NAVIGATION COMMISSION FOR THE DELAWARE RIVER AND ITS NAVIGABLE TRIBUTARIES
[ 4 PA. CODE CH. 405 ]
[43 Pa.B. 1850]
[Saturday, April 6, 2013]
The Navigation Commission for the Delaware River and Its Navigable Tributaries (Commission) proposes to amend §§ 405.7, 405.8 and 405.12 (relating to qualifications for license; physical examination qualifications; and renewal of license) and add § 405.36 (relating to Federal license) to read as set forth in Annex A.
The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
The Commission has authority to promulgate regulations under section 4 of the act of March 29, 1803 (act) (P. L. 542, 4 Sm.L. 67) (55 P. S. § 31) and section 2504-B(4) of The Administrative Code of 1929 (71 P. S. § 670.2(4)).
Background and Purpose
In the United States, there is a concurrent system of licensing for pilots established by Federal and state law. The history of pilot regulation in the United States dates back to when the colonies had exclusive power over pilot regulation, including when vessels entering their waters were required to employ a pilot. With the expansion of the maritime industry in the United States, the Federal government eventually adopted uniform regulations to promote safe passage of vessels along the coast and through bays, rivers, harbors and ports.
In promulgating the Federal regulations, however, the Federal government essentially determined that the existing state regulations efficiently served this purpose for inland waterways (rivers, bays, harbors and ports). Under the current Federal and state regulations, registered vessels engaged in foreign trade under foreign flags shall employ a state-licensed pilot and enrolled domestic vessels under the United States flag engaged in coastal trade shall employ a Federally-licensed pilot. If a pilot has both a state and Federal license, that pilot can then pilot either type of vessel, although there are significantly fewer United States flag vessels. Federal pilot licensing law essentially permits the states to adopt their own regulations concerning the licensing of pilots. Federal law concerning pilotage preempts a conflicting state law under the Supremacy Clause of the U.S. Constitution (U.S. Const. art. VI, cl. 2).
One of the major purposes of this proposed rulemaking is to bring consistency to different sections of the Commission's regulations. Currently, § 405.7(c)(3) requires an apprentice to acquire a Federal pilot's license before obtaining a sixth-class license in this Commonwealth. The proposed rulemaking would require licensed pilots in this Commonwealth to maintain a Federal pilot's license, thereby making it consistent with this current requirement.
When a pilot is initially licensed in this Commonwealth, he becomes a pilot of the sixth-class and works his way up through the various classes of licensure each year to become a first-class pilot. Under section 17(a) of the act (55 P. S. § 42(a)), a sixth-class pilot may pilot smaller vessels that draw only 25 feet of water or less, while pilots of the fifth-class through the first-class may pilot increasingly larger vessels. There is not a limit on the depth of water for a vessel that a first-class pilot may command.
Currently, licensed pilots in this Commonwealth also hold Federal pilot's licenses due not only to the regulation for sixth-class pilots but also due to the past custom and practice of the Pilots' Association for the Bay and River Delaware, to which Pennsylvania and Delaware licensed pilots belong as members. Therefore, this proposed rulemaking also recognizes the current practice of pilots in this Commonwealth. In addition, when pilots in this Commonwealth renew their licenses annually, they submit a copy of their Federal pilot's licenses to the Commission because § 405.12(a)(1) currently requires an applicant for renewal of a State license to have satisfied the requirements of § 405.7(a)(1)—(6) and (8). One of the qualifications for license in § 405.7(a)(5) is to have been qualified as a radar observer as evidenced by either a radar observer endorsement on a current Federal pilot's license or a certificate issued by a United States Coast Guard-approved authority reflecting that the certificate- holder satisfactorily completed a course of instruction for radar observers within 5 years of the date of application. Because pilots in this Commonwealth also hold Federal pilot's licenses, these pilots submit a copy of their Federal pilot's licenses (with a radar observer endorsement) to satisfy the requirements of §§ 405.7(a)(5) and 405.12(a)(1).
The proposed rulemaking is also needed to update obsolete provisions of the regulations. The United State Coast Guard has changed the names of its reports and the proposed amendments refer to the new names of the reports as well as provide for possible future name changes by referring to successor forms of the reports. Furthermore, current requirement in § 405.7(b)(2) for an interview for a first-time applicant for a first-class pilot's license requires the applicant to appear before the Commission for a personal interview. An interview is no longer necessary due to an initial interview when an individual applies to be an apprentice, as well as due to the training and examinations that occur while an individual is an apprentice. Once an apprentice becomes a sixth-class pilot, he obtains practical experience on increasingly larger vessels as he moves progressively each year through the six classes of licensure in this Commonwealth.
Finally, the proposed rulemaking is needed to make the regulations consistent with the regulations of the United States Coast Guard, Delaware (whose pilots are also licensed to pilot vessels on the Delaware River) and other states with similar state commissions (including Connecticut, Maine, Massachusetts, New Hampshire, New Jersey and New York). In fact, the 24 coastal states require state-licensed pilots to hold a Federal pilot's license, either by state statute, state regulation or localpilot association rule or practice. For a discussion of the history and requirements of both Federal and state pilotage regulation, see Paul G. Kirchner and Clayton L. Diamond (2010-11), ''Unique Institutions, Indispensable Cogs, and Hoary Figures: Understanding Pilotage Regulation in the United States,'' U.S.F. Maritime Law Journal, 23 (1), 168, 199.
Description of Proposed Rulemaking
§ 405.7. Qualifications for license
The Commission proposes to amend § 405.7(a)(3) to enhance public safety and to bring consistency with the regulations in Delaware, whose pilots are also licensed to pilot vessels on the Delaware River. The proposed amendment to § 405.7(a)(3) will require apprentices and renewing pilots (under § 405.12(a)(1)) to have a physical exam within 120 days (4 months) of the date of application or renewal. The Commission proposes this change from 6 months to 4 months to be consistent with regulations of the Delaware Board of Pilot Commissioners, which requires a physical exam within 120 days (24 Del.C. § 1000-6.0), and to provide for increased public safety.
Proposed amendments to § 405.7(a)(3) would require apprentices and pilots to use the current United States Coast Guard's Merchant Mariner Credential Medical Evaluation Report (medical report), which is nine pages of detailed medical questions, requirements and examination procedures in contrast to the current one-page form required by the Commonwealth. The increasing scrutiny provided in the United States Coast Guard's medical report will promote public health and safety by requiring pilots to undergo more rigorous health screening. This amendment also brings the regulation into conformity with Delaware, which already requires pilots who renew their licenses to use the Coast Guard's medical report. Because licensed pilots in this Commonwealth also hold active Federal pilot's licenses, most pilots already submit the United States Coast Guard's medical report with their license renewal information. Finally, § 405.7(a)(3) would be amended to update the name of the United States Coast Guard's medical report to its current name. The Commission proposes to retain the reference to the ''current or successor form'' in the event of further changes to the name of the United States Coast Guard's medical report.
The Commission also proposes to amend § 405.7(a)(6) to change the time frame for the completion of a Commission-approved course in bridge resource management (BRM) from 3 to 5 years of the date of application or renewal to correspond to the Delaware regulations (24 Del.C. § 1000-5.7). According to the American Pilots' Association (APA), this subject matter does not change often enough to require a new course every 3 years. The APA recommends that the renewal courses focus on developments in the BRM field over the preceding 5 years as a result of accidents, research, developments in technology and information resources and regulatory changes. Furthermore, this change is consistent with the requirement in § 405.7(a)(5) requiring a licensee to have been qualified as a radar observer by completing a course of instruction for radar observers within 5 years of the date of application or renewal. The current BRM course approved by the Commission is a 2-day course and includes the following topics: an overview of BRM; situational awareness; communications; risk management; regulatory requirements; best practices in specific areas; an examination of recent accidents; new practices and technology; and studies dealing with BRM.
Proposed amendments to § 405.7(a)(10) require a pilot in this Commonwealth to hold an active Federal license before initially acquiring a Pennsylvania license and before renewing a Pennsylvania pilot's license, as Delaware requires. As previously noted, the United States Coast Guard's requirements for its current medical report are much more detailed and stricter than the current medical examination in this Commonwealth. As stated in section 4(c) and (d) of the United States Coast Guard's Navigation and Vessel Inspection Circular (NVIC) (No. 04-08, 2008), the specific requirements in the medical report reduce the subjectivity of the physical and medical evaluation process and promote more consistent evaluations, thereby resulting in a fairer process for pilots. As stated in section 5(b) of the NVIC, the United States Coast Guard believes that its detailed and stricter medical standards are necessary because ''service on vessels may be arduous and impose unique physical and medical demands on mariners. The public safety risks associated with the medical and physical conditions of mariners on vessels are important considerations for the safe operation of vessels.'' Because the United States Coast Guard Federal medical requirements for a physical examination are stricter and more detailed than the current state requirements, the proposed rulemaking protects the public health, safety and the environment by ensuring that pilots are medically fit for duty. Licensed pilots in this Commonwealth steer oil tankers up and down the Delaware River. Pilots medically fit for duty protect the environment in and along the Delaware River and the beaches along the coast of the Atlantic Ocean.
Currently, § 405.7(b)(2) requires a first time applicant for a first-class pilot's license to appear before the Commission for a personal interview. The Commission proposes to delete this requirement. When applicants for apprenticeships are selected, they appear before the Apprentice Committee of the Commission, comprised of three members of the Commission. Apprentices receive extensive training and pass an intensive examination to become a sixth-class pilot. Individual pilots also obtain practical experience on smaller vessels as they move from sixth-class pilots up through the pilotage classes each year from sixth-class to first-class pilots. Pilots are required to pilot at least 52 vessels a year to renew a license. Therefore, the Commission determined that an interview for a first-time applicant for a first-class license is no longer necessary and should be removed.
The remaining proposed amendments in § 405.7(b) are editorial. Also, because the date of July 6, 2004, referenced in § 405.7(b)(1) has already passed it is proposed to be deleted from § 405.7(b).
§ 405.8. Physical examination qualifications
The Commission proposes to amend § 405.8 to change the name of the United States Coast Guard's medical report to its current name, or the successor form, if the name changes in the future. The Commission is also proposing a requirement that each pilot report to the Commission a pilot's request for waiver from the United States Coast Guard for any medical condition and report in 5 business days to the Commission the United States Coast Guard's decision on a waiver. The new language isconsistent with Delaware's regulation in 24 Del.C. § 1000-6.0. This requirement would keep the Commission apprised of changes in the medical status of a pilot licensed in this Commonwealth.
§ 405.12. Renewal of license
Proposed amendments to § 405.12(a)(1) update the cross reference to § 405.7(a)(1)—(6), (8) and (10), thereby requiring that these requirements for apprentices who seek a Pennsylvania license for the first time also apply to licensed pilots seeking license renewal, including the new requirement to hold and maintain an active Federal license.
The Commission proposes to add subsection (c) to provide notice that failure to satisfy the requirements of § 405.7(a)(1)—(6), (8) and (10) may result in the pilot's Pennsylvania license not being renewed until receipt of documentation necessary to assure compliance with the requirement in question. The necessary documentation will vary depending on which requirement has not been satisfied. This amendment is necessary to clarify that a Pennsylvania pilot's license may result in the license not being renewed, at the Commission's discretion, if the pilot does not hold an active Federal license at the time of license renewal.
§ 405.36. Federal license
The Commission proposes to add this section for requirements pertaining to a Federal license. In subsection (a), the Commission requires disclosure within 14 calendar days if the United States Coast Guard suspends, revokes or accepts the voluntary deposit or voluntary surrender of a pilot's Federal license. Under 46 CFR 5.201 (relating to voluntary deposits in event of mental or physical incompetence), a pilot may voluntarily deposit a Federal license in the event of a physical or mental condition or impairment under a ''voluntary deposit agreement.'' Under a voluntary deposit agreement, a pilot places his Federal license in inactive status and may not perform duties on a merchant vessel of the United States during the time that the Federal license is inactive. A pilot may request the return of a voluntarily deposited license at any time provided he can demonstrate a satisfactory rehabilitation or cure of the condition that led to the voluntary deposit. A pilot may elect to voluntarily surrender a Federal license under 46 CFR 5.203 (relating to voluntary surrender to avoid hearing) instead of appearing at a disciplinary hearing. However, a voluntary surrender is the equivalent of a revocation and the pilot shall apply for issuance of a new credential under 46 CFR 5.901—5.905 (relating to issuance of new credential or endorsement after revocation or surrender).
The new disclosure requirements will keep the Commission apprised of changes in the status of a pilot's Federal license. This language is also consistent with practices among the other professional and occupational licensing boards within the Department of State. Eighteen of the 29 licensing boards and commissions in the Bureau of Professional and Occupational Affairs have some form of self-reporting in their licensing statutes for licenses that are inactive or disciplinary action taken against licensees in other states.
Proposed § 405.36(b) makes it clear that the Commission will provide a state pilot with notice and an opportunity for a hearing if the pilot's Federal license is suspended, revoked, voluntarily surrendered or voluntarily deposited. This proposed subsection is based on section 31(c) of the act (55 P. S. § 72(c)), which requires notice and an opportunity to be heard before a pilot's state license is restricted, suspended or revoked.
The proposed rulemaking should not have fiscal impact on the Commonwealth, the general public or political subdivisions. There is a cost savings to the Commission's licensees. Although Pennsylvania licensed pilots have a Federal license by current practice, the cost of a Federal license is $95 every 5 years for a cost of $760 per year for the 40 licensed pilots of the first-class through fifth-class. This cost is more than offset by the cost savings to Pennsylvania licensed pilots, who will be required to take the course in BRM every 5 years instead of every 3 years. The cost of this 2-day course is $960 per pilot. The estimated annual cost savings to the regulated community resulting from reducing the frequency of the required course is $5,248. Subtracting the costs of $760 from the savings of $5,248, this will result in a net cost savings of $4,488 every year for the regulated community of Pennsylvania licensed pilots.
The proposed rulemaking does not create additional paperwork for the Commission, its licensees or the general public. The proposed rulemaking confirms the present practices of the Commission's licensees.
The Commission continuously monitors its regulations. Therefore, a sunset date has not been assigned.
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 21, 2013, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Interested persons should submit written comments, suggestions or objections regarding this proposed rulemaking to Barbara Dupler, Commission Administrator, Navigation Commission for the Delaware River and Its Navigable Tributaries, 302 North Office Building, Harrisburg, PA 17120, email@example.com within 30 days of publication in the Pennsylvania Bulletin. When submitting comments, reference No. 16A-663, Navigation Commission General Revisions.
Secretary of the Commonwealth
Chairperson, Navigation Commission for the Delaware River and Its Navigable Tributaries
Fiscal Note: 16A-663. No fiscal impact; (8) recommends adoption.
TITLE 4. ADMINISTRATION
PART XIII. NAVIGATION COMMISSION FOR THE DELAWARE RIVER AND ITS NAVIGABLE TRIBUTARIES
CHAPTER 405. PILOTS AND PILOTAGE
§ 405.7. Qualifications for license.
(a) An applicant for the initial issuance of a pilot's license in any class shall:
* * * * *
(3) Have passed a physical examination within [6 months] 120 days of the date of application based on the requirements of § 405.8 (relating to physical qualifications), as evidenced by a physician's statement. As proof of a physical examination, [pilots may] apprentices and pilots shall submit the current or successor form of the ''Merchant [Marine Personnel Physical Examination] Mariner Credential Medical Evaluation Report'' of the United States Coast Guard. Physical examinations may also be ordered by the Commission for any pilot or applicant at any time that there is cause to believe that the physical condition of the pilot or applicant may be so impaired as to impact the pilot or applicant's ability to discharge his duties.
* * * * *
(6) Have completed a Commission-approved course in bridge resource management within  5 years of the date of application or renewal.
* * * * *
(9) Pay the required license fee, as specified in § 405.15 (relating to initial license and license renewal fee).
(10) Hold and maintain an active Federal first-class pilot's license and endorsement for the routes to be traversed, unless waived by the Commission.
(b) In addition to meeting the requirements of subsection (a), a first-time applicant for a first-class pilot's license shall[:
(1) Have] have completed 40 hours of Commission-approved continuing education in navigation, ship handling or related topics within the preceding 5 years. Courses in the required areas of radar observer, ARPA and bridge resource management may count towards the 40-hour total. The Commission will approve the education facilities that qualify to provide this education. [This continuing education requirement becomes effective July 6, 2004.
(2) Have appeared before the Commission for a personal interview.]
* * * * *
§ 405.8. Physical examination qualifications.
The physical qualifications for a pilot or apprentice are as follows:
* * * * *
(3) The absence of any medical condition that may directly affect one's ability to pilot a ship safely, as noted on the current or successor form of the ''Merchant [Marine Personnel Physical Examination] Mariner Credential Medical Evaluation Report'' of the United States Coast Guard. A pilot shall report to the Commission concerning the pilot's request for a waiver under 46 CFR 10.215(g) (relating to medical and physical requirements) from the United States Coast Guard for any medical condition, as well as the results of a waiver request. The initial report to the Commission shall be made at the same time that the waiver request is made to the United States Coast Guard. A copy of the United States Coast Guard's decision on the waiver request shall be provided to the Commission within 5 business days of the pilot's receipt of the waiver decision.
§ 405.12. Renewal of license.
(a) An applicant for renewal of a pilot's license in any class shall:
(1) Have satisfied the requirements of § 405.7(a)(1)—(6) [and], (8) and (10) (relating to qualifications for license).
(2) Pay the required renewal fee, as specified in § 405.15 (relating to initial license and license renewal fee).
(b) In addition to meeting the requirements of subsection (a), an applicant for renewal of a first class pilot's license shall have completed 40 hours of Commission-approved continuing education in navigation, ship handling or related topics within the preceding 5 years. Courses in the required areas of radar observer, automatic radar plotting aids (ARPA) and bridge resource management may count towards the 40-hour total. The Commission will approve the education facilities that qualify to provide this education. This continuing education requirement shall become effective July 6, 2004.
(c) Failure to satisfy any of the requirements of § 405.7(a)(1)—(6), (8) and (10) may result in the license not being renewed by the Commission until receipt of documentation to assure compliance with the requirement in question.
(Editor's Note: The following section is new and printed in regular type to enhance readability.)
§ 405.36. Federal license.
(a) A pilot shall notify the Commission within 14 calendar days if the United States Coast Guard suspends or revokes a pilot's Federal license or when a pilot voluntarily deposits or voluntarily surrenders his Federal license with the United States Coast Guard under 46 CFR 5.201—5.205 (relating to deposit or surrender of Coast Guard credential or endorsement), thereby making the pilot's Federal license inactive.
(b) If the United States Coast Guard suspends, revokes or accepts the voluntary deposit or voluntary surrender of the license of a Federal pilot, the Commission may, after notice and an opportunity for a hearing in accordance with 2 Pa.C.S. §§ 501—508 and 701—704 (relating to Administrative Agency Law), revoke, suspend, limit or otherwise restrict the pilot's state license.
[Pa.B. Doc. No. 13-610. Filed for public inspection April 5, 2013, 9:00 a.m.]
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