[Federal Register Volume 62, Number 23 (Tuesday, February 4, 1997)]
[Rules and Regulations]
[Pages 5158-5160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2746]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Part 349
[Docket No. R 169]
RIN 2133-AB28
Reemployment Rights of Certain Merchant Seamen
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Maritime Administration (MARAD) is issuing this procedural
rule to implement provisions of the Maritime Security Act of 1996.
These provisions amend the Merchant Marine Act, 1936, to grant
reemployment rights and other benefits to certain merchant seamen
serving on vessels used by the United States for a war, armed conflict,
national emergency or maritime mobilization need. This rule establishes
the procedure for obtaining the necessary MARAD certification for
reemployment rights and other benefits conferred by statute and its
assistance in pursuing these statutory rights and benefits.
EFFECTIVE DATE: This final rule is effective February 6, 1997.
FOR FURTHER INFORMATION CONTACT: Christopher E. Krusa, Maritime
Training Specialist, Maritime Administration, MAR-250, Room 7302, 400
Seventh Street, SW, Washington, DC 20590-0001, tel. (202) 366-2648.
SUPPLEMENTARY INFORMATION: Section 2 of Pub. L. 104-239, the Maritime
Security Act of 1996 (MSA), enacted on October 8, 1996, in amending
Title VI of the Merchant Marine Act, 1936 (Act), 46 App. U.S.C. 1171 et
seq., directs the Secretary of Transportation to establish a Maritime
Security Program (MSP). The MSP will provide, over a period of ten
years, financial assistance for the commercial operation of militarily
useful vessels in the foreign commerce of the United States, employing
U.S. citizen crews. Pursuant to contract, participating vessel
operators are required to make their ships and other commercial
transportation resources available to the Government during time of war
or national emergency. Section 10 of the MSA also amends Title III of
the Act, 46 App. U.S.C. 1131, to provide ``reemployment rights and
other benefits'' for certain merchant seamen who have been certified''
by the Secretary of Transportation.
In order to receive certification, those merchant seamen must
submit an application not later than 45 days following completion of
employment in the activation or operation of a vessel used by the
United States for a ``war, armed conflict, national emergency, or
maritime mobilization need (including for training purposes or testing
for readiness and suitability for mission performance).'' The MSA
provides that the reemployment rights and other benefits shall be
``substantially equivalent to the rights and benefits provided for by
chapter 43 of Title 38, United States Code, for any member of the Armed
Forces of the United States who is ordered to active duty.'' The
Secretary has delegated this certification authority to the Maritime
Administrator (61 FR 64029; Dec. 3, 1996).
Section 10 of the MSA requires the Secretary to issue regulations
implementing this section not later than 120 days after its enactment.
Accordingly, pursuant to delegation of this authority by the Secretary
to the Maritime Administrator, MARAD is issuing this final rule to
establish the procedure for obtaining MARAD certification and to
provide for MARAD administrative assistance to merchant seamen alleging
denial of their statutory rights to reemployment and other benefits.
Rulemaking Analysis and Notices
Executive Order 12866 (Regulatory Planning and Review; Department of
Transportation (DOT) Regulatory Policies and Procedures; Pub. L. 104-
121
This procedural rulemaking is not considered to be an economically
significant regulatory action under E.O. 12866, and is also not
considered a major rule for purposes of Congressional review under Pub.
L. 104-121. It is not considered to be a significant rule under DOT's
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979).
Accordingly, it has not been reviewed by the Office of Management and
Budget.
Section 10 of Pub. L. 104-239, which added section 302 to the Act
(46 App. U.S.C. 1132), mandates that regulations be issued by February
5, 1997. This rule merely prescribes the procedures for MARAD to
certify certain merchant seamen as being eligible for reemployment
rights and other benefits granted by the Congress and to provide
assistance to them in obtaining those rights and other benefits.
Accordingly, pursuant to 5 U.S.C. 553, the notice and comment
requirements of the Administrative Procedure Act are inapplicable and
this is being published as a final rule.
Federalism
MARAD has analyzed this rulemaking in accordance with principles
and criteria contained in E.O. 12612 and has determined that these
regulations do not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Regulatory Flexibility
The Maritime Administrator certifies that this rulemaking will not
have a significant economic impact on a substantial number of small
entities. This is a procedural rule mandated by the Congress to allow
individuals to be certified as eligible to claim their statutory rights
to reemployment and other benefits.
Environmental Assessment
MARAD has concluded that this final rule has no environmental
impact and that an environmental impact statement is not required.
Paperwork Reduction Act
This rulemaking contains new information collection requirements
which will be submitted to the Office of Management and Budget for
review and approval.
This rule does not impose any unfunded mandates.
List of Subjects in 46 CFR Part 349
Employment, National defense, Seamen.
Accordingly, new part 349 is added to Title 46 CFR to read as
follows:
[[Page 5159]]
PART 349--REEMPLOYMENT RIGHTS OF CERTAIN MERCHANT SEAMEN
Sec.
349.1 Purpose.
349.2 Application for certification.
349.3 Certification criteria.
349.4 Decision on application.
349.5 Reemployment rights and benefits.
349.6 Enforcement.
Authority: Secs. 204(b), 302, Merchant Marine Act, 1936, as
amended (46 App. U.S.C. 1114(b), 1132); 38 U.S.C. 4301 et seq; 49
CFR 1.66
Sec. 349.1 Purpose.
This part prescribes regulations implementing section 302, Merchant
Marine Act, 1936 (Act), as amended (46 App. U.S.C. 1132), added by
section 10 of Pub. L. 104-239, the Maritime Security Act of 1996. These
regulations provide the procedures by which the Maritime Administration
(MARAD), under authority delegated by the Secretary of Transportation
to the Maritime Administrator, certifies, upon application, that
certain merchant seamen are entitled to reemployment rights and other
benefits after completion of their service on vessels used by the
United States for a war, armed conflict, national emergency or maritime
mobilization need. It also describes the form of administrative
assistance MARAD will provide to the seamen certified.
Sec. 349.2 Application for certification.
Pursuant to 46 App. U.S.C. 1132, an individual may submit an
application to MARAD not later than 45 days after the date the
individual completes the period of employment described in Sec. 349.3
of this part.
Sec. 349.3 Certification criteria.
The Administrator shall apply the following criteria for certifying
that an individual merchant seaman is entitled to reemployment rights
and other benefits substantially equivalent to the rights and benefits
provided by chapter 43 of title 38, United States Code, for any member
of a Reserve Component of the Armed Forces of the United States who is
ordered to active duty. It shall be the responsibility of each
applicant for certification to submit relevant documentation to MARAD,
Office of Maritime Labor, Training, and Safety, MAR-250, 400 Seventh
St., S.W., Room 7302, Washington, D.C. 20590, establishing that--
(a) Employment as merchant seaman. The applicant was employed after
October 8, 1996, in the activation or operation of a vessel--
(1) in the National Defense Reserve Fleet maintained by MARAD under
authority of section 11 of the Merchant Ship Sales Act of 1946 (50
U.S.C. App. 1744) in a period in which that vessel was in use or being
activated for use under 50 U.S.C. App. 1744(b);
(2) that is requisitioned under section 902 of the Act (46 App.
U.S.C. 1242); or
(3) that is owned, chartered, or controlled by the United States
and used by the United States for a war, armed conflict, national
emergency, or maritime mobilization need (including for training
purposes or testing for readiness and suitability for mission
performance).
(b) Seaman credentials. During the period of employment described
in paragraph (a) of this section, the seaman possessed a valid license,
certificate of registry, or merchant mariner's document issued under
chapter 73 (as applicable) of title 46, United States Code, as required
by 46 App. U.S.C. 1132(c).
(c) Additional information. If applicable, periods of
hospitalization, convalescence, illness, injury, shipwreck or detention
beyond the mariner's control were incurred in, or aggravated during,
the performance of employment described in Sec. 349.3(a).
Sec. 349.4 Decision on application.
MARAD will issue or deny certification (accompanied by an
explanation in writing) to each applicant not later than 20 days after
receipt of an application for certification.
Sec. 349.5 Reemployment rights and benefits.
(a) General. An individual who is absent from a position of
employment, in the private or public (federal, state or local
government) sector, because of temporary employment of any duration
described in Sec. 349.3(a), shall be entitled to reemployment rights
and benefits upon completion of the temporary employment as a merchant
seaman.
(b) Superior claims. Pursuant to 38 U.S.C. 4312(g), the right of a
person to reemployment shall not entitle such person to retention
preference or displacement rights over any person with a superior claim
under the provisions of title 5, United States Code, relating to
veterans and other preference eligibles.
(c) Notification of employer. Any person who is absent from a
position of employment by reason of service as described in
Sec. 349.3(a) shall be entitled to reemployment rights and benefits
provided in Sec. 349.3(e) if--
(1) The person has given advance written or verbal notice of such
service to such person's employer, unless giving notice is precluded by
military necessity, under regulations prescribed by the Secretary of
Defense, or, under all relevant circumstances, is impossible or
unreasonable, pursuant to the provisions of 38 U.S.C. 4312(b); and
(2) The person submits an application for reemployment with the
employer not later than 14 days after completion of a period of service
of less than 181 days, or not later than 90 days after the completion
of a period of service greater than 180 days, or if submitting such
application within such period is impossible or unreasonable through no
fault of the person, the next first full calendar day when submission
of such application becomes possible.
(d) Waiver of notice requirements. A person who has not given
notice, or who fails to report or apply for employment or re-employment
within the appropriate period specified in paragraph (c) of this
section shall not automatically forfeit such person's entitlement to
the rights and benefits referred to in Sec. 349.5(e), but shall be
subject to the rules of conduct, established by policy, and the general
practices of the employer pertaining to explanations and discipline
with respect to absence from scheduled work. MARAD will make a
determination on the issue of whether notice of service was required in
acting on the application for certification.
(e) Exception to reemployment rights. An employer is not required
to reemploy an individual if the employer satisfies the burden of
proving that, pursuant to 38 U.S.C. 4312(d)--
(1) The employer's circumstances have so changed as to make such
reemployment impossible or unreasonable, or such reemployment, if
required, would impose an undue hardship on the employer, as defined in
38 U.S.C. 4303(15); or
(2) The employment which the individual left for employment as a
merchant seaman was for a brief, nonrecurrent period and there was not
at the time of leaving such employment any reasonable expectation that
such employment would continue indefinitely or for a significant
period.
(f) Reemployment benefits. An individual certified by MARAD to be
entitled to reemployment shall also be entitled to other ``benefits of
employment'' (other than wages or salary for work performed), as
defined in 38 U.S.C. 4303(2), that would have accrued to that
individual by reason of an employment contract or agreement or an
employer policy, plan or practice and includes rights and benefits
under a pension plan, a health plan, an employee stock ownership plan,
insurance coverage and awards,
[[Page 5160]]
bonuses, severance pay, supplemental unemployment and benefits,
vacations and the opportunity to select work hours or location of
employment.
(g) Reemployment position. (1) An individual certified by MARAD as
being entitled to reemployment shall be promptly reemployed by the
former employer, according to the order of priority specified in 38
U.S.C. 4313(a), after submitting an application for reemployment. The
three categories of priority, in ascending order, are for a merchant
seaman who:
(i) Served for 90 days or less;
(ii) Served for more than 90 days; or
(iii) Has a disability incurred in, or aggravated during, the
performance of such merchant service.
(2) For a person with such service related disability, the employer
shall make ``reasonable efforts'', as defined in 38 U.S.C. 4303(10),
``to accommodate the disability'' to allow that person to be employed
in the position that would have been occupied had the employment with
the employer been continuous, or in the position in which employed on
the date service began as a merchant seaman, and if that person is
``not qualified'' for either position, in a substantially equivalent
position, as specified in 38 U.S.C. 4313(a)(3) and (a)(4).
Sec. 349.6 Enforcement.
MARAD shall provide administrative assistance to any individual
certified to be entitled to reemployment rights and benefits pursuant
to chapter 43 of title 38, United States Code, made applicable by 46
App. U.S.C. 1132(a) and these regulations, who alleges in writing to
MARAD the failure, refusal, or imminent failure or refusal of an
employer to grant such rights or other benefits. The complaint must be
sent to MARAD at the address in Sec. 349.3. Such complaint may be in
any format and shall include the name and address of the employer
against whom the complaint is filed and a summary of the allegations
that form the basis for the complaint. MARAD will review, investigate
and attempt to resolve the complaint by taking one or more of the
following actions:
(a) Consultation with claimant. MARAD will communicate with the
individual filing the complaint, in writing and/or by telephone or
other means, to provide assistance in pursuing reemployment rights and
benefits with the employer.
(b) Employer contact. MARAD may contact the employer and attempt to
resolve the complaint to the mutual satisfaction of the complainant and
the employer.
(c) Consultation with Department of Labor. If attempts by MARAD to
resolve the complaint are unsuccessful, MARAD may seek advice on the
matter from the U.S. Department of Labor.
(d) Referral to Attorney General or Merit Systems Protection Board.
MARAD will notify the complainant of an unsuccessful effort to resolve
a complaint. Pursuant to 38 U.S.C. 4323 and 4324, if the complainant so
requests, MARAD will refer to the Attorney General a complaint relating
to a private or State employer, or to the Merit Systems Protection
Board, for litigation, a complaint relating to a Federal executive
agency employer.
Dated: January 30, 1997.
By Order of the Maritime Administrator.
Joel C. Richard,
Secretary.
[FR Doc. 97-2746 Filed 2-3-97; 8:45 am]
BILLING CODE 4910-81-P