[Federal Register Volume 60, Number 243 (Tuesday, December 19, 1995)]
[Rules and Regulations]
[Pages 65478-65490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30677]
[[Page 65477]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
46 CFR Parts 10 and 12
National Driver Registration and Criminal Record Review in Issuing
Licenses, Certificates of Registry, or Merchant Mariner's Documents;
Final Rule
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 /
Rules and Regulations
[[Page 65478]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Parts 10 and 12
[CGD 91-212]
RIN 2115-AD93
National Driver Register and Criminal Record Review in Issuing
Licenses, Certificates of Registry, or Merchant Mariner's Documents
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In furtherance of the President's Regulatory Reinvention
Initiative, this rulemaking establishes Coast Guard regulations which
implement the provisions of the Oil Pollution Act of 1990 (OPA 90) that
permit the Coast Guard to review information from the National Driver
Register on an applicant prior to issuing or renewing a license,
certificate of registry (COR), or merchant mariner's document (MMD).
This rulemaking also addresses OPA 90 provisions that permit the Coast
Guard to review the criminal records of applicants prior to issuing a
license, COR or MMD. In addition, it establishes regulations that
permit criminal record checks of any individual applying for a raise in
grade of a license or COR; a renewal of a license, COR, or MMD; or an
endorsement of an MMD with a new expiration date. This rulemaking
provides the Coast Guard an opportunity to identify an applicant who
has been convicted of certain motor vehicle offenses or convicted of
certain serious crimes.
EFFECTIVE DATE: January 18, 1996.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406) (CGD 91-212),
U.S. Coast Guard Headquarters, 2100 Second Street SW., room 3406,
Washington, DC 20593-0001 between 8 a.m. and 3 p.m., Monday through
Friday, except Federal holidays. The telephone number is (202) 267-
1477.
FOR FURTHER INFORMATION CONTACT:
Mr. Stewart Walker, Marine Personnel Qualifications (G-MCO-1), (202)
267-0475. This telephone records messages on a 24-hour basis.
SUPPLEMENTARY INFORMATION:
Drafting Information. The principal persons involved in drafting
this document are Mr. James W. Cratty, Project Manager, Project
Development Branch (G-MES-2) and Ms. Jacqueline Sullivan, Project
Counsel, Office of the Chief Counsel (G-LRA).
Regulatory History
On March 13, 1995, the Coast Guard published a notice of proposed
rulemaking (NPRM) entitled ``National Driver Register and Criminal
Record Review in Issuing Licenses, Certificates of Registry, or
Merchant Mariner's Documents'' in the Federal Register (60 FR 13570).
The Coast Guard received 29 letters commenting on the proposal. Several
comments requested a public hearing. The Coast Guard determined that a
public hearing is unnecessary and that all of the issues contained in
the comments are addressed in this rulemaking.
Background and Purpose
1. General
Under the authority of 46 U.S.C. 7101, the Coast Guard issues
licenses to qualified officers such as masters, mates, pilots,
engineers, operators, and radio officers. It also issues certificates
of registry (CORs) to qualified staff officers such as pursers, medical
doctors, and professional nurses.
The Coast Guard issues merchant mariner's documents (MMDs), with
certain exceptions described in 46 U.S.C. 8701, to vessel personnel for
service aboard U.S. flag merchant vessels of more than 100 gross tons
which operate on waters other than rivers and lakes. The MMD serves as
a certificate of identification and qualification, authorizing work in
different capacities on deck and in the engine and steward's
departments. The MMD, with an appropriate endorsement, is also the
credential issued to qualified tankermen. Many merchant mariners who
hold licenses and CORs also hold MMDs.
All licensing and documentation transactions are processed at Coast
Guard Regional Examination Centers (RECs) exercising the authority of
the Officer in Charge, Marine Inspection (OCMIs).
Sections 4101(a) and (b) and section 4102(e) of the Oil Pollution
Act of 1990 (OPA 90) (Pub. L. 101-380) amend 46 U.S.C. 7101, 7302, and
7109, respectively, to authorize the Coast Guard to conduct criminal
record checks of any individual applying for a license, COR, or MMD;
for a raise in grade of a license or COR; for a renewal of a license,
COR, or MMD; or for an endorsement of an MMD with a new expiration
date. Some individuals with criminal records may be unsuitable
candidates for a license, COR, or MMD because they present a risk to
passengers, fellow crew members, or the safe operation of a vessel.
As amended, 46 U.S.C. 7101 and 7302 prohibit the Coast Guard from
issuing a license, COR, or MMD to an applicant unless the applicant
makes available to the Coast Guard any information contained in the
National Driver Register (NDR) related to an offense committed by the
applicant that is described in sections 205(a)(3)(A) or (B) of the
National Driver Register Act of 1982 (49 U.S.C. Chapter 303). These
offenses are: operation of a motor vehicle under the influence of, or
while impaired by, alcohol or a controlled substance; and any traffic
violation(s) arising in connection with a fatal traffic accident,
reckless driving, or racing on the highways.
Although an individual's motor vehicle record may not be directly
related to his or her maritime career, a record of alcohol or drug-
related motor vehicle offenses, or other motor vehicle offenses as
specified in sections 205(a)(3)(A) and (B) of the NDR Act of 1982,
indicates that the individual may have a disregard for his or her own
safety or the safety of others and therefore may not be suitable for
maritime employment.
Section 4105(b) of OPA 90 amended 46 U.S.C. Chapter 75, to require
the Coast Guard to make the information received from the NDR available
to the applicant for review and written comment before the Coast Guard
uses this information as a basis for denying, suspending, revoking, or
taking other action on that individual's license, COR, or MMD.
Before Congress enacted OPA 90, an individual who applied for a
license, COR, or MMD was not required to provide the Coast Guard with
NDR information. However, an applicant for a license or COR was asked
on the application form if he or she had been convicted of any
offense(s) other than minor traffic violation(s). Information provided
by the applicant regarding conviction(s) for other than minor traffic
violation(s), including Driving Under the Influence (DUI) or Driving
While Intoxicated (DWI), was used to evaluate the applicant's
qualifications to hold a license or COR.
2. Criminal Record Review Under Current Regulations
a. Licenses and CORs. The current regulations at 46 CFR 10.205,
``Requirements for original licenses and certificates of registry,''
require the applicant to have his or her fingerprints taken during the
application process. The Coast Guard uses the fingerprints to determine
if a criminal record exists for
[[Page 65479]]
the individual. Section 10.205(f)(2) authorizes the OCMI to reject an
application if the criminal record check, or other information,
indicates that an applicant's habits of life and character are such
that the applicant cannot be entrusted with the duties and
responsibilities associated with a license or COR. The OCMI notifes the
applicant of the reason(s) for disapproval.
Section 10.205(f)(4) indicates that, in the event a license or COR
has been issued before adverse information on the applicant's character
or habits of life, or information indicating that the application is
false or incomplete, is obtained the OCMI may notify the individual
that the license or COR is null and void and direct the holder to
return the license or certificate to the OCMI.
Under 46 CFR 10.209, ``Requirements for renewal of a license,''
each renewal applicant must use a standard form furnished by the Coast
Guard. The form asks the applicant to identify any criminal convictions
or history of drug use. Under Sec. 10.209(b), an applicant may not have
his or her license renewed if facts which would render a renewal
improper have come to the Coast Guard's attention.
The Coast Guard currently performs a license renewal criminal
record check when an individual has identified a conviction or drug use
on the application. In addition, the Coast Guard performs a criminal
record check on applicants for renewal whom it suspects have criminal
records or a history of drug use. The Conference Report on OPA 90 (H.R.
Conf. Rep. No. 101-653) recognizes these existing Coast Guard
procedures.
Related regulations in 46 CFR part 10, ``Requirements for raise of
grade of a license'' (Sec. 10.207) and ``Issuance of duplicate of
license or certificate of registry'' (Sec. 10.219), currently do not
address criminal record checks.
b. Merchant Mariner's Documents. The regulations contained at 46
CFR part 12, ``Certification of Seamen,'' do not address fingerprinting
an applicant for an MMD specifically for a criminal record check;
however, under existing practice, the Coast Guard fingerprints an
individual applying for his or her original MMD and performs a criminal
record check on the applicant. The Coast Guard does not fingerprint and
check the criminal record of a person obtaining a duplicate MMD or an
additional MMD endorsement.
Under law existing prior to OPA 90, the Coast Guard was not
required to consider the character and habits of life of an applicant
for an MMD as it was for licenses and CORs. The only specific statutory
provision concerning dangerous drug use or criminal convictions
authorized the Coast Guard to deny an MMD to an applicant convicted for
a dangerous drug offense within 10 years prior to the date of
application (46 U.S.C. 7503). The Coast Guard has also been authorized
to deny an MMD to a person who has ever used or has ever been addicted
to a dangerous drug unless the applicant provides satisfactory proof
that he or she is suitable for employment in the merchant marine.
3. National Driver Register Access
The National Highway Traffic Safety Administration (NHTSA) of the
Department of Transportation (DOT) maintains the NDR, which is a
nationwide repository of information on drivers. The NDR is part of a
voluntary cooperative program that assists State motor vehicle driver
licensing agencies and certain Federal agencies in gaining access to
data on an individual's motor vehicle driving record. The NDR Act of
1982 prohibits the use of information in the NDR that is more than 3
years old, unless that information relates to a current suspension or
revocation of the individual's license to operate a motor vehicle.
At present, access to the NDR must be made through participating
States. DOT has proposed legislation to amend section 307 of the NDR
Act of 1982 to allow direct NDR access by Federal agencies. If the
proposed legislation is enacted, the Coast Guard intends to adopt the
direct access methodology.
Discussion of Comments and Changes
Twenty-nine letters were received in response to the NPRM. The
Coast Guard has considered all of the comments and, in some instances,
revised the proposed regulations as appropriate. The comments have been
grouped by issue and are discussed as follows.
1. Coast Guard Authority
Seven comments suggested the regulations are intrusive into the
lives of mariners and questioned the Coast Guard's authority to review
information from the National Driver Register and review criminal
record information in issuing licenses, CORs, or MMDs. OPA 90
authorized the Coast Guard to conduct criminal record checks and review
information from the National Driver Register on any individual
applying for a license, COR, or MMD; for a renewal of a license, COR,
or MMD; or for an endorsement of an MMD with a new expiration date. The
Coast Guard is implementing these provisions to exclude from holding
merchant mariner credentials those individuals whose history indicates
a lack of concern regarding the safety of themselves, others, the
marine environment, and the safe operation of a vessel.
Two comments suggested that since the term ``renewal'' is not
mentioned in 46 U.S.C. 7302(c) and (d), the review of criminal records
and the National Driver Register only applies to original document
applications. The Coast Guard disagrees. The review of criminal records
and the NDR is relevant to all documents applied for under 46 U.S.C.
7302, including renewal of MMDs or endorsement of MMDs with a new
expiration date. Similarly, in 46 U.S.C. 7101(h), individuals applying
for a license or COR include all individuals applying for a raise in
grade or renewal.
One comment stated that the Coast Guard, rather than the employer,
is in the best position to monitor and provide assurance of
rehabilitation for individuals with an alcohol or drug problem. The
Coast Guard lacks the legal authority and resources to continuously
monitor individuals with drug or alcohol problems. Checks can be made
at a point convenient to the mariner and the Coast Guard, for example,
renewal or raise in grade. Monitoring individuals is within the scope
of employer responsibilities because the employer is more likely to
evaluate an employee's work and conduct on a regular basis.
Two comments stated that the regulations are unnecessary because
the merchant marine is self-regulating. The comments submitted that
mariners who pose a threat to the safe operation of a ship, personnel,
or passengers will be excluded by other mariners or employers. The
Coast Guard determined that the mariners' or employer's ability to
self-regulate cannot attain the scope of the Coast Guard's ability to
regulate merchant marine personnel. Also, the Coast Guard has been
delegated the authority of general superintendence over the merchant
marine and merchant marine personnel in the interest of marine safety
and seamen's welfare. The Coast Guard, as the agency authorized to
issue merchant mariner's credentials, must ensure, to the best of its
ability, that individuals who receive these credentials do not present
a possible threat to personnel, passengers, or the safe operation of a
vessel.
2. Relationship Between Convictions and Job Performance
Eight comments suggested that there is little or no relationship
between a person's criminal or driving offenses on
[[Page 65480]]
land and their maritime related job performance. The Coast Guard
disagrees. An individual's record of alcohol or drug-related, or other
motor vehicle offenses as specified in sections 205(a)(3) (A) and (B)
of the NDR Act of 1982, indicates that the individual may have a
disregard for his or her own safety or the safety of others and
therefore may not be suitable for maritime employment. The Conference
Report on OPA 90 (H.R. Conf. Rep. No. 101-653) explains that alcohol
impairment may have played a role in the Exxon Valdez incident. Motor
vehicle offenses involving the abuse of alcohol and drugs may evince
possible unsafe vessel operations. Congressional intent, as presented
in the Conference Report on OPA 90, was to provide an additional tool
in an effort to promote a drug- and alcohol-free workplace in maritime
industry. Also, the Coast Guard concluded that applicants who have been
convicted of violent criminal offenses or serious property offenses may
pose a threat to ship personnel, passengers, the marine environment,
and the safe operation of the ship. The Coast Guard may increase ship
safety by denying seafarer's documents to individuals who demonstrate a
lack of concern for safety through a record of criminal or motor
vehicle offenses.
3. The National Driver Register
Two comments indicated that the Coast Guard is only able to review
information from the National Driver Register three years prior to the
check. The comments noted that the information from an NDR file check
would not cover the full 5 years between document renewal. The NDR Act
prohibits the Coast Guard from gaining access to information more than
three years old, unless the information is about a revocation or
suspension of driving privileges still in effect (49 U.S.C.
30305(b)(5)).
One comment suggested that NDR checks may be a federalism issue,
since most driving offenses are state offenses. The Coast Guard is
among the authorized agencies granted access to the NDR. The NDR Act
establishes guidelines for obtaining information from the NDR for the
purposes of evaluating individuals who hold, or are applying for a
license or certificate of registry under 46 U.S.C. 7101, or a merchant
mariner's document under 46 U.S.C. 7302 (49 U.S.C. 30305(b)(5)).
One comment requested clarification of ``racing on the highways.''
According to the National Highway Traffic Safety Administration, racing
on the highways means formal or informal contest racing on a public
highway.
Another comment stated that if the NDR is a voluntary system, the
Coast Guard may not be able to check information from non-participating
states. Since all of the states and the District of Columbia are
participants in the NDR program, the Coast Guard can conduct checks on
any individual in the United States with motor vehicle driving record
information.
One comment noted a decision rendered on April 5, 1995, by the
United States Circuit Court for the Fourth Circuit in a case entitled,
American Trucking Associations Inc. v. Federal Highway Administration.
In that case, the court's decision was based on the fact that off-duty
alcohol use is generally not relevant criteria in determining
eligibility for employment. In its decision, the court was interpreting
the Omnibus Transportation Employee Testing Act of 1991 (Pub. L. 102-
143), which applied to the Federal Aviation Administration, Federal
Highway Administration, Federal Railroad Administration, and the
Federal Transit Administration, but not to the Coast Guard. This case
involved preemployment testing requirements for alcohol use. This final
rule is under separate authority and does not involve the preemployment
testing of individuals for alcohol.
The Coast Guard is providing information to applicants who wish to
conduct an NDR file check for their personal use. The NDR allows
individuals to request a file check in accordance with the Federal
Privacy Act of 1974 (Pub. L. 93-579). New sections 10.201(i)(4) and
12.02-4(d)(4) describe the procedures to follow to receive the results
of a NDR file check. The information in a personal NDR file check is
intended for use by the applicant only, and may not be used in the
licensing and certification process.
The Coast Guard concluded the term ``NDR listed convictions''
needed further clarification. The final rule adds a definition for
``NDR listed convictions'' to its list of definitions in Sec. 10.103
and Sec. 12.01-6. The new definition will reflect the convictions in 49
U.S.C. 30304(a)(3)(A) and (B) which are authorized by the National
Highway Safety Transportation Administration to be used by the Coast
Guard to evaluate applicants for merchant mariner's documents.
In the NPRM, Sec. 10.201(b) and Sec. 12.02-4(a) did not discuss
individuals with NDR convictions due to the addiction or abuse of
alcohol. The Coast Guard added a statement to Sec. 10.201(b) and
Sec. 12.02-4(a) to ensure individuals with such NDR convictions furnish
satisfactory evidence of suitability for service in the merchant
mariner to be eligible for a license, COR, or a merchant mariner's
document.
4. Past Offenses
Several comments recommended implementing these regulations in a
prospective manner, where the Coast Guard would only consider offenses
occurring after the effective date of the regulations. These comments
stated that, in the past, many mariners have not challenged false
charges due to their work schedule and the threat of loss of
employment. The regulations allow mariners ample opportunity to provide
the OCMI with evidence of suitability for service in the merchant
marine, and to explain the circumstances of an offense. If the
application is denied, an appeal process and reconsideration are
available.
A few comments suggested that mariners would have altered their
behavior if they had prior knowledge of the effect of off-duty conduct
on employment. In the past, the Coast Guard has been conducting
criminal record review for original applications for licenses and CORs,
and under existing practice conducts a criminal record review of
original applicants for MMDs. Applicants are already accountable for
past behavior when they apply for their original documents. The Coast
Guard is expanding its requirements to include spot-checks of
individuals applying for a raise in grade of a license, COR, or MMD; an
endorsement on a MMD with a new expiration date; and a renewal of a
license, COR, or MMD. The NDR checks were created to identify vessel
personnel with motor vehicle offenses related to the use of alcohol and
drugs or the unsafe operation of a motor vehicle. The Coast Guard
determined that the certification and licensing of persons involved
with the abuse of these substances or the unsafe operation of a motor
vehicle may lead to unsafe vessel operations.
Some comments discussed the Coast Guard's consideration of charges
against mariners that have been stricken from the record through
remediation or compensation and how this defeats public policy and
discourages individuals from participating in remediation or
compensation. As stated in the definition of ``conviction'' provided in
this final rule, a later expungement of the conviction will not negate
a conviction unless it is proved to the OCMI that the expungement is
based upon a showing that the court's earlier conviction was in error.
The Coast Guard concluded that consideration of all convictions is
[[Page 65481]]
important to determining the character and habits of life of applicants
for merchant mariner's credentials.
Four comments stated that denial of credentials on the grounds of a
past offense is punishing an individual twice for the same offense, and
for this reason the final rule is unconstitutional. The Coast Guard
disagrees. Merchant mariner's credentials are certificates of
qualification that authorize individuals to perform certain duties on a
vessel. In the interest of marine safety, the Coast Guard examines
applicants to determine their suitability to hold merchant marine
credentials. Past offenses are a good indicator of whether a person is
a possible threat to the safety of ship operation, personnel, the
marine environment, or passengers. Basing the decision of whether to
grant a merchant mariner's credentials on the factors articulated in
this rule is not punishment of those whose applications are denied. It
is instead a reasonable way to protect life and property at sea.
The Coast Guard added the statement, ``Applicants must provide
written disclosure for all prior convictions at the time of
application,'' to Sec. 10.201(h) and Sec. 12.02-4(c). The sentence will
provide consistency between this final rule and the current application
procedures.
5. Assessment Periods
Five comments addressed the minimum and maximum assessment periods
for which the OCMI will consider a conviction in the evaluation of an
applicant for merchant mariner's credentials.
One comment expressed that the assessment periods appeared to be
arbitrary. The Coast Guard has reviewed three reports from the U.S.
Department of Justice, Bureau of Justice Statistics (BJS). These
reports are entitled, ``Recidivism of Prisoners Released in 1983'',
Recidivism of Felons on Probation, 1988-1989,'' and ``Recidivism of
Young Parolees''. The reports revealed high rates of rearrest for
released prisoners, felons on probation, and young parolees. Based on a
sample of State prisoners released in 1983, 62.5 percent were
rearrested for a felony or serious misdemeanor within 3 years. Using a
sample of felons sentenced to probation in 1986, a report found that 62
percent of the probationers either had a disciplinary hearing for
violating a condition of their probation or were arrested for another
felony within three years. Another BJS study, based on a sample of
young parolees between the ages of 17 and 22, found that 69 percent of
young parolees were rearrested for a serious crime within 6 years of
their release from prison. One of the reports found that of the
prisoners in the study, those with a prior arrest for a violent offense
had a greater likelihood of rearrest than other released prisoners.
Therefore, the categories of violent crimes in Tables 10.201(h) and
12.02-4(c) have longer assessment periods. The Coast Guard determined
that the assessment periods, as published in the NPRM, are a sufficient
guideline for the OCMI to consider the convictions of applicants. The
assessment periods take into account both recidivism of the categories
of crimes and the consequences of their occurrence.
Several comments suggested reducing the length of the assessment
periods and including supervised parole or probation as part of the
assessment periods. The Coast Guard established the assessment periods
as guidelines for the OCMI when evaluating an applicant with criminal
convictions. The assessment periods do not prevent an individual from
applying before the minimum assessment period has elapsed or between
minimum and maximum assessment periods.
A person who applies before the minimum time period has elapsed
must provide the OCMI with evidence of suitability for maritime
employment. This final rule provides a list of factors in
Sec. 10.201(j) and Sec. 12.02-4(e) for the OCMI to use as a guide in
considering an applicant before the minimum assessment period has
elapsed.
The applicant may also apply for merchant mariner's credentials
between the minimum and maximum assessment periods. During this period,
the Coast Guard will issue a license, COR, or MMD to the applicant
unless there are offsetting factors. Type of offsetting factors are
listed in Sec. 10.201(h)(5) and Sec. 12.02-4(c)(5).
After further review, the Coast Guard determined that the OCMI
would benefit from examining periods of supervised probation and parole
as part of the assessment periods. Periods of supervised probation and
parole, like periods of unsupervised probation and parole, allow
individuals to adjust to civilian life. Therefore, the OCMI may include
periods of probation and parole in the assessment periods with a letter
of recommendation from a parole or probation officer. The Coast Guard
also revised Sec. 10.201(h)(2) and Sec. 12.02-4(c)(2) to clarify when
the assessment period commences.
One comment objected to the evaluating factor in Secs. 10.201(j)
and 12.02-4(e) concerning membership in a rehabilitation group. The
comment noted that many of these groups are anonymous and information
on membership and attendance is usually confidential or nonexistent.
The Coast Guard will accept as proof of active membership a broad range
of items, such as a letter from a counselor, or the signature or stamp
of a secretary from the group an individual is attending.
6. Direct and Indirect Benefits
Three comments recommended supporting the benefit analysis in the
NPRM with statistical data. The Coast Guard stated in the NPRM that the
direct and societal benefits from this final rule are not quantifiable.
Historical data are insufficient to perform an analysis of benefits.
The Coast Guard concluded that even if maritime accidents are reduced
by a small percentage, savings will accrue to the maritime industry
through lower repair and medical costs and to the public through
environmental protection.
7. Additional Comments and Changes
Another comment suggested that the OCMI consider dangerous drug
offenses more than ten years prior to the application for a license,
COR, or MMD if there are subsequent dangerous drug offenses. The Coast
Guard determined that consideration of dangerous drug convictions
occurring ten years before application combined with subsequent
violations are helpful in establishing a behavior pattern. The Coast
Guard is amending Sec. 10.201(h)(2) and Sec. 12.02-4(c)(2) to include
dangerous drug convictions occurring more than 10 years prior to the
date of application if an individual has subsequent violations. Tables
10.201(h) and 12.02-4(c) were also amended to reflect the consideration
of dangerous drug offenses more than 10 years old if there are
subsequent dangerous drug offenses.
The Coast Guard determined that some NDR convictions could also be
criminal convictions. When deciding on an appropriate assessment
period, the OCMI should be able to use the guidelines found in the
criminal conviction table and the NDR conviction table. Therefore,
Sec. 10.201(h)(3) and Sec. 12.02-4(c)(3) were revised to add Table
10.201(i) and Table 12.02-4(d), respectively. Also, Sec. 10.201(i) and
Sec. 12.02-4(d) were revised to allow the OCMI to use criminal
conviction assessment period guidelines where appropriate.
The Coast Guard revised Tables 10.201(i) and 12.02-4(d) to clarify
the assessment period for 2 or more motor vehicle convictions. The
phrase ``which ever is longer'' was deleted from the assessment period
of applicants for merchant mariner's documents, licenses, and
certificates of registry with
[[Page 65482]]
2 or more motor vehicle convictions involving dangerous drugs or
alcohol.
The Coast Guard revised Sec. 10.201(j) and Sec. 12.02-4(e) to
include applicants who are users of, or addicted to dangerous drugs.
This revision was made to ensure consistency with Sec. 10.201(b) and
Sec. 12.02-4(e).
The other comments received were general in nature and supported
this Coast Guard rulemaking.
Regulatory Evaluation
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that order. It has not been reviewed by the Office of Management and
Budget under that order. It is not significant under the regulatory
policies and procedures of the Department of Transportation (DOT) (44
FR 11040; February 26, 1979).
A final Regulatory Evaluation under paragraph 10e of the regulatory
policies and procedures of DOT has been prepared and is available in
the docket for inspection or copying where indicated under ADDRESSES.
The Evaluation is summarized as follows.
1. Criminal Record Review
Coast Guard costs attributable to implementing the provisions
authorizing the criminal record review of applicants for licenses,
CORs, and MMDs in sections 4101(a) and 4102(e) of OPA 90 will be
incurred by the RECs and Coast Guard Headquarters. These costs are
associated with reviewing and processing the criminal record review
data through the Federal Bureau of Investigation (FBI). The REC will
assume the primary responsibility for the final review of the criminal
record report received from the FBI.
Because current Coast Guard regulations and practices require all
applicants for the original issuance of licenses, CORs, or MMDs to
submit to criminal record reviews by the taking of fingerprints, these
costs are not newly incurred as a result of this rulemaking, and
therefore, are not included in this regulatory assessment. The costs
associated with the requirements for criminal record reviews apply only
to a raise in grade of a license or COR; an endorsement on an MMD with
a new expiration date; or renewal of a license, COR, or MMD. The Coast
Guard plans to spot-check the criminal records of individuals applying
for these merchant mariner credentials. For the purpose of estimating
costs, the Coast Guard has assumed that 1 of every 30 of these
applicants will be spot-checked.
Approximately 10,881 licenses are expected to be renewed each year.
An estimated 363 (10,881/30) spot criminal record checks will be
performed on these applicants.
Approximately 18,000 MMDs are expected to be renewed each year. An
estimated 600 (18,000/30) spot criminal record checks will be done on
these applicants.
Approximately 300 CORs are expected to be renewed each year. An
estimated 10 (300/30) spot criminal record checks will be performed on
these applicants.
Approximately 3,740 raises of grade for license and COR
endorsements are expected to be issued each year. An estimated 125
(3,740/30) spot criminal record checks will be performed on these
applicants.
Approximatley 4,025 supplemental MMD endorsements are issued each
year. An estimated 134 (4,025/30) spot criminal record checks will be
done on these applicants.
The total number of spot criminal record checks will amount to
approximately 1,232 (See Table I.).
Table I
------------------------------------------------------------------------
Type of action No. applicants No. checked
------------------------------------------------------------------------
License Renewal................... 10,881 363
MMD Renewals...................... 18,000 600
COR Renewals...................... 300 10
Raise of grade (licenses) and
higher grade of COR.............. 3,740 125
Supplemental endorsements (MMDs).. 4,025 134
------------------
Total Number of Spot Criminal
Record Checks................ ................. 1,232
------------------------------------------------------------------------
It will cost the Coast Guard approximately $17 per criminal record
check to process the fingerprints through the FBI for an estimated
annual cost of $20,944.
Based on a sample survey of the REC's experience with criminal
records conducted by the Coast Guard in 1992, 8 percent of the
applicants are estimated to have records with the FBI. Of those with
records, it is estimated that 9 percent have records significant to the
application evaluation. Thus, only 0.72 percent of the applicants had
actionable convictions on their records. Therefore, of the reissue and
renewal applicants sampled, it is estimated that 99 will have records
with the FBI, and a total of 9 of the 1,232 applicants will have
records significant to the license evaluation. The Coast Guard
estimates that the costs for the 99 applicants with convictions to
furnish the necessary documents to exonerate themselves will be
minimal. Costs are expected to total approximately $19 per court record
for aggregate annual applicant costs of approximately $1,900.
The Coast Guard estimates that 75 percent, or 924, of the spot-
checked applicants for a raise in grade of a license or COR, a renewal
of a license or COR, or any MMD with a new expiration date will apply
by mail. For those 924 applicants, the estimated costs include the time
for the applicant to go to his or her local police department, submit
to fingerprinting, and return to his or her residence. The Coast Guard
estimates that this would take approximately 1.5 hrs. of the
applicant's time. Total respondent costs are estimated to be $22,700.
Twenty-five percent, or 308, of the spot-checked applicants are
expected to choose to go to an REC to conduct their renewal
transactions. For those 308 applicants, additional costs attributed to
the criminal record check will be insignificant.
2. National Driver Register Access
The Coast Guard estimates that it will conduct 57,435 NDR checks
annually for all individuals applying for the original issuance,
renewal, or endorsement with a new expiration date of merchant
mariner's credentials. The Coast Guard's costs for NDR checks involve
providing an interface with the NDR computer and clerical resources to
process record checks and notifications to applicants with NDR records.
These costs are estimated to be $120,000 annually, with the potential
for substantial reduction in cost if direct
[[Page 65483]]
access to the NDR data by the RECs is authorized. The RECs will write
letters to those applicants who have a probable identification (hit),
and review any associated court records as forwarded by applicants.
The Coast Guard estimates that initial computer hardware and
software and necessary connection to the NDR will be under $20,000. The
Coast Guard estimates the annual cost of a dedicated telephone line
from Coast Guard Headquarters to the Commonwealth of Virginia will be
$12,000 ($6/hr. x 8 hrs./day x 250 days/yr.). The initial annual Coast
Guard REC costs are estimated to be $58,354 (57,435 checks x 0.05 hr./
check x /$20/hr. for a clerical employee, plus $0.32/stamp x 2,872
hits). Initially, the Coast Guard will dedicate one full-time clerical
employee at Coast Guard Headquarters to forward data to the
Commonwealth of Virginia for processing. This cost is estimated to be
$40,000 ($20/hr. for a clerical employee x 8 hrs./day x 250 days).
Therefore, the initial annual Coast Guard cost associated with the
National Driver Register portion of the rule is estimated to total
approximately $111,400.
Annual respondent costs associated with NDR checks include the time
to fill out the NDR consent form which is considered to be
insignificant. In 50 percent of the 2,872 hits, or 1,436 cases,
applicants will have clean driving records and the OCMI will issue
their merchant mariner's credentials without further expense. For the
other 50 percent of applicants, or 1,436, costs are expected to be less
than $20.00 per court record submitted to the Coast Guard for estimated
annual respondent costs of $26,700.
The dollar value of direct and societal benefits flowing from spot-
checking applicants' criminal records and from reviewing applicants'
NDR records are not quantifiable but may be substantial.
The Coast Guard anticipates that, as a result of this rule, a
number of applicants will be identified, based upon their criminal
record or adverse driving record, whose conduct indicates that they
should not be trusted to safely perform shipboard duties. Those
applicants will not be granted merchant mariner credentials.
Direct benefits would include the potential for--
Fewer margin groundings and other accidents;
Reduced property loss;
Fewer releases of oil and hazardous materials into the
marine environment; and
Fewer injuries and reduced loss of life among merchant
mariners and other seagoing personnel.
The Coast Guard also anticipates several indirect benefits. Within
the community of applicants for merchant mariner's credentials,
knowledge of the Coast Guard's enhanced periodic record-checking
program may dissuade recidivism among merchant mariners with past
criminal, or serious traffic records. The program may also discourage
some convicted criminals, users of dangerous drugs, and serious traffic
offenders from seeking new credentials or renewals, and may also
encourage some applicants who are convicted criminals or users of
dangerous drugs to truthfully complete questions that address these
issues on the applications forms. Users of dangerous drugs in the U.S.
merchant marine may be encouraged to seek counseling and treatment
before incurring a criminal record or dangerous drug history with the
FBI. In addition, merchant mariners and prospective merchant mariners
may be encouraged to maintain a satisfactory standard of personal
conduct.
Historical data are insufficient to quantify benefits; however,
should this program manage to save even one line per year at $2.7
million per statistical life saved (which reflects a reasonable
estimate of people's presumed willingness-to-pay for safety), its
benefits would exceed its costs. If maritime accidents were reduced
even by a small percentage, savings would accrue to the maritime
industry through lower repair and medical costs and to the public
through environmental protection.
Small Entities
The costs to small entities will not be significant because the
costs of spot-checking applicants' criminal records and reviewing NDR
records will be borne by the Coast Guard. The Coast Guard expects the
impact of this regulation on small entities to be minimal. Therefore,
the Coast Guard certifies under section 605(b) of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) that this rule will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
This rule contains collection-of-information requirements. The
Coast Guard has submitted the requirements to the office of Management
and Budget (OMB) for review under section 3504(h) of the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.), and OMB has approved them. The
section numbers are Secs. 10.201, 10.205, 10.207, 10.209, 10.805,
12.02-4, and 12.02-9. The corresponding OMB number is OMB Control
Number 2115-0514.
Federalism
The Coast Guard has analyzed these regulations under the principles
and criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under paragraph 2.B.2 of Commandant Instruction
M16475.1B, the regulations are categorically excluded from further
environmental documentation. Paragraph 2.B.2 of that instruction
excludes administrative actions and procedural regulations and policies
which clearly do not have any environmental impact. A ``Categorical
Exclusion Determination'' is available in the docket for inspection or
copying where indicated under ADDRESSES.
List of Subjects
46 CFR Part 10
Fees, Reporting and recordkeeping requirements, Schools, Seamen.
46 CFR Part 12
Fees, Reporting and recordkeeping requirements, Seamen.
For the reasons set out in the preamble, the Coast Guard amends 46
CFR parts 10 and 12 as follows:
PART 10--LICENSING OF MARITIME PERSONNEL
1. The authority citation for part 10 is revised to read as
follows:
Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7101,
7106, 7107, 7109, 7302, 7505, 7701; 49 CFR 1.46. Section 10.107 also
issued under 44 U.S.C. 3507.
2. In Sec. 10.103, the definitions of ``conviction,'' ``National
Driver Register,'' and ``NDR listed convictions'' are added to read as
follows:
Sec. 10.103 Definitions of terms used in this part.
* * * * *
Conviction means the applicant for a license or certificate of
registry has been found guilty by judgment or plea by a court of record
of the United States, the District of Columbia or any State or
territory of the United States of a criminal felony or misdemeanor or
of an offense described in section 205 of the National Driver Register
Act of 1982 (49 U.S.C. 30304). Conviction of more than
[[Page 65484]]
one offense at a single trial will be considered to be multiple
convictions. If an applicant pleads guilty or no contest, is granted
deferred adjudication, or is required by the court to attend classes,
make contributions of time or money, receive treatment, submit to any
manner of probation or supervision, or forego appeal of a trial court's
conviction, then the applicant will be considered to have received a
conviction. A later expungement of the conviction will not negate a
conviction unless it is proved to the OCMI that the expungement is
based upon a showing that the court's earlier conviction was in error.
* * * * *
National Driver Register (NDR) means the nationwide repository of
information on drivers maintained by the National Highway Traffic
Safety Administration as provided under 49 U.S.C. Chapter 303.
NDR listed convictions means a conviction of any of the following
motor vehicle-related offenses or comparable offenses:
(a) Operating a motor vehicle while under the influence of, or
impaired by, alcohol or a controlled substance; or
(b) A traffic violation arising in connection with a fatal traffic
accident, reckless driving, or racing on the highways.
* * * * *
3. In Sec. 10.201, paragraph (b) is revised and paragraphs (h),
(i), and (j) are added to read as follows:
Sec. 10.201 Eligibility for licenses and certificates of registry,
general.
* * * * *
(b) No person who has been convicted by a court of record of a
violation of the dangerous drug laws of the United States, the District
of Columbia, or any State or territory of the United States is eligible
for a license or certificate of registry, except as provided by the
provisions of paragraph (h) of this section. No person who has ever
been the user of, or addicted to the use of, a dangerous drug, or has
ever been convicted of an offense described in section 205 of the
National Driver Register Act of 1982 (49 U.S.C. 30304) due to the
addiction or abuse of alcohol is eligible for a license or certificate
of registry unless he or she furnishes satisfactory evidence of
suitability for service in the merchant marine as provided in paragraph
(j) of this section.
* * * * *
(h) Criminal Record Review. The OCMI may review the criminal record
of an applicant for the issuance of a license or certificate of
registry issued as an original or reissued with a new expiration date.
An applicant conducting simultaneous merchant mariner's credential
transactions shall undergo only one criminal record check. Applicants
must provide written disclosure of all prior convictions at the time of
application.
(1) If the applicant is advised that a criminal record check is
required by the OCMI, applicants shall provide their fingerprints at
the time of application. The fingerprints will be used to determine
whether the applicant has a record of a criminal conviction. An
application may be disapproved if a criminal record review leads the
OCMI to determine that the applicant's habits of life and character are
such that the applicant cannot be entrusted with the duties and
responsibilities of the license or certificate of registry for which
application is made. If an application is disapproved, the OCMI will
notify the applicant in writing of the reason(s) for disapproval and
advise the applicant that the reconsideration and appeal procedures in
Sec. 1.03 of this chapter apply. No examination will be given pending
decision on appeal.
(2) The OCMI may use Table 10.201(h) to evaluate applicants for
licenses and certificates of registry who have criminal convictions.
The table lists major categories of criminal activity and is not to be
construed as an all-inclusive list. If an applicant is convicted of an
offense that does not appear on the list, the OCMI will establish an
appropriate assessment period using the list as a guide. The assessment
period commences when an applicant is no longer incarcerated. The
applicant must establish proof of the time incarcerated and periods of
probation and parole to the satisfaction of the OCMI. The assessment
period may include supervised or unsupervised probation or parole. A
conviction for a drug offense more than 10 years prior to the date of
application will not alone be grounds for denial.
(3) When an applicant has convictions for more than one offense,
the minimum assessment period will be the longest minimum in Table
10.201(h) and Table 10.201(i) based upon the applicant's convictions;
the maximum assessment period will be the longest shown in Table
10.201(h) and Table 10.201(i) based upon the applicant's convictions.
(4) If a person with a criminal conviction applies for a license or
certificate of registry before the minimum assessment period shown in
Table 10.201(h), or established by the OCMI under paragraph (h)(2) of
this section has elapsed, then the applicant must provide evidence of
suitability for service in the merchant marine. Factors which are
evidence of suitability for service in the merchant marine are listed
in paragraph (j) of this section. The OCMI will consider the
applicant's evidence and may issue the license or certificate of
registry in less than the listed minimum assessment period if the OCMI
is satisfied that the applicant is suitable to hold the license or
certificate of registry for which he or she has applied. If an
applicant does not provide evidence of suitability for service in the
merchant marine, then the application will be considered incomplete and
will not be processed by the OCMI.
(5) If a person with a criminal conviction applies for a license or
certificate of registry during the time between the minimum and maximum
assessment periods shown in Table 10.201(h) or established by the OCMI
under paragraph (h)(2) of this section, the OCMI will consider the
conviction and, unless there are offsetting factors, may grant the
applicant the license or certificate of registry for which he or she
has applied. Offsetting factors include multiple convictions, failure
to comply with court orders (e.g., child support orders), previous
failures at rehabilitation or reform, inability to maintain steady
employment, or any connection between the crime and the safe operation
of a vessel. If the OCMI considers the applicant unsuitable for service
in the merchant marine at the time of application, the OCMI will
disapprove the application.
(6) If a person with a criminal conviction applies for a license or
certificate of registry after the maximum assessment period shown in
Table 10.201(h) or established by the OCMI under paragraph (h)(2) of
this section has elapsed, then the OCMI will grant the applicant the
license or certificate of registry for which he or she has applied
unless the OCMI has reason to believe the applicant is still unsuitable
for service in the merchant marine. If the OCMI disapproves an
application based upon a conviction older than the maximum assessment
period, the OCMI will notify the applicant in writing of the reason(s)
for the disapproval. The OCMI will also inform the applicant, in
writing, that the reconsideration and appeal procedures contained in
Sec. 1.03 of this chapter apply.
[[Page 65485]]
Table 10.201(h).--Guidelines for Evaluating Applicants for Licenses and Certificates of Registry Who Have
Criminal Convictions
----------------------------------------------------------------------------------------------------------------
Assessment periods
Crime\1\ --------------------------------------------------------------------
Minimum Maximum
----------------------------------------------------------------------------------------------------------------
Crimes Against Persons
----------------------------------------------------------------------------------------------------------------
Homicide (intentional)..................... 7 years.......................... 20 years.
Homicide (unintentional)................... 5 years.......................... 10 years.
Assault (aggravated)....................... 5 years.......................... 10 years.
Assault (simple)........................... 1 year........................... 5 years.
Sexual Assault (rape, child molestation)... 5 years.......................... 10 years.
Robbery.................................... 5 years.......................... 10 years.
Other crimes against persons \2\...........
----------------------------------------------------------------------------------------------------------------
Crimes Against Property
----------------------------------------------------------------------------------------------------------------
Burglary................................... 3 years.......................... 10 years.
Larceny (embezzlement)..................... 3 years.......................... 5 years.
Other crimes against property \2\..........
----------------------------------------------------------------------------------------------------------------
Vehicular Crimes
----------------------------------------------------------------------------------------------------------------
Conviction involving fatality.............. 1 year........................... 5 years.
Reckless Driving........................... 1 year........................... 2 years.
Racing on the Highways..................... 1 year........................... 2 years.
Other vehicular crimes \2\.................
----------------------------------------------------------------------------------------------------------------
Crimes Against Public Safety
----------------------------------------------------------------------------------------------------------------
Destruction of Property.................... 5 years.......................... 10 years.
Other crimes against public safety \2\.....
----------------------------------------------------------------------------------------------------------------
Crimes Involving National Security
----------------------------------------------------------------------------------------------------------------
Terrorism, Acts of Sabotage, Espionage and 7 years.......................... 20 years.
related offenses.
----------------------------------------------------------------------------------------------------------------
Criminal Violations of Environmental Laws
----------------------------------------------------------------------------------------------------------------
Criminal violations of environmental laws 1 year........................... 10 years.
involving improper handling of pollutants
or hazardous materials.
----------------------------------------------------------------------------------------------------------------
Dangerous Drug Offenses 3, 4, 5
----------------------------------------------------------------------------------------------------------------
Trafficking (sale, distribution, transfer). 5 years.......................... 10 years.
Dangerous drugs (Use or possession)........ 1 year........................... 10 years.
Other dangerous drug convictions \6\.......
----------------------------------------------------------------------------------------------------------------
\1\ Conviction of attempt, solicitation, aiding and abetting, accessory after the fact, and conspiracy to commit
the criminal conduct listed in this table carry the same minimum and maximum assessment periods provided in
the table.
\2\ Other crimes are to be reviewed by the OCMI to determine the minimum and maximum assessment periods
depending on the nature of the crime.
\3\ Applicable only to original applications for licenses or CORs. Any applicant who has ever been the user of,
or addicted to the use of, a dangerous drug shall meet the requirements of paragraph (b) of this section.
Note: Applicants for reissue of a license or COR with a new expiration date including a renewal or a raise of
grade, who have been convicted of a dangerous drug offense while holding a license or COR, may have their
applications withheld until appropriate action has been completed by the OCMI under the regulations which
appear in 46 CFR part 5 governing administrative actions against merchant mariner credentials.
\4\ The OCMI may consider dangerous drug convictions more than 10 years old only if there has been a dangerous
drug conviction within the past 10 years.
\5\ Applicants must demonstrate rehabilitation under paragraph (j) of this section, including applicants with
dangerous drug use convictions more than ten years old.
\6\ Other dangerous drug convictions are to be reviewed by the Officer in Charge, Marine Inspection on a case by
case basis to determine the appropriate assessment periods depending on the nature of the offense.
(i) National Driver Register. A license or certificate of registry
will not be issued as an original or reissued with a new expiration
date unless the applicant consents to a check of the NDR for offenses
described in section 205(a)(3) (A) or (B) of the NDR Act (i.e.,
operation of a motor vehicle while under the influence of, or impaired
by, alcohol or a controlled substance; and any traffic violations
arising in connection with a fatal traffic accident, reckless driving,
or racing on the highways). The OCMI will not consider NDR listed civil
convictions that are more than 3 years old from the date of request
unless that information relates to the current suspension or revocation
of the applicant's license to operate a motor vehicle. The OCMI may
determine minimum and maximum
[[Page 65486]]
assessment periods for NDR listed criminal convictions using Table
10.201(h). An applicant conducting simultaneous merchant mariner's
credential transactions is subject to only one NDR check.
(1) Any application may be disapproved if information from the NDR
check leads the OCMI to determine that the applicant cannot be
entrusted with the duties and responsibilities of the license or
certificate of registry for which the application is made. If an
application is disapproved, the OCMI will notify the applicant in
writing of the reason(s) for disapproval and advise the application
that the appeal procedures in Sec. 1.03 of this chapter apply. No
examination will be given pending decision on appeal.
(2) Prior to disapproving an application because of information
received from the NDR, the OCMI will make the information available to
the applicant for review and written comment. The applicant may submit
records from the applicable State concerning driving record and
convictions to the Coast Guard Regional Examination Center (REC)
processing the application. The REC will hold an application with NDR
listed convictions pending the completion of the evaluation and
delivery by the individual of the underlying State records.
(3) The guidelines in Table 10.201(i) will be used by the OCMI in
evaluating applicants for licenses and certificates of registry who
have drug or alcohol related NDR listed convictions. Non-drug or
alcohol related NDR listed convictions will be evaluated by the OCMI
under Table 10.201(h) as applicable.
(4) An applicant may request an NDR file check for personal use in
accordance with the Federal Privacy Act of 1974 (Pub. L. 93-579) by
contacting the NDR at the following address: National Driver Register,
Nassif Building, 400 7th Street, SW., Washington, DC 20590.
(i) Applicants should request Form NDR-PRV or provide the following
information on a notarized letter:
(A) Full legal name;
(B) Other names used;
(C) Complete mailing address;
(D) Driver license number;
(E) Eye color;
(F) Social security number;
(G) Height;
(H) Weight; and
(I) Sex.
(ii) The NDR will respond to every valid inquiry including requests
which produce no record(s) on the NDR file. Records can be made
available, within a reasonable amount of time after the request, for
personal inspection and copying during regular working hours at 7:45
a.m. to 4:15 p.m., each day except Federal holidays.
Table 10.201(i).--Guidelines for Evaluating Applicants for Licenses and Certificates of Registry Who Have NDR
Motor Vehicle Convictions Involving Dangerous Drugs or Alcohol \1\
----------------------------------------------------------------------------------------------------------------
No. of convictions Date of conviction Assessment period
----------------------------------------------------------------------------------------------------------------
1................................ Less than 1 year........................... 1 year from date of conviction.
1................................ More than 1, less than 3 years............. Application will be processed,
unless suspension or revocation
\2\ is still in effect.
Applicant will be advised that
additional conviction(s) may
jeopardize merchant mariner
credentials.
1................................ More than 3 years old...................... Not necessary unless suspension
or revocation is still in
effect.
2 or more........................ Any less than 3 years old.................. 1 year since last conviction and
at least 3 years from 2nd most
recent conviction, unless
suspension or revocation is
still in effect.
2 or more........................ All more than 3 years old.................. Application will be processed
unless suspension or revocation
is still in effect.
----------------------------------------------------------------------------------------------------------------
\1\ Any applicant who has ever been the user of, or addicted to the use of, a dangerous drug shall meet the
requirements of paragraph (b) of this section.
\2\ Suspension or revocation, when referred to in Table 10.201(i), means a State suspension or revocation of a
motor vehicle operator's license.
(j) If an applicant has one or more alcohol or dangerous drug
related criminal or NDR listed convictions; if the applicant has ever
been the user of, or addicted to the use of, a dangerous drug; or if
the applicant applies before the minimum assessment period for his or
her conviction has elapsed; the OCMI may consider the following
factors, as applicable, in assessing the applicant's suitability to
hold a license or certificate of registry. This list is intended as a
guide for the OCMI. The OCMI may consider other factors which he or she
judges appropriate to a particular applicant, such as:
(1) Proof of completion of an accredited alcohol- or drug-abuse
rehabilitation program.
(2) Active membership in a rehabilitation or counseling group, such
as Alcoholics Anonymous or Narcotics Anonymous.
(3) Character references from persons who can attest to the
applicant's sobriety, reliability, and suitability for employment in
the merchant marine including parole or probation officers.
(4) Steady employment.
(5) Successful completion of all conditions of parole or probation.
4. In Sec. 10.205, paragraph (f)(2) is revised and paragraph (k) is
added to read as follows:
Sec. 10.205 Requriements for original licensees and certificates of
registry.
* * * * *
(f) * * *
(1) * * *
(2) The OCMI may review the criminal record check of each applicant
for an original license or certificate of registry according to the
procedures set forth in Sec. 10.201(h).
* * * * *
(k) National Driver Register. Each applicant for an original
license or certificate of registry shall consent to an NDR check under
Sec. 10.201(i).
5. In Sec. 10.207, paragraphs (h) and (i) are added to read as
follows:
Sec. 10.207 Requirements for raise in grade of license.
* * * * *
(h) Criminal Record Review. Each applicant for a raise of grade may
be required to submit to a criminal record check under Sec. 10.201(h).
(i) National Driver Register. Each applicant for a raise of grade
of a license shall consent to an NDR check under Sec. 10.201(i) if the
license is reissued with a new expiration date.
6. In Sec. 10.209, paragraphs (i) and (j) are added to read as
follows:
Sec. 10.209 Requirements for the renewal of licenses or certificates
of registry.
* * * * *
(i) Each applicant for a renewal may be required to consent to a
criminal record check under Sec. 10.201(h).
(j) Each applicant for renewal of a license or certificate of
registry shall
[[Page 65487]]
consent to an NDR check under Sec. 10.201(i).
PART 12--CERTIFICATION OF SEAMEN
7. The authority citation for part 12 is revised to read as
follows:
Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301,
7302, 7503, 7505, 7701; 49 CFR 1.46.
8. In Sec. 12.01-6, the definitions of ``conviction,'' ``National
Driver Register,'' and ``NDR listed convictions'' are added to read as
follows:
Sec. 12.01-6 Definitions of terms used in this part.
* * * * *
Conviction means the applicant for a merchant mariner's document
has been found guilty by judgment or plea by a court of record of the
Untied States, the District of Columbia or any State or territory of
the United States of a criminal felony or misdemeanor or of an offense
described in section 205 of the National Driver Register Act of 1982
(49 U.S.C. 30304). If an applicant pleads guilty or no contest, is
granted deferred adjudication, or is required by the court to attend
classes, make contributions of time or money, receive treatment, submit
to any manner of probation or supervision, or forego appeal of a trial
court's conviction, then the applicant will be considered to have
received a conviction. A later expungement of the conviction will not
negate a conviction unless it is proved to the OCMI that the
expungement is based upon a showing that the court's earlier conviction
was in error.
* * * * *
National Driver Register (NDR) means the nationwide repository of
information on drivers maintained by the National Highway Traffic
Safety Administration as provided under 49 U.S.C. Chapter 303.
NDR listed convictions means a conviction of any of the following
motor vehicle-related offenses or comparable offenses:
(a) Operating a motor vehicle while under the influence of, or
impaired by, alcohol or a controlled substance; or
(b) A traffic violation arising in connection with a fatal traffic
accident, reckless driving, or racing on the highways.
9. In Sec. 12.02-4, paragraph (a) is revised, paragraph (b) is
removed, existing paragraph (c) is redesignated as paragraph (b), and
new paragraphs (c), (d) and (e) are added to read as follows:
Sec. 12.02-4 Basis for denial of documents.
(a) No person who has been convicted by a court of record of a
violation of the dangerous drug laws of the United States, the District
of Columbia, or any State or territory of the United States is eligible
for an original merchant mariner's document, except as provided by the
provisions of paragraph (c) of this section. No person who has ever
been the user of, or addicted to the use of, a dangerous drug, or has
ever been convicted of an offense described in section 205 of the
National Driver Register Act of 1982 (49 U.S.C. 30304) due to the
addiction or abuse of alcohol is eligible for a merchant mariner's
document unless he or she furnishes satisfactory evidence of
suitability for service in the merchant marine as provided in paragraph
(e) of this section.
* * * * *
(c) Criminal Record Review. The Officer in Charge, Marine
Inspection, may require a criminal record check of an applicant for a
merchant mariner's document issued as an original or reissued with a
new expiration date. An applicant conducting simultaneous merchant
mariner's credential transactions shall undergo only one criminal
record check. Applicants must provide written disclosure of all prior
convictions at the time of application.
(1) If a criminal record check is required by the Officer in
Charge, Marine Inspection, applicants shall provide fingerprints at the
time of application. The fingerprints will be used to determine whether
the applicant has a record of a criminal conviction. An application may
be disapproved if the individual's criminal record leads the Officer in
Charge, Marine Inspection to determine that the applicant cannot be
entrusted with the duties and responsibilities of the merchant
mariner's document for which application is made. If an application is
disapproved, the Officer in Charge, Marine Inspection will notify the
applicant in writing of the reason(s) for disapproval and advise the
applicant that the appeal procedures in Sec. 1.03 of this chapter
apply. No examination will be given pending decision on appeal.
(2) The Officer in Charge, Marine Inspection will use Table 12.02-
4(c) to evaluate applicants for merchant mariner's documents who have
criminal convictions. The table lists major categories of criminal
activity and is not to be construed as an all-inclusive list. If an
applicant is convicted of an offense that does not appear on the list,
the Officer in Charge, Marine Inspection will establish an appropriate
assessment period using the list as a guide. The assessment period
commences when an applicant is no longer incarcerated. The applicant
must establish proof of the time incarcerated and periods of probation
and parole to the satisfaction of the Officer in Charge, Marine
Inspection. The assessment period may include supervised or
unsupervised probation or parole. A conviction for a drug offense more
than 10 years prior to the date of application will not alone be
grounds for denial.
(3) When an applicant has convictions for more than one offense,
the minimum assessment period will be the longest minimum in Table
12.02-4(c) and Table 12.02-4(d) based upon the applicant's convictions;
the maximum assessment period will be the longest shown in Table 12.02-
4(c) and Table 12.02-4(d) based upon the applicant's convictions.
(4) If a person with a criminal conviction applies for a merchant
mariner's document before the minimum assessment period shown in Table
12.02-4(c), or established by the Officer in Charge, Marine Inspection
under paragraph (c)(2) of this section has elapsed, then the applicant
must provide, as part of the application package, evidence of
suitability for service in the merchant marine. Factors which are
evidence of suitability for service in the merchant marine are listed
in paragraph (e) of this section. The Officer in Charge, Marine
Inspection will consider the applicant's evidence submitted with the
application and may issue the merchant mariner's document in less than
the listed minimum assessment period if the Officer in Charge, Marine
Inspection is satisfied that the applicant is suitable to hold the
merchant mariner's document for which he or she has applied. If an
application filed before the minimum assessment period has elapsed does
not include evidence of suitability for service in the merchant marine,
then the application will be considered incomplete and will not be
processed by the Officer in Charge, Marine Inspection until the
applicant provides the necessary evidence as set forth in paragraph (e)
of this section.
(5) If a person with a criminal conviction applies for a merchant
mariner's document during the time between the minimum and maximum
assessment periods shown in Table 12.02-4(c) or established by the
Officer in Charge, Marine Inspection under paragraph (c)(2) of this
section, then the Officer in Charge, Marine Inspection shall consider
the conviction and, unless there are offsetting factors, shall grant
the applicant the merchant mariner's document for which he or she
[[Page 65488]]
has applied. Offsetting factors include such factors as multiple
convictions, failure to comply with court orders (e.g., child support
orders), previous failures at rehabilitation or reform, inability to
maintain steady employment, or any connection between the crime and the
safe operation of a vessel. If the Officer in Charge, Marine Inspection
considers the applicant unsuitable for service in the merchant marine
at the time of application, the Officer in Charge, Marine Inspection
may disapprove the application.
(6) If a person with a criminal conviction applies for a merchant
mariner's document after the maximum assessment period shown in Table
12.02-4(c) or established by the Officer in Charge, Marine Inspection
under paragraph (c)(2) of this section has elapsed, then the Officer in
Charge, Marine Inspection will grant the applicant the merchant
mariner's document for which he or she has applied unless the Officer
in Charge, Marine Inspection considers the applicant still unsuitable
for service in the merchant marine. If the Officer in Charge, Marine
Inspection disapproves an applicant with a conviction older than the
maximum assessment period listed in Table 12.02-4(c), the Officer in
Charge, Marine Inspection will notify the applicant in writing of the
reason(s) for the disapproval including the Officer in Charge, Marine
Inspection's reason(s) for considering a conviction older than the
maximum assessment period listed in Table 12.02-4(c). The Officer in
Charge, Marine Inspection will also inform the applicant, in writing,
that the reconsideration and appeal procedures contained in Sec. 1.03
of this chapter apply.
Table 12.02-4(c).--Guidelines for Evaluating Applicants for Merchant Mariner's Documents Who Have Criminal
Convictions
----------------------------------------------------------------------------------------------------------------
Assessment periods
Crime \1\ --------------------------------------------------------------------
Minimum Maximum
----------------------------------------------------------------------------------------------------------------
Crimes Against Persons
----------------------------------------------------------------------------------------------------------------
Homicide (intentional)..................... 7 years.......................... 20 years.
Homicide (unintentional)................... 5 years.......................... 10 years.
Assault (aggravated)....................... 5 years.......................... 10 years.
Assault (simple)........................... 1 year........................... 5 years.
Sexual Assault (rape, child molestation)... 5 years.......................... 10 years.
Other crimes against persons \2\...........
----------------------------------------------------------------------------------------------------------------
Vehicular Crimes
----------------------------------------------------------------------------------------------------------------
Conviction involving fatality.............. 1 year........................... 5 years.
Reckless Driving........................... 1 year........................... 2 years.
Racing on the Highway...................... 1 year........................... 2 years.
Other vehicular crimes \2\.................
----------------------------------------------------------------------------------------------------------------
Crimes Against Public Safety
----------------------------------------------------------------------------------------------------------------
Destruction of Property.................... 5 years.......................... 10 years.
Other crimes against public safety \2\.....
----------------------------------------------------------------------------------------------------------------
Crimes Involving National Security
----------------------------------------------------------------------------------------------------------------
Terrorism, Acts of Sabotage, Espionage and 7 years.......................... 20 years.
related offenses.
----------------------------------------------------------------------------------------------------------------
Dangerous Drug Offenses 3,4,5
----------------------------------------------------------------------------------------------------------------
Trafficking (sale, distribution, transfer). 5 years.......................... 10 years.
Dangerous drugs (Use or possession)........ 1 year........................... 10 years.
Other dangerous drug convictions \6\.......
----------------------------------------------------------------------------------------------------------------
\1\ Conviction of attempts, solicitations, aiding and abetting, accessory after the fact, and conspiracies to
commit the criminal conduct listed in this table carry the same minimum and maximum assessment periods
provided in the table.
\2\ Other crimes are to be reviewed by the Officer in Charge, Marine Inspection to determine the minimum and
maximum assessment periods depending on the nature of the crime.
\3\ Applicable to original applications only. Any applicant who has ever been the user of, or addicted to the
use of, a dangerous drug shall meet the requirements of paragraph (a) of this section. Note: Applicants for
reissue of a merchant mariner's document with a new expiration date including a renewal or additional
endorsement(s), who have been convicted of a dangerous drug offense while holding a merchant mariner's
document, may have their application withheld until appropriate action has been completed by the Officer in
Charge, Marine Inspection under the regulations which appear in 46 CFR part 5 governing the administrative
actions against merchant mariner credentials.
\4\ The OCMI may consider dangerous drug convictions more than 10 years old only if there has been a dangerous
drug conviction within the past 10 years.
\5\ Applicants must demonstrate rehabilitation under paragraph (e) of this section, including applicants with
dangerous drug use convictions more than ten years old.
\6\ Other dangerous drug convictions are to be reviewed by the Officer in Charge, Marine Inspection on a case by
case basis to determine the appropriate assessment period depending on the nature of the offense.
[[Page 65489]]
(d) National Driver Register. A merchant mariner's document will
not be issued or reissued with a new expiration date unless the
applicant consents to a check of the NDR for offenses described in
section 205(a)(3)(A) or (B) of the NDR Act (i.e., operation of a motor
vehicle while under the influence of, or impaired by, alcohol or a
controlled substance; and any traffic violations arising in connection
with a fatal traffic accident, reckless driving, or racing on the
highways). The Officer in Charge, Marine Inspection will not consider
NDR listed civil convictions that are more than 3 years old from the
date of request unless that information relates to the current
suspension or revocation of the applicant's license to operate a motor
vehicle. The Officer in Charge Marine Inspection may determine minimum
and maximum assessment periods for NDR listed criminal convictions
using Table 12.02-4(c). An applicant conducting simultaneous merchant
mariner's credential transactions is subject to only one NDR check.
(1) Any application may be disapproved if information from the NDR
check leads the Officer in Charge, Marine Inspection to determine that
the applicant cannot be entrusted with the duties and responsibilities
of the merchant mariner's document for which the application is made.
If an application is disapproved, the Officer in Charge, Marine
Inspection will notify the applicant in writing of the reason(s) for
disapproval and advise the applicant that the appeal procedures in
Sec. 1.03 of this chapter apply. No examination will be given or
merchant mariner's document issued pending decision on appeal.
(2) Prior to disapproving an application because of information
received from the NDR, the Officer in Charge, Marine Inspection will
make the information available to the applicant for review and written
comment. The applicant may submit reports from the applicable State
concerning driving record and convictions to the Coast Guard Regional
Examination Center (REC) processing the application. The REC will hold
an application with NDR listed convictions pending the completion of
the evaluation and delivery by the individual of the underlying State
records.
(3) The guidelines in Table 12.02-4(d) will be used by the Officer
in Charge, Marine Inspection when evaluating applicants for merchant
mariner's documents who have drug or alcohol related NDR listed
convictions. Non-drug or alcohol related NDR listed convictions will be
evaluated by the Officer in Charge, Marine Inspection under Table
12.02-4(c) as applicable.
(4) An applicant may request an NDR file check for personal use in
accordance with the Federal Privacy Act of 1974 (Pub. L. 93-579) by
contacting the NDR at the following address: National Driver Register,
Nassif Building, 400 7th Street SW., Washington, DC 20590.
(i) Applicants should request Form NDR-PRV or provide the following
information on a notarized letter:
(A) Full legal name;
(B) Other names used;
(C) Complete mailing address;
(D) Driver license number;
(E) Eye color;
(F) Social security number;
(G) Height;
(H) Weight; and
(I) Sex.
(ii) The NDR will respond to every valid inquiry including requests
which produce no record(s) on the NDR file. Records can be made
available, within a reasonable amount of time after the request, for
personal inspection and copying during regular working hours at 7:45
a.m. to 4:15 p.m., each day except Federal holidays.
Table 12.02-4(d).--Guidelines for Evaluating Applicants for Merchant Mariner's Documents Who Have NDR Motor
Vehicle Convictions Involving Dangerous Drugs or Alcohol \1\
----------------------------------------------------------------------------------------------------------------
No. of convictions Date of conviction Assessment period
----------------------------------------------------------------------------------------------------------------
1................................ Less than 1 year........................... 1 year from date of conviction.
1................................ More than 1, less than 3 years............. Application will be processed,
unless suspension, or
revocation \2\ is still in
effect. Applicant will be
advised that additional
conviction(s) may jeopardize
merchant mariner credentials.
1................................ More than 3 years old...................... Not necessary unless suspension
or revocation is still in
effect.
2 or more........................ Any less than 3 years old.................. 1 year since last conviction and
at least 3 years from 2nd most
recent conviction, unless
suspension or revocation is
still in effect.
2 or more........................ All more than 3 years old.................. Application will be processed
unless suspension or revocation
is still in effect.
----------------------------------------------------------------------------------------------------------------
\1\ Any applicant who has ever been the user of, or addicted to the use of, a dangerous drug shall meet the
requirements of paragraph (a) of this section.
\2\ Suspension or revocation, when referred to in Table 12.02-4(d), means a State suspension or revocation of a
motor vehicle operator's license.
(e) If an applicant for an original merchant mariner's document has
one or more alcohol or dangerous drug related criminal or NDR listed
convictions; if the applicant has ever been the user of, or addicted to
the use of, a dangerous drug; or if the applicant applies before the
minimum assessment period for his or her conviction has elapsed; the
Officer in Charge, Marine Inspection may consider the following
factors, as applicable, in assessing the applicant's suitability to
hold a merchant mariner's document. This list is intended as a
guideline. The Officer in Charge, Marine Inspection may consider other
factors which he or she judges appropriate, such as:
(1) Proof of completion of an accredited alcohol- or drug-abuse
rehabilitation program.
(2) Active membership in a rehabilitation or counseling group, such
as Alcoholics or Narcotics Anonymous.
(3) Character references from persons who can attest to the
applicant's sobriety, reliability, and suitability for employment in
the merchant marine including parole or probation officers.
(4) Steady employment.
(5) Successful completion of all conditions of parole or probation.
10. In Sec. 12.02-9, paragraphs (g) and (h) are added to read as
follows:
Sec. 12.02-9 Application for documents.
* * * * *
(g) Each applicant for an original merchant mariner's document may
be required to submit to a criminal record check as required by
Sec. 12.02-4(c).
(h) Each applicant for an original merchant mariner's document or a
merchant mariner's document reissued with a new expiration date shall
comply
[[Page 65490]]
with the NDR requirements in Sec. 12.02-4(d).
Dated: December 12, 1995.
G.N. Naccara,
Captain, U.S. Coast Guard, Acting Chief, Office of Marine Safety,
Security and Environmental Protection.
[FR Doc. 95-30677 Filed 12-18-95; 8:45 am]
BILLING CODE 4910-14-M
