[Federal Register Volume 61, Number 174 (Friday, September 6, 1996)]
[Rules and Regulations]
[Pages 47060-47064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22746]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Parts 10 and 12

[CGD 94-029]
RIN 2115-AE94


Modernization of Examination Methods

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

[[Page 47061]]

SUMMARY: By this final rule, the Coast Guard amends the rules that 
require examinations for merchant-marine licenses and for unlicensed 
ratings to be written and to be administered by it: This rule removes 
references to writing and broadens the scope of those authorized to 
administer the examinations. These two changes reflect the efforts of 
the Coast Guard to develop testing by alternative media and, with that 
testing, the use of private-sector and public-sector testing services. 
The development of more effective and modern examination of applicants 
for merchant-marine licenses and unlicensed ratings will enhance the 
safety of the maritime environment.

DATES: This final rule is effective on October 7, 1996.

ADDRESSES: Unless otherwise indicated, documents referred to in this 
preamble are available for inspection or copying at the office of the 
Executive Secretary, Marine Safety Council (G-LRA-2, 3406), [CGD 94-
029], U.S. Coast Guard Headquarters, 2100 Second Street SW., 
Washington, DC 20593-0001, between 9:30 a.m. and 2:00 p.m. Monday 
through Friday, except Federal holidays. The telephone number is (202) 
267-1477.

FOR FURTHER INFORMATION CONTACT:
Mr. Mark C. Gould, Project Manager, Marine Personnel Qualifications 
Branch (G-MOS-1), (202) 267-6890.

SUPPLEMENTARY INFORMATION: 

Background and Purpose

    Currently, Coast Guard rules require that applicants for merchant-
marine licenses and unlicensed ratings pass written examinations 
administered by it. During the latter part of 1993, the Coast Guard 
conducted meetings and discussions of a focus group, which addressed 
the future of Coast Guard licensing. Specifically, the group looked at 
ways to improve and modernize merchant-mariner examinations.
    The report of the focus group, ``Licensing 2000 and Beyond'' 
(November, 1993), a copy of which is available in the public docket for 
this rulemaking [CGD 94-029] where indicated under ADDRESSES above, 
recommends that the Coast Guard's Marine Licensing Program adopt new 
methods of verifying competency, including practical demonstrations and 
the use of simulators. Practical demonstrations and simulators would 
provide more effective means of testing the skills of the applicants by 
requiring proper actions and reactions during real-time, real-world 
scenarios. Electronic methods of examination are employed by private 
sector and public-sector organizations. There is increasing user of 
Third-Party or Fourth-Party testing systems that maximize the 
significant benefits new technology offers. The report of the focus 
group defined a ``Third Party'' as one who trains or teaches the 
mariner, and a ``Fourth Party'' as someone, other than the Coast Guard 
or a Third Party, who administers a test or makes a subjective judgment 
about the competency of the mariner. The Coast Guard is exploring the 
possibility or implementing electronic methods and the use of Third-
Party or Fourth-Party testing services.
    However, 46 CFR 10.205, 10.207, 10.901, 12.05-9, 12.10-5, 12.15-9, 
and 12.20-5 specify that applicants need pass written (or oral) 
examinations administered by the Coast Guard. Because the Coast Guard 
is considering the use of other, proved methods of proficiency testing, 
which could significantly improve a very critical aspect of the Coast 
Guard's qualification system, this final rule removes the terms 
``written'' and ``in writing'' from the rules governing merchant-marine 
examinations and makes minor revisions to authorize testing other than 
by the Coast Guard.

Regulatory History

    On February 23, 1995, acting on the delegated authority, among 
others, of Chapters 71 (for 46 CFR Part 10) and 73 (for 46 CFR Part 12) 
of Title 46 of the United States Code, the Coast Guard published in the 
Federal Register [60 FR 10053] a notice of proposed rulemaking (NPRM), 
entitled Modernization of Examination Methods. The Coast Guard received 
eight letters commenting on the proposal. It held no public hearing.

Discussion of Comments

    The Coast Guard received eight comments from various companies and 
individuals. Most supported the rulemaking. One flatly opposed it, and 
several expressed concern about its impact on mariners, maritime 
employers, and marine educational institutions. These concerns are 
addressed below.
    One commentor stated that the Coast Guard does not solicit the 
ideas and comments of small businesses or other small organizations to 
examine the impact of proposed rules. Another insisted that it would 
have an adverse economic impact on independently owned and operated 
small businesses. The Coast Guard disagrees. As required by the 
Administrative Procedure Act (5 U.S.C. 553) and the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), the Coast Guard solicited 
comments from the public in the NPRM [60 FR 10053], and it considered 
all comments received during the comment period. In addition, it 
receives advice and recommendations from the Merchant Marine Personnel 
Advisory Committee (MERPAC) on a variety of matters pertaining to U.S. 
merchant mariners, including standards of training and qualification. 
The 19-member committee includes representatives from shipping 
companies both large and small, maritime academies, proprietary marine 
educators, and active mariners.
    One commentor stated that this rulemaking is significant under 
section 3(f) of Executive Order 12866. The Coast Guard and OMB 
disagree. Because this final rule simply broadens the available methods 
of administering examinations, and because it changes the rules to 
allow the use of fourth-party testing in the future (beyond the 
existing authorization for third-party and Coast Guard testing), it 
should not harm any organization, large or small.
    The specter of simulators disturbed several commentors, who adduced 
five main criticisms: (1) The Coast Guard is using this rulemaking to 
mandate the use of simulators as a stand-alone method to demonstrate 
proficiency. (2) Simulation will be used where a student's performance 
would be better ascertained by written examination. (3) Such radical 
changes in the examination process should be made slowly. (4) 
Simulators cannot adequately present the conditions encountered by 
towboats on rivers or inland waters. (5) There are insufficient 
simulators presently available for this program. These criticisms are 
mistaken.
    (1) This rulemaking was undertaken to permit, rather than mandate, 
the use of simulators as an option to demonstrate proficiency. There is 
no intention to mandate the use of simulators as a sole means of 
demonstrating proficiency.
    (2) Some subjects (meeting and passing, navigation involving 
traffic, and the like) are ideally suited to simulation because the 
evaluator can guage the timeliness and adequacy of the student's 
response. Others (tides and currents, employment of navigational 
equipment, and the like) are indeed better suited for a multiple-choice 
examination and use of reference materials. The use of simulators will 
be allowed only where it affords a clear advantage over written 
examinations.
    (3) Because the Coast Guard is permitting, rather than mandating, 
the use of simulators and practical demonstration in addition to 
written examinations, changes can be introduced gradually. The Coast 
Guard

[[Page 47062]]

intends to retain written examinations for the foreseeable future.
    (4) There is, in fact, one third-party training course approved by 
the Coast Guard for towboats that uses simulators for part of its 
curriculum, and uses them to good effect. This is simply another option 
available to the license candidate.
    (5) Because the use of simulators as one part of testing is merely 
one option available to the license candidate, the number of courses 
approved by the Coast Guard and now available to the public that use 
simulators is irrelevant.
    A related matter, the 1995 Amendments to the International 
Convention on Standards of Training, Certification and Watchkeeping for 
Seafarers, 1978 (STCW), will affect virtually all phases of the system 
used in the United States to train, test, evaluate, license, certify 
and document merchant mariners for service on seagoing vessels. The 
Amendments will require both written examinations and practical 
demonstrations of skills and will promote the use of simulators. They 
are the subject of a separate rulemaking [CGD 95-062], an NPRM which 
appears at 61 FR 13284 (March 26, 1996).
    One commentor opposed the Coast Guard's accepting successful 
completion of a course, approved by the Coast Guard and offered by a 
third-party company, that combines the use of simulators and written 
examinations, instead of an examination administered by the Coast 
Guard. The commentor felt that the written examination would be 
compromised. The Coast Guard disagrees. It will conduct independent 
visits and audits, under the authority of 46 CFR 10.303(f), to ensure 
that the conditions for Coast Guard approval are maintained. It may 
also administer partial examinations to applicants who have already 
successfully completed these courses so it can monitor whether training 
facilities are meeting their training objectives. Under the current 
rules (46 CFR 10.301) applicants who successfully complete certain 
approved courses offered by third-party trainers throughout the 
country, including administration of final examinations, are exempt 
from the requirement to pass examinations administered by the Coast 
Guard. There is no reason to amend or limit application of these rules, 
as long as adequate oversight is maintained.
    One commentor stated that the Coast Guard should expand the role of 
the third-party training companies so that completion of their approved 
courses would satisfy major portions of licensing and documentation 
examinations. The Coast Guard agrees. Experience gained in recent years 
has convinced the Coast Guard that, under the right conditions and 
guidelines, a Coast Guard examination is unnecessary, if the candidate 
is subject to a rigorous program of evaluation by competent assessors.
    Five commentors expressed support for the concept of fourth-party 
testing, but felt that Coast Guard testing should remain in place as a 
check against cost increases in private-sector testing. The Coast Guard 
agrees that this is a valid concern. The Coast Guard is maintaining its 
testing system.
    One commentor stated that no third-party or fourth-party testing 
should be allowed unless proctored by professional mariners. In 
addition, the commentor cautioned the Coast Guard about third-party and 
fourth-party training or testing organizations' selling their services. 
The Coast Guard does not believe that these concerns warrant changes to 
the NPRM. There are currently more than 100 third-party training 
organizations that offer courses approved by the Coast Guard and that 
teach and examine applicants for licenses or merchant mariners' 
documents. In most instances, the applicants then must pass 
examinations administered by the Coast Guard. The operations of these 
organizations are overseen on a regular basis by Coast Guard personnel 
of local Regional Examination Centers (RECs). At least some of the 
personnel in each REC have military sea time, and several are former 
professional merchant mariners. Coast Guard personnel of Marine Safety 
Offices, reservists, and auxiliarists with river or seagoing experience 
may oversee these operations as well. For fourth-party testing, 
professional expertise in maritime matters is not relevant. Fourth-
party testing organizations merely proctor and grade multiple-choice 
examinations for their employers. Any fourth-party testing organization 
involved in direct assessment of candidates will be subject to Coast 
Guard approval, including confirmation of the professional credentials 
of the staff involved in assessment.
    One commentor had several questions concerning fourth-party 
testing. Although the Coast Guard is not implementing such testing in 
the immediate future, changes made by this final rule do enable the 
Coast Guard to implement the use or partial use of such testing in the 
future. Fourth-party testing may serve as a second alternative to 
traditional examinations administered by the Coast Guard, the first 
being third-party training with testing. The Coast Guard could, for 
example, submit a data bank of questions to the fourth-party examiner, 
who would randomly generate examinations. The only contact that fourth-
party testers would then have with the course or student would be to 
administer and grade the examinations. Other approaches to fourth-party 
testing may emerge from increased use of simulators.
    One commentor asked whether Coast Guard would dictate objectives of 
learning and methods of determining competency to the training 
companies, and whether it would dictate the curriculum. It currently 
has course-approval guidelines for most courses required by its rules. 
These guidelines, authorized by 46 CFR 10.302, describe the desired 
learning objectives but not the methods of determining competency. 
Although the Coast Guard does not dictate the curriculum, it will not 
approve it unless the information contained in the guidelines is 
imparted to the student. Although it does not anticipate imposing rigid 
requirements for the assessment of competency, it will take into 
account methods and criteria of assessment in its approval of courses 
permitted by this final rule.
    One commentor expressed concern about organizations and courses 
which exist solely to assist the applicant in memorizing the answers to 
the questions in the bank of Coast Guard examinations and actually 
teach the applicant nothing. The use of simulators and practical 
demonstration of proficiency in certain topics will tend to eliminate 
this questionable method of examination preparation.
    A maritime educational institution suggested that the Coast Guard 
issue each original license and each raise in grade or increase in 
scope as a nonrenewable temporary document, which would expire in five 
years unless replaced by a permanent license based on compliance with 
STCW. In contrast, a maritime educator suggested that each eligible 
student, upon graduation from a Federal or State maritime academy, 
automatically receive a license as a third mate or third assistant 
engineer. Whatever their merits, both comments lie well beyond the 
scope of this final rule, which merely removes the requirement that 
licensing examinations be written and allows other entities to 
administer them.
    One commentor stated that this final rule should require the 
functional use of the English language. The Coast Guard agrees. Title 
46 CFR 10.201(c) requires that ``an applicant for a license must 
demonstrate an ability to speak and understand English as found in the 
navigation rules, aids to navigation publications, emergency equipment

[[Page 47063]]

instructions, machinery instructions, and radiotelephone communications 
instructions.'' That rule remains unchanged by this. Likewise, the 
current rules regarding examinations for able seamen [46 CFR 12.05-
9(b)], lifeboatmen [46 CFR 12.10-5(b)], and qualified members of the 
engine department [46 CFR 12.15-9(a)] all require that the examinations 
be conducted in the English language. These rules continue to be 
necessary to ensure that personnel in these critical positions will 
sufficiently understand orders that may come down under the stress of 
an emergency. The ability to understand such orders can make the 
critical difference in life-threatening situations. Therefore, these 
rules, too, remain unchanged by this.
    In sum: The NPRM proposed to remove the terms ``written'' and ``in 
writing'' from the rules governing examinations administered by the 
Coast Guard for merchant mariners seeking licenses and raises of grade 
[46 CFR 10.205(i)(1), 10.207(d)(1), 10.217(a) (1) and (2), and 
10.901(a)], and for applicants seeking to fill unlicensed ratings [46 
CFR 12.05-9 (a) and (b), 12.10-5 (a) and (b), 12.15-9 (a) and (c), and 
12.20-5]. (The last of these, 46 CFR 12.20-5, along with the rest of 
the subpart, 12.20, to which it belonged, was removed by a supervening 
Interim Rule on Tankermen [60 FR 17134 (April 4, 1995)].) The NPRM also 
proposed to let the Coast Guard Officer in Charge, Marine Inspection 
(OCMI), authorize the examination of applicants by private-sector and 
public-sector testing services. These two changes reflect the Coast 
Guard's efforts to develop more modern, efficient, and effective 
methods of examination.

Regulatory Evaluation

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. It has not been reviewed by the Office of Management and 
Budget under that Order. It is not significant under the regulatory 
policies and procedures of the Department of Transportation (DOT) [44 
FR 11040 (February 26, 1979)]. The Coast Guard expects the economic 
impact from this rule to be so minimal that a full Regulatory 
Evaluation under paragraph 10e of the regulatory policies and 
procedures of DOT is unnecessary. This rule will impose no costs on 
industry.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider the economic impact on small entities of a 
rule for which an NPRM is required. ``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. As the Discussion of Comments makes clear, this final rule will 
place no additional costs on the public. Therefore, the Coast Guard 
certifies under section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) that this rule will not have a significant economic 
impact on a substantial number of small entities.

Collection of Information

    This final rule contains no collection-of-information requirements 
under the Paper Reduction Act (44 U.S.C. 3501 et seq.).

Federalism

    The Coast Guard has analyzed this final rule under the principles 
and criteria contained in Executive Order 12612 and has determined that 
it does not have sufficient implications for federalism to warrant the 
preparation of a Federalism Assessment. The authority to develop and 
administer examinations for merchant mariners' licenses and other 
documents has been committed to the Coast Guard by Federal statutes. If 
State or local governments ever did purport to regulate these 
examinations, the Coast Guard would move to pre-empt their acts for the 
sake of uniformity under the Commerce Clause of the Constitution; but 
the issue promises to remain hypothetical.

Environment

    The Coast Guard considered the environmental impact of this final 
rule and concluded that, under paragraph 2.B.2.e(34)(c) of Commandant 
Instruction M16475.1B, this rule is categorically excluded from further 
environmental documentation. The rule clearly has no 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

    Reporting and recordkeeping requirements, schools, seamen.

46 CFR Part 12

    Reporting and recordkeeping requirements, seamen.

    For the reasons set out in the preamble, the Coast Guard amends 46 
CFR parts 10 and 12 as follows:

PART 10--LICENSING OF MARITIME PERSONNEL

    1. The authority citation for part 10 is revised to read as 
follows:

    Authority: 31 U.S.C. 9701, 46 U.S.C. 2103, 2110; 46 U.S.C. 
Chapter 71; 49 CFR 1.45, 1.46; Sec. 10.107 also issued under the 
authority of 44 U.S.C. 3507.

    2. In Sec. 10.205, paragraph (i)(1) is revised to read as follows:


Sec. 10.205  Requirements for original licenses and certificates of 
registry.

* * * * *
    (i) Professional Examination. (1) When the OCMI finds the 
applicant's experience and training to be satisfactory and the 
applicant is eligible in all other respects, the OCMI will authorize 
the examination in accordance with the following requirements:
    (i) Any applicant for a deck or engineer license limited to vessels 
not exceeding 500 gross tons, or a license limited to uninspected 
fishing-industry vessels, may request an oral-assisted examination in 
lieu of any written or other textual examination. If there are textual 
questions that the applicant has difficulty reading and understanding, 
the OCMI will offer the oral-assisted examination. Each license based 
on an oral-assisted examination is limited to the specific route and 
type of vessel upon which the applicant obtained the majority of 
service.
    (ii) The general instructions for administration of examinations 
and the lists of subjects for all licenses appear in Subpart I of this 
part. The OCMI will place in the applicant's file a record indicating 
the subjects covered.
* * * * *
    3. In Sec. 10.207, paragraph (d)(1) is revised to read as follows:


Sec. 10.207  Requirements for raise of grade of license.

* * * * *
    (d) Professional Examination. (1)(i) When the OCMI finds an 
applicant's experience and training for raise of grade to be 
satisfactory and the applicant is eligible in all other respects, the 
OCMI will authorize the examination. Oral-assisted examinations may be 
administered in accordance with Sec. 10.205(i)(1). The OCMI will place 
in the applicant's file a record indicating the subjects covered.
    (ii) The general instructions for administration of examinations 
and the lists of subjects for all licenses appear in Subpart I of this 
part.
* * * * *

[[Page 47064]]

    4. In Sec. 10.217, the second sentences of paragraphs (a) (1) and 
(2) are revised to read as follows:


Sec. 10.217  Examination procedures and denial of licenses.

    (a)(1) * * * The examination fee set out in Sec. 10.109 must be 
paid before the applicant may take the first examination section. * * *
* * * * *
    (2) * * * The examination fee set out in Sec. 10.109 must be paid 
before the applicant may take the first examination section. * * *
* * * * *
    5. In Sec. 10.901, paragraph (a) is revised to read as follows:


Sec. 10.901  General provisions.

    (a) Each applicant for any license listed in this part shall pass 
examinations on the appropriate subjects listed in this subpart, except 
as noted in Sec. 10.903(b).
* * * * *

PART 12--CERTIFICATION OF SEAMEN

    6. The authority citation for part 12 continues to read as follows:

    Authority: 31 U.S.C. 9701; 46 U.S.C. 2103, 2110, 7301, 7701; 49 
CFR 1.46.

    7. In Sec. 12.05-9, paragraph (a) and the introductory text of 
paragraph (b) are revised to read as follows:


Sec. 12.05-9  Examination and demonstration of ability.

    (a) Before an applicant is certified as an able seaman, he or she 
shall prove to the satisfaction of the Coast Guard by oral or other 
means of examination, and by actual demonstration, his or her knowledge 
of seamanship and the ability to carry out effectively all the duties 
that may be required of an able seaman, including those of a 
lifeboatman. The applicant shall demonstrate that he or she:
    (1) Has been trained in all the operations connected with the 
launching of lifeboats and liferafts, and in the use of oars;
    (2) Is acquainted with the practical handling of boats; and
    (3) Is capable of taking command of the boat's crew.
    (b) The examination, whether administered orally or by other means, 
must be conducted only in the English language and must consist of 
questions regarding:
* * * * *
    8. In Sec. 12.10-5, paragraph (a) and the introductory text of 
paragraph (b) are revised to read as follows:


Sec. 12.10-5  Examination and demonstration of ability.

    (a) Before an applicant is certified as a lifeboatman, he or she 
shall prove to the satisfaction of the Coast Guard by oral or other 
means of examination, and by actual demonstration, his or her knowledge 
of seamanship and the ability to carry out effectively all the duties 
that may be required of a lifeboatman. The applicant shall demonstrate 
that he or she:
    (1) Has been trained in all the operations connected with the 
launching of lifeboats and liferafts, and in the use of oars;
    (2) Is acquainted with the practical handling of boats; and
    (3) Is capable of taking command of the boat's crew.
    (b) The examination, whether administered orally or by other means, 
must be conducted only in the English language and must consist of 
questions regarding:
* * * * *
    9. In Sec. 12.15-9, the first sentence of paragraph (a), and 
paragraph (c), are revised to read as follows:


Sec. 12.15-9  Examination requirements.

    (a) Each applicant for certification as a qualified member of the 
engine department in the rating of oiler, watertender, fireman, deck 
engineer, refrigeration engineer, junior engineer, electrician, or 
machinist shall be examined orally or by other means and only in the 
English language on the subjects listed in paragraph (b) of this 
section. * * *
* * * * *
    (c) Each applicant for certification as a qualified member of the 
engine department in the rating of pumpman shall, by oral or other 
examination, demonstrate sufficient knowledge of the subjects peculiar 
to that rating to satisfy the Officer in Charge, Marine Inspection, 
that he or she is qualified to perform the duties of that rating.
* * * * *
    Dated: August 15, 1996.
J.C. Card,
Rear Admiral, U.S. Coast Guard, Chief, Marine Safety and Environmental 
Protection.
[FR Doc. 96-22746 Filed 9-5-96; 8:45 am]
BILLING CODE 4910-14-M