The SIU recently submitted formal comments concerning federally proposed rules on the implementation of a Transportation Worker Identification Credential (TWIC) and (separately) the consolidation of Merchant Mariner Qualification Credentials. The comments were submitted to the U.S. Department of Transportation’s Docket Management Facility, in accordance with guidelines contained in the respective Notices of Proposed Rulemakings.The SIU’s comments follow:
SIU Comments on Proposed Rule for Transportation Worker Identification Credential (TWIC) Implementation in the Maritime Sector
June 28, 2006
Docket Management Facility
U.S. Department of Transportation
Room PL-401
400 Seventh Street, S.W.
Washington, D.C. 20590-0001
Re: Transportation Worker Identification Credential (TWIC)
Implementation in the Maritime Sector Proposed Rule:
Docket USCG-2006-24196; TSA-2006-24191
Dear Sir or Madam:
The Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District/National Maritime Union (SIU), AFL-CIO, representing thousands of American merchant mariners employed on U.S.-flag vessels in the domestic and international waterborne trades wishes to express our views on the proposed rulemaking implementing the Transportation Worker Identification Credential (TWIC) in the maritime sector. The proposed rulemaking is of extreme importance to our mariners, since they will be directly and significantly affected by the implementation of the proposed rule. The SIU submits these comments on their behalf.
The SIU recognizes and appreciates the breadth, complexity, and challenge of protecting our nation and our maritime transportation network from terrorist incursions. We believe that a safe, secure and reliable maritime transportation system is vital to this nation’s economic, defense and national security. To that end, the SIU has implemented a number of educational and training programs responding to the mandates of the Maritime Transportation Security Act of 2002 (MTSA) and the International Ship and Port Security (ISPS) Code and, further, has offered our assistance and views to the government in its efforts to devise and implement appropriate measures to protect this nation and our transportation sector from terrorism.
First and foremost, the SIU requests a 90-day extension of the comment period to allow all concerned mariners the opportunity to review the proposal and comment appropriately. By the nature of their employment, many mariners may, as yet, not had the opportunity to either review the complex document or contact their representatives with their assessment of the proposal. In fact, the complexity and sheer magnitude of the proposal itself warrants an extended comment period. It is unreasonable to expect such an immediate turnaround on this important proposal especially since the agencies involved have had a number of years to promulgate regulations. The maritime sector should have adequate time to review and assess the proposal and its impact on the industry.
The SIU generally endorses the concept contained in the proposed rule for a biometric transportation security card. However, there are select items within this proposal that warrant concern and comment. The SIU will focus its comments on those issues, as follows.
Merchant Mariner Document (MMD)
As noted, the SIU endorses the precept of a biometric transportation security card, as mandated by the Maritime Transportation Security Act of 2002. The SIU appreciates the efforts and the time expended by the Coast Guard and the Transportation Security Administration in attempting to implement this requirement. However, we believe that the complicated and burdensome process proposed by the agencies is both unnecessary for merchant mariners and may essentially prove disruptive to maritime commerce.
As such, the SIU strongly recommends that the current merchant mariner document be altered or modified to include an encoded biometric, to be used as a biometric transportation security card in lieu of the proposed TWIC, especially since the Coast Guard recognizes the MMD as an identity document. The SIU believes that with a security vetting process (threat assessment), preferably initiated by the Coast Guard, the biometric MMD would adequately respond to the mandate of the MTSA for a biometric transportation security card, given the fact that the Coast Guard advises that a security assessment is not required for the mariner population who have an MMD issued after February 3, 2003, implying that those mariners have undergone a full security vetting by the Coast Guard and therefore need not undergo a TWIC security assessment. The SIU urges the Coast Guard to continue this simplified approach for merchant mariners who are required to hold merchant mariner documents instead of opting for the TSA proposed process.
Further, the SIU believes that the Coast Guard itself has the authority to implement the biometric transportation security card mandate as recommended above. In fact, the MTSA requires the Secretary of Homeland Security to issue a biometric transportation security credential to merchant mariners. Section 102 of the MTSA defines “Secretary” to mean “the Secretary in which the Coast Guard is operating.” It is our view that within this definition, the Coast Guard has the authority to issue an MMD with an encoded biometric as a merchant mariner biometric transportation security credential. Moreover, this would certainly negate the need for a change in the Code of Federal Regulations as proposed in USCG-2006-24371, the Consolidation of Merchant Mariner Qualification Credentials.
A further reason for utilizing a biometric merchant mariner document in lieu of a TWIC is the fact that the rule proposes standards which will primarily impact merchant mariners and port workers. Why reinvent the wheel when a proven, time-tested, and internationally accepted document already exists that, with some modification, responds to the mandate of the MTSA. In addition, to date, there are no TWIC requirements for other workers in all modes of transportation. It is our view that if the TWIC is not applicable to all modes of transportation, then the system is essentially flawed due to port intermodalism and the security objective is undermined.
User Fees
In this rule, the TSA proposes to establish new user fees for the TWIC process. Although the SIU opposes a TWIC requirement for merchant mariners, we nonetheless advance that it is patently unfair to impose yet another user fee on the merchant mariner for a credential that can be encompassed in the MMD. In fact, the merchant mariner is already charged a user fee for the process associated with the MMD. The SIU is aware that Section 520 of the 2004 DHS Appropriations Act requires TSA to charge a reasonable fee for providing credentialing and background investigations in the field of transportation. The principle behind user fees is based on the philosophy that beneficiaries of federal expenditures should repay the government in the form of a user charge on all or a portion of the federal expenditures incurred for a service. User fees are based on the premise that some agency services are of benefit only to particular segments of the population and that fairness dictates that these services be subject to user fees. However, the SIU contends that the TWIC program is not of benefit to a particular segment of the population -- the merchant mariner in this case -- but primarily in the interest of public security. It is our belief that one of the key criteria regarding the application of a user fee for TSA services rendered is whether the service provides a special benefit to an identifiable recipient above and beyond those that accrue to the public at large. In this case, it does not. Therefore, given the fact that obtaining a TWIC is in the interest of public security, merchant mariners should not be assessed a user fee. It is neither fair nor reasonable to assess a user fee on a merchant mariner for a security mandate that has broader benefits. The background checks and security threat assessments contained in the proposal are considered necessary to enhance the security of our nation’s ports and are part of an overall effort to fight terrorism elements.
Recruitment/Personnel Shortage
The SIU believes that the requirement for mariners to obtain a TWIC will exacerbate and stymie an already critical personnel shortage in the maritime industry. The 60-day waiting period for new merchant mariners to be vetted by TSA will escalate the problem and deter men and women from entering the industry. Therefore, it is absolutely imperative that there be some provision for new entrants to work on a temporary or interim basis until the vetting results are completed or to significantly shorten the time required by the agency for the vetting process. In addition, if the merchant mariner will be required to obtain a TWIC, the SIU recommends that the processes for the TWIC and the Merchant Mariner Credential (MMC) run concurrently and that the vetting process for both be combined into a single effort. As an aside, it currently takes an inordinate amount of time to obtain an MMD. Adding TWIC to the equation will only make the process worse. As an example, the SIU initiated the only Coast Guard approved unlicensed apprentice program which is dependent upon the students receiving their merchant mariner documents in a timely fashion in order to meet the manpower needs of the industry. Adding a TW IC requirement will only exacerbate an already lengthy process.
Federal Preemption
The SIU recognizes and acknowledges the fact that states have the right to regulate access to their port facilities. However, once a national identity standard is promulgated, it is critically important that these standards supersede state regulations. Thus, the SIU recommends that the federal TWIC or MMD program preempt any state or local regulations covering identity cards for mariners. The entire purpose of an identification credential is to provide a universally recognized identity card and to assure a mariner access to vessels and port facilities. In addition, the mandatory provisions of the International Maritime Organization’s ISPS Code require facilitation of access by mariners. Additional state or local requirements will create confusion and intolerable conditions for mariners, undermine the purpose of the TWIC, and disrupt interstate and foreign waterborne commerce. Allowing states to arbitrarily impose different or added security requirements is inconsistent with the intent of the TSA and Coast Guard to achieve a level of consistency governing threat assessments and transportation credentials.
Further Comments on the TWIC Program
The SIU believes that the TWIC program, as proposed, is an economic train-wreck waiting to happen. It will not enhance security but will certainly disrupt commerce and place an intolerable burden on American merchant mariners. The program is also flawed since it exempts foreign seamen from the process while focusing completely on U.S. merchant mariners who are screened, regulated and fully vetted by the Coast Guard. It has been estimated that 97 percent of our imports and exports are carried on foreign-flag vessels with foreign crews who in our view pose the gravest security risk. Yet, these crews are exempt from the TWIC requirements.
If the TSA and Coast Guard actually implement this proposed rule, the SIU, in addition to our recommendations above, advocates the following:
- Any national TWIC issued to American merchant mariners must be compatible with the International Labor Organization’s Convention 185 so that the document will be acceptable in foreign ports.
- Any waiver or appeals cases should be held before an Administrative Law Judge (ALJ) at a hearing on the record. It is unfair to have a mariner go back to the very agency which determined he was a security risk in the first place to resolve the issue.
- TSA should eliminate the self-disclosure of convictions requirement in the application process. The TWIC applicant will be required to undergo an extensive background check which will uncover any disqualifying factors for obtaining a TWIC. Why then should the applicant be required to complete a self-disclosure form?
- If mariners are required to obtain a TWIC, they should be guaranteed unfettered access to ports.
- There should be a clear nexus between terrorism security and the crimes that will disqualify an individual from holding a maritime TWIC, as the list of felony offenses that will disqualify a mariner from obtaining a maritime TWIC is too expansive, nebulous and unfocused on eliminating true security risks.
U.S. mariners are and will always be an effective asset in the global war on terrorism and are the most trained, qualified and vetted workers in the transportation industry. Our history of answering the call to perform our patriotic duty in every conflict and disaster is a matter of public record. In summary and to be clear, we urge the TSA and the Coast Guard to recognize the contributions of American mariners to the economic and defense security of our nation by exempting them from the unnecessary burden of obtaining a TWIC.
The SIU looks forward to working and cooperating with the TSA and Coast Guard to find an amenable resolution to this important issue. Thank you for the opportunity to comment.
Sincerely,
Michael Sacco
President
SIU Comments on Proposed Rule for Consolidation of Merchant Mariner Qualification Credentials
June 28, 2006
Docket Management Facility
U.S. Department of Transportation
Room PL-401
400 Seventh Street, S.W.
Washington, D.C. 20590-0001
Re: Consolidation of Merchant Mariner Qualification Credentials
Proposed Rule: Docket No. USCG-2006-24371
Dear Sir or Madam:
The Seafarers International Union (SIU), Atlantic, Gulf, Lakes and Inland Waters District/National Maritime Union represents thousands of merchant mariners employed on U.S.-flag vessels plying the domestic and international waterborne trades. We appreciate the opportunity to comment on the proposed rule entitled, Consolidation of Merchant Mariner Credentials (USCG-2006-24371).
With the TSA/Coast Guard proposal on the Transportation Worker Identification Credential (TWIC) and this proposed rulemaking published simultaneously in the Federal Register, both with 45-day comment periods, the SIU advances that there is insufficient time to review this complex and lengthy proposal which basically amends numerous existing regulations dealing with the licensing and documentation of merchant mariners. In fact, in its regulatory evaluation, the Coast Guard states that the proposed rule “makes substantive changes to the requirements in 46 Code of Federal Regulations, Parts 10, 12, 13, 14, and 15.”
Therefore, the SIU requests a 90-day extension of the comment period for this rulemaking. The SIU also urges the Coast Guard to separate this proposed rule from the timeline advanced in the TWIC proposal and further recommends that this proposal be either deferred or reintroduced gradually and subsequent to a thorough testing of the TWIC program, if promulgated.
During an initial review of the document, the SIU detected a number of minor errors and several noticeable omissions in the proposal which may create unintended consequences. Further, it has been noted that the Coast Guard intends to create a paper document which, in our view, is a reversion to the past. Smarter credentials are the answer, utilizing smart card technology. In fact, it is such technology that will enable the Coast Guard to bring U.S. maritime credentialing from the 19th to the 21st century.
As advanced by the Coast Guard in its Proceedings publication, the consolidation of credentials requires substantial effort, planning, coordination, and cooperation and many complex and sensitive details will have to be considered including revision of current statutes and regulations. The SIU agrees with this tenet and looks forward to working together with the Coast Guard to achieve a meaningful transition of credentialing to the 21st century.
Sincerely,
Michael Sacco
President
###
Printer Friendly Page