Title of Regulation: 18VAC45-20. Board for Branch Pilots Regulations (amending 18VAC45-20-5, 18VAC45-20-10, 18VAC45-20-20, 18VAC45-20-40, 18VAC45-20-50).

Statutory Authority: § 54.1-902 of the Code of Virginia.

Public Hearing Information:

March 2, 2011 - 2 p.m. - Department of Professional and Occupational Regulation, 9960 Mayland Drive, Board Room 2, Richmond, VA

Public Comment Deadline: April 15, 2011.

Agency Contact: Kathleen R. Nosbisch, Executive Director, Board for Branch Pilots, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (804) 527-4294, or email branchpilots@dpor.virginia.gov.

Basis: Section 54.1-902 of the Code of Virginia authorizes the board to promulgate regulations necessary for the proper government and regulation of branch pilots.

Purpose: At its meeting in February 2009, the Board for Branch Pilots authorized staff to file a Notice of Intended Regulatory Action (NOIRA) for a general review of the board's regulations including but not limited to review of the chemical testing regulations. The proposed changes further ensure regulants are competent for duty as pilots and thereby protects the health, safety, and welfare of the public.

Substance: The proposed amendments (i) update the physical examination requirements to include chemical testing for initial and renewal licensing requirements; (ii) modify the grounds for denial of initial licensure, licensure renewal, or discipline; (iii) reduce the amount of time a licensee has to report certain information to the board to seven days; (iii) require the medical review officer to report any delay or refusal by a licensee to report to a test or being tested; and (iv) add marijuana to the definitions of "chemical test" and "illegal drugs."

Issues: The proposed changes further ensure regulants are competent for duty as branch pilots. The advantage to the public and the Commonwealth is the further protection of the health, safety, and welfare of the public by making sure that qualified, competent pilots are piloting cargo vessels on Virginia waters. There is no disadvantage to the public and there are no primary disadvantages to the agency or the Commonwealth.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Board for Branch Pilots (Board) proposes to: 1) require that a chemical test be conducted for license renewal if the branch pilot had not been subject to random chemical testing during the prior 24 months, 2) amend the time a branch pilot has to inform the board that he has been found guilty of an offense involving moral turpitude, alcohol, or drugs from 30 to 7 days, and 3) add clarifying language.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Under the current regulations licensed branch pilots are subject to random chemical testing at an annual selection rate of not less than 30% and not more than 100% of total licensees. Chemical tests are tests for the presence of alcohol, controlled substances listed in Schedules I V of the Control Act (§ 54.1-3400 et seq. of the Code of Virginia) or marijuana. The Board proposes to also require testing for license renewal if the branch pilot had not been subject to random chemical testing during the prior 24 months. The regulations state that "Licensees shall be responsible for all costs associated with random chemical testing;" but according to the Department of Professional and Occupational Regulation, in practice the Virginia Pilot Association pays for all of the testing. All licensed branch pilots are members of the Virginia Pilot Association and share equally in its costs.¹ The Virginia Pilot Association anticipates approximately 15 additional chemical tests at an approximate cost of $50 per test. Given approximately 50 members in the association, the proposal will therefore increase costs by about $15 per year per licensee/association member.

The purpose of testing for drugs and alcohol is to determine whether licensees are impaired, and thus more likely to cause or be involved in an accident while piloting a ship. The cost of major accidents can be in the millions of dollars for both property and environmental damage. In addition to substantial damage to ships and the environment, accidents can also limit the conduct of commerce on particular bodies of water, causing significant delays and increased costs to businesses and citizens. There is also the potential for loss of life. The board may suspend a license or deny renewal of licensure if the test results indicate impairment or if the licensee refuses to take the test.

Chemically impaired (drugs or alcohol) automobile and truck drivers are more likely to be involved in accidents than sober drivers are. It seems reasonable to speculate that the same is true for branch pilots. Thus, it seems likely that the proposal to require chemical testing for license renewal if the branch pilot had not been subject to random chemical testing during the prior 24 months could decrease the chance of an accident occurring at a given time. The decrease in likelihood of accidents is not known, but given the potential for property and environmental damage, as well as injury, it seems likely the benefit of reduced risk exceeds the approximate annual $15 cost per licensee.

The proposal to amend the time a branch pilot has to inform the Board that he has been found guilty of an offense involving moral turpitude, alcohol, or drugs from 30 to 7 days should provide a net benefit. Given modern communication technology, providing brief information within 7 days is quite simple and involves negligible cost. Receiving this information sooner may enable the Board to remove an unsafe pilot from service sooner, thus improving public safety.

Businesses and Entities Affected. The proposed amendments affect the 48 licensed branch pilots and limited branch pilots in Virginia and the Virginia Pilot Association.²

Localities Particularly Affected. All on-duty licensed branch pilots await duty assignments in Virginia Beach.

Projected Impact on Employment. The proposal amendments will not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed increase in chemical testing may moderately reduce the likelihood of accidents and their associated property damage.

Small Businesses: Costs and Other Effects. The proposed amendments will increase costs for the Virginia Pilot Association by about $750 annually. Members and their small businesses will have increased costs of about $15 annually per pilot. The proposed increase in chemical testing may moderately reduce the likelihood of accidents and their associated property damage.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The increased cost for small businesses is moderate and cannot be significantly minimized while still achieving the intended potential increase in public safety.

Real Estate Development Costs. The proposed amendment will not significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 107 (09). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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¹ Source: Department of Professional and Occupational Regulation and The Virginia Pilot Association

² Data source: Department of Professional and Occupational Regulation

Agency's Response to Economic Impact Analysis: Concur with the approval.

Summary:

The proposed amendments (i) update the physical examination requirements to include chemical testing for initial and renewal licensing requirements; (ii) modify the grounds for denial of initial licensure, licensure renewal, or discipline; (iii) reduce the amount of time a licensee has to report certain information to the board to seven days; (iii) require the medical review officer to report any delay or refusal by a licensee to report to a test or being tested; and (iv) add marijuana to the definitions of "chemical test" and "illegal drugs."

18VAC45-20-5. Definitions.

The words and terms used in this chapter have the following meanings, unless the context requires a different meaning:

"Attempting to perform" means any time when a licensee has accepted an assignment to perform any of the duties of his office or job.

"Chemical test," except when applied to testing for the presence of alcohol, means any scientifically recognized test and analyses of an individual's breath, blood, urine, saliva, bodily fluids, hair or tissues for evidence of controlled substances listed in Schedules I - V of the Drug Control Act (§ 54.1-3400 et seq. of the Code of Virginia) or marijuana. The words "chemical test" as used in this chapter in connection with the testing for the presence of alcohol refers to a scientifically recognized test involving saliva or breath.

"Illegal drugs" includes (i) any controlled substance as that term is defined in the Drug Control Act at § 54.1-3401 of the Code of Virginia listed in Schedule I; (§ 54.1-3446 of the Code of Virginia or ); (ii) those controlled substances illegally acquired listed from Schedules II - V; or (§§ 54.1-3448, 54.1-3450, 54.1-3452 and 54.1-3454 of the Code of Virginia, respectively); or marijuana. It is the intent of these regulations that in the event the contents of Schedules I - V of the Drug Control Act are changed, that these regulations incorporate such changes at the time those controlled substances are made a part of the Drug Control Act in Virginia.

"Medical review officer" or "MRO" means a Virginia licensed physician with a current valid certification from the American College of Occupational and Environmental Medicine or the American Association of Medical Review Officers whose duties, authorities and responsibilities are delineated by these organizations.

"On duty" means the period of time the licensee is available to receive orders for an assignment.

18VAC45-20-10. Initial licensing.

A. Any person wishing to obtain a license as a limited branch pilot shall meet the following qualifications:

1. Satisfactorily complete a two-year apprenticeship in a program approved by the board;

2. Satisfactorily complete a comprehensive examination which shall be approved by the board and administered by the examining committee of the board. The examination shall be in two parts:

a. Written; and

b. Practical oral examination;

3. Comply with the board's regulations and Chapter 9 (§ 54.1-900 et seq.) of Title 54.1 of the Code of Virginia;

4. Furnish to the board evidence of a satisfactory physical examination conducted within the immediately preceding 60 days. This examination shall include the chemical tests referred to in 18VAC45-20-5;

5. Notify the board of any chronic or acute physical or mental condition; and

6. Pay a licensing fee of $60. Each check or money order shall be made payable to the Treasurer of Virginia. All fees shall be nonrefundable.

B. Any limited branch pilot wishing to obtain a full branch pilot license shall meet the following qualifications:

1. Satisfactorily complete a five-year apprenticeship in a program approved by the board;

2. Hold a limited branch pilot license in good standing;

3. Pass a practical examination approved by the board and administered by the board's examining committee;

4. Possess a valid unlimited Federal Inland Masters License with First Class Pilot endorsement issued by the United States Coast Guard for the same waters as his branch. Any such federal license acquired after January 1994 shall include an Automated Radar Plotting Aids (ARPA) radar certificate. A copy of this license shall be filed with the clerk of the board immediately;

5. Furnish to the board evidence of a satisfactory physical examination conducted within the immediately preceding 60 days. This examination shall include the chemical tests referred to in 18VAC45-20-50;

6. Qualify in accordance with § 54.1-905 of the Code of Virginia; and

7. Pay a licensing fee of $60. Each check or money order is to be made payable to the Treasurer of Virginia. All fees shall be nonrefundable.

18VAC45-20-20. License renewal.

A. Each pilot seeking renewal of his license shall complete a renewal application, comply with the provisions of this section, and appear before the board or its License Renewal Committee which shall determine if he possesses the qualifications to be renewed.

B. Any limited branch pilot seeking to renew his license shall meet the following standards:

1. Furnish to the board evidence of a satisfactory physical examination conducted within the immediately preceding 60 days. If the branch pilot has not been subject to random chemical testing during the preceding 24 months, then this examination shall include the chemical tests referred to in 18VAC45-20-50;

2. Furnish to the board evidence that he has transited the waters embraced by his license during the preceding 12 months;

3. After three years of licensure as a limited branch pilot, possess a valid First Class Pilot License issued by the United States Coast Guard for the same waters as his limited branch. Any such federal license acquired after January 1994 shall include an Automated Radar Plotting Aids (ARPA) radar certificate; and

4. Pay a license renewal fee of $60. Each check or money order is to be made payable to the Treasurer of Virginia. All fees shall be nonrefundable.

C. Any full branch pilot seeking to renew his license shall meet the following standards:

1. Possess a valid unlimited Federal Inland Masters License with First Class Pilot endorsement issued by the United States Coast Guard for the same waters as his branch; any such federal license renewed or acquired after January 1994 shall include an Automated Radar Plotting Aids (ARPA) radar certificate;

2. Furnish to the board evidence of a satisfactory physical examination conducted within the immediately preceding 60 days. If the branch pilot has not been subject to random chemical testing during the preceding 24 months, then this examination shall include the chemical tests referred to in 18VAC45-20-50;

3. Furnish to the board evidence that he has transited the waters embraced by his license during the preceding 12 months, and that he has piloted 12 or more ships during that time, at least six trips as a pilot within the first six months of the calendar year and six trips as a pilot within the last six months of the calendar year. Upon the showing of good cause, the board may waive the requirements of this subdivision when in its judgment the pilot is otherwise qualified;

4. Qualify in accordance with § 54.1-906 of the Code of Virginia; and

5. Pay a license renewal fee of $60. Each check or money order is to be made payable to the Treasurer of Virginia. All fees shall be nonrefundable.

18VAC45-20-40. Grounds for denial of licensure, denial of renewal, or discipline.

The board shall have the authority to deny initial licensure, deny an extension of license, or deny renewal as well as to discipline existing licensees, whether limited or not, for the following reasons:

1. (i) Having been convicted or found guilty regardless of adjudication in any jurisdiction of the United States of any felony or a misdemeanor involving moral turpitude or any alcohol- or drug-related offense there being no appeal pending, therefrom or the time for appeal having elapsed.

(ii) Having been convicted or found guilty regardless of adjudication in any jurisdiction of the United States of any felony or a misdemeanor resulting from an arrest for any alcohol- or drug-related offense, there being no appeal pending therefrom or the time for appeal having elapsed.

Any plea of nolo contendere shall be considered a conviction for the purposes of this subdivision. The record of a conviction certified or authenticated in such form as to be admissible in evidence of the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction;

2. Failing to inform the board in writing within 30 seven calendar days of pleading guilty or nolo contendere or being convicted or found guilty of any felony or of a misdemeanor involving moral turpitude or any alcohol- or drug-related offense;

3. Failing to report to the board in writing any reports of the National Transportation Safety Board involving the licensee, or the results of any disciplinary action taken by the United States Coast Guard against the licensee within 30 seven calendar days of that report or action;

4. Refusing or in any other way failing to carry out an order from the pilot officers for reasons other than the public's health, safety, or welfare;

5. Negligence or misconduct in the performance of duties;

6. Violating or cooperating with others in violating any provision of Chapter 9 (§ 54.1-900 et seq.) of the Title 54.1 of the Code of Virginia or any regulation of the board;

7. Failing to, as soon as possible under the circumstances, report to the pilot officers his finishing time and other required information relating to the particulars of the ship;

8. Failing to file immediately with the president or vice president of the board with a copy to the board administrator a complete written account of any violation of the statutes of Virginia or of the United States relating to pilotage or failing to report in writing to the president or vice president of the board with a copy to the board administrator an account of all collisions, groundings, or other maritime mishaps of any description that may occur during the discharge of the pilot's duties. This report shall be received no later than seven days after such an incident;

9. Failing to report to the board any physical or mental condition which may affect his ability to perform the duties of a pilot. Such reports shall be provided within 30 seven calendar days of the onset of the condition;

10. Refusing to comply with the board's requirement for a chemical test. Such test is required immediately and no later than 12 hours after involvement in a collision, grounding, or other incident resulting in personal injury, death, environmental hazard, or property damage in excess of $100,000. Refusing to comply with this requirement may result in summary suspension of the pilot's license in accordance with § 54.1-902 of the Code of Virginia;

11. Refusing to comply with any board requirement for chemical tests in any instance in which the board has cause to believe a test is necessary to protect the public health, safety, or welfare. Refusing to comply with this requirement may result in summary suspension of the pilot's license in accordance with § 54.1-902 of the Code of Virginia;

12. Failing to send proof of any test required by subdivision 10 or 11 of this section to the president or vice president of the board with a copy to the board administrator within 48 hours of the administration of the test;

13. A positive finding as a result of, or on, any substance abuse or chemical test as a result of which the board believes there is a threat to the public health, safety , or welfare. Such a finding may result in summary suspension of the pilot's license in accordance with § 54.1-902 of the Code of Virginia;

14. Evidence of impaired performance in any instance in which the board believes there is a threat to the public health, safety, or welfare. Such a finding may result in summary suspension of the pilot's license in accordance with § 54.1-902 of the Code of Virginia;

15. Performing or attempting to perform any of the duties of his office or job while under the influence of illegal drugs;

16. Performing or attempting to perform any of the duties of his office or job while under the influence of alcohol or any medication (controlled substance or otherwise) to the extent that he was unfit for the performance of the duties of his office or job; and

17. Failing to comply with any of the provisions of 18VAC45-20-50.

18VAC45-20-50. Random chemical testing.

A. All Virginia licensed branch pilots shall be subject to the random chemical testing as set forth in this chapter. Random chemical testing shall be conducted at an annual selection rate of not less than 30% and not more than 100% of total licensees. Licensees shall be responsible for all costs associated with random chemical testing. The chemical test shall be a comprehensive drug screen acceptable to the board that includes testing for controlled substances in Schedules I - V of Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1 of the Code of Virginia.

Only licensees on duty may be selected for random testing. A licensee selected for random chemical testing shall report for testing within two hours of notification. Failure to take a random chemical test is considered refusal to take the test.

B. Duties of licensee.

1. All licensees of this board shall enroll and participate in a random chemical testing program that meets the criteria of this chapter.

2. An on-duty licensee selected for random chemical testing shall report for testing within two hours of notification that he has been selected.

3. Licensees who receive a prescription for any medication from any health care provider shall have the following duties:

a. Give the health care provider a copy of the licensee's job description as a Virginia pilot;

b. Give the health care provider a complete list of medications used within the 30 days preceding the current visit;

c. Obtain a written statement from the health care provider stating if the new prescription is for a controlled substance (Schedules II - V of the Drug Control Act) and obtain a written statement from the health care provider as to the licensee's fitness to safely perform the duties found in the job description; and

d. If prescribed any medication containing a Schedule II - V controlled substance that is to be used within 12 hours of being on duty, make certain the MRO received by hand delivery or telefax each prescription written by any health care provider at the time such prescription is written along with a complete list of medications used by the licensee within the preceding 30 days.

C. The medical review officer shall:

1. Be completely familiar with all duties of a Virginia pilot.

2. Receive, evaluate and maintain records of all medications given to him by or on behalf of each Virginia pilot.

3. Receive, evaluate and maintain a record of each random chemical test taken by a Virginia pilot.

4. Any time the MRO finds the presence of a drug or alcohol that may impair the safe discharge of any duty of a Virginia pilot such that he is unfit to perform those duties, report his written findings to the licensee and president or vice president of the board and to the board's administrator.

5. Report in writing to the licensee, president or vice-president of the board, and the board's administrator of any delay or refusal by a licensee in reporting to testing or being tested.

5. 6. To the extent consistent with state and federal law, protect the confidentiality of all licensee records.

6. 7. Judge fitness to safely perform duties in the context of the licensee's prescription medications and the licensee's available medical history. Any time the MRO finds evidence that the Virginia pilot may be impaired in the safe discharge of any of his duties such that he may be unfit to perform those duties, his written finding shall be reported to the licensee and president or vice president of the board and to the board's administrator.

FORMS (18VAC45-20)

Branch Pilot License Renewal Application Form (rev. 3/07).

Limited Branch Pilot License Renewal Application Form (rev. 3/07).

Authorization and Consent for Drug & Alcohol Testing and Release of Test Results (rev. 12/09).