Legislature(1993 - 1994)
03/30/1993 05:00 PM TRA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 243 - PILOTS ON CERTAIN TUGS ON STATE WATERS REPRESENTATIVE JERRY SANDERS gave his sponsor statement for HB 243, and said HB 243 seeks to allow licensed marine pilots to further serve the citizens of Alaska by assisting in protecting our rivers and deltas, which was why the marine pilots were first created. He stated that HB 243 addresses the issue of safety, which must be addressed through preventive measures. Oil barges carrying 15,000 barrels or greater would be required to be assisted by tugboats which shall employ state licensed pilots. State licensed marine pilots are charged with keeping the interests of Alaska concerning safety, opposed to profit, and their primary responsibilities are not to the owner of the ship or the owner's economic interests, but to the state. State licensed marine pilots are familiar with the rivers they've become familiar with through time. He noted HB 243 mandates that the tug company could keep its own pilots at the wheel, as long as the state licensed marine pilot was present on the bridge. Number 100 REPRESENTATIVE VEZEY asked Representative Sanders what was the purpose of the bill, and commented that he felt the legislation wasn't necessary. Number 128 REPRESENTATIVE SANDERS responded that the main purpose was to prevent oil spills. REPRESENTATIVE VEZEY replied that he felt the financial responsibilities on companies would be too great. Number 269 MICHAEL E. HAGLUND, ADMIRALTY COUNSEL FOR KUSKOKWIM PILOTS ASSOCIATION, discussed pilotage on the Kuskokwim River as unique and unprecedented. He said that unlike other major rivers, the Kuskokwim was primitive in terms of its navigational infrastructure. He said there was no dredged channel with no government issued charts or lights. He said that despite difficult passage, the Kuskokwim River had been open for commerce through the dedicated service of Sumstad Navigation over the last four decades. Captain Ron Sumstad and his Uncle Ole before him have provided pilotage service to three to six ships and 15-25 oil and freight barges each year since the 1950's. MR. HAGLUND felt that fish and waterfowl protection were answers as to why the Kuskokwim River should require compulsory pilotage for all vessels with dangerous cargoes. He felt that the two key reasons for requiring state- licensed pilots for oil barges on the Kuskokwim were for environmental protection and a license that ensures adequate local knowledge. MR. HAGLUND said, historically, barges are a significant part of oil spills. He felt that the single biggest threat to the marine environment on the Kuskokwim River was the barge traffic. He mentioned a case in Washington where a 250,000 gallon spill in 1988 caused Washington's biggest oil spill, causing damage to the north coast of Washington and Vancouver Island in British Columbia. Number 340 MR. HAGLUND also stated that the only license that guarantees a requisite of level of local knowledge to pilot oil tank barges into the Kuskokwim River was one that was issued by the state to the historic pilots on this waterway. He felt that without state regulation, there would be only the promise of the industry's voluntary use of Capt. Sumstad and his colleagues. He felt that without passage of HB 143, there was nothing to prevent a tug and barge company from using one of their own masters or mates who meets the following minimal criteria: 12 round trips over the route and six month's experience in the deck department on towing vessels. Alaska's licensing requirements for the Kuskokwim are three years as a trainee pilot on the river; 15 round trips during the two years prior to licensure plus supervised dockings; and a minimum of 15 trips in any one year to renew the license for the following year. Number 385 REPRESENTATIVE MACKIE asked Captain Haglund how many pilots this legislation would currently apply to. MR. HAGLUND replied that three would currently meet the requirements. Number 469 REPRESENTATIVE MULDER brought up the question of preemption within HB 243 and requested that Captain Haglund respond. MR. HAGLUND said that prior to 1990, there was a good argument that states were prohibited from imposing additional regulatory requirements on the coastwise oil trade. With the passage of the Oil Pollution Act of 1990, Congress explicitly authorized states to enact their own statutes and regulations to prevent oil spills on state waters and to impose liability for those spills. He noted that OPA 90 at 33 U.S.C. S 2718(a) expressly allows states to impose more restrictive regulations than those contained in federal law. The bill proposes to extend compulsory state pilotage to include large oil barges. He stated that no case had been decided at this time that would provide for a legal precedent for legal challenge. Number 522 REPRESENTATIVE MULDER again stated his concerns that this requirement contained in HB 243 could then be brought forth for legal challenge. Number 525 CAPTAIN HAGLUND replied he felt it was unlikely a challenge would be brought forward. Number 536 MIKE TAGLIAZENTO, representing DELTA WESTERN, addressed his concerns regarding HB 243 to the committee. He stated that as a Western Alaska fuel distributor, Delta Western is a major operator and charterer of tug and barges that navigate the Western Alaska river systems. He said he did not understand the rationalism for the legislation and said that their company had operated safely in the Western river region since 1983. All their tug personnel are well trained in seamanship and are well versed in local knowledge of the rivers on which they operate. During their ten years of operation, they had compiled a strong safety record and have had no major spills. He went on to add that vessels utilized in the Western rivers are unique equipment, specially designed for operating with the extreme shallow drafts located in these rivers. Pilotage requirements and operating experience for this type of vessel are different from pilotage requirements for deeper draft vessels, such as those in Southeast Alaska, Cook Inlet or Dutch Harbor areas. MR. TAGLIAZENTO stated his concerns regarding the costs associated to HB 243. He said his company and management are familiar with pilotage rules, regulations and the increased operating costs that accompany such rules. Operating costs on the Western Alaska rivers are already extremely high due to the specialized nature of the equipment in which to deliver a year's supply of fuel. This legislation will only add to the economic burden of operating in remote areas of Alaska. Number 580 REPRESENTATIVE VEZEY asked Mr. Tagliazento how many trips they would use pilotage service. MR. TAGLIAZENTO replied approximately three trips each summer. Number 613 LOUIS AUDETTE, representing 49ER TRANSPORTATION, said he was opposed to HB 243 for several reasons. Foremost, he would not want to relinquish command of his vessels to a pilot who may not have any tugboat experience. A barge "on the hip" responds much differently than a ship where rudders and propulsion are located on the center line. Every tug and barge unit has its own handling characteristics; and a pilot, with or without experience, cannot gain knowledge of those idiosyncrasies in the short time he is on board. He mentioned the increased costs incurred by someone not familiar with the vessel. He was concerned that this bill would set a precedent for other areas of the state to require pilots for smaller tank barges. He felt it should be noted that pilots are used with local knowledge to guide, not take command of, their vessels when it is prudent. He took strong exception to a board establishing pilotage areas solely for the monetary benefit of its members. Number 652 ART JACOBSEN, representing CROWLEY MARINE SERVICES, stated his feelings that requiring state licensed pilots aboard tugs with oil barges will not necessarily put a person with extensive local knowledge on board. He said it would also not ensure that a person familiar with tug and barge handling is on board. He stated that Crowley Marine has knowledgeable and qualified personnel on board at this time. He mentioned the potential doubling of pilotage fees on the Kuskokwim River this year to about $15,000.00 per round trip to Bethel, and he felt certain this would add many thousands of dollars to the price of fuel in Alaskan villages. TAPE 93-12, SIDE B Number 013 CHAIR FOSTER asked Captain Sumstad to begin his testimony before the committee. CAPTAIN SUMSTAD, representing the KUSKOKWIM PILOTS ASSOCIATION, explained that the association had been formed in 1991 and it wasn't formed in order to make more money. He noted there were currently many more pilots in other areas of the state making much more than they. He mentioned that the Kuskokwim River had not been charted since 1910. He provided the committee with an old map of the Kuskokwim. Number 230 RAY GILLESPIE, representing several marine pilot organizations, stated that the company attorneys asked him to share their opinions with regard to federal preemption. He referred to three opinions within the member's packets. Under the doctrine of preemption, where Congress has legislated on a particular subject which is in its constitutional control, and has manifested its intention to govern the subject area, the authority of the states is necessarily excluded and any state legislation is void. State laws concerning pilotage are regulations of commerce and have been held to fall with a class of powers which may be exercised by states until Congress sees fit to act otherwise. Insofar as Congress has in fact interposed in the area of pilotage, its authority is supreme and exclusive and thus state laws which conflict with federal statutes are void. MR. GILLESPIE said the lawyers have examined coastwise trade as opposed to foreign trade. Coastwise trade is domestic port to domestic port. Currently, coastwise trade is governed by federal licensing only. He referred to the Department of Commerce position paper, which implies that this legislation is "unique." Historically, he noted, these federal licensing requirements have preempted this field, and it has been widely recognized that the states do not have the authority to require additional state licensing pilotage requirements. MR. GILLESPIE stated he did not agree with the previous testimony regarding the EXXON Valdez, which compared the barge's potential for catastrophe - the two were not even related due to the magnitude of oil which spilled from the EXXON Valdez. He said a vessel is required to have a federal pilot if the vessel is underway, is not on the high seas, is of a type subject to inspection and is "not on the register." "Not on the register" is one operating on a coastwise voyage and not coming from a foreign port. The federal law also provides that a state may not impose on a federal pilot an obligation to procure a state license or adopt any other regulation that will impede a federal pilot in the performance of the pilot's duties. Number 072 BOB HERRON, LEGISLATIVE ASSISTANT TO REPRESENTATIVE LYMAN HOFFMAN, testified against HB 243 on behalf of Rep. Hoffman. He suggested that the issue needed further study on the actual financial burden to the rural areas through increased rates due to the new regulations. He felt the bill should be referred to a subcommittee to enable further study on the problems addressed in the committee, and he felt the financial burden to the rural people should be assessed more clearly. Number 389 BRICE EDGMON, LEGISLATIVE ASSISTANT TO REPRESENTATIVE GEORGE JACKO, testified against HB 243 on behalf of Representative Jacko. He also expressed his Senator's concerns regarding the financial burden on the people in the rural areas through increased rates, and also suggested that the legislation be referred to a subcommittee for further study before any action is taken in the House Transportation Committee. Number 495 CHAIR FOSTER requested suggestions as to what the will of the committee was for HB 243. He asked if it should be passed out, put into subcommittee as proposed, or should it be scheduled to come up in committee at a later date? Number 515 REPRESENTATIVE DAVIS agreed with the subcommittee referral option. He said he was concerned with the economic impact due to increased rates. Number 525 REPRESENTATIVE MENARD moved the committee substitute. Number 538 The committee substitute for HB 243 was adopted and CHAIR FOSTER referred the committee substitute to a subcommittee consisting of Representative Mulder and Representative Mackie. Number 553 CHAIR FOSTER requested that Representatives Mulder and Mackie submit their subcommittee recommendations regarding HB 243 to the full committee approximately April 14.