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

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

Public Hearing Information:

December 11, 2023 - noon - Virginia Port Authority, 600 World Trade Center, Norfolk, VA 23510

Public Comment Deadline: January 19, 2024.

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 states enumerates the legal authority for the Board for Branch Pilots to administer the licensure program for branch pilots.

Purpose: The General Assembly has charged the board with the responsibility of regulating those who perform the duties of a branch pilot by requiring that such individuals obtain a license in order to perform these duties, and that such individuals adhere to minimum standards of conduct. These standards of conduct include a pilot being fit to safely discharge piloting duties. To the extent a pilot is unfit to perform piloting, the health, safety, and welfare of the public would be at risk. The board determined it was imperative to ensure that marijuana was included in the testing for an incident, extension of route, initial or renewal of a license, or random test screens. A branch pilot who is impaired by any substance poses a risk to not only the commercial cargo ship the pilot is piloting, but also to the crew, any citizens using the waterways, and the port. The board seeks to ensure that pilots are aware that a test positive for marijuana could result in disciplinary action by the board to the extent it may impair the safe discharge of a pilot's duty to pilot a vessel. The goal of the regulatory change is to clarify that marijuana is reportable in random drug tests and the board has a basis to take action if a pilot were to test positive for marijuana, to include denial of a license, denial of renewal of a license, or disciplinary action.

Substance: 18VAC45-20-40 is amended to provide that a regulant's performing or attempting to perform the duties of the regulant's office or job while under the influence of marijuana is grounds for denial of a license, denial of renewal of a license, or discipline of a licensee. 18VAC45-20-50 is amended to require that a medical review officer report to the licensee and to the board any time the medical review officer finds the presence of marijuana that may impair the pilot from safely discharging any duty to the extent the pilot is unfit to perform those duties.

Issues: The primary advantage of the regulatory change is clarification to regulants and to the public that marijuana is reportable in random drug tests and the board has a basis to take action if a pilot were to test positive for marijuana, to include denial of a license, denial of renewal of a license, or disciplinary action. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

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 Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board for Branch Pilots (board) proposes to make clear that being under the influence of marijuana while on duty is grounds for denial of initial licensure, denial of license renewal, or discipline of existing branch pilot licensees. Additionally, the board proposes to make clear that the medical review officer shall report findings of on-duty branch pilots testing positive for marijuana that may impair the safe discharge of their duties to the licensee and president or vice president of the board and to the board's administrator.

Background. Branch pilots are responsible for safe passage of ships in Virginia's major shipping lanes and waterways. On-duty branch pilots are subject to random chemical testing. Among other items, the current regulation lists the following as grounds for denial of initial licensure, denial of license renewal, or discipline of existing branch pilot licensees:

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;

Chapter 550 of the 2021 Acts of Assembly (Chapter 550)2 eliminated criminal penalties for simple possession of marijuana and modified several other provisions of law related to marijuana. Prior to this, marijuana would have clearly fallen under "illegal drugs" as mentioned in the grounds for denial of initial licensure, denial of license renewal, or discipline when on duty and found to be under the influence. Since enactment of Chapter 550, marijuana could potentially no longer be considered an illegal drug. Consequently, the Board proposes to add "marijuana" to 16. so that it reads: "16. Performing or attempting to perform any of the duties of his office or job while under the influence of alcohol, marijuana, 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;"

The regulation defines "medical review officer" or "MRO" as "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." Among the responsibilities of the MRO, the current regulation states that: "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." The board proposes to add "or marijuana" to that sentence so that it reads: "Any time the MRO finds the presence of a drug, alcohol, or marijuana 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."

Estimated Benefits and Costs. According to the Department of Professional and Occupational Regulation, random chemical testing has continued to include marijuana. The proposed amendments would not change what occurs in practice. Nevertheless, it is beneficial to clarify the authority to test for marijuana and the consequences for being under the influence of marijuana while on duty. Like alcohol, marijuana slows reaction time and ability to make decisions, impairs coordination, and distorts perception.³ An on-duty branch pilot who is impaired by any substance poses a risk to not only the commercial cargo ship the pilot is piloting, but to also the crew, any citizens using the waterways, other watercraft, properties adjacent to and in the waterways, and the port.

Businesses and Other Entities Affected. The proposed amendments pertain to the 38 licensed branch pilots in the Commonwealth, all of whom work for small businesses.⁴

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁵ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. The proposed amendments do not increase net cost or reduce in net revenue. Thus, no adverse impact is indicated.

Small Businesses⁶ Affected.⁷ The proposed amendments represent consistency with current practice and do not adversely affect small business.

Localities⁸ Affected.⁹ Branch pilots work within localities along navigable waterways, particularly the James and Potomac Rivers.¹⁰ The proposed amendments do not introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not appear to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not affect the use and value of private property or real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://lis.virginia.gov/000/chapter550.pdf.

³ Source: U.S. Centers for Disease Control and Prevention https://www.cdc.gov/marijuana/health-effects/driving.html.

⁴ Data source: Department of Professional and Occupational Regulation.

⁵ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁶ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁷ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁸ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁹ § 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

¹⁰ Source: Department of Professional and Occupational Regulation.

Agency's Response to Economic Impact Analysis: The Board for Branch Pilots concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments (i) provide that performing or attempting to perform the duties of a regulant's office or job while under the influence of marijuana is grounds for denial of a license, denial of renewal of a license, or discipline of a licensee; and (ii) require that a medical review officer report to the licensee and to the Board for Branch Pilots any time the medical review officer finds the presence of marijuana, which may impair the pilot from safely discharging any duty to the extent the pilot is unfit to perform those duties.

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) a. 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- alcohol-related or drug-related offense, there being no appeal pending, therefrom or the time for appeal having elapsed.

(ii) b. 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- alcohol-related 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 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- alcohol-related 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 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 the licensee's 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 that may affect his the licensee's ability to perform the duties of a pilot. Such reports shall be provided within 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 the licensee's office or job while under the influence of illegal drugs;

16. Performing or attempting to perform any of the duties of his the licensee's office or job while under the influence of alcohol, marijuana, or any medication (controlled substance or otherwise) to the extent that he the licensee was unfit for the performance of the duties of his the licensee's 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 - through 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 the licensee 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 - through 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 Schedules II - through 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, or marijuana that may impair the safe discharge of any duty of a Virginia pilot such that he the licensee is unfit to perform those duties, report his the licensee's 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.

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

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 the pilot's duties such that he the pilot may be unfit to perform those duties, his the MRO's written finding shall be reported to the licensee and president or vice president of the board and to the board's administrator.