2011-14920. Validation of Merchant Mariners' Vital Information and Issuance of Coast Guard Merchant Mariner's Licenses and Certificates of Registry (MMLs)

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of intent with request for comments.

SUMMARY:

The Coast Guard is advising the public of its intent to finalize regulations previously published as an interim rule on January 13, 2006. The IR was published to amend the maritime personnel licensing rules to include new security requirements when mariners apply for original, renewal, and raise-of-grade licenses and certificates of registry, but was never published as a final rule. Because of the lapse in time since the interim rule publication, the Coast Guard is seeking comments from the public on one remaining section of the interim rule that has remained unfinalized. The Coast Guard intends to finalize this one section of the interim rule.

DATES:

Comments must be received on or before August 15, 2011.

ADDRESSES:

You may submit comments identified by docket number USCG-2004-17455 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329. To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call or e-mail Mr. Gerald Miante, Maritime Personnel Qualifications Division, Coast Guard; telephone [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2004-17455), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov,, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov,, click on the “submit a comment” box, which will then become highlighted in blue. In the “Select Document Type” drop down menu select “Proposed Rule” and insert “USCG-2004-17455” in the “Enter Keyword or ID” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, click on the “read comments” box, which will then become highlighted in blue. In the “Enter Keyword or ID” box insert “USCG-2004-17455” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one on or before July 6, 2011 using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact Mr. Gerald Miante, Maritime Personnel Qualifications Division, Coast Guard; at the telephone number or e-mail address indicated under the FOR FURTHER INFORMATION CONTACT section of this notice.

Abbreviations

§  Section symbol

FBI Federal Bureau of Investigation

FR Federal Register

MMC Merchant Mariner Credential

MMD Merchant Mariner's Document

NMC National Maritime Center

REC Regional Examination Center

TSA Transportation Security Administration

TWIC Transportation Worker Identification Credential

U.S.C. U.S. Code

Basis and Purpose

On January 13, 2006, the Coast Guard published in the Federal Register (71 FR 2154) an interim rule with request for comments. The interim rule described maritime personnel licensing rules to include new security requirements when mariners apply for original, renewal, and raise-of-grade licenses and certificates of registry. However, subsequent rulemakings have addressed the majority of the interim rule provisions. As a result, the Coast Guard intends to finalize the single remaining section that has not been addressed in subsequent rulemakings.

The most recent significant rulemaking documents for rulemakings addressing the interim rule provisions are as follows: ^[1] (1) Transportation Worker Identification Credential (TWIC) Implementation in the Maritime Sector; Hazardous Materials Endorsement for a Commercial Driver's License (74 FR 13114); (2) Seafarer's Training, Certification and Watchkeeping Code (STCW Code) (75 FR 13715); (3) Maritime Identification Credentials (74 FR 2865); (4) Consolidation of Merchant Mariner Qualification Credentials (74 FR 11196); (5) Training and Service Requirements for Merchant Marine Officers (73 FR 52789); (6) Large Passenger Vessel Crew Requirements (74 FR 47729); and (7) Crewmember Identification Documents (74 FR 19135).

The one section of the January 13, 2006 interim rule that has remained unfinalized is 46 CFR 10.107(b): Definitions in subchapter B, specifically, the definition of “Dangerous drug” defined as “a narcotic drug, a controlled substance, or a controlled-substance analogue (as defined in section 102 of the Comprehensive Drug Abuse and Control Act of 1970 (21 U.S.C. 802)).” This definition was originally published in the January 13, 2006 interim rule as 46 CFR 10.103. The subsequent rulemaking, Consolidation of Merchant Mariner Credentials, redesignated Definitions in subchapter B, to 46 CFR 10.107(b) (74 FR 11216). Our intent is to finalize this one remaining section of the interim rule in its current designation, 46 CFR 10.107(b), and we are asking for comment on this section only. You may submit a comment to the docket using one of the methods specified under ADDRESSES.

Discussion of Comments

As a result of our request for comments in the interim rule published on January 13, 2006 in the Federal Register (71 FR 2154), the Coast Guard heard from 364 respondents representing mariners and the industry. The respondents submitted numerous comments addressing a wide range of issues related to the interim rule. A discussion of the comments follows.

One hundred and eighty commenters noted that the interim rule requirements resulted in lost work time, long travel times, and excessive expenses to visit one of only 17 Regional Exam Centers (RECs) for fingerprinting and identification checks. The commenters felt this was extremely burdensome and created a hardship for most mariners who work or reside a long distance from the nearest REC. In addition, the commenters felt long wait times at the RECs increased this burden. This proposal, the commenters believed, would not make the industry any safer and would cost excessive time and money, plus make more work for the Coast Guard. The commenters also felt that the cost of maintaining one's credential may have been a deterrent for new entrants into the merchant marine.

One hundred and fifty four commenters suggested that instead of requiring visits to one of only 17 RECs, the Coast Guard should have allowed mariners to visit local law enforcement, Department of Motor Vehicles/Motor Vehicle Administrations, Federal Bureau of Investigation (FBI), Coast Guard Marine Safety Units, and other field offices both temporary and permanent. Locations such as post offices can take secure fingerprints for purposes such as passports, so the commenters felt the Coast Guard should allow mariners more options. The commenters suggested that the Coast Guard could also send traveling teams of examiners to places where a large number of applicants might require fingerprints and identification checks, and that the Coast Guard could notify mariners, shipping companies, and unions (through the local media), as to when and where these teams would be at any given time.

Fifteen commenters asked the Coast Guard to rescind the interim rule and work with industry to come up with a better system for fingerprint and identification checks. The commenters encouraged the Coast Guard to explore less burdensome and expensive ways to accomplish this goal while providing a way to ensure all licensed mariners are identified and properly screened.

Thirteen commenters expressed fear that the RECs may not have the manpower to provide fingerprinting and ID verification service and that the system will be overwhelmed. The commenters suggested that a traveling Coast Guard team also visit maritime schools, where there was a large concentration of mariners wishing to renew or upgrade their credentials.

These problems have been overcome by other Coast Guard rulemakings, including the Transportation Workers Identification Card (TWIC) rulemaking, which requires certain mariners who hold Coast Guard credentials to also hold a TWIC, and the Consolidation of Merchant Mariner Qualification Credentials rulemaking, which removed the requirement to appear at an REC for those mariners who must enroll for a TWIC. Moreover, the Transportation Security Agency (TSA) has set up more than 150 enrollment centers around the country at which cards may be applied for and distributed. Those mariners who are not required to obtain a TWIC must still undergo another vetting process.

Six commenters said the interim rule should not apply to operators of uninspected passenger vessels. Also, the commenter noted, some of those mariners work on inland lakes and rivers where there are no Maritime Transportation Security Act-regulated facilities and many work on small passenger vessels or family-owned offshore supply vessels where risk of a security incident is minimal.

The Coast Guard publishes regulations that implement laws passed by Congress. Section 102 of the Maritime Transportation Security Act of 2002, as codified in Title 46 U.S. Code (46 U.S.C.) section 70105(b)(2), required that every Coast Guard-credentialed mariner, and other specific mariners, obtain a TWIC. As noted above, TSA maintains more than 150 enrollment centers. However, the Coast Guard Authorization Act of 2010 modified the TWIC requirement for mariners by limiting it to only those mariners who need unescorted access to secure spaces on vessels required to have a security plan under 46 U.S.C. chapter 701. However, those mariners who are not required to obtain a TWIC must still undergo a vetting process.

Ten commenters stated that a Coast Guard license was not an identity document, and since a license was not an identity document, and was not intended to be one, a license heist was not a likely terrorist consideration.

The commenters are correct that a Coast Guard license is not an identity document. The fact that identity checks and fingerprinting are required to obtain a license does not in itself mean that the Coast Guard considers the license to be an identity document. At the time the interim rule was published, the Merchant Mariner Document (MMD) was the primary identity document for a mariner. Currently, the TWIC serves as the primary identity document. A license or a Merchant Mariner Credential (MMC) is a professional qualification document. The Coast Guard is concerned that any vessel master not required to hold an MMD could be in a position to cause serious damage to terminals, bridges, and vessels along inland routes. Therefore, license-only holders must go through the fingerprinting and identification-check process.

Five commenters suggested that the Coast Guard work with the TSA for fingerprinting and identification verification.

The TWIC rulemaking has addressed this issue. Those mariners who are not required to obtain a TWIC must still undergo another vetting process.

Fourteen commenters argued that fingerprints should only be necessary on the first issuance of an MMC because fingerprints do not change over time. Also, the commenters believed that renewal applicants already had their fingerprints on file, making it easy to detect if someone were to try to renew an existing license fraudulently.

To apply for an MMC, a mariner must have a valid TWIC, which requires a full set of fingerprints at each 5-year renewal. Those mariners who are not required to obtain a TWIC must still undergo another vetting process, which also requires the submission of fingerprints in order to perform an updated background check. Fingerprints can change somewhat with age and especially after working with hand-abrasives, chemicals, etc. Additionally, fingerprints kept on file for long periods of time can also degrade, making them unsuitable for matching purposes.

One commenter asked if a mariner renewing his or her license for continuity would be required to give fingerprints and undergo an ID check.

No. Renewals for continuity credentials do not require fingerprints.

Three commenters objected to using convictions in foreign courts against any mariner wishing to renew their credentials.

The TSA has jurisdiction over this matter. For additional information on disqualifying crimes, please see the TWIC final rule revising 49 CFR 1572.103: Disqualifying Criminal Offenses (72 FR 3492). Those mariners who are not required to obtain a TWIC must still undergo another vetting process.

One commenter stated that the licensing procedure should not be halted while the Coast Guard produces a final rule on the issue.

An interim rule was necessary from an enforcement perspective until the TWIC process became operable. Licensing was not suspended during this period.

One commenter said it is unnecessary for a credential holder to give fingerprints and submit to an ID check in order to renew a credential because that credential did not enable access to security facilities or information.

Fingerprinting and ID checks are needed to perform the background check required by Coast Guard regulations.

Seven commenters stated that the Coast Guard should have allowed for public meetings in several locations around the nation before publication of the interim rule.

Given the urgency at the time, the Coast Guard decided to issue an interim rule to make the regulations effective as soon as possible. Due to subsequent rulemakings that provided an opportunity for public comment (see the “Basis and Purpose” section of the preamble), the Coast Guard, at this time, is only finalizing one remaining section of the interim rule that has remained unfinalized: § 10.107(b): Definitions in subchapter B, specifically, the definition of “Dangerous Drug”. We have determined that a public meeting is not necessary, but those wishing to request one should follow the procedures outlined above under “Public meeting”.

Two commenters suggested that the renewal process for credentials take place at local Coast Guard stations.

According to Coast Guard regulations, renewal applications are submitted to the National Maritime Center (NMC), through an REC, for evaluation and processing. The U.S. Coast Guard's NMC has recently completed restructuring and centralizing the Mariner Licensing and Documentation (MLD) program in order to reduce credential processing time, improve customer service, and ensure the consistency and quality of U.S. credentials issued to more than 210,000 mariners. The major components of this project include: Centralizing many MLD functions that had historically been performed at 17 RECs at the NMC, which is now located in Martinsburg, WV; streamlining credential production processes at the NMC; aligning the organization of the RECs so that they report directly to the NMC; and relocating the MLD program policy functions to U.S. Coast Guard headquarters.

One commenter noted that mariners are required to give fingerprints and undergo ID checks every 5 years (and have to travel longer distances to do so) while aliens are required to renew their Green Cards every 10 years.

The Coast Guard's 5-year renewal process is mandated by law (Title 46 U.S.C. 7106).

One commenter said that the results of the fingerprinting and background checks required every 5 years should not change past determinations and findings on individuals under the guise of security.

The 5-year renewal process is in place to ensure the mariner's record is current. As discussed above, fingerprints can change somewhat with age and fingerprints kept on file for long periods of time can also degrade, making them unsuitable for matching purposes. Additionally, the Coast Guard must ensure background checks contain current information. Without this, there is a break in the chain of trust that could present a lapse of security.

Two commenters stated that the requirement to give fingerprints at an REC each time a mariner wishes to renew or upgrade his or her credentials was arrogant and inconsiderate of the burden it places on the industry. The commenters believed it did little to enhance national security and asked why it was necessary to continually submit fingerprints at an REC while military personnel can submit fingerprints at their stations.

Beginning April 15, 2009, TSA collects fingerprints and proof of identity and forwards that information to the NMC to perform a background check. The Coast Guard will also be able to obtain certain information from the record TSA created when the mariner enrolled for his or her TWIC. Therefore, mariners will not have to appear at an REC. Those mariners who are not required to obtain a TWIC must still undergo another vetting process.

One commenter said it is unnecessary for mariners to submit identity verification for a duplicate credential if a credential is lost, stolen, or burned.

The Coast Guard disagrees. When a duplicate credential is issued, the Coast Guard needs to re-verify the identity of the mariner. Without this, there is a break in the chain of trust that presents a lapse of security.

One commenter said that arrest records need not be revealed, referenced, or discussed in any matter during the credentialing process when the outcome is in question. The commenter also suggested removing misdemeanor convictions altogether from being a criterion by which a mariner or applicant is judged for certification and licensure.

Although arrest records are not clear evidence of guilt, and therefore denial of credentialing is based on a court determination, the arrest serves as part of the record and is needed for full determination as required by 46 CFR 10.211. The Coast Guard acknowledges the commenter's concern. However, these issues have been resolved in the TWIC rulemaking. Those mariners who are not required to obtain a TWIC must still undergo another vetting process.

Mariners who feel they were unfairly denied a credential, can appeal under the process available from TSA (49 CFR 1515) and/or the Coast Guard (46 CFR 1.03). Those mariners who are not required to obtain a TWIC must still undergo another vetting process.

One commenter asked if the Coast Guard thought the state of Montana was a legitimate terrorist target and asked what a terrorist attack in the state would accomplish.

A terrorist attack could happen anywhere in the United States, and the Coast Guard will require vetting of every merchant mariner seeking a credential. Please note that credentials are a Federal document and allow the holder to operate anywhere inland in the U.S., coastwise, or in foreign waters subject only to the restrictions on the credentials' face.

One commenter expressed concern over the allowance of birth certificates and foreign passports as allowable identification. Another commenter took issue with the specific types of IDs accepted for verification.

The Coast Guard understands the commenters' concerns. However, this requirement is moot as identification required for MMLs is addressed by the TWIC final rule which requires all mariners who hold Coast Guard credentials to also hold a TWIC. Those mariners who are not required to obtain a TWIC must still undergo another vetting process. See 49 CFR 1572.17, see also 46 CFR 10.221.

One commenter asked the Coast Guard if fingerprinting/ID checks were so critical, why the Coast Guard mails the credential to an address at which someone other than the intended recipient might be waiting to intercept it.

The Coast Guard acknowledges the commenter's concern. However, this concern has been addressed for mariners requiring a TWIC, which must be activated in person to complete the “chain of trust”. Those mariners who are not required to obtain a TWIC must still undergo another vetting process.

One commenter called into question centralizing Marine Licensing and Documentation with the NMC and moving it to Martinsburg, WV. By doing this, the commenter said, all records could be wiped out with one calamity. The commenter was afraid that reducing facilities to one location would have the opposite effect on the backlog. Also, the commenter asked what happens when the system is down or has no power.

This comment is beyond the scope of this rulemaking. However, current system performance has the average credential being processed in approximately 17 days of net processing time with greater than 80 percent being under 30 days. This is significantly less than the system performance while business was conducted at 17 disparate RECs. Performance at RECs varied significantly for many reasons. Among other benefits, centralization brings consistency across the program. Records were and are archived from the RECs to Federal Records Centers just as they are from the centralized NMC. Electronic records are backed up routinely. Records at any location are subject to loss from natural or man induced reasons. The NMC still continues to deal with cases of records lost due to Hurricane Katrina in New Orleans. The centralized location of the NMC has less potential natural perils than most of the coastally located RECs. When the RECs were doing evaluations, they were still accessing the same electronic system that they and the centralized NMC access today. There are redundant systems and backups to mitigate any lost time due to equipment and power failure.

One commenter noted a conflict in 46 CFR 10.209 regarding the requirements of identity documents.

New regulations are in place regarding identity verification. Therefore, this comment is now moot.

One commenter was in favor of the changes in the interim rule because new security requirements make sense in today's world.

The Coast Guard thanks the commenter and agrees.

One commenter, who held a commercial pilot's license, asked why a mariner seeking a master's license must jump through so many hoops, including the $145 fee required for the license itself and the requirement to renew every 5 years.

Under statutory mandate, a mariner's license is valid for 5 years and may be renewed, with the required background checks, for additional 5-year periods. 46 U.S.C. 7106. The Coast Guard has statutory authority to set fees for mariner services or things of value. 46 U.S.C. 2110. The fee is determined by the actual time and motion costs to the Coast Guard for the required evaluation, exam (if any), and issuance of the license.

One commenter disagreed with reducing the number of “service centers” to 17 RECs and believed the user fees added a substantial financial burden to mariners.

The interim rule did not reduce the number of “service centers” or RECs. The current number of 17 RECs has been in place since 1982. As stated in the response to the previous commenter, the Coast Guard has statutory authority to set fees for mariner services or things of value. 46 U.S.C. 2110.

One commenter noted that more than half of the personnel at Washington Island Ferry Line Inc., were not required to be licensed.

Mariners who require no license or MMC were not expected to follow the procedures in the interim rule. However, mariners are encouraged to check with local authorities to see if a TWIC is necessary in a given port area.

One commenter expressed concern about raising the standards defining “conviction”, which could disqualify some mariners from consideration when trying to obtain a credential. The commenter noted that there were situations where persons who have made mistakes, paid their debt to society and were living as responsible citizens, and they should be given a better opportunity to obtain a credential.

The Coast Guard agrees with this commenter, that persons who have been convicted in the past may in fact qualify for work as a mariner. Not all crimes serve as permanent disqualifiers, and there are procedures in place to allow for waivers or review of certain convictions when the individual can show that they are not a security or safety risk. Please see TSA appeal and waiver procedures for security threat assessments for individuals at 49 CFR Part 1515, see also Coast Guard Merchant Mariner Credential, criminal record review at 46 CFR 10.211.

Two commenters said credential renewals and upgrades needed to only establish that the candidate was the same person who received the original license and suggest the Coast Guard authorize employers to certify the identification of candidates. The commenters noted that employers were trusted to certify sea service and presence in a drug-testing pool.

Identification verification meets only half of the criteria for the process of obtaining a credential. Candidates must also give fingerprints so the authorities can conduct background checks. Also, TSA requires personal appearance at an enrollment center for fingerprinting and ID checks as part of the TWIC process. Please see the TWIC rulemaking for clarification.

One commenter wanted the Coast Guard to create an MMC that a mariner can carry in his or her pocket.

The NMC began issuing the MMC in early 2009 as a mariner's professional qualifications document. It incorporates the legacy license, MMD and/or Certificate of Registry as well as a mariner's STCW endorsements. The TWIC now serves as the mariner's identity document. Please see the TWIC rulemaking for clarification.

One commenter took issue with the Coast Guard issuing an interim rule without seeking comment from industry.

Due to the immediate needs for heightened security measures to be implemented, the publication of an interim rule with a request for comments allowed the Coast Guard to immediately implement regulations needed to protect national security. However, the interim rule did allow for the public to comment on the rule before it became final. Those comments are summarized above. Since publication of the interim rule, the Coast Guard, TSA, and the Department of Homeland Security have considered and addressed the public's concerns in the regulations listed above in the “Background” section of this document, as these same concerns were raised upon promulgation of those other rules.

Intent To Finalize; Request for Comments

The Coast Guard invites further comments related to this Notice of Intent to finalize the one section of the January 13, 2006 interim rule that has remained unfinalized, 46 CFR 10.107(b): Definitions in subchapter B, specifically, the definition of “Dangerous drug”. Written comments and responses related to finalizing this definition will be added to the docket number for this rulemaking (USCG-2004-17455). Upon close of the comment period, the Coast Guard will consider all comments received. We anticipate that we will be able to finalize 46 CFR 10.107(b) soon thereafter.

Dated: June 9, 2011.

F.J. Sturm,

Acting Director of Commercial Regulations and Standards.

Footnotes

1.  To find all the rulemaking documents associated with the rulemakings listed here, you can view each rulemaking's docket on http://www.regulations.gov.