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Unions challenge Coast Guard on vague, hasty new standards for merchant mariner documents
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The Coast Guard, which was recently shifted from the Transportation Department to the Department of Homeland Security, published the interim rule Jan. 6, 2004, in the Federal Register without any notice or public hearing, and began enforcing it immediately. The interim rule, "Validation of Merchant Mariners' Vital Information and Issuance of Coast Guard Merchant Mariner Documents," changes the merchant mariner document (MMD) application process and gives the Coast Guard broad authority to reject applications for new or renewal documents. It has been under careful review by the legal and lobbying arms of U.S. maritime unions since its publication. Mariners must hold a current MMD, commonly known as a Z-card, to work aboard U.S.-flagged merchant vessels of 100 gross tons or greater. The unions filing objections, which collectively represent the majority of commercial mariners affected by the interim rule, include American Maritime Officers, the Seafarers International Union; the International Organization of Masters, Mates & Pilots; the Inland Boatmen's Union of the Pacific; the Marine Firemen's Union; the Sailors' Union of the Pacific; and the Marine Engineers' Beneficial Association. "The vessels posing the least risk to the security of the U.S. are U.S.-flagged ships crewed by U.S. citizen licensed and unlicensed mariners," the unions said. "American mariners undergo background checks and are subject to stringent identification requirements and procedures to a degree unmatched in flag-of-convenience nations. Yet, the interim rule only applies to U.S. citizen mariners working aboard U.S.-flagged vessels, who represent a very small portion of the total number of mariners arriving and departing on vessels in American ports. "Despite all this, the interim rule simply further regulates the group of people in the maritime industry who are already the most regulated. Adding to the complexity of merchant mariner documentation does not itself enhance the security interests of the U.S. Our country needs more, not less, U.S.-flagged ships and more, not fewer, U.S. citizen crews if the U.S. wants to seriously address the threats to our ports, our economy and to our citizens posed by flag-of-convenience vessels and their foreign citizen crews." In addition to the Coast Guard's imposition of further regulations upon American professional mariners, the unions objected to the following elements of the interim rule:
The Coast Guard included a "request for comments" with an April 5 deadline, stating that the agency "will consider all comments and material received during the comment period" and "may change this rule in view of them." The Coast Guard said that no future public hearing on the interim rule is planned. However, the unions have requested that one be held as objections to the new process are considered. The "character and habits of life" provision The unions contend that this element of the interim rule violates the due process clause of the U.S. Constitution, ignores legal limitations defined by the U.S. Supreme Court and will infringe upon the First Amendment rights of American mariners. Under the interim rule, all applicants for new and renewal MMDs will undergo a criminal background check, as well as a "safety and security check" conducted by the Coast Guard. The agency "may disapprove an application for an MMD if the criminal record review and safety and security check leads the Coast Guard to determine that the applicant's criminal record or character and habits of life demonstrate that the applicant is not a safe and suitable person." According to the interim rule, "a safe and suitable person eligible for an MMD is a person who, as determined by the appropriate Coast Guard official, possesses the character and habits of life to warrant the belief that their presence aboard vessels of the U.S. is not adverse to the security of the U.S." If a mariner's application is rejected, "the applicant will be notified in writing of the reason(s) for disapproval, unless the Coast Guard determines that such disclosure of information is prohibited by law, regulation or agency policy, in which case the reason(s) will not be disclosed," according to the interim rule. "Without clear definition and specific criteria, U.S. citizens are in the position where they may lose their right to work in the profession of their choice based on purely subjective determinations by an agency of the U.S. government," the unions said. In their objection to this provision, the unions acknowledged that previous regulations allowed Coast Guard to issue a merchant mariner document to an applicant only if the agency "is satisfied that the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the U.S." However, they asserted that "this rule has been all but struck down by the U.S. Supreme Court and the Coast Guard's attempt to resurrect this rule and make it part of the regular MMD application process must not be allowed to stand." According to the unions, this provision violates the due process clause of the Constitution, as defined by the Supreme Court in Grayned v. City of Rockford (1972), which states: "a vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications," among other things. "No person of ordinary intelligence could reasonably be expected to determine what is and what is not prohibited by the standard," according to the unions. "In addition, the language of the interim rule provides no direction at all to determine whether a person's 'character' and 'habits of life' may be adverse to the security of the U.S. Consequently, a decision maker's subjective assessment is the only possible basis upon which a determination could be made." The unions also cited Schneider v. Smith (1968), a Supreme Court case addressing the First Amendment challenge to the Coast Guard's "character and habits of life" standard of that time-a derivation of the Magnuson Act of 1950, which gives the President the authority to safeguard vessels from sabotage or other subversive acts. "The Supreme Court held that the relevant provisions of the Magnuson Act only permit the Coast Guard to regulate 'actions, not ideas or beliefs or reading habits, or social, educational or political associations,'" the unions said. "We understand that the intent of this standard is to thwart terrorism and terrorist activities," they said. "However, we are greatly concerned that, as written, the undefined 'character and habits of life' criteria could be used as a catch-all excuse to deny individuals an opportunity to work aboard U.S.-flagged vessels, based not on their qualifications or on-the-job performance, but rather on their unpopular but legitimate and legal politics, personal habits and lifestyle or other equally irrelevant, non-terrorist related matters. "In the 1960s, mariners seeking MMDs were required to divulge their membership in political organizations, a practice struck down by the Supreme Court in Schneider v. Smith. There is nothing in the interim rule as written that would prevent its 'character and habits of life' standard from being applied in the same or similar unconstitutional manner." Additionally, the unions described the Coast Guard "safety and security" review of applicants mandated by the interim rule as unnecessary, considering the background checks already conducted during the application process. Prior to the implementation of the interim rule, American mariners applying for an MMD underwent a criminal record review, which required them to disclose felonies and misdemeanors, and included a national driver record review. "Since the 'character and habits of life' standard can only be applied to actions, any questionable actions would certainly be revealed by the existing background check and/or national driver record review requirements," according to the unions. The interim rule appeals process The unions characterized the new appeals process for mariners whose MMD applications are rejected as unclear and insufficient. They objected to the fact that the Coast Guard may now choose not to disclose the reasons for the rejection of an application and that appeals of the agency's decisions may be conducted exclusively by the Coast Guard under the interim rule. Furthermore, the unions protested the Coast Guard's expansion of the definition of criminal convictions to include misdemeanors, deferred adjudications and pleadings of no-contest, as well as language in the interim rule effectively making all convictions permanent for the purposes of applying for an MMD, unless it can be demonstrated that the court was in error. "We cannot envision a situation in which a trained, qualified and eligible U.S. citizen should not be informed in writing of the reason why he or she is refused the opportunity to begin or continue employment aboard a U.S.-flagged commercial vessel," the unions said. "We firmly believe that the basic requirements of due process and fairness demand that an individual be given all the information necessary to mount an effective defense against what may very well be the arbitrary and capricious denial of his or her application by the U.S. government." The interim rule is unclear as to what sort of appeals process will be available to mariners whose MMD applications are rejected. In the past, any appeals of rejections related to the "character and habits of life" of a mariner would have been reviewed by a three-person panel, comprised of one Coast Guard officer, one representative of management and one representative of labor. The interim rule indicates that such appeals will now be reviewed by the Coast Guard. As a result, the unions contend that the interim rule should require that such appeals include an on-the-record hearing and a decision by a neutral administrative law judge. A judge would be able to establish legal precedent for supporting or denying appeals in order to better define who can be considered a "safe and suitable person" and who can and cannot "be entrusted with the duties and responsibilities of the merchant mariner's document," according to the unions. The process "envisioned by the interim rule in which the Coast Guard reviews its own decision is patently insufficient," the unions said. In reference to the criminal background and national driver record review checks conducted on all MMD applicants, the interim rule expands the definition of a conviction to include "a criminal felony or misdemeanor," as well as no-contest pleadings, deferred adjudications and court-imposed treatment, classes and/or monetary penalties. Furthermore, the interim rule states: "a later expungement of the conviction will not negate a conviction unless the Coast Guard is satisfied that the expungement is based upon a showing that the court's earlier conviction was in error." "We believe it is unconscionable for the Coast Guard to consider and treat an individual who is or who wants to be a merchant mariner and who has committed any offense at any time in his or her life as a criminal for life, unworthy to serve in the U.S.-flag merchant marine," the unions said. The cost to mariners in time and money The interim rule requires all mariners applying for an MMD or renewing an existing document to make at least one personal appearance at a Coast Guard REC during the application process for fingerprinting and verification of identification. There are 17 Coast Guard RECs nationwide, located in major port cities of the U.S. East, West and Gulf Coasts. Until 2003, mariners applying for MMDs had the option of being fingerprinted at a local police station and completing the application process by mail. At the beginning of 2003, the Coast Guard began requiring mariners to appear in person at an REC for fingerprinting. Professional mariners must now renew their MMD every five years to continue sailing. The unions believe that the Coast Guard has underestimated the cost in time and money to individual mariners, many of whom live in regions without an REC nearby. The Coast Guard estimates that it will cost a mariner $220 to make a one-day round trip to an REC to spend one hour there being fingerprinted and completing paperwork. The agency estimates it will cost an individual $468 if they have to make a two-day trip with an overnight stay. These estimates do not include the current fee for renewing an MMD. The unions projected that more than 30 percent of mariners applying for MMDs will need to make overnight trips. Many members of American Maritime Officers, for instance, live hundreds of miles from any U.S. port city and, in some cases, live abroad. The unions also pointed out that the application process at the REC, assumed by the Coast Guard to take one hour, will take longer for most mariners. "Even before the issuance of the interim rule, the process took more than one hour," the unions said. " Now, with the added screening requirements called for in the interim rule, a one-hour process is even more unlikely." It now takes the agency nine to 12 weeks to process an application and issue an MMD, said David Greenhouse, an AMO member and RTM STAR Center instructor who assists mariners with MMD and Coast Guard licensing applications. The Coast Guard began requiring mariners to appear in person for fingerprinting in early 2003 during a joint investigation with the FBI into document fraud associated with U.S. merchant mariner documents. The agencies announced the results of the 14-month investigation, dubbed "Operation Drydock," in March 2004. After reviewing the records of more than 200,000 mariners holding U.S. Coast Guard MMDs, investigators determined that nine had "potential links to terrorism." The agencies noted that thousands of cases of "possible fraud" and other "problems" were discovered, specifying that they discovered active arrest warrants on some mariners. At the close of the investigation, the Coast Guard began revoking "unauthorized credentials" and removing some mariners from service, and U.S. attorneys are pursuing criminal charges where warranted, according to the agencies. In March 2004, Capt. Ernie Fink of the U.S. Coast Guard told a group of shipping company representatives and AMO officials that RECs will soon become information collection centers. Capt. Fink expected that individual RECs would cease issuing merchant mariner documents by 2006 and, at that time, all applications would be processed at, and all merchant mariner documents would be issued by, the U.S. Coast Guard National Maritime Center in Washington, D.C. |
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