Geology is
a science that deals with the history of the earth as recorded in rocks. In geology, a catalyst is a substance which
speeds up a chemical or biochemical reaction or change which, without the
catalyst, would have occurred anyway but at a much slower rate. The catalyst is never used up in the
reaction, so that there is always the same amount at the start and the end of
the reaction. In the sphere of maritime
regulatory relationships, our Association served as a catalyst to accelerate
certain activities to a greater pace than the normally glacial rate of
regulatory agency. We cannot list these
changes as “accomplishments” but we were there as a catalyst – and we are still
here.
The Law’s
Importance to our Mariners
Over the past thirteen years the
National Mariners Association submitted several dozen “reports” to Congress to
keep them informed of problems that our limited-tonnage mariners face on a
daily basis. Our mariners, who hold
credentials and endorsements as both “officers” and “ratings” comprise more
than 60% (about 126,000 of the approximately 210,000 merchant mariners) of all
of this nation’s merchant mariners – and that does not count deckhands, cooks,
and others that may not be required to hold Coast Guard credentials.
By “limited-tonnage” we generally speak
of vessels of less than 1,600 gross register tons including the largest river
towboats, all other towing vessels, all small passenger vessels, most
workboats, and most of the traditional offshore supply vessels. We speak to those issues our mariners appear
to be most concerned with. These issues
and viewpoints appear in NMA Report #R-350, Rev. 6 which we reorganized after
conducting a poll and updating about a year ago.
Upper-level mariners and seamen on “deep
sea” merchant vessels are well represented by labor unions that deal with
issues that are separate and distinct from those of our limited tonnage
mariners. We work closely with other
mariner associations like the Master of Towing Vessels Association and several
unions that represent limited tonnage mariners to be sure that our interests
are the same.
The Coast Guard Authorization Act of
2010 contained a number of changes that will affect our mariners. Here is our take on a number of the
issues.
Section 607
– Logbooks
The Act made important changes in
maintaining a logbook on all inspected vessels including towing vessels. Section 607 of the Act added the following
new requirement at 46 U.S. Code §11304:
46 U.S.
Code §11304. Additional Logbook and Entry Requirements
(a) A
vessel of the United States that is subject to inspection under section 3301 of
this title, except a vessel on a voyage from a port in the United States to a
port in Canada, shall have an official logbook, which shall be kept available
for review by the Secretary on request.
(b) The log
book required by subsection (a) shall include the following entries:
(1) The
time when each seaman and each officer assumed or relieved the watch.
[NMA
Comment: Sign in when you go on watch and sign off at watch change. Most officers are limited to 12 hours on
watch.]
(2) The
number of hours in service to the vessels of each seaman and each officer.
(3) An
account of each accident, illness, and injury that occurs during each watch.
[NMA
Comment: A widespread failure to report
personal injuries is a serious shortcoming NMA pointed out to Congress. Refer to 46 CFR §4.05-6.]
[NMA
Comment: These new requirements apply to
every inspected vessel – including towing vessels – to each officer, and each
crewmember. The number of hours “on
watch” and the “number of hours in service to the vessel” are not necessarily
the same. The latter term corresponds to
the Coast Guard’s definition of “work” in the policy letter prepared at our
insistence in Sept. 2000. Refer to NMA
Report #R-370, Rev. 3.]
Section 611
– Protection Against Discrimination
(i.e.,
Whistleblower Protection for Mariners)
In the past, if a mariner believed he
was discriminated against (e.g., was fired, demoted or lost his job) for making
a safety report to the Coast Guard or NTSB, it was pretty much his tough luck.
If, as a mariner, you believed that you
had a duty to report an unsafe or illegal condition, you often not only risked
your job but also put your entire career in the marine industry at risk. Not only did your employer not want to hear
about it, in many cases neither did the Coast Guard. We related the full story in NMA Report
#R-370-D, Rev. 6 and cited three legal precedents that ensured that complaints
would be quashed.
Attorney Jeff Bloomfield, on behalf of
the American Inland Mariners Association (AIM), brought the hopeless situation
mariners faced in reporting unsafe or illegal conditions to the attention of
the former House Merchant Marine and Fisheries Committee on Mar. 16, 1994.
One of the most important steps our new
Association took in May 2000 was to speak on behalf of our mariners by
submitting our Report #R-201, Mariners Speak Out on Violation of the 12-Hour
Work Day to Admiral Paul Pluta, then Eighth District Commander and soon-to-be
Assistant Commandant for Marine Safety (etc.).
Although over 300 copies of this report were delivered to key Coast
Guard personnel, the Coast Guard went out of its way to stonewall the
report. To do so, they even assigned it
to the National Offshore Safety Advisory Committee that attempted to kill our
report. In the end, the Chairman of the
NOSAC sub-committee resigned.
Admiral Pluta’s complete lack of respect
for our mariners was one of the most important factors that set the stage for
the decline of the entire Marine Safety Directorate for the next decade and
ultimately led to the corrective action and reorganization called for in the Coast
Guard Authorization Act of 2010.
After dealing with RADM Pluta, we
approached Congress with our problem.
Unfortunately, an earlier, well-intentioned change to the existing law
(i.e., 46 U.S Code §2114) in 2004 did not obtain meaningful results for our
mariners.
However, the Coast Guard Authorization
Act of 2010 provides important changes that mean if a mariner does become a
whistleblower for a valid reason, he/she will be accorded the same
administrative treatment as all other workers in the transportation
industry. Our Association never sought
“special” treatment for our mariners; we only sought fair and equitable
treatment that we believe we have within our grasp because future whistleblower
disputes will be settled by the U.S. Department of Labor and not the Coast
Guard.
Unfortunately, the wording the new
statute follows is complicated – but start by reading it:
(a) In
General – Section 2114 of title 46, United States Code, is amended –
(1) in
subsection (a)(1)(A), by striking ‘‘or’’ after the semicolon;
(2) in
subsection (a)(1)(B), by striking the period at the end and inserting a
semicolon;
(3) by
adding at the end of subsection (a)(1) the following new subparagraphs:
(C) the
seaman testified in a proceeding brought to enforce a maritime safety law or
regulation prescribed under that law;
(D) the
seaman notified, or attempted to notify, the vessel owner or the Secretary of a
work-related personal injury or work-related illness of a seaman;
[NMA
Comment: Note the requirement to first
notify or attempt to notify your employer.]
(E) the
seaman cooperated with a safety investigation by the Secretary or the National
Transportation Safety Board;
(F) the
seaman furnished information to the Secretary, the National Transportation
Safety Board, or any other public official as to the facts relating to any
marine casualty resulting in injury or death to an individual or damage to
property occurring in connection with vessel transportation; or
(G) the
seaman accurately reported hours of duty under this part, and
[NMA
Comment: Connect this with the “logbook”
requirement to accurately report your hours of duty.]
(4) by
amending subsection (b) to read as fol1lows:
(b) A
seaman alleging discharge or discrimination in violation of subsection (a) of
this section, or another person at the seaman’s request, may file a complaint
with respect to such allegation in the same manner as a complaint may be filed
under subsection (b) of section 31105 of title 49. Such complaint shall be subject to the
procedures, requirements, and rights described in that section, including with
respect to the right to file an objection, the right of a person to file for a
petition for review under subsection (c) of that section, and the requirement
to bring a civil action under subsection (d) of that section.
[NMA
Comment: We did our best to help you
understand these requirements by preparing NMA Report #-350. Rev. 6, “Issue L”
(update) titled Improve Whistleblower Protection for Merchant Mariners.]
Although the report cited above still
may be tough to follow, one of our mariners had recent experiences where the
Department of Labor looked into his claims and obtained a settlement for lost
wages after reporting serious health issues on a river towboat that the Coast
Guard was just not interested in.
Over the past decade, our Association
witnessed the frustration of mariners in reporting unsafe and possibly illegal
activities to the Coast Guard.
Consequently, our Association stepped forward and documented a number of
cases and reported the results back to the Department of Homeland Security
Inspector General’s Office where it attracted attention in their report on
“Investigations” in May 2008.(1) [(1)
Refer to NMA Report #R-429-M].
Section 605
– Mariner Records
(Your
Employer Owes You a Sea Service Letter)
The Coast Guard Authorization Act of
2010 should make it easier for a mariner to obtain his/her sea-service letter
from an employer or former employer.
Over the years, we wrote letters to a number of employers on behalf of
our mariners asking for them to produce sea service letters that are essential
for a mariner to advance in the maritime industry. Unfortunately, the existing law had a serious
loophole that hurt some of our requests.
We explained the problem and are pleased that this change responds to
our requests.
The amendment states:
Section
7502 of title 46, United States Code, is amended –
(1) by
inserting ‘‘(a)’’ before ‘‘The’’;
(2) by
striking ‘‘computerized records’’ and inserting ‘‘records, including electronic
records,’’; and
(3) by
adding at the end the following:
(b) The
Secretary may prescribe regulations requiring a vessel owner or managing
operator of a commercial vessel, or the employer of a seaman on that vessel, to
maintain records of each individual engaged on the vessel subject to inspection
under chapter 33 on matters of engagement, discharge, and service for not less
than 5 years after the date of the completion of the service of that individual
on the vessel. The regulations may
require that a vessel owner, managing operator, or employer shall make these
records available to the individual and the Coast Guard on request.
(c) A
person violating this section, or a regulation prescribed under this section,
is liable to the United States Government for a civil penalty of not more than
$5,000.
The amendment has “teeth.” However, companies go out of business, people
die, and stuff happens over time. The
best course of action for all concerned is for each mariner to ask for his/her
sea service letter as soon as you leave the employ of a company or
individual. Don’t let it drag out over
weeks or even a month. Also, keep track
of your own sea service in writing, and make all demands for your sea service
letter in writing if you do not receive your sea service letter with your final
paycheck from any employer!
Section 606
– The “Long Loophole” Closes
46 U.S. Code §8905(b) allowed a towing
vessel operator to operate without a license if the vessel he was operating
“…has offshore mineral and oil industry sites or equipment as its ultimate
destination or place of departure.”
Senator Russell Long engineered this concession at the urging of the
offshore oil industry in 1973. Although
it was seldom used, its abuses became well known. The Coast Guard with the support of NOSAC,
TSAC, and MERPAC petitioned Congress to remove this provision. Our Association supported the Coast Guard in
this move following a serious accident by an unlicensed watchstander in the
Gulf of Mexico.
Section 811
– Seamen’s Shoreside Access
Ever since 9/11 many mariners have faced
problems getting to and from their assigned vessels. There were a number of horror stories for
both American and foreign seamen. Father
Sinclair Oubre and the Apostleship of the Sea in concert with major maritime
labor unions urged the Coast Guard for years to remedy this situation. We are glad to see that Congress stepped in
to forcefully prod the Coast Guard to act on behalf of merchant mariners.
Each
facility security plan approved under section 70103(c) of title 46, United
States Code, shall provide a system for seamen assigned to a vessel at that
facility, pilots, and representatives of seamen’s welfare and labor
organizations to board and depart the vessel through the facility in a timely
manner at no cost to the individual.
Section 701
– Rulemakings
(Overdue
Coast Guard Rulemaking Projects)
While the Coast Guard concentrated on or
was distracted by other things, their ability to successfully complete existing
rulemaking projects has diminished. One
of the best examples we know of is their fiasco in revising offshore oil
regulation of 33 CFR Subchapter N that we discussed in our “Letter to the
President” published in Newsletter #70, pgs. 3-7. But, that was not the only
rulemaking that was “lost” in the Coast Guard’s bureaucracy. There are close to 100 of them. It was reasonable for Congress to ask for a
full “status report.”
Since the comment period ended several
years ago, the Coast Guard maintained that it could not discuss the towing
vessel inspection regulations Congress called for on Sept. 9, 2004. Rear Admiral Watson “promised” at a
Congressional hearing that the proposed rules would be on the street over a
year ago. In light of all the
procrastination and behind-closed-doors maneuvering within the Coast Guard,
Congress finally set its own deadline as follows:
(c) Towing
Vessels. – No later than 90 days after the date of enactment of this Act, the
Secretary shall issue a notice of proposed rulemaking regarding inspection
requirements for towing vessels required under section 3306(j) of title 46,
United States Code. The Secretary shall
issue a final rule pursuant to that rulemaking no later than one year after the
date of enactment of this Act.
Section 609
– Approval of Survival Craft
(Keep Mariners
and Passengers out of the Water)
In NMA
Report #R-354, Rev.4 we appealed to the 111th. Congress to require that future
“survival craft” keeps survivors out of the water. This would eliminate “life floats” that
expect survivors to hold onto a grab-line while their bodies are immersed in
the water. Hypothermia occurs much
faster in water than in air of the same temperature.
The NTSB
first recommended this change in 1985 following the PILGRIM BELLE accident but
the recommendation was ignored by the Coast Guard. Our Association brought up the matter with
RADM Robert North who, as Chief of Marine Safety (etc.), appeared more
concerned about the expense to the boat owners than to the human beings who
risked hypothermia and drowning while awaiting rescue holding on to a life
float’s grab-line in the water. We
consider Admiral North’s decision as one of the most ill-advised “Marine
Safety” decisions of the past decade.
Here is the
wording of the new law – and is a victory not only for our mariners but also
for passengers on smaller vessels that still are equipped with life-floats.
(a) In
General. – Chapter 31 of title 46, United States Code, is amended by adding at
the end the following new section:
§ 3104.
Survival craft
(a) Except
as provided in subsection (b), the Secretary may not approve a survival craft
as a safety device for purposes of this part, unless the craft ensures that no
part of an individual is immersed in water.
(b) The
Secretary may authorize a survival craft that does not provide protection
described in subsection (a) to remain in service until not later than Jan. 1,
2015, if –
(1) it was
approved by the Secretary before Jan. 1, 2010; and
(2) it is
in serviceable condition.
Section 621
– Renewal of Advisory Committees
(TSAC Will
Have More Mariner Members)
On Feb. 25, 2007, our Association
submitted Report #R-417, Rev. 1, titled Report to the 110th Congress: Request
for Congressional Oversight on the Towing Safety Advisory Committee.
(TSAC). Our petition to Congress appeared
on page 6 of the report. We are
gratified that Congress favorably considered four of our Association’s requests
we emphasized below.
(e) Towing
Safety Advisory Committee.—The Act entitled ‘‘An Act to Establish a Towing
Safety Advisory Committee in the Department of Transportation’’, approved Oct.
6, 1980, (33 U.S.C. 1231a) is amended –
(1) by
striking subsection (a) and inserting the following:
(a) There
is established a Towing Safety Advisory Committee (hereinafter referred to as
the ‘Committee’). The Committee shall
consist of eighteen members with particular expertise, knowledge, and
experience regarding shallow-draft inland and coastal waterway navigation and
towing safety as follows:
(1) Seven
members representing the barge and towing industry, reflecting a regional
geographic bal6ance.
(2) One
member representing the offshore mineral and oil supply vessel industry.
(3) One
member representing holders of active licensed Masters or Pilots of towing
vessels with experience on the Western Rivers and the Gulf Intracoastal
Waterway.
(4) One
member representing the holders of active licensed Masters of towing vessels in
offshore service.
(5) One
member representing Masters who are active ship-docking or harbor towing
vessel.
(6) One
member representing licensed or unlicensed towing vessel engineers with formal
training and experience.
(7) Two
members representing each of the following groups:
(A) Port
districts, authorities, or terminal operators.\TEMP\H3619_RES2.XML HOLCPC
(B)
Shippers (of whom at least one shall be engaged in the shipment of oil or hazardous
materials by barge).
(8) Two
members representing the general public; and
(2) in
subsection (e), by striking ‘‘Sept. 30, 2010.’’ and inserting ‘‘Sept. 30,
2020.’’.
[NMA
Comment: We urge qualified mariners to
consider serving on TSAC. Refer to our
Report #R-384.]
Section 302
– Maritime Drug Law Enforcement Act Amendment-Simple
Possession
Not every
person on a commercial vessel has a Coast Guard credential or is subject to
Suspension and Revocation proceedings. This
amendment considers those individuals who are found in a drug-free workplace.
Section
70506 of title 46, United States Code, is amended by adding at the end the
following:
(c) Simple
Possession.—
(1) In
General – Any individual on a vessel subject to the jurisdiction of the United
States who is found by the Secretary, after notice and an opportunity for a
hearing, to have knowingly or intentionally possessed a controlled substance
within the meaning of the Controlled Substances Act (21 U.S.C. 812) shall be
liable to the United States for a civil penalty of not to exceed $5,000 for
each violation. The Secretary shall notify the individual in writing of the
amount of the civil penalty.
(2)
Determination Of Amount – In determining the amount of the penalty, the
Secretary shall consider the nature, circumstances, extent, and gravity of the
prohibited acts committed and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and other matters
that justice requires.
(3)
Treatment Of Civil Penalty Assessment. – Assessment of a civil penalty under
this subsection shall not be considered a conviction for purposes of State or
Federal law but may be considered proof of possession if such a determination
is relevant.
Straightening
out the Credentialing Mess
The House Coast Guard and Maritime
Transportation Committee held several hearings that dealt with the National
Maritime Center (NMC) blunders in administering the “credentialing”
program. The Coast Guard officials in
charge of the program were held directly accountable by Congress for their
mistakes. We were at the hearing in
Washington. We saw it happen.
[NMA
Comment: Nothing in our memory has so completely alienated our mariners from
the Coast Guard as the events that occurred at the National Maritime Center
during and after its move to Martinsburg, WV.]
Our Association submitted two reports to
Congressional oversight committees, #R-429-D to the 110th Congress and
#R-429-D, Rev. 1 to the 111th Congress that described their intolerable
treatment of our mariners. These reports
were submitted to Congress as our Association’s prepared testimony on July 9,
2009. Nor were individual mariners at
all reticent in speaking with countless Senators and Representatives during
this period.
Section 613
– Oaths
Previously, a mariner had to take an
oath “before a designated official.”
Traveling long distances to appear before the “designated official”
proved to be a problem with the new business practices adopted in credentialing
mariners. Your signature on your
application reflects a more modern approach as does a substantial penalty for
making a false statement to a federal agent.
Section 614
– Duration of Credentials
A “credential” (formerly known as
license, MMD, z-card, or certificate of registry) is supposed to be valid for 5
full years. Although it may be issued up
to 8 months in advance of expiration, it will not be effective until the
existing credential expires.
The new law still uses the older
terminology. Nevertheless, the Coast
Guard “got the message” and began to apply this change during the past year or
so – but you had to ask them to do so specifically and well in advance of
issuance.
Section 615
– Extending the Duration of Credentials
Although the Coast Guard’s credentialing
problems were evident well before the arrival of Hurricane Katrina on Aug. 29,
2005, the loss of REC New Orleans with its records and work in progress brought
about a backlog of work that took years to clear. Section 614 will allow the (DHS) Secretary to
extend for not more than one year an expiring credential to eliminate a backlog
in processing such as occurred in 2008-09 or in response to a national
emergency or natural disaster. Such an
extension may be granted to individual seamen or to a specifically identified
group of seamen.
Section 616
– Merchant Mariner Assistance Report
Here is the wording of the section….
“Not later
than 180 days after the date of enactment of this Act, the Commandant of the
Coast Guard shall submit to the Committee on Transportation and Infrastructure
of the House of Representatives and the Committee on Commerce, Science, and
Transportation of the Senate a report regarding the feasibility of –
(1)
expanding the streamlined evaluation process program that was affiliated with
the Houston Regional Examination Center of the Coast Guard to all processing
centers of the Coast Guard nationwide;
[NMA
Comment: Congress believed that REC Houston had done an exemplary job. Unfortunately, the Coast Guard failed to move
those responsible to posts at the National Maritime Center in Martinsburg, WV.]
(2)
including proposals to simplify the application process for a license as an
officer, staff officer, or operator and for a merchant mariner’s document to
help eliminate errors by merchant mariners when completing the application form
(CG–719B), including instructions attached to the application form and a
modified application form for renewals with questions pertaining only to the
period of time since the previous application;
[NMA
Comment: The Coast Guard dragged our
mariners through the coals in the name of “security” since 9/11. Since the application process has become even
more convoluted, there is still much work left to accomplish.]
(3)
providing notice to an applicant of the status of the pending application,
including a process to allow the applicant to check on the status of the
application by electronic means; and
[NMA
Comment: Considerable progress was made
to assist applicants “on-line.”]
(4) ensuring
that all information collected with respect to applications for new or renewed
licenses, merchant mariner documents, and certificates of registry is retained
in a secure electronic format.”
[NMA
Comment: NMA Report #R-401-B describes
how Coast Guard dunces screwed up the NMC computer system in the 1990s. After Katrina, the NMC relied very heavily on
their computers but also appears to have become more competent. However, the Coast Guard often dumps its
burden to our mariners,. Remember to
keep back-up copies paperwork that deals with your credentials.]
Section 617
– Offshore Supply Vessels
The tonnage limits on Offshore Supply
Vessels (OSV) were removed. The limit
previously was 500 Gross Tons. Over the
years, OSVs have grown in size to the point where first 3,000 Tons (ITC) and
later 6,000 Tons (ITC) were no longer sufficient to cover many specialized
vessels that now must be used to perform oilfield related tasks in deepwater in
the Gulf of Mexico or around the world.
Company officials from Edison Chouest
Offshore made a very strong case for raising or removing the tonnage limit
several years ago at a NOSAC meeting in Galveston in an argument that we
supported. At that time, they were
building an offshore supply vessel that would exceed 6,000 tons (ITC) – then
the upper limit. Now that limit has been
removed.
We refer mariners who serve or plan to
serve on large OSVs in excess of 3,000 gross tons (ITC) to a number of
licensing and manning issues for these vessels that are contained on pages 173
– 180 of the legislation.(1) Please
bring any problems you may have with existing, interim, or final Coast Guard
regulations (when issued) to our attention.
[(1)Refer to NMA Report #R-203-E, Rev. 1.]
Section 608
– Termination of Unsafe Operation
An individual authorized to enforce
Title 46 U.S. Code may remove a vessel’s Certificate of Inspection (COI) from a
vessel that does not comply with provisions of the certificate and order the
vessel back to its moorings. He may
order the person in charge to take reasonable steps necessary for the safety of
individuals on board if a hazardous condition exists.