[Federal Register Volume 60, Number 48 (Monday, March 13, 1995)]
[Proposed Rules]
[Pages 13570-13582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6033]
[[Page 13569]]
_______________________________________________________________________
Part VII
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
46 CFR Parts 10 and 12
National Driver Register and Criminal Record Review in Issuing
Licenses, Certificates of Registry, or Merchant Mariner's Documents;
Proposed Rule
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 /
Proposed Rules
[[Page 13570]]
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: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard proposes regulations to implement the
provisions of the Oil Pollution Act of 1990 (OPA 90) that permit it 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 proposal 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 proposes 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. The proposed rulemaking will provide the Coast
Guard an opportunity to identify an applicant who has been convicted of
certain motor vehicle offenses or convicted of certain serious crimes.
DATES: Comments must be received on or before June 12, 1995.
ADDRESSES: Comments may be mailed to the Executive Secretary, Marine
Safety Council (G-LRA/3406) (CGD 91-212), U.S. Coast Guard
Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001, or
may be delivered to room 3406 at the same address between 8 a.m. and 3
p.m., Monday through Friday, except Federal holidays. The telephone
number is (202) 267-1477. Comments on collection-of-information
requirements must be mailed also to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street
NW., Washington, DC 20503, Attn.: Desk Officer, U.S. Coast Guard.
The Executive Secretary maintains the public docket for this
rulemaking. Comments will become part of this docket and will be
available for inspection or copying at room 3406, U.S. Coast Guard
Headquarters between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. James W. Cratty, Project Manager,
Oil Pollution Act (OPA 90) Staff, (202) 267-6740. This telephone
records messages on a 24-hour basis.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names and addresses,
identify this rulemaking (CGD 91-212) and the specific section of this
proposal to which each comment applies, and give the reason for each
comment. Please submit two copies of all documents and attachments in
an unbound format, no larger than 8 by 11 inches, suitable for copying
and electronic filing. Persons wanting acknowledgment of receipt of
comments should enclose a stamped, self-addressed postcard or envelope.
The Coast Guard will consider all comments received during the
comment period. It may change this proposal in view of the comments.
The Coast Guard plans no public meeting. Persons may request a
public meeting by writing to the Marine Safety Council at the address
under ADDRESSES. The request should include the reasons why a public
meeting would be beneficial. If the Coast Guard determines that oral
presentations will aid this rulemaking, it will hold a public meeting
at a time and place announced by a later notice in the Federal
Register.
Drafting Information
The principal persons involved in drafting this document are Mr.
James W. Cratty, Project Manager, OPA 90 Staff, and Ms. Jacqueline
Sullivan, Project Counsel, Office of the Chief Counsel (G-LRA).
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. Individuals with criminal records may be unsuitable candidates
for a license, COR, or MMD because they may 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 (23 U.S.C. 401 note). 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 is not directly
related to his or her maritime career, a 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.
Section 4105(b) of OPA 90 amends 23 U.S.C. 401 note, 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. [[Page 13571]]
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 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 notifies
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 may also 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 Proposed Rules
In the discussion of the proposed rules, and the proposed rules
themselves, the procedures incident to a criminal record check and
those incident to obtaining information from the National Driver
Register are treated separately. Although there are differences, the
basic structure is the same: an applicant provides the Coast Guard with
the means of searching a data base and the Coast Guard evaluates the
information received to determine whether there is reason to deny a
license, COR, or MMD to the applicant. The decision is based on the
nature of the incidents reported, the number of incidents, and when the
incident occurred. The Coast Guard is considering whether the
processing of incidents reported under both systems can be consolidated
in the final rule and welcomes comments and suggestions in this regard.
1. Criminal Record Review
Congress has provided for new requirements on all merchant mariners
in order to promote a drug and alcohol-free maritime industry. These
requirements focus on chemical testing, criminal record reviews, and
NDR checks. The Coast Guard proposes to amend 46 CFR parts 10 and 12 to
reflect its authority to review the criminal record of an individual
applying for a license, COR, or MMD. The proposed rules would continue
the existing requirements concerning criminal record checks for the
issuance of original licenses or CORs and extend them to original
issuance of MMDs.
The Coast Guard also would amend the appropriate sections of 46 CFR
part 10 and 12 to allow 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.
The Coast Guard believes that an applicant who has been convicted
of violent criminal offenses or serious property-related offenses may
pose a threat to ship personnel, passengers, the marine environment,
and safe operation of the ship, and should not be given the duties and
responsibilities of a licensed officer or holder of a COR or an MMD.
Life on board a ship is unique in that the protections normally
afforded the public (i.e., law enforcement) are not as readily
available. Evidence that an applicant has criminal convictions must
[[Page 13572]] be carefully weighed by the OCMI to ensure marine
safety.
In order to provide specific guidance on who has a ``conviction,''
the Coast Guard proposes to define ``conviction'' to include a finding
of guilty by judgment or plea by a court of record in the United
States. The definition would cover convictions for criminal felonies or
misdemeanors or for offenses described in section 205 of the National
Driver Register Act of 1982 (23 U.S.C. 401 note). It would also cover
expungements, deferred adjudications, and other forms of plea
agreements. An expungement of a conviction would not be considered
unless the expungement was based upon a showing that the conviction was
in error.
The tables in Secs. 10.201(h) and 12.02-4(c) list minimum
assessment periods after various criminal convictions before which an
application will normally not be approved and the maximum periods that
a conviction will normally be considered disqualifying. The lists are
not intended to be comprehensive. They include major categories of
criminal offenses. If an applicant has been convicted of an offense
that does not appear on the list, the OCMI may establish the assessment
period depending on the nature of the crime, using the list as a guide.
Because licensed officers and individuals employed under CORs have
greater responsibilities than MMD holders, additional categories of
offenses have been included in Table 10.201(h).
An assessment period commences when an applicant with a conviction
is no longer incarcerated or under supervised parole or probation. A
period of unsupervised parole or probation would be counted as part of
the assessment period. The OCMI will consider successful completion of
all conditions of parole or probation as evidence that the applicant is
suitable for service in the merchant marine.
In all cases where the application is complete and the applicant is
required to complete an assessment period before issuance or renewal of
a merchant mariner's credential, the OCMI would notify the applicant in
writing stating the reason for denial and explaining the right to
appeal and the appeal process as provided for in Sec. 1.03 of this
chapter.
There are several purposes in establishing minimum and maximum
assessment period guidelines in these tables. The tables give
applicants specific notice that certain criminal convictions may delay
issuance of merchant mariner's credentials and the approximate length
of the delay they can expect. Following a conviction, a period of time
must elapse for the individual to demonstrate that he or she does not
present a safety risk to fellow crew and passengers while at sea. The
minimum periods, as proposed in the tables, are estimates of the time
required to permit the OCMI to determine that, despite the criminal
conviction, the applicant may now be entrusted with the duties and
responsibilities of a merchant mariner. These estimates are based upon
the nature of the criminal conviction, with longer periods required for
convictions involving violence or drugs. The nature of violent or
dangerous drug convictions are such that, for the Coast Guard to
adequately safeguard the lives and well-being of crew and passengers,
it must be reasonably confident that these types of offenses will not
occur at sea.
In addition, a merchant mariner who holds a Coast Guard issued
credential is responsible for knowing, and following, a large body of
maritime law and regulation, much of it related to safety, health or
environmental protection. Before issuing a credential, the Coast Guard
must be satisfied that an applicant will obey these laws and
regulations without direct and immediate oversight by a law enforcement
agency. It would be imprudent, in such circumstances, to issue a
credential to an applicant with a criminal record without first waiting
beyond his or her court-ordered sentence to see whether the applicant
was a trustworthy and responsible member of society absent the
constraints of the criminal justice system. Recidivism among those with
criminal convictions is a legitimate Coast Guard concern. The
assessment periods provide a basis for excluding from the merchant
marine those individuals who may have recidivist tendencies and a basis
for concluding that these tendencies do not exist.
The guidelines in the tables are also intended to promote national
uniformity of results with respect to review of criminal convictions in
the issuance of merchant mariner's credentials. The tables are designed
to provide guidance for the OCMI when he or she is faced with an
applicant who has criminal convictions. This guidance will ensure that
all applicants will be treated fairly and uniformly, regardless of
where they apply.
The minimum assessment periods listed in the tables represent the
shortest amount of time in which the applicant normally may demonstrate
that he or she is now responsible enough to be entrusted with the
duties of a merchant mariner. If a person applies before the minimum
assessment period for his or her conviction has elapsed, then the
applicant must provide, as part of the application, compelling evidence
of suitability for employment. Such evidence includes, but is not
limited to, the following: proof of completion of an alcohol- or drug-
abuse treatment or education program; active membership in a
rehabilitation or counseling group, such as Alcoholics Anonymous or
Narcotics Anonymous; character references from persons who can attest
to the applicant's sobriety, reliability, and suitability for
employment in the merchant marine; steady employment; or successful
completion of all conditions of parole or probation. Any application
submitted prior to the minimum assessment period and which does not
include such additional evidence of suitability for employment in the
merchant marine will be considered incomplete and will not be
processed.
If a person applies for a license, COR, or MMD during the time
between the minimum and maximum assessment periods, the OCMI will
consider the conviction along with other factors in determining whether
to grant the credential. Normally, a single prior conviction older than
the minimum assessment period would not be disqualifying unless the
OCMI is aware of offsetting factors. Offsetting factors include
multiple convictions, failure to comply with court orders including
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 may disapprove the application.
The maximum assessment periods in the tables will protect merchant
mariners against arbitrary imposition of unreasonably long assessment
periods. Following the maximum assessment period, the OCMI may not
normally deny granting the license, COR or MMD. However, if an OCMI
considered a prior criminal conviction older than the maximum
assessment period in disapproving an application, then the OCMI would
be required to inform the applicant, in writing, of the reasons for the
decision, including the reasons why a conviction older than the maximum
was still being considered. The OCMI would also be required to inform
the applicant of the appeal procedures that apply.
The minimum assessment period for applicants with multiple
convictions, whether at a single trial or separate trials, would be the
longest minimum from among those listed in the tables for
[[Page 13573]] the applicant's convictions. However, convictions of
multiple offenses, whether at a single trial or separate trials, may be
sufficient evidence that the applicant is not suitable for service in
the merchant marine and may lead the OCMI to deny the application after
the minimum assessment period and, in extraordinary cases, even after
the maximum period in the tables has expired.
A mariner who already holds a license, COR, or MMD and who has been
convicted of a drug offense(s) and who applies for reissue of that
credential with a new expiration date including a renewal, raise of
grade, or endorsement may have his or her application withheld. The
OCMI will then take appropriate action under the marine investigation
regulations for personnel actions which appear in 46 CFR part 5.
The Coast Guard solicits comments on the appropriateness of the
criminal offense categories and assessment periods contained in Tables
10.201(h) and 12.02-4(c). The Coast Guard also solicits comments on the
factors to be considered in determining suitability for service in the
merchant marine contained in 10.201(j) and 12.12.02-4(e).
2. National Driver Register Access
The Oil Pollution Act of 1990 (Pub. L. 101-380) amended 46 U.S.C.
7101 and 7302 to prohibit issuance of merchant mariner's credentials
unless applicants make available information from the NDR. The
conference report states: ``The purpose of this section * * * is to
ensure that the Coast Guard can identify vessel personnel with motor
vehicle offenses related to the use of alcohol and drugs. Abuse of
these substances may evince possible unsafe vessel operations, leading
to additional accidents and oil spills.'' (House Conf. Rep. No. 101-
653, p. 128). The Coast Guard proposes to amend 46 CFR parts 10 and 12
to require an applicant for a merchant mariner's credential to make
available to the Coast Guard, at the time of making an application, the
information identified in section 205(a)(3) (A) or (B) of the NDR Act
concerning his or her driving record. The applicant would be required
to submit a pre-printed written consent form to the Coast Guard along
with the application package. The OCMI would obtain checks of the NDR.
The OCMI would not issue a license, COR, or MMD until it had received
and reviewed the NDR report.
The NDR report contains basic descriptive data about an individual,
the current status of an individual's license to operate a motor
vehicle, and an indication that a State may hold records regarding
criminal or administrative action taken against an individual's license
to operate a motor vehicle. The NDR report does not describe the
substantive offense that forms the basis for a State's license action.
The information required by section 205(a)(3) (A) or (B) of the NDR
Act, in addition to covering conviction of motor vehicle offenses
involving operation of a motor vehicle under the influence of or
impaired by alcohol or a controlled substance, covers conviction of a
traffic violation arising in connection with a fatal traffic accident,
reckless driving, or racing on the highways. Each applicant will have
an opportunity to review the NDR report and verify or refute any
information in the report by obtaining appropriate State records. The
OCMI will not process any application with NDR listed convictions
unless the applicant produces the underlying State records.
The holder of a merchant mariner's credential is closely involved
with the safe operation of a vessel. Performance of many routine duties
and all emergency duties affects the safety of the vessel. Unsafe
performance of duties could produce catastrophic consequences. To help
minimize the risk of unsafe operation, the Coast Guard may exclude from
holding seafarer's credentials individuals who have demonstrated a lack
of concern regarding the safety of themselves, others, or the marine
environment. The amendments to 46 U.S.C. 7101 and 7302 reflect the
conclusion that convictions of offenses listed in section 205(a)(3) (A)
or (B) of the NDR Act may demonstrate such a lack of concern.
Therefore, the OCMI will evaluate each NDR report to determine if there
is evidence of a problem affecting the applicant's qualification to
hold a merchant mariner credential.
The OCMI would use the following guidelines to evaluate applicants
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) or Table 12.02-04(d) as applicable.
a. Single NDR Listed Conviction
An NDR check disclosing a single conviction could indicate a
recurring problem or an isolated incident. A single conviction may
reveal the early stage of a developing long-term problem or it may mean
that an individual having a well-developed problem was caught only
once. It could also indicate a single incident in which poor judgment
was exercised. In cases where a long-term problem is developing and
corrective measures are not taken, additional time may result in
subsequent convictions.
(1) Single NDR listed conviction-less than 1 year old. If the
conviction is less than 1 year old, the application may be disapproved
for a period of time sufficient to ensure that a subsequent incident
does not occur (at least 1 year from the date of the conviction).
(2) Single NDR listed conviction--more than 1 but less than 3 years
old. If the conviction is more than 1 year old, but less than 3 years
old, the application would be processed unless a suspension or
revocation of a driver's license is still in effect. If a suspension or
revocation is still in effect, the OCMI would review the conviction
resulting in that suspension or revocation before processing the
application. The OCMI would not issue the credential until satisfied
that the applicant was suitable for employment in the merchant marine.
(3) Single NDR listed conviction--more than 3 years old. If the
conviction is more than 3 years old, further evaluation would not be
necessary unless a suspension or revocation of a driver's license is
still in effect. If a suspension or revocation is still in effect, the
OCMI would review the conviction resulting in that suspension or
revocation before processing the application. The OCMI would not issue
the credential until satisfied that the applicant was suitable for
employment in the merchant marine.
b. Multiple NDR Listed Convictions
Multiple (two or more) drug or alcohol related NDR listed
convictions may indicate a problem with alcohol or with the illegal use
of drugs. They may also indicate uncontrolled dependency (alcoholism),
drug addiction, or irresponsibility and dangerous disregard for the
safety of self and others. The OCMI will not issue a merchant mariner's
credential to an applicant with multiple convictions unless the
applicant shows that he or she is now suitable for employment in the
merchant marine and has no further convictions for a period of time.
Acceptable evidence of suitability for employment in the merchant
marine include the following, as appropriate to the particular case:
completion of an alcohol or drug-abuse treatment or education program;
active membership in a rehabilitation organization such as Alcoholics
Anonymous; and character references from persons who can attest to the
length of the applicant's current period of sobriety and applicant's
reliability. [[Page 13574]]
(1) Multiple NDR listed convictions--less than 3 years old. If an
applicant has multiple convictions within the last 3 years, the
application may be denied unless it has been at least 1 year from the
date of the last conviction or at least 3 years from the date of the
second most recent conviction, whichever is longer.
(2) Multiple NDR listed convictions--more than 3 years old. For an
applicant with multiple convictions, the most recent being more than 3
years old, further evaluation would not be necessary unless a
suspension or revocation of a driver's license is still in effect. If a
suspension or revocation is still in effect, the OCMI would review the
conviction resulting in that suspension or revocation before processing
the application. The OCMI would not issue the credential until
satisfied that the applicant was suitable for employment in the
merchant marine.
Regulatory Evaluation
This proposal 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 draft 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 proposed rulemaking,
and therefore, are not included in this regulatory assessment. The
costs associated with the proposed requirements for criminal record
reviews apply only to a raise in grade of a license or COR; an
endorsement on a 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.
Approximately 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
------------------------------------------------------------------------
No. No.
Type of action applicants 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 $16 per criminal record
check to process the fingerprints through the FBI for an estimated
annual cost of $19,700.
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
license evaluation. Thus, only .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 respondent 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 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 costs 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 [[Page 13575]] 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 proposed 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 marine 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.
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, dangerous drug users, and serious traffic
offenders from seeking new credentials or renewals, and may also
encourage some applicants who are convicted criminals or dangerous drug
users to truthfully complete questions that address these issues on the
application forms. Dangerous drug users 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 is insufficient to quantify benefits; however,
should this program manage to save even one life per year at $2.6
million per statistical life saved (which recent research shows is a
reasonable estimate of people's 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
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal, if adopted, will have
a significant economic impact on a substantial number of small
entities. ``Small entities'' may include (1) small businesses and not-
for-profit organizations that are independently owned and operated and
are not dominant in their fields and (2) governmental jurisdictions
with populations of less than 50,000.
Because it expects the impact of this proposal to be minimal, the
Coast Guard certifies under 5 U.S.C. 605(b) that this proposal, if
adopted, will not have a significant economic impact on a substantial
number of small entities.
Collection of Information
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the
Office of Management and Budget (OMB) reviews each proposed rule that
contains a collection-of-information requirement to determine whether
the practical value of the information is worth the burden imposed by
its collection. Collection-of-information requirements include
reporting, recordkeeping, notification, and other, similar
requirements.
1. Criminal Record Review
This proposal contains collection-of-information requirements in
the following sections: Secs. 10.201, 10.205, 10.209, 10.805, 12.02-4,
and 12.02-9. The following particulars apply:
DOT No: 2115.
OMB Control No.: 2115-0514.
Administration: U.S. Coast Guard.
Title: National Driver Register and Criminal Record Review in
Issuing Licenses, Certificates of Registry, or Merchant Mariner's
Documents.
Need for Information: OPA 90 gives the Coast Guard discretionary
authority to review the criminal record of applicants for licenses,
CORs, and MMDs. OPA 90 also gives the Coast Guard discretionary
authority to review the criminal record of applicants for reissue of
licences, CORs, or MMDs with new expiration dates, including renewals,
raises of grade, or endorsements.
Proposed use of information: An applicant who has been convicted of
a serious crime may be found unfit to serve as a merchant mariner on a
vessel for safety reasons.
Frequency of Response: Whenever a person applies for an original
license, COR, or MMD; or whenever a person applies for a raise in grade
of a license or COR; an endorsement of an MMD with a new expiration
date; or renewal of a license, COR, or MMD, and that person is selected
for a criminal record check.
Burden Estimate: The Coast Guard estimates that the cost to the
applicants would be approximately $19,700 per year for compliance with
the criminal record review requirements of the proposed rule.
Respondents: The Coast Guard will spot-check the individual
criminal records of applicants for reissue of licences, CORs, or MMDs
with new expiration dates, including renewals, raises of grade, and
endorsements. An estimated 36,946 individuals will apply for these
merchant mariner's credentials. Every 30th applicant will be screened,
which will result in a total of 1,232 criminal record spot-checks
performed.
Form(s): FBI Fingerprint Card FD-258 (Revision 12-29-82).
Average Burden Hours per Respondent: Negligible for 308 respondents
and 1.5 hrs. for 924 respondents.
2. National Driver Register Access
This proposal contains collection-of-information requirements in
the following sections: Secs. 10.201, 10.205, 10.207, 10.209, 10.805,
12.02-4, and 12.02-9. The following particulars apply:
DOT No: 2115.
OMB Control Number: 2115-0514.
Administration: U.S. Coast Guard.
Title: National Driver Register and Criminal Record Review in
Issuing [[Page 13576]] Licenses, Certificates of Registry, or Merchant
Mariner's Documents.
Need for Information: OPA 90 requires that the Coast Guard not
issue a license, COR, or MMD to an applicant unless that individual
makes available to the Coast Guard any information contained in the
NDR. Information contained in the NDR may indicate that an individual
is not suitable for employment in the merchant marine. This information
must be made available to the applicant for review and written comment
before the Coast Guard uses the information as a basis for denying,
suspending, revoking, or taking other action against an individual's
license, COR, or MMD.
Proposed Use of Information: The Coast Guard will use the
information in the NDR to assist it in determining whether an applicant
is suitable for maritime employment. Although an individual's motor
vehicle record is not directly related to his or her maritime career, a
record of alcohol or drug-related, or other specified motor vehicle
offenses 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.
Frequency of Response: When an applicant applies for the original
issuance or renewal of a license, COR, or MMD or raise in grade or
endorsement of a license, COR, or MMD.
Burden Estimate: The Coast Guard estimates that costs to
individuals and industry will be negligible. The Coast Guard expects to
ask approximately 1,400 individuals to furnish court records to the
Coast Guard for an estimated cost of $26,700.
Respondents: The Coast Guard estimates that 57,435 merchant
mariners will be affected annually by this rulemaking.
Form(s): NDR Consent and Authorization Form.
Average Burden Hours Per Respondent: Negligible for initial check;
0.5 hrs. for persons with probable identifications.
The Coast Guard has submitted the requirement to OMB for review
under section 3504(h) of the Paperwork Reduction Act. Persons
submitting comments on the requirement should submit their comments
both to OMB and to the Coast Guard where indicated under ADDRESSES.
Federalism
The Coast Guard has analyzed this proposal under the principles and
criteria contained in Executive Order 12612 and has determined that
this proposal does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
proposal and concluded that, under paragraph 2.B.2 of Commandant
Instruction M16475.1B, this proposal is categorically excluded from
further environmental documentation. Paragraph 2.B.2.l 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 proposes
to amend 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'' and ``National
Driver Register,'' 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 (23 U.S.C. 401 note). Conviction of more than 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 finding,
then the applicant will be considered to have received a conviction. A
later expungement of the conviction will not be considered unless it is
proved 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 23 U.S.C. 401 note.
* * * * *
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 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.
(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 [[Page 13577]] apply. No examination will be
given pending decision on appeal.
(2) The guidelines in Table 10.201(h) will be used by the OCMI in
evaluating 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. Time incarcerated or on supervised probation or parole will
not be considered as part of the assessment period. Convictions for
drug offenses more than 10 years prior to the date of application will
not be considered.
(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) based upon the applicant's convictions; the maximum
assessment period will be the longest shown in Table 10.201(h) 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 including 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 may
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.
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 5 years........... 10 years.
molestation).
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\
------------------------------------------------------------------------
[[Page 13578]]
Crimes Involving National Security
------------------------------------------------------------------------
Terrorism, Acts of Sabotage, 7 years........... 20 years.
Espionage and related offenses.
------------------------------------------------------------------------
Criminal Violations of Environmental Laws
------------------------------------------------------------------------
Criminal violations of environmental 1 year............ 10 years.
laws involving improper handling of
pollutants or hazardous materials.
------------------------------------------------------------------------
Dangerous Drug Offenses34
------------------------------------------------------------------------
Trafficking (sale, distribution, 5 years........... 10 years.
transfer).
Dangerous drugs (Use or possession).. 1 year............ 10 years.
Other dangerous drug convictions\5\
------------------------------------------------------------------------
\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 assessment period shall not exceed 10 years from the date of
conviction.
\5\Other dangerous drug convictions are to be reviewed by the OCMI 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 information
that is more than 3 years old unless that information relates to the
current suspension or revocation of the applicant's license to operate
a motor vehicle. 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 applicant 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 not process any application
with NDR listed convictions unless the applicant produces 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.
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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number 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 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 (whichever is longer), 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.
[[Page 13579]]
(j) If an applicant has one or more alcohol or dangerous drug
related criminal or NDR listed convictions, 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.
(1) Proof of completion of an alcohol- or drug-abuse treatment or
education 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.
(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 Requirements for original licenses and certificates of
registry.
* * * * *
(f) * * *
(1) * * *
(2) The OCMI shall review the criminal record check of each
applicant for an original license or certificate of registry according
to the procedures set forth in 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 of 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 in 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 and 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 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'' and
``National Driver Register'' 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
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
(23 U.S.C. 401 note). 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 finding, then the applicant will be considered to have received a
conviction. A later expungement of the conviction will not be
considered unless it is proved 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 23 U.S.C. 401 note.
* * * * *
9. In Sec. 12.02-4, paragraph (a) is revised, paragraph (b) is
removed, 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 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.
(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 guidelines in Table 12.02-4(c) will be used by the Officer
in Charge, Marine Inspection in evaluating 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. Time incarcerated or on supervised probation or parole will not
be considered as part of the assessment period. Convictions for drug
offenses more than 10 years prior to the date of application will not
be considered.
(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) based upon the applicant's convictions; the maximum
assessment period will be the longest shown in Table 12.02-4(c) based
upon the applicant's convictions.
(4) If a person with a criminal conviction applies for a merchant
[[Page 13580]] 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 has
applied. Offsetting factors include such factors as multiple
convictions, failure to comply with court orders including 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 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 5 years........... 10 years.
molestation).
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, 7 years........... 20 years.
Espionage and related offenses.
------------------------------------------------------------------------
Dangerous Drug Offenses34
------------------------------------------------------------------------
Trafficking (sale, distribution, 5 years........... 10 years.
transfer).
Dangerous drugs (Use or possession).. 1 year............ 10 years.
Other dangerous drug convictions\5\
------------------------------------------------------------------------
\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.
[[Page 13581]]
\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 assessment period shall not exceed 10 years from the date of
conviction.
\5\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.
(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 information that is more than 3 years old unless that information
relates to the current suspension or revocation of the applicant's
license to operate a motor vehicle. 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 not
process any application with NDR listed convictions unless the
applicant produces 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.
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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number 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 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 (whichever is longer), 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.
(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, 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.
(1) Proof of completion of an alcohol- or drug-abuse treatment or
education 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.
(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 with the NDR requirements in Sec. 12.02-4(d).
[[Page 13582]] Dated: March 6, 1995.
J.C. Card,
Rear Admiral, U.S. Coast Guard Chief, Office of Marine Safety, Security
and Environmental Protection.
[FR Doc. 95-6033 Filed 3-10-95; 8:45 am]
BILLING CODE 4910-14-P