Page 17: of Marine News Magazine (April 2006)

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By Jeanne M. Grasso, Blank Rome LLP

On January 13, 2006, the U.S. Coast

Guard issued an interim rule (IR) with request for comments titled Validation of

Merchant Mariner's Vital Information and

Issuance of Coast Guard Merchant

Mariner's Licenses and Certificates of

Registry. This is a rulemaking with which licensed mariners should be aware as it makes significant changes to the process- es for obtaining and renewing licenses and certificates of registry (CORs) for approximately 100,000 mariners. The purpose of the IR is "to strengthen the security of the licensing process by increasing the likelihood that licenses and

CORs are only issued to eligible mariners." While the Coast Guard will accept comments on the IR until April 13, 2006, it is critically important to note that the rule went into effect upon publication on January 13, 2006. Hence, all license and COR transactions after that date are subject to these new requirements.

Substantive Changes. The IR amends existing maritime personnel licensing requirements to include new security pro- visions when mariners apply for original, renewal, and raise of grade licenses, and

CORs. The new requirements for licens- es and CORs are similar to those that went into effect for applicants for Merchant

Mariner's Documents (MMDs) in January 2004. In short, as of January 13, 2006, the

IR requires that all applicants for licenses (including all renewals and license upgrades) and CORs appear in person at a

Regional Examination Center (REC) each time to have their identity checked and fingerprints taken so that a criminal back- ground check can be performed.

In summary, the key substantive changes made by the IR include • Revising the definition of "convic- tion" to include foreign and military con- victions, which may be relevant to an applicant's character; Defining "dangerous drug" in accor- dance with the definition contained in the

Coast Guard's chemical testing require- ments; Requiring that applicants for licenses and CORs (including renewals and upgrades) appear at one of the 17 RECs to have their identities confirmed and to be fingerprinted; Delineating the acceptable forms of identification, which include U.S. military identification cards; any U.S. driver's license (until May 11, 2008, after which a driver's license will need to meet certain federal requirements to be acceptable);

U.S. passport; official federal government identification; certain port credentials; law enforcement credentials; MMDs; for- eign passport; original or certified copy of a birth certificate; and certain state-issued identification cards that meet federal requirements; and Requiring a mandatory criminal background check for original applicants and renewals, which was optional before the IR.

Administrative Procedures. The Coast

Guard avails itself of the "good cause" exception in the Administrative Procedure

Act for finalizing this rule without oppor- tunity for notice and comment, stating that it is "unnecessary, impractical, and con- trary to the public interest" because of the overriding interest for port security as stated in the Maritime Transportation

Security Act of 2002. Port security con- cerns and the integrity of the licensing process may provide a valid basis for an expedited rulemaking, but the Coast

Guard took three years to bring the rule to this stage. Given that, "no notice and comment" prior to finalizing the rule is unreasonable, particularly when there are other legitimate and less burdensome means of accomplishing the same security objectives.

The Burden to Appear. The IR places a significant burden on thousands of mariners throughout the country as a result of the requirement to appear at one of the RECs (and nowhere else) to have one's identity checked and be fingerprint- ed for every license and COR transaction, be it an original, a renewal, or an upgrade, irrespective of the elapsed time between transactions. Thus, someone seeking a license upgrade may have to appear in person (again) only one year after renew- ing his or her license. Even the Coast

Guard recognizes that "the likelihood that an individual's fingerprints will change is low," but nonetheless concludes that a mariner must provide fingerprints for every transaction. This, despite the fact that a license and COR, unlike an MMD, are not identification documents. The

Coast Guard has established a license/COR transaction burden that exceeds that required for the issuance of a passport.

The RECs are located in 17 locations around the country, predominantly in the coastal regions. As the Coast Guard rec- ognizes, there are many areas of the coun- try, including the Great Lakes region and

Alaska, where significant vessel opera- tions are far removed from an REC. The

Coast Guard estimates that roughly 23,000 or 24,000 license transactions per year will be subject to the IR and will incur additional costs because of the new procedures. The Coast Guard also esti- mates that approximately 40 percent of those mariners will have to travel in excess of 100 miles each way to appear at an REC and stay overnight at least one night. Even more significant, approxi- mately 10 percent of mariners subject to this rule will be required to spend multiple nights away, at a cost estimated to be in excess of $1,200 per transaction for travel costs alone, not to mention the lost oppor- tunity costs. The rule's impact over the 5?year licensing cycle is estimated at more than $70 million.

In its discussion on the rationale for proceeding straight to an IR without an opportunity for notice and comment, the

Coast Guard does not discuss any alterna- tives considered in terms of implementing such a significant and burdensome the rule. The Coast Guard should consider, at a minimum, the following issues prior to finalizing the rule.

First, the hardship for every mariner to personally appear at an REC for finger- printing and an identity check for every license or COR transaction, whether or not it involves a several day journey, should be addressed with a more proxi- mate selection of intake/validation points.

Coast Guard District and Sector offices,

Marine Safety Units, and other Depart- ment of Homeland Security field activi- ties, as well as other federal offices such as the Federal Bureau of Investigation and the Bureau of Customs and Border Pro- tection, should be options in lieu of a per- sonal appearance at an REC. Certain state offices almost surely could also provide these services. Many of these offices already have the capability of providing identity checks and fingerprinting ser- vices, as well as a means of ensuring that the correct fingerprints get to the REC.

Alternative intake/validation points are even more important in light of the myri- ad problems that have plagued the RECs for years, which have resulted in lengthy delays and backlogs in issuing credentials, in part due to staffing shortages and anti- quated equipment. Now the Coast Guard intends to add mandatory personal inter- action at the REC with mariners on every license and COR transaction, creating fur- ther challenges. RECs should not be fur- ther burdened until existing problems are resolved.

Second, if the Coast Guard concludes that an appearance at an REC is absolute- ly necessary, it should consider whether it is adequate for a mariner to make a per- sonal appearance once, i.e., for an original license or COR, or for the first transaction after the effective date of the IR, as opposed to every time. The Coast Guard must evaluate whether security is really served by multiple appearances at an REC and multiple rounds of fingerprinting after one's identity has already been confirmed and fingerprints recorded.

Third, the Coast Guard should weigh the costs of requiring mariners to appear at an REC for every transaction against the benefits of other equally viable alter- natives. The IR does not discuss any alternatives that may have been consid- ered. Here, the costs associated with appearing personally at an REC seem to far outweigh the security value benefits in light of other potentially available options, i.e., identity checks and finger- printing at more convenient locales.

It is also very likely that many more viable and effective alternatives will be identified during the comment period.

While all recognize that the security of our country is critical, common sense and practical judgment must be injected into the licensing process. In reviewing com- ments submitted on the IR, the Coast

Guard should welcome the opportunity to seriously consider alternatives and recon- sider whether a personal appearance at an

REC will really make our country more secure.

Jeanne M. Grasso is a Partner in the

Maritime and White Collar Practice

Groups at Blank Rome LLP and focuses her practice on maritime and environmen- tal law, including issues confronting facil- ities, vessels, and cargo owners on an international, federal, and state level.

Her practice commonly includes conduct- ing internal investigations, enforcement defense matters, and compliance counsel- ing on maritime regulatory matters.

April, 2006 • MarineNews 17

LEGAL BEAT

New Licensing Requirements

Impose Burdens on Mariners

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