Legislature(1993 - 1994)

03/30/1993 05:00 PM TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  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.                         

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