RULES AND REGULATIONS
Title 4—ADMINISTRATION
NAVIGATION COMMISSION FOR THE DELAWARE RIVER AND ITS NAVIGABLE TRIBUTARIES
[ 4 PA. CODE CH. 405 ]
General Revisions
[44 Pa.B. 485]
[Saturday, January 25, 2014]The Navigation Commission for the Delaware River and its Navigable Tributaries (Commission) amends §§ 405.7, 405.8 and 405.12 (relating to qualifications for license; physical examination qualifications; and renewal of license) and adds § 405.36 (relating to Federal license) to read as set forth in Annex A.
Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
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
The main purpose of this final-form rulemaking is to require applicants for a pilot's license in this Commonwealth, as well as all licensed pilots who renew their licenses, to hold and maintain a Federal pilot's license. One of the major purposes of this final-form rulemaking is to bring consistency to different sections of the Commission's regulations. Section 405.7(c)(3) requires an apprentice to have acquired a Federal pilot's license before obtaining a sixth-class license in this Commonwealth, which is the initial license for a State pilot. This final-form rulemaking requires licensed pilots in this Commonwealth (who work their way up through the six licensure classes commanding vessels of increasing depth) to maintain a Federal pilot's license, thereby making it consistent with the current requirement for sixth-class pilots.
This final-form rulemaking also makes the Commission's regulations consistent with the regulations of 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, all 24 coastal states require all state-licensed pilots to hold a Federal pilot's license, either by statute, regulation, or local pilot association rule or practice. Likewise, licensed pilots in this Commonwealth also hold a Federal pilot's license for three reasons. First, under the current Federal and State regulations, registered vessels engaged in foreign trade under foreign flags must employ a State-licensed pilot to traverse the Delaware River, and enrolled domestic vessels under the United States flag engaged in coastal trade along the Atlantic seacoast and Gulf of Mexico must employ a Federally-licensed pilot. Thus, having a Federal license gives a pilot greater flexibility in the vessels that a pilot is able to command. Second, sixth-class pilots who are required to hold a Federal license generally continue to maintain their Federal license. Third, the past and current custom and practice of the Pilots' Association for the Bay and River Delaware, to which Pennsylvania and Delaware licensed pilots belong as members, require pilots to have both Federal and State pilot licenses. Therefore, this final-form rulemaking also recognizes the current practice of licensed pilots in this Commonwealth.
Another main reason why the Commission is adopting this final-form rulemaking is to protect the public health and safety. Pilots who command vessels, including oil tankers, traversing the Delaware River must be ever vigilant in their duties and maintain high physical standards. A marine accident can adversely affect the environment of not only the Delaware River but also the Chesapeake Bay, thereby affecting the commerce of the region as well as the Commonwealth. The amendments to §§ 405.7(a)(3) and 405.8(3) 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 physician's statement required by the Commission. The increased scrutiny provided in the United States Coast Guard's medical report will promote public health and safety by requiring pilots to undergo rigorous health screening. The amendment to § 405.7(a)(3) increases public health and safety by providing that a pilot's physical examination shall now occur within 120 days (4 months) of the pilot's annual renewal of the pilot's license, instead of 6 months.
The final-form rulemaking is also needed to update obsolete provisions of the Commission's regulations. The United States Coast Guard has changed the names of its reports and the regulations use the new names of the reports as well as provide for possible future name changes by referring to successor forms of the reports. Furthermore, the former 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, the pilot obtains practical experience on increasingly larger vessels while moving progressively each year through the six classes of licensure. The Commission is also amending § 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, this subject matter does not change often enough to require a new course every 3 years.
Summary of Comments and the Board's Response
The Board published a proposed rulemaking at 43 Pa.B. 1850 (April 6, 2013) with a 30-day public comment period. The Commission did not receive comments from the public, the Senate Consumer Protection and Professional Licensure Committee (SC/PLC) or the House Professional Licensure Committee (HPLC).
The Independent Regulatory Review Commission (IRRC) submitted two comments on June 5, 2013. IRRC suggested for clarity that the Commission delete the date that the continuing education requirements in § 405.12(b) became effective, which occurred on July 6, 2004. IRRC noted that the Commission had deleted the same date in § 405.7(b)(1) because the date has already passed. Therefore, the Commission deleted this date in § 405.12(b) to address IRRC's comment.
IRRC's second comment, which was also made for clarity, noted that § 405.36(b) provides that if a pilot's Federal license is suspended, revoked or surrendered (that is, inactive), then the Commission may revoke, suspend, limit or otherwise restrict the pilot's State license, but the Commission's action is discretionary, not mandatory. IRRC asked the Commission to explain how § 405.36(b) is consistent with § 405.7(a)(10), which requires an applicant for a pilot's license to hold and maintain an active Federal pilot's license and § 405.12(a)(1), which requires an applicant renewing a pilot's license to satisfy the requirements in § 405.7(a)(10).
As IRRC correctly noted in its second comment, 2 Pa.C.S. § 504 (relating to hearing and record) requires all State agencies, including the Commission, to provide notice and an opportunity for a hearing before taking actions against a pilot's State license. In addition, section 31(c) of the act (55 P. S. § 72(c)) also contains this requirement. Thus, a pilot has a separate property right in both the pilot's State and Federal license.
To preserve a pilot's property right in his State license, follow the requirements of law and address IRRC's request for consistency with the regulatory requirements to hold and maintain a Federal license, the Commission revised § 405.7(a)(10). Previously, this section stated that an applicant shall ''hold and maintain an active Federal first-class pilot's license and endorsement for the routes to be traversed, unless waived by the Commission.'' (Emphasis added.) In contrast, the final-form rulemaking states that an applicant shall ''hold and maintain an active Federal first-class pilot's license and endorsement for the routes to be traversed, unless otherwise ordered by the Commission.'' (Emphasis added.) Making this change uses more precise language reflecting the possible actions that the Commission may take. The revised language means that, after notice and a hearing, the Commission may order that a pilot could retain his State license or the Commission may issue other orders taking actions against a State pilot while the Federal license is inactive, as described in greater detail in the next section. Clarifying this exception would make §§ 405.7(a)(10), 405.12(a)(1) and 405.36(b) consistent as IRRC suggests.
Description of the Amendments to the Final-Form Rulemaking
As previously noted, the Commission made amendments to the final-form rulemaking to address the comments made by IRRC. In § 405.12(b), the Commission deleted the last sentence which contained the date of July 6, 2004, because that date is no longer relevant.
In § 405.7(a)(10), the Commission added an exception ''unless otherwise ordered by the Commission'' to the general requirement that an applicant for a State license also hold and maintain a Federal first-class pilot's license. By doing so, the Commission would make this section and § 405.12(a)(1), which requires an applicant renewing a pilot's license to satisfy the requirement in § 405.7(a)(10), consistent with the requirement at § 405.36(b), which provides that if a pilot's Federal license is suspended, revoked or surrendered (that is, inactive), then the Commission may, in its discretion, revoke, suspend, limit or otherwise restrict the pilot's State license.
If a pilot's Federal license is suspended, revoked or surrendered, the Commission would follow the requirements of 2 Pa.C.S. § 504 and section 31(c) of the act, and provide notice and an opportunity for a hearing before taking disciplinary action against the pilot's State license. If a pilot chooses to have a hearing, the Commission can sit as the adjudicator to hear the facts and render a determination as to culpability and the degree of penalty, if any, to be assessed if a finding is made that the pilot has violated law or regulations.
The Commission may issue any one of three types of orders pertaining to the case before it. First, the Commission may issue an order with no penalty regarding the pilot's State license if, in its opinion, the Commission determines that the facts support a decision that a violation of law or incapacity, misconduct or negligence was not involved. In contrast, the Commission may determine to take some form of discipline against the pilot's State license and issue an adjudication and order. An order may revoke or suspend a pilot's license, impose a civil penalty, restrict the pilot's license privileges, or require the pilot to undertake remedial studies or training, participate in a rehabilitation program or function only under supervision for a period of time. As a third option, cases before the Commission may also be settled through a consent agreement and order. Terms of a settlement are negotiated between the prosecutor for the Department of State and the pilot. If a consent agreement is reached, the pilot agrees to forego a hearing on the matter and abide by the Commission's order. Terms of a consent agreement and order may include any of the actions previously indicated that may be taken through an adjudication and order. With these amendments, the Commission believes these requirements are now consistent.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking should not have fiscal impact on the Commonwealth, the general public or political subdivisions. As noted in the Regulatory Analysis Form, there is a cost savings to the Commission's licensees. Although licensed pilots in this Commonwealth already have a Federal license by current practice, the cost of a Federal license is $95 every 5 years, for a cost of $779 per year for the 41 licensed pilots of the first through the fifth classes. This cost is more than offset by the cost savings to all 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 $779 from the savings of $5,248, this will result in a net cost savings of $4,469 every year for the regulated community of all 41 Pennsylvania licensed pilots.
The final-form rulemaking does not create additional paperwork for the Commission, the Commission's licensees or the general public. As previously noted, the final-form rulemaking confirms the present practices of the Commission's licensees.
Sunset Date
The Commission continuously monitors its regulations. Therefore, a sunset date has not been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 21, 2013, the Commission submitted a copy of the notice of proposed rulemaking, published at 43 Pa.B. 1850, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Commission has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on December 11, 2013, the final-form rulemaking was approved by HPLC. On December 11, 2013, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on December 12, 2013, and approved the final-form rulemaking.
Contact Person
Further information may be obtained by contacting Barbara Dupler, Commission Administrator, Pennsylvania Navigation Commission, 302 North Office Building, Harrisburg, PA 17120, bdupler@pa.gov.
Findings
The Commission finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and no public comments were received. The Commission considered and addressed IRRC's comments.
(3) The amendments to the final-form rulemaking do not enlarge the purpose of the proposed rulemaking published at 43 Pa.B. 1850.
(4) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified in this preamble.
Order
The Commission, acting under its authorizing statute, orders that:
(a) The regulations of the Commission, 4 Pa. Code Chapter 405, are amended by adding § 405.36 and amending §§ 405.7, 405.8 and 405.12 to read as set forth in Annex A.
(b) The Commission shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.
(c) The Commission shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
CAROL AICHELE,
Secretary of the Commonwealth
Chairperson, Navigation Commission for the Delaware River and Its Navigable Tributaries(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 43 Pa.B. 7606 (December 28, 2013).)
Fiscal Note: Fiscal Note 16A-663 remains valid for the final adoption of the subject regulations.
Annex A
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:
(1) Except for first-time applicants for a sixth class license, have served at least 1 year in each of the license classes below the class of license applied for.
(2) Have complied with subsection (d).
(3) Have passed a physical examination within 120 days of the date of application based on the requirements of § 405.8 (relating to physical examination qualifications), as evidenced by a physician's statement. As proof of a physical examination, apprentices and pilots shall submit the current or successor form of the ''Merchant 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.
(4) Have participated in a program of random drug testing during the preceding calendar year that meets the standards of Coast Guard regulations under 46 CFR Part 16 (relating to chemical testing). The random drug testing shall be performed by a testing agency satisfactory to the Commission. The testing agency conducting this random drug testing shall submit to the Commission documentation of the results immediately for any pilot who tests positive. The testing agency conducting this random drug testing shall submit to the Commission documentation of the results for all other pilots prior to March 1 of each year.
(5) Have been qualified as a radar observer, as evidenced by one of the following:
(i) A radar observer endorsement on a current Federal pilot's license.
(ii) A certificate issued by a Coast Guard-approved authority reflecting that the certificateholder satisfactorily completed a course of instruction for radar observers, within 5 years of the date of application.
(6) Have completed a Commission-approved course in bridge resource management within 5 years of the date of application or renewal.
(7) Have completed a Commission-approved course in automatic radar plotting aids (ARPA) once in a pilot's career.
(8) Post a surety bond that satisfies the requirements of § 405.13 (relating to bonding).
(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 otherwise ordered 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 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.
(c) In addition to meeting the requirements of subsection (a), an applicant for a sixth-class pilot's license shall score a passing grade or better on an examination, as provided in § 405.4(b) (relating to examination for sixth-class license). Prior to taking the examination, the applicant shall:
(1) Be at least 21 years of age.
(2) Be within 3 months of completing a Commission-approved apprenticeship.
(3) Have acquired a current Federal pilot's license for the Delaware River issued by the Coast Guard.
(d) In addition to meeting the requirements of subsection (a), applicants for a pilot's license:
(1) Shall have piloted at least 52 vessels during the preceding license period, if the applicant is a current license-holder, unless waived by the Commission under paragraph (2).
(2) May seek a waiver from the Commission of the requirement of paragraph (1), in whole or in part, for illness, disability or other good cause that prevents a pilot from piloting the required number of vessels. If a waiver is granted, the Commission may condition the issuance of the license on the applicant's completion of refresher trips up or down the river as may be necessary to ensure that the applicant is familiar with current conditions along the route. Refresher trips shall be made in the company of a first-class pilot.
§ 405.8. Physical examination qualifications.
The physical qualifications for a pilot or apprentice are as follows:
(1) Visual acuity of 20/30 in one eye and 20/80 in the other—correctable to 20/20 and 20/30, respectively—and normal color perception.
(2) Hearing acuity to the extent of correctly repeating, with eyes closed, words or numbers spoken by the examiner in an ordinary conversational tone of voice from a distance of 20 feet. Each ear shall be tested separately; the ear being tested shall be turned in the direction of the examiner while the other ear is plugged.
(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 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), (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.
(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.
§ 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. 14-190. Filed for public inspection January 24, 2014, 9:00 a.m.]
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