Board that
will trigger the next JSRC sunset review prior to that
January 1, 2022 date. The author's office indicates that
such action is consistent with current law.
Arguments in Support: Writing in support, the Pacific
Merchant Shipping Association (PMSA) states that "it is
clearly the intent of this bill to simply establish the
standard sunset review process for the Board, and, further
still, under no circumstances would this bill eliminate
state pilotage since it clearly delineates the rules for
pilotage in the event of sunset, and maintains that state
licensed pilots maintain their exclusive authority to pilot
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vessels."
PMSA does raise technical concerns with portions of the
bill relative to the Governor's proposed reorganization
plan (GRP 2) and where the licensing duties might be housed
if the Board is sunset. PMSA, however, claims that "these
issues are not of a nature that should influence anyone's
support for the transparency and accountability that come
with a comprehensive sunset review process as proposed in
AB 2042."
Arguments in Opposition: Writing in opposition, the San
Francisco Bar Pilots state that "elimination of the Board
would end the balance in administering this vital public
safety function. AB 2042 could potentially end the
participation of pilots and shipping industry members in
policy and decision making which may remove the marine
expertise necessary to the administration of the licensing
program and create the same unregulated environment that
existed prior to the Board's creation in 1850."
Additionally, the Bar Pilots argue that the Board recently
considered AB 2042 at a public hearing and its
commissioners overwhelmingly opposed AB 2042 on a 6-1 vote.
Furthermore, the Bar Pilots reference the fact that last
year the Governor vetoed AB 656 (Huber) which proposed to
repeal certain boards and commissions and cite the
Governor's veto message which stated, "this bill delegates
solely to a legislative committee decisions on whether and
for how long certain state commissions should exist. I
don't think this is the best way to eliminate boards and
commissions. I will work with the author to fashion a
better process."
The Bar Pilots believe that AB 2042 runs counter to the
Governor's position articulated in the veto message as well
as his proposal to retain the Board as outlined in the GRP
2.
Staff Comments: This measure does not conform to the
restructured Executive Branch as envisioned by GRP 2, which
eliminates the BT&H Agency and replaces it with a new
Transportation Agency. GRP 2 places the Board of Pilot
Commissioners under the jurisdiction of the new
Transportation Agency.
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Page 7
PRIOR/RELATED LEGISLATION
Governor's Reorganization Plan 2 (GRP 2 - Brown, of 2012).
Would provide for a major reorganization and recasting of
the Executive Branch of California's government which,
pursuant to the Constitution and statute, is the
prerogative of the Governor to do from time to time. Among
other things, the GRP would reduce the total number of
agencies from 12 to 10 and consolidate and reassign the
placement of various departments thereunder. It would
eliminate the BT&H Agency and disperse its components,
including the Board of Pilot Commissioners, to other
agencies, such as the new Transportation Agency. (If
neither the Senate nor the Assembly rejects GRP 2 by July
2, 2012, it becomes effective July 3, 2012 and operative on
July 1, 2013.)
SB 1408 (Blakeslee) 2011-12 Session. Would revise working
and training requirements for bar pilots for Monterey Bay
and the Bays of San Francisco, San Pablo and Suisun, as
specified. (Pending in Assembly policy committee)
AB 2287 (Swanson) 2011-12 Session. Would state the intent
of the Legislature to enact legislation that would require
a 2nd bar pilot for safety in the San Francisco Bay and its
tributaries for ultra large container vessels, and what the
appropriate compensation is for the 2nd pilot. (Held in
Assembly Appropriations Committee at author's request)
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
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Page 8
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.
AB 1659 (Huber) Chapter 666, Statutes of 2010. Established
the Joint Sunset Review Committee to identify and eliminate
waste, duplication, and inefficiency in government agencies
and to conduct a comprehensive analysis of every eligible
agency, as defined, to determine if the agency is still
necessary and cost effective. The commission is authorized
to review only those government agencies for which statute
has established a sunset date.
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
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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
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
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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
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
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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 June 8, 2012:
Pacific Merchant Shipping Association
OPPOSE: As of June 8, 2012:
San Francisco Bar Pilots
FISCAL COMMITTEE: Senate Appropriations Committee
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