TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD FOR BRANCH PILOTS

Final Regulation

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.

Effective Date: November 1, 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.

Summary:

The 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.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

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 MRO'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.