BILL ANALYSIS �
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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