[Federal Register Volume 69, Number 3 (Tuesday, January 6, 2004)]
[Rules and Regulations]
[Pages 526-533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32318]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 12

[USCG-2003-14500]
RIN 1625-AA81


Validation of Merchant Mariners' Vital Information and Issuance 
of Coast Guard Merchant Mariner's Documents (MMDs)

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule describes enhancements to the application 
procedures for the Merchant Mariner Licensing and Documentation 
program. These are necessary to improve maritime safety and promote the 
national security interests of the United States. The enhancements 
should serve these ends.

DATES: Effective Date: This interim rule is effective January 6, 2004.
    Comments: Comments and related material must reach the Docket 
Management Facility on or before April 5, 2004.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2003-14500 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Web Site: http://dms.dot.gov.
    (2) Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street SW., Washington, DC 20590-0001.
    (3) Fax: 202-493-2251.
    (4) Delivery: Room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (5) Federal rulemaking Portal: http://www.regulations.gov.
    Documents mentioned in this preamble as being available in the 
docket, are part of docket USCG-2003-14500 and will be available for 
inspection or copying at the Docket Management Facility, U.S. 
Department of Transportation, room PL-401, 400 Seventh Street SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also find this docket on the Internet 
at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Commander Dave Dolloff, Project Manager, National Maritime Center 
(NMC), Coast Guard, telephone 202-493-1021. If you have questions on 
viewing the docket, call Ms. Angela M. Jenkins, Program Manager, Docket 
Operations, Department of Transportation, telephone 202-366-0271.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://dms.dot.gov and will include any personal 
information you have provided. We have an agreement with the Department 
of Transportation (DOT) to use the Docket Management Facility. Please 
see DOT's ``Privacy Act'' paragraph below.
    Submitting comments: If you submit a comment, please include your 
name and address, identify the docket number for this rulemaking (USCG-
2003-14500), indicate the specific section of this document to which 
each comment applies, and give the reason for each comment. You may 
submit your comments and material by electronic means, mail, fax, or 
delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by

[[Page 527]]

11 inches, suitable for copying and electronic filing. If you submit 
them by mail and would like to know that they reached the Facility, 
please enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period. 
We may change this rule in view of them.
    Viewing comments and documents: To view comments, as well as 
documents mentioned in this preamble as being available in the docket, 
go to http://dms.dot.gov at any time and conduct a simple search using 
the docket number. You may also visit the Docket Management Facility in 
room PL-401 on the Plaza level of the Nassif Building, 400 Seventh 
Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Privacy Act: Anyone can search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
Department of Transportation's Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477), or you may visit 
http://dms.dot.gov.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Regulatory Information

    On Thursday, February 20, 2003, the Coast Guard published, in the 
Federal Register, a Notice of Policy entitled: ``Merchant Mariners'' 
Documents: Forms and Procedures for Renewals and Issuances'' [68 FR 
8326]. This Notice informed the public that on February 3, 2003, the 
Coast Guard had suspended issuing all MMDs using a previous form (CG-
2838 [Rev. 7-94]) and had begun renewing them using a new form (CG-2838 
[Rev. 09/02]). On Tuesday, April 8, 2003, the Coast Guard issued 
another Notice of Policy, under the same title [68 FR 17064], 
announcing that it had begun to issue original MMDs on February 28, 
2003, also using the new identification card. This new card is more 
tamper-resistant. Possession of the card continues to serve as 
verification of an individual's qualifications to work on board certain 
U.S.-flagged vessels.
    We did not publish a notice of proposed rulemaking (NPRM) for this 
rulemaking. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. This interim rule instates 
changes previously announced and implemented that are necessary to 
protect the national security interests of the United States. The Coast 
Guard finds that notice before the effective date of these changes is 
unnecessary, impracticable, and contrary to the public interest, within 
the meaning of 5 U.S.C. 553(f)(B) of the Administrative Procedure Act 
(APA).
    In response to national security concerns, the Coast Guard 
temporarily suspended issuing MMDs to examine the MMD program. 
Enhancements to the security procedures for issuing MMDs were made, and 
the Coast Guard resumed issuing the documents using the augmented 
procedures. The security-related processes needed to be implemented 
before the security-enhanced MMD cards could be issued; not issuing 
MMDs for a prolonged period would have been unacceptable and would have 
had a detrimental effect on merchant mariners who are required to 
possess these documents to obtain work on board vessels of 100 gross 
tons or more.
    Pursuant to 5 U.S.C. 553(d)(3) and for the reasons stated above, 
the Coast Guard finds that good cause exists for making this rule 
effective less than 30 days after publication in the Federal Register.

Background and Purpose

    46 U.S.C. 2103 gives the Secretary of the Department in which the 
Coast Guard is operating general superintendence over merchant marine 
personnel and authorizes the issuance of regulations promoting maritime 
safety interests. 46 U.S.C. Chapter 73 addresses MMDs and authorizes 
the Coast Guard to issue MMDs to qualified mariners. Mariners must hold 
MMDs to serve on board U.S.-flagged merchant vessels of 100 gross tons 
or more. (46 U.S.C. 8701). The MMD functions as a certificate of 
identification and a certificate of service, specifying each rating for 
which the holder is qualified (46 U.S.C. 7302(a)). Additionally, the 
MMD is issued with an appropriate endorsement, to qualified tankermen. 
An MMD may be issued for five years, and renewed for additional five-
year periods (46 U.S.C. 7302(f)). Coast Guard regulations governing the 
certification of seamen, including issuance and renewal of MMDs, appear 
at 46 CFR Part 12.
    46 U.S.C. 7302(d) allows the Secretary to review the criminal 
record of an individual who applies for an MMD. 46 CFR 12.02-4 states 
that the Officer in Charge, Marine Inspection, may require a criminal 
record check of an applicant for an MMD. Moreover, 46 U.S.C. 7302(c) 
prohibits the Secretary from issuing an MMD unless the individual 
applying for the MMD makes available to the Secretary any information 
related to an offense described in section 205 of the National Driver 
Register (NDR) Act of 1982, as amended (49 U.S.C. 30304). Additionally, 
the President under the Magnuson Act, 50 U.S.C. 191, may institute such 
measures and issue such rules and regulations to safeguard against 
destruction, loss, or injury from sabotage or other subversive acts, 
accidents, or other causes of similar nature, to vessels, harbors, 
ports, and waterfront facilities in the United States and all territory 
and water, continental or insular, subject to the jurisdiction of the 
United States. By Executive Order 10173 dated October 18, 1950, and 
subsequent Executive Orders, the President implemented his authority 
under the Magnuson Act by regulation at Title 33 CFR Part 6. 33 CFR 
6.10-1 says that no person shall be issued a document required for 
employment on a merchant vessel of the United States, nor shall any 
person be employed on a merchant vessel of the United States unless the 
Commandant is satisfied that the character and habits of life of such 
person are such as to authorize the belief that the presence of the 
individual on board would not be adverse to the security of the United 
States.
    The Coast Guard will implement the requirements of 33 CFR 6.10-1 to 
evaluate the character and habits of life of MMD applicants and the 
Board appeals process for persons refused issuance based on character 
and habits of life required by 33 CFR 6.10-9. For denials not based on 
character and habits of life, the Coast Guard will continue to use the 
process for certification of seamen set out in 46 CFR Part 12.
    The purpose of this interim rule is to amend 46 CFR Part 12. Since 
February 3, 2003, all eligible mariners, renewing or conducting certain 
other transactions involving existing MMDs, have been receiving more 
tamper-resistant MMDs. After February 28, 2003, all eligible original 
MMD applicants have been receiving more tamper-resistant MMDs.
    The more tamper-resistant MMDs are designed to address marine 
safety and national security concerns. The new MMDs are similar in 
appearance to the old ones, but embody several improvements for 
increased security, including features to deter counterfeiting and 
graphics that enhance the document's professional

[[Page 528]]

appearance. The new MMD allows for a more detailed description of a 
mariner's qualifications than did the old one. Those renewing their 
documents will be subject to the renewal requirements set out in 46 CFR 
12.02-27.
    At the time of this rule, mariners may continue to apply for 
renewal of the MMD and certain other transactions involving an existing 
MMD by mail, but will have to make a personal appearance at least once 
during the application process, to have their fingerprints taken, show 
proof of identity, and return the old MMD to the Coast Guard. For their 
convenience, they may elect to make an appearance at any of the 17 
Regional Exam Centers (RECs) in the United States.
    To ensure the issuance of MMDs only to eligible mariners, the Coast 
Guard requires fingerprints, and the revalidation and update of the 
information provided on the original MMD application. We will verify 
the information provided and conduct a criminal record review and a 
safety and a security check of the applicant in accordance with 
applicable law. We may disapprove an application for an MMD if the 
criminal record review and safety and security check leads the Coast 
Guard to determine that the applicant's criminal record or character 
and habits of life demonstrate that the applicant is not a safe and 
suitable person. A safe and suitable person eligible for an MMD is a 
person who, as determined by the appropriate Coast Guard official, 
possesses the character and habits of life to warrant the belief that 
their presence aboard vessels of the United States is not adverse to 
the security of the United States. If an application is disapproved, 
the applicant will be notified, in writing, of the reason(s) for 
disapproval and of the appeal process available to him or her. The 
applicant will be notified in writing of the reason(s) for disapproval, 
unless the Coast Guard determines that such disclosure of information 
is prohibited by law, regulation, or agency policy, in which case the 
reason(s) will not be disclosed. No MMD transactions will be performed 
pending a decision on an appeal.
    If you would like more information on the background of this 
rulemaking, and of the Coast Guard's licensing and documentation 
program, refer to the Notices discussed in the Regulatory Information 
or contact the offices noted in FOR FURTHER INFORMATION CONTACT. For 
questions on submitting an application for the issuance of an MMD, call 
your nearest REC, a list of which appears in 46 CFR 12.01-7, or on the 
internet at http://www.uscg.mil/STCW/index.htm.

Discussion of Interim Rule

    This rulemaking identifies the authorities for evaluating mariner 
applications with respect to qualifications and character and habits of 
life, which may disqualify a mariner from receiving an MMD and modifies 
certain application and administrative processes involved in issuing 
MMDs. It will--
    [sbull] Provide new definitions of the terms ``conviction'', 
``safety and security check'', and ``safe and suitable person'';
    [sbull] Require that an applicant disclose foreign and military 
convictions on the application;
    [sbull] Describe the criminal record review and a safety and 
security check conducted on MMD applicants;
    [sbull] Require that an applicant provide fingerprints during the 
application process for an MMD in a form and manner specified by the 
Coast Guard;
    [sbull] Require that the applicant appear in person at an REC at 
least one time during the application process to prove their identity 
and submit fingerprints in a form and manner specified by the Coast 
Guard;
    [sbull] Describe authority for the Coast Guard to review and deny 
issuance of an MMD for applicants whose ``character and habits of 
life'' are adverse to the security of the United States;
    [sbull] Describe how an applicant may ``prove'' identity and 
require applicant to produce two forms of identification, one of which 
must contain a picture;
    [sbull] Describe acceptable forms for proof of citizenship;
    [sbull] Remove from 46 CFR 12.02-13 reference to ``Shipping 
Commissioner'';
    [sbull] Remove from 46 CFR 12.02-17 the requirement that a 
fingerprint be affixed to an MMD form;
    [sbull] Eliminate the requirement that a mariner's Social Security 
Number (SSN) be placed on the MMD;
    [sbull] Replace the term ``missing'' in 46 CFR 12.02-23 with the 
term ``lost'';
    [sbull] Remove the description of internal Coast Guard 
administrative procedures from 46 CFR 12.02-24 and require the 
applicant to communicate the loss of an MMD to the Coast Guard by 
letter;
    [sbull] Require the submission of a complete application before 
processing; and,
    [sbull] Require the surrender of an old MMD to the Coast Guard on 
issuance of a new one.

Regulatory Evaluation

    This interim rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
and does not require an assessment of potential costs and benefits 
under section 6(a)(3) of that Order. Moreover, the Office of Management 
and Budget (OMB), under that Order, has not reviewed it. And it is not 
``significant'' under the regulatory policies and procedures of the 
Department of Homeland Security (DHS).
    A draft Regulatory Evaluation under the regulatory policies and 
procedures of DHS follows:

Costs

    This interim rule will amend certain requirements in 46 CFR Part 12 
for how merchant mariners and prospective mariners will apply for MMDs.
    This interim rule will require all applicants to process MMDs at an 
REC. The rule requires an applicant to appear at least once in the 
application process, even if making an application by mail, and 
requires that fingerprinting to be conducted by the Coast Guard for all 
types of MMD applications.
    The total annual population of affected MMD applicants is 28,243 
mariners. This total includes 11,210 applicants for original (new) MMDs 
and 17,033 applicants for reissued (renewal and duplicate) MMDs. This 
is based on 2002 data received from the Coast Guard's National Marine 
Center (NMC).
    Not all mariners incur cost from this interim rule. The subset of 
the affected population that incurs costs comprises those mariners who 
(1) previously applied for original MMDs by mail and were not 
fingerprinted at an REC, and (2) previously applied for reissue MMDs 
and were not fingerprinted at an REC.
    From discussions with the Coast Guard's NMC, we estimate the 
percentage of mariners who apply for original MMDs and incur a cost to 
be 20 percent of the 11,210 original MMD applicants, or 2,242 mariners 
(0.20 x 11,210 original MMD applicants = 2,242 mariners).
    We also estimate the percentage of mariners who apply for reissued 
MMDs and incur a cost to be 70 percent of the 17,033 reissue MMD 
applicants, or 11,923 mariners (0.70 x 17,033 reissue MMD applicants = 
11,923 mariners).
    Based on the percentage of applicants who incur a cost discussed 
above, the total annual quantity of mariners who incur a cost by this 
final rule is 14,165 mariners (2,242 original MMD applicants + 11,923 
reissue MMD applicants = 14,165 total mariners).
    The period of analysis is from 2003 to 2007. We use a five-year 
period because all current documented mariners must renew their MMDs 
once every five

[[Page 529]]

years. Therefore, this five-year period will cover a complete MMD 
renewal cycle--giving an accurate snapshot of the total cost of the 
rule.
    The costs of this final rule include (1) the cost of mariners' time 
at an REC, and (2) the cost of mariners' travel to and from an REC. In 
all costs we assume an average mariner's wage rate as a proxy for the 
opportunity cost of a mariner's time spent at the REC and the time 
spent traveling to and from the REC. We also assume per diem 
reimbursement rates as proxy unit costs for travel expenses. Table 1 
presents the basic unit cost assumptions and sources that we used in 
this analysis of the final rule.

                                      Table 1.--Summary of Basic Unit Costs
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                  Item                             Unit cost                        Source reference
----------------------------------------------------------------------------------------------------------------
Opportunity Cost of Mariner Time........  $22/hour...................  This wage-rate is based on information
                                                                        from the 2001 National Occupation
                                                                        Employment and Wage Statistics published
                                                                        by the Bureau of Labor Statistics.
Mileage.................................  $0.36/mile.................  2003 Privately Owned Vehicle (POV)
                                                                        Reimbursement Rates for Automobiles in
                                                                        Amendment 112 of the Federal Travel
                                                                        Regulation, published January 6, 2003,
                                                                        and effective January 1, 2003, by the
                                                                        General Services Administration.
Incidentals and Meals...................  $50/day....................  The average incidentals and meals
                                                                        reimbursement rate for the 17 current
                                                                        REC locations. The General Services
                                                                        Administration provides rates for the
                                                                        Continental US. The Department of
                                                                        Defense provides rates for the Non-
                                                                        Continental US. These rates are part of
                                                                        the Federal Travel Regulation and are
                                                                        frequently updated.
Lodging.................................  $120/night.................  The average lodging reimbursement rate
                                                                        for the 17 current REC locations. The
                                                                        General Services Administration (GSA)
                                                                        provides rates for the Continental US.
                                                                        The Department of Defense provides rates
                                                                        for the Non-Continental US. These rates
                                                                        are part of the Federal Travel
                                                                        Regulation and frequently updated.
----------------------------------------------------------------------------------------------------------------

Cost of REC Time

    We assume, on average, a mariner will spend one hour at the REC 
submitting an application and being fingerprinted. This time estimate 
is based on discussions with Coast Guard personnel familiar with REC 
operations and customer service. We realize some applicants may take 
more time and some may take less time; however, we believe one hour to 
be a reasonable estimate of the average time a mariner will spend at an 
REC.
    We estimate the cost of a mariner's time at the REC to be $22 (1 
hour x $22/hour cost of time = $22). The estimated annual cost of REC 
time for affected mariners is $311,630 ($22/mariner x 14,165 total 
applicants = $311,630).

Travel Cost

    We assume round-trip travel, to an REC, to take either one-day or 
require an overnight stay. Furthermore, we believe most mariners live 
within close proximity to an REC. According to data from the Coast 
Guard's NMC, at least 70 percent of MMD applicants live within one-day 
round-trip travel to and from an REC and the remaining 30 percent may 
require an overnight stay. We also assume mariners will drive to an REC 
regardless of the distance. While there may be some mariners that take 
public transportation or use another mode of travel, we believe, on 
average, most mariners will drive themselves to an REC.
    We estimate the one-day and overnight travel cost as follows:

One-Day Round-Trip Travel

    For an applicant within one-day round-trip travel to and from an 
REC, we assume the cost to include the mileage, the opportunity cost of 
the time spent traveling, and incidentals.
    We estimate the one-day round-trip driving distance and time to be 
100 miles in 4 hours (or 50 miles one-way in 2 hours driving time). 
While some mariners will drive more than this and some will drive less, 
we believe 100 miles driving distance, in 4 hours, to be a reasonable 
average estimate of the one-day round-trip travel distance and time. We 
also assume the cost for one-day round-trip incidentals to be $50 and 
the mileage reimbursement to be $0.36/mile.
    The estimated cost per mariner for one-day round-trip travel is 
$174 (100 roundtrip miles x $0.36/mile reimbursement rate + 4 travel 
hours x $22/hour cost of time + $50/day incidentals = $174). The 
estimated annual cost for one-day round-trip travel for affected 
mariners is $1,725,297 ($174/mariner x .70 {percent one-day 
travel{time}  x 14,165 mariners = $1,725,297).

Overnight Travel

    For an applicant having to travel and stay overnight, we assume the 
cost to include mileage, the opportunity cost of time spent traveling, 
lodging, and incidentals.
    We estimate the overnight round-trip driving distance and time, to 
an REC, to be 200 miles in 8 hours (double the one-day round trip 
scenario). While some mariners will drive more than this and some will 
drive less, we believe 200 miles driving distance, in 8 hours, to be a 
reasonable average estimate of the distance and time a mariner would 
drive for overnight travel to a REC. We also assume the cost for 
lodging and incidentals for overnight travel to be $220 (2 x $50/day 
incidentals + $120/night lodging = $220).
    The estimated cost per mariner for overnight travel is $468 (200 
roundtrip miles x $0.36/mile reimbursement rate + 8 travel hours x $22/
hour cost of time + $220 lodging and incidentals = $468). The estimated 
annual cost of overnight travel for affected mariners is $1,988,766 
($468/mariner x .30 {percent overnight travel{time}  x 14,165 mariners 
= $1,988,766).

Total National Cost

    The annual cost of this interim rule, consisting of the cost of 
travel and time for affected mariners, is estimated to be $4 million 
(non-discounted). Table 2 summarizes the total annual cost of the rule 
to industry.

[[Page 530]]



                                        Table 2.--Summary of Annual Cost
----------------------------------------------------------------------------------------------------------------
                                    Opportunity                                            Total        Total
                                      cost of      Mileage    Incidentals    Lodging    annual cost  annual cost
               Item                   mariner        cost      and meals       cost         per          all
                                        time                      cost                   applicant    applicants
----------------------------------------------------------------------------------------------------------------
Unit Cost.........................     \1\ $22/   \2\ $0.36/  \3\ $50/day    \3\ $120/           NA           NA
                                           hour         mile                       day
REC Time..........................           22  ...........  ...........  ...........          $22     $311,630
One-Day Round-Trip Travel.........           88           36           50  ...........          174    1,725,297
Overnight Round-Trip Travel.......          176           72          100          120          468    1,988,766
    Total Annual Cost of the Final  ...........  ...........  ...........  ...........  ...........   4,025,693
     Rule.........................
----------------------------------------------------------------------------------------------------------------
\1\Per hour.
\2\ Per mile.
\3\ Per day.

    The present value (PV) of the total cost of this interim rule is 
$18 million in 2003 dollars (2003-2007, 7 percent discount rate).
    The primary cost of this rule is the travel cost, which is driven 
by the mariners' opportunity cost of time, lodging, and other per diem 
factors. However, we believe the total cost of this rule is 
conservative because the REC locations, together, can serve more than 
70 percent of affected mariners--especially given that the RECs are 
located in or near major maritime ports that may be accessed by 
mariners.

Benefits

    The Coast Guard will review a mariner's background before issuing 
an MMD and anticipates several qualitative benefits from this new 
process. The Coast Guard will require mariners, seeking MMDs, to 
validate their basic information on identity and criminal records to 
ensure the issuance of MMDs only to eligible mariners. The Coast Guard 
expects to ensure marine safety and protect national security by 
conducting a background check of all MMD applicants and identifying 
those who pose a threat.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this interim rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. This rule does not require a general notice of proposed 
rulemaking and, therefore, is exempt from the requirements of the 
Regulatory Flexibility Act.

Collection of Information

    This interim rule calls for no new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on state or local 
governments and would either preempt state law or impose a substantial 
direct cost of compliance on them.
    We have analyzed this interim rule under that Order and have 
determined that it does not have implications for federalism. It is 
well settled that States may not regulate in categories reserved for 
regulation by the Coast Guard. It is also well settled, now, that all 
of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 
(design, construction, alteration, repair, maintenance, operation, 
equipping, personnel qualification, and manning of vessels), as well as 
the reporting of casualties and any other category in which Congress 
intended the Coast Guard to be the sole source of a vessel's 
obligations, are within the field foreclosed from regulation by the 
states. (See the decision of the Supreme Court in the consolidated 
cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 
120 S.Ct. 1135 (March 6, 2000).) Since this rule involves the manning 
of U.S. vessels and the documentation of merchant mariners, it is a 
matter of personnel qualifications, and so precludes states from 
regulation. Because states may not promulgate rules within this 
category, preemption is not an issue under Executive Order 13132.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one-year. Though this interim rule will not result in such an 
expenditure, we discuss its effects elsewhere in this preamble.

Taking of Private Property

    This interim rule will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This interim rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this interim rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
create an environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This interim rule does not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this interim rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that Order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not

[[Page 531]]

likely to have a significant adverse effect on the supply, 
distribution, or use of energy. The Administrator of the Office of 
Information and Regulatory Affairs has not designated it as a 
significant energy action. Therefore, it does not require a Statement 
of Energy Effects under Executive Order 13211.

Environment

    We have considered the environmental impact of this interim rule 
and concluded that under figure 2-1, paragraph (34)(c), of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation. The rule will not result in any 
significant cumulative impact on the human environment; any substantial 
controversy or substantial change to existing environmental conditions; 
any impact, more than minimal, on properties protected under 4(f) of 
the DOT Act, as superseded by Public Law 97-449 and Section 106 of the 
National Historic Preservation Act; or any inconsistencies with any 
Federal, State, or local laws or administrative determinations relating 
to the environment. A ``Categorical Exclusion Determination'' is 
available in the docket where indicated under ADDRESSES.

List of Subjects in 46 CFR Part 12

    Reporting and recordkeeping requirements, Seamen.

0
For the reasons discussed in the preamble, the Coast Guard amends 46 
CFR part 12 as follows:

PART 12--CERTIFICATION OF SEAMEN

0
1. Revise the authority citation for part 12 to read as follows:

    Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301, 
7302, 7303, 7304, 7305, 7503, 7505, 7701 and 8103; 50 U.S.C. 191; 33 
CFR Part 6; 49 CFR 1.46; E.O. 10277, 16 FR 7537, 3 CFR, 1949-1953 
Comp., p. 778; E.O. 10352, 17 FR 4607, 3 CFR 1949-1953 Comp., p. 
873; E.O. 11249, 30 CFR 13001, 3 CFR, 1964-1965 Comp., p. 349; E.O. 
13143, 64 FR 68271, 3 CFR, 1999 Comp., p. 238; E.O. 13273, 67 FR 
56215, 3 CFR, 2002 Comp., p. 249; Department of Homeland Security 
Delegation No. 0170.1.


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2. In Sec.  12.01-1, revise the heading and paragraph (a)(1); in 
paragraph (a)(2), remove the period and add, in its place, ``; and''; 
and add paragraphs (a)(3) and (c) to read as follows:


Sec.  12.01-1  Purpose of rules in this part.

    (a) * * *
    (1) A comprehensive and adequate means of determining and verifying 
the identity, citizenship, nationality, and professional qualifications 
an applicant must possess to be eligible for certification to serve on 
merchant vessels of the United States;
* * * * *
    (3) A means, through a criminal record review and a safety and 
security check, to determine whether the holder of a merchant mariner's 
document would be a threat to the safety of life or property at sea, or 
his or her presence would be adverse to the security of the United 
States.
* * * * *
    (c) Continuous discharge books and merchant mariner documents are 
issued by the Coast Guard and are property of the Coast Guard.

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3. In Sec.  12.01-6, revise the definition for ``Conviction'' and add, 
in alphabetical order, the definitions for the terms ``Safe and 
Suitable Person'', and ``Safety and Security Check'' 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, any State, territory, or 
possession of the United States, a foreign country, or any military 
court, of a criminal felony or misdemeanor or of an offense described 
in section 205 of the National Driver Register Act of 1982, as amended 
(49 U.S.C. 30304). If an applicant pleads guilty or no contest, is 
granted deferred adjudication, or is required by the court to attend 
classes, make contributions of time or money, receive treatment, submit 
to any manner of probation or supervision, or forgo appeal of a trial 
court's conviction, then the Coast Guard will consider the applicant to 
have received a conviction. A later expungement of the conviction will 
not negate a conviction unless the Coast Guard is satisfied that the 
expungement is based upon a showing that the court's earlier conviction 
was in error.
* * * * *
    Safe and suitable person is one whose character and habits of life 
are such as to support the belief that his or her presence on board 
vessels of the United States is not, or may not be, adverse to the 
security of the United States.
    Safety and Security Check is the process or action taken by the 
Coast Guard to determine whether an applicant for, or holder of, a 
merchant mariner's document is a safe and suitable person to be issued 
such a document or to be employed on a vessel under the authority of 
such a document.
* * * * *

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4. Revise Sec.  12.01-7 to read as follows:


Sec.  12.01-7  Regional Examination Centers.

    Applicants for licensing and certification may apply at the 
following locations:

Boston, MA
New York, NY
Baltimore, MD
Charleston, SC
Miami, FL
New Orleans, LA
Houston, TX
Memphis, TN
St. Louis, MO
Toledo, OH
San Pedro, CA
Alameda, CA
Portland, OR
Seattle, WA
Anchorage, AK
Juneau, AK
Honolulu, HI

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5. In Sec.  12.02-4, revise the heading, paragraph (a), the 
introductory text of paragraph (c), and paragraph (c)(1), to read as 
follows:


Sec.  12.02-4  Basis for denial of a merchant mariner's document.

    (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, any State, territory, or possession of the United States, 
a foreign country, or any military court, is eligible for a merchant 
mariner's document, except as provided by paragraph (c) of this 
section. No person who has ever been the user of a dangerous drug, 
addicted or not, or has ever been convicted of an NDR offense described 
in section 205 of the National Driver Register Act of 1982, as amended 
(49 U.S.C. 30304) because of addiction to or abuse of alcohol is 
eligible for a merchant mariner's document, unless he or she furnishes 
satisfactory evidence of suitability for service in the merchant marine 
as provided in paragraph (e) of this section.
* * * * *
    (c) Criminal Record Review and Safety and Security Check. The Coast 
Guard may conduct a criminal record review and conduct a safety and 
security check of an applicant for a merchant mariner's document. An 
applicant pursuing simultaneous transactions for merchant mariner's 
credentials shall undergo a single criminal record review and safety 
and security check. Each applicant must provide written disclosure of 
all prior convictions (as defined in Sec.  12.01-6) at the time of 
application.

[[Page 532]]

    (1) When a criminal record review and a safety and security check 
are conducted, the applicant shall provide fingerprints in a form and 
manner specified by the Coast Guard.
    (i) When a criminal record review or a safety and security check 
leads the Coast Guard to determine that an applicant is not a safe and 
suitable person (as defined in Sec.  12.01-6) or cannot be entrusted 
with the duties and responsibilities of the merchant mariner's document 
for which application is made, the application may be disapproved.
    (ii) If an application is disapproved, the applicant will be 
notified in writing of the fact, and, except as provided by this 
paragraph, the reason or reasons for, disapproval and advised that the 
appeal procedures in Sec.  1.03 of this chapter apply. No examination 
will be given pending decision on appeal. The applicant will be 
notified in writing of the reason or reasons for disapproval, unless 
the Coast Guard determines that such disclosure of information is 
prohibited by law, regulation, or agency policy, in which case the 
reason(s) will not be disclosed.
* * * * *

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6. In Sec.  12.02-5, in paragraph (b) remove the term ``CG-719'' and 
add, in its place, the term ``CG-719B''.

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7. In Sec.  12.02-9, revise the first and second sentence of paragraph 
(a) and paragraphs (g) and (h) to read as follows:


Sec.  12.02-9  Application for documents.

    (a) General. The Coast Guard will not process an incomplete 
merchant mariner's document application. It will process an application 
that is current and up-to-date with respect to service, physical 
examination, and other pertinent matters.
* * * * *
    (g) Each applicant for a merchant mariner's document may be subject 
to a criminal record review and a safety and security check as 
described by Sec.  12.02-4(c).
    (h) Each applicant for a merchant mariner's document shall comply 
with the NDR requirements in Sec.  12.02-4(d).

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8. Add Sec.  12.02-12 to read as follows:


Sec.  12.02-12  Identity.

    (a) Each person applying for a merchant mariner's document shall 
present acceptable proof of identity. Proof of identity shall consist 
of two current forms of identification, one of which shall contain a 
photo of the applicant. The Coast Guard may require other 
identification information reasonably necessary to prove the 
applicant's identity.
    (b) The following credentials are acceptable proof of identity:
    (1) Unexpired U.S. military identification card;
    (2) Unexpired U.S. driver's license;
    (3) Unexpired U.S. passport;
    (4) Unexpired official identification card issued by a federal, 
State, or local government or by a territory or possession of the U.S. 
(including a federal employee's identification credential);
    (5) Unexpired port credential, with photo of the applicant, issued 
by State or local port authority;
    (6) Unexpired law enforcement credential, with photo of the 
applicant;
    (7) Unexpired merchant mariner's document issued after February 3, 
2003;
    (8) Unexpired foreign passport; or
    (9) Birth Certificate or Birth Registration, issued by a State, 
county, municipality or outlying possession of the U.S.

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9. In Sec.  12.02-13, revise paragraphs (b) and (c) to read as follows:


Sec.  12.02-13  Citizenship requirements.

* * * * *
    (b) The OCMI may reject any evidence of citizenship that is not 
believed to be authentic. Acceptable evidence of citizenship may be an 
original or a copy certified as true by the agency responsible for 
issuing the document of the following:
    (1) Birth certificate or birth registration;
    (2) Certificate of naturalization (original must be presented; 
photocopies are unlawful);
    (3) Baptismal certificate or parish record recorded within one year 
after birth;
    (4) Statement of a practicing physician certifying the physician's 
attendance at the birth and who possesses a record showing the date and 
location at which it occurred;
    (5) State Department passport;
    (6) A merchant mariner's document issued by the Coast Guard after 
February 3, 2003, that shows that the holder is a citizen of the U.S.;
    (7) Delayed certificate of birth issued under a state seal in the 
absence of any collateral facts indicating fraud in its procurement; or
    (8) Certificate of Citizenship issued by the United States 
Immigration and Naturalization Service or by the Bureau of Citizenship 
and Immigration Services;
    (c) If the applicant can not meet the requirements set forth in 
paragraphs (b)(1) through (8) of this section, the applicant must make 
a statement to that effect, and may submit data of the following 
character for consideration:
    (1) Report of the Census Bureau showing the earliest available 
record of age or birth.
    (2) Affidavits of parents, other relative, or two or more 
responsible citizens of the U.S. stating citizenship.
    (3) School records, immigration records, or insurance policies.

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10. In Sec.  12.02-17, revise the heading and the introductory text of 
paragraph (c); revise paragraph (c)(2) and remove paragraph (c)(3); 
revise paragraph (d) and add paragraph (h) to read as follows:


Sec.  12.02-17  Preparation and issuance of documents.

* * * * *
    (c) When a person applies for a merchant mariner's document, he or 
she must--
* * * * *
    (2) Provide acceptable proof of identity as described in Sec.  
12.02-12.
    (d) For recordkeeping purposes, the official identification number 
is a seaman's social security number.
* * * * *
    (h) The mariner shall return the previous MMD when a new MMD is 
issued.

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11. Revise Sec.  12.02-23(e) and add (g) to read as follows:


Sec.  12.02-23  Issuance of duplicate documents.

* * * * *
    (e) If a merchant mariner's document or service record is lost, the 
seaman may obtain a duplicate by following the procedures in paragraph 
(c) of this section and by signing an affidavit, before the OCMI or a 
designated representative, explaining the loss of the document or 
service record. The Coast Guard will not process any application for a 
duplicate merchant mariner's document unless the applicant complies 
with the requirements of Sec.  12.02-9.
* * * * *
    (g) The Coast Guard may deny applications for duplicate merchant 
mariner's documents for any reason listed in Sec.  12.02-4.

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12. Revise Sec.  12.02-24 to read as follows:


Sec.  12.02-24  Reporting loss of continuous discharge book, merchant 
mariner's document, or certificate of discharge.

    Whenever a mariner loses a continuous discharge book, merchant 
mariner's document, or certificate of discharge, the mariner shall 
immediately report the loss to the nearest OCMI. The report shall be 
made in writing giving the facts incident to its loss.

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13. In Sec.  12.02-27, revise the introductory text of paragraph (a) 
and

[[Page 533]]

paragraphs (a)(1), (a)(2), (a)(3), (e)(3)(i)(A), and (e)(3)(i)(B); 
redesignate paragraphs (e)(3)(i)(C) and (e)(3)(i)(D) as paragraphs 
(e)(3)(i)(D) and (e)(3)(i)(E), respectively; and add new paragraphs 
(e)(3)(i)(C) and (e)(5) to read as follows:


Sec.  12.02-27  Requirements for renewal of a merchant mariner's 
document.

    (a) General. Except as provided in paragraph (g) of this section, 
an applicant for renewal of a merchant mariner's document shall 
establish possession of all of the necessary qualifications before the 
document is renewed. The Coast Guard will not process an application 
until the applicant has submitted a complete application package that 
complies with the requirements of Sec.  12.02-9. A request for a 
renewed merchant mariner's document may be denied for any reason listed 
in Sec.  12.02-4.
    (1) Each application for a merchant mariner's document must be made 
on form CG-719B furnished by the Coast Guard and be accompanied by the 
evaluation fee (including examination and issuance fees when required) 
established in Table 12.02-18 of Sec.  12.02-18. Each application must 
contain all necessary proofs of qualifications, identity, and 
citizenship or nationality. It must be current and up-to-date with 
respect to service, the physical examination, and all other pertinent 
matters.
    (2) The applicant may apply either in person at any Regional 
Examination Center listed in Sec.  12.01-7(a) or by mail under 
paragraph (e)(3) of this section.
    (3) Each applicant who elects to renew by mail shall submit the 
merchant mariner's document with his or her application. If a document 
is submitted, it will not be returned to the applicant. A photocopy of 
a merchant mariner's document showing both the front and the back of 
the document may be submitted in place of the existing document.
* * * * *
    (e) * * *
    (3) * * *
    (i) * * *
    (A) A completed application and the evaluation fee (including 
examination and issuance fees when required) established in Table 
12.02-18 in Sec.  12.02-18.
    (B) The document to be renewed, or, if it has not expired, a 
photocopy of it, showing both the front and the back.
    (C) A copy (both front and back if the credentials are printed on 
two sides) of two credentials deemed acceptable proofs of identity in 
Sec.  12.02-12, one of which must be a photo identification.
* * * * *
    (5) Each applicant applying for renewal by mail must appear in 
person at an REC at least one time during the application process to 
obtain a renewed merchant mariner's document. At that time, the 
applicant must show the same proofs of identity submitted with the 
application package as required by paragraph (e)(3)(i)(C) of this 
section. No other proofs of identity will be accepted. At the time the 
applicant appears in person at the REC, the applicant shall provide 
fingerprints in a form and manner specified by the Coast Guard. The 
applicant shall return the expired or expiring document to the Coast 
Guard. If the applicant has applied in person, shown the proofs of 
identity, submitted the expired or expiring document with the 
application, and provided fingerprints, then the renewed document may 
be mailed to an address provided by the applicant. * * *

    Dated: December 29, 2003.
Thomas H. Gilmour,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security and Environmental Protection.
[FR Doc. 03-32318 Filed 12-31-03; 12:19 pm]
BILLING CODE 4910-15-U