CAPT. TUULI MESSER-BOOKMAN:
from Maritime Executive
August 3, 2022
"Employers cannot rely on the USCG renewal process to identify mariners with criminal convictions.
Criminal convictions are evaluated using the USCG recommended “assessment periods”, which are based on the age of a conviction. Assessment periods are found in 46 CFR §10.211 for crimes and 46 CFR §10.213 for vehicular convictions, such as DUI or reckless driving.
An assessment period defines three windows of time. According to the CFRs:
- If an application is submitted from the date of conviction but before the minimum assessment period, then the applicant will have to submit proof of suitability to the satisfaction of the NMC. (The NMC’s FAQ: Safety and Suitability Evaluation document of 7/7/2017, available on NMC’s website, states that “an assessment period is the time frame during which the Coast Guard will not process your application for a credential.” This directly contradicts the language in 46 CFR §§10.211 and 10.213.)
- If the submission happens between the minimum and maximum assessment periods, then unless there are “offsetting factors”, the application should be approved and the credential issued.
- If the application is submitted after the maximum assessment period, the credential will be issued, unless the NMC finds the applicant unsuitable for some other reason.
For example, a single, first vehicular conviction (DUI, reckless driving, racing on the highways, etc.) has an assessment window of 1-3 years. From the date of conviction to one year after conviction, the applicant will have to prove he or she is “safe and suitable” by paying fines, completing rehabilitation classes, public service, etc.
If the application is submitted between 1-3 years from the date of conviction, the credential will be issued unless there are “offsetting factors.”
But if the conviction is older than 3 years, according to the NMC website, “[t]he Coast Guard will consider offenses such as operating a motor vehicle while under the influence of alcohol or drugs or reckless driving conviction only within the last three years, unless the applicant driver’s license is currently under suspension or revocation.”
46 CFR §10.213 specifically states the USCG will not consider National Driver Registry-listed civil convictions that are more than three years old from the date of request unless that information relates to a current suspension or revocation of the applicant’s license to operate a motor vehicle. In some states, not paying child support can lead to suspension of one’s driver’s license, which would then impact the mariner’s eligibility to hold a credential.
The inequity is that the same offense has different impacts depending on when the conviction happened and the MMC application or renewal date.
Since credentials are good for five years, if a mariner gets a DUI in year 1 of holding the credential, by the time it needs to be renewed the mariner would have to do nothing other than disclose the conviction, since it is past the 3 year assessment window.
A mariner getting the same DUI in year 4 of his credential window would have to prove rehabilitation and jump through a lot more hoops. The timing of the conviction vis-a-vis the renewal date changes how the mariner is handled by the NMC, and thus changes his or her eligibility to hold a credential and work.
No Requirement to Self-Report Before Renewal of MMC
There is no requirement for a mariner to self-report if convicted of a DUI or serious drug crime.
However, since 2007 a mariner must surrender his or her TWIC within 24 hours if a mariner is wanted, under indictment or complaint, convicted or found not guilty by reason of insanity, in a civilian or military jurisdiction, for a “disqualifying criminal offense” identified in 49 CFR §1572.103. Disqualifying offenses include murder, espionage, explosives crimes, etc. I’m skeptical such crimes would be self-reported.
I am aware of a mariner who spent seven months in prison on a dangerous drug conviction. His employer (a ferry system) thought he was “on a break”, and there was no lapse in his MMC because he was out of jail, cleaned up his mess and was back at work long before he had to renew his MMC. Had the same conviction happened closer to this mariner’s renewal date, it would have fallen into an assessment window and the MMC renewal may have been denied or delayed, and the employer would have known something was amiss.
The MMC Can be Pulled Even Without a Conviction
If a mariner is ineligible to hold a TWIC, he or she is ineligible to hold an MMC (46 CFR §§10.101 and 10.235(h)).
The TSA, which issues the TWIC card, does an automated daily sweep amongst all TWIC holders looking for specific felony charges (these are indictments where a mariner has been accused but not yet found guilty). TSA follows 49 CFR §1572.103(c) which states “an applicant who is wanted, or under indictment in any civilian or military jurisdiction for a felony listed in this section, is disqualified until the want or warrant is released or the indictment is dismissed.”
A mariner I know was driving home from a camping trip in California, made an illegal lane change and got pulled over. The officer said he “smelled pot” and asked the mariner to get out of his vehicle. Upon searching the vehicle, the officer found an assault-style rifle and a short barreled rifle, both of which (as defined by California) are illegal in California. He was given a field sobriety test and ultimately had his blood tested for THC. He was charged with possession of an assault rifle and manufacturing a short barreled rifle (both felonies in California), and DUI (marijuana). He had been charged, but not convicted of anything.
Days later he got a letter from TSA suspending his TWIC, citing the two gun related charges because they are “disqualifying criminal offenses” but not the DUI (because the DUI isn’t a “disqualifying criminal offense”) and that he may not hold a TWIC until the matter is dismissed or reduced to a misdemeanor.
The TWIC suspension was followed immediately by a letter from the USCG Suspension and Revocation National Center of Expertise (S&R NCOE) suspending his MMC until he is “eligible to hold a TWIC.” Additionally, he was required to deposit his MMC with the S&R NCOE, and perform other remedial actions.
The TSA applies state laws to determine federal TWIC and thus MMC eligibility. This results in mariners from different states having different standards of behavior and being treated differently by TSA and the USCG.
Seven states and Washington DC have banned assault weapons (with varying definitions) and six states and Washington DC have bans on short barreled rifles (with varying definitions).
The mariner above ultimately had the charges reduced to misdemeanors and will be getting his TWIC and MMC back. This cost him about two years of not working and over $12,000 in fines and legal fees to resolve.
Had the exact same behavior above happened in, say, Idaho, there would have been no weapons violations, the incident wouldn’t pop on the daily TSA check, and there would have been no immediate impact to the TWIC or MMC.
In summary, the current vetting system for criminal behavior is a mess. The same crime, or even simply an accusation, can either result in nothing happening or immediate loss/suspension of the MMC, depending on the timing and location of the behavior.
This patchwork approach results in disparate treatment of mariners, with some convicted criminals having no consequences, and some mariners who are charged (but not convicted) losing their MMC immediately. Mariners who have been charged, but not convicted, can lose the ability to work for many months or years and defense costs can easily be in the tens of thousands of dollars.
Timing and location of an unwanted behavior should not have such disparate consequences at the federal level. The current regulatory scheme should be refined into a more effective, reliable and equitable system.