[Federal Register Volume 76, Number 116 (Thursday, June 16, 2011)]
[Proposed Rules]
[Pages 35173-35176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14921]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 12

[Docket No. 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: Notice of intent with request for comments.

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SUMMARY: The Coast Guard is advising the public of its intent to 
finalize regulations previously published as an interim rule on January 
6, 2004. The interim rule (IR) was published to enhance the application 
procedures for the Merchant Mariner Licensing and Documentation 
program, which were necessary to improve maritime safety and promote 
the national security interest of the United States, but was never 
published as a final rule. Because of the lapse in time since the 
interim rule publication, the Coast Guard is seeking comments from the 
public on one remaining section of the interim rule that has remained 
unfinalized. The Coast Guard intends to finalize this one section of 
the interim rule.

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

ADDRESSES: You may submit comments identified by docket number USCG-
2003-14500 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329. To avoid duplication, please use only one of 
these four methods. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section below for 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail Mr. Gerald Miante, Maritime Personnel 
Qualifications

[[Page 35174]]

Division, Coast Guard; telephone 202-372-1407, e-mail 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Request for Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2003-14500), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand deliver, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a phone number in the body of 
your document so that we can contact you if we have questions regarding 
your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Select Document Type'' drop down menu 
select ``Proposed Rule'' and insert ``USCG-2003-14500'' in the ``Enter 
Keyword or ID'' box. Click ``Search'' then click on the balloon shape 
in the ``Actions'' column. If you submit your comments by mail or hand 
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 
inches, suitable for copying and electronic filing. If you submit 
comments by mail and would like to know that they reached the Facility, 
please enclose a stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Enter Keyword or ID'' box insert ``USCG-2003-14500'' 
and click ``Search.'' Click the ``Open Docket Folder'' in the 
``Actions'' column. You may also visit the Docket Management Facility 
in Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. We have an agreement with the Department of Transportation to 
use the Docket Management Facility.

Privacy Act

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

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before July 6, 2011 using one of the four methods 
specified under ADDRESSES. Please explain why you believe a public 
meeting would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.
    For information on facilities or services for individuals with 
disabilities or to request special assistance at the public meeting, 
contact Mr. Gerald Miante, Maritime Personnel Qualifications Division, 
Coast Guard; at the telephone number or e-mail address indicated under 
the FOR FURTHER INFORMATION CONTACT section of this notice.

Abbreviations

Sec.  Section symbol
FR Federal Register
MMD Merchant Mariner's Document
NMC National Maritime Center
REC Regional Examination Center
TSA Transportation Security Administration
TWIC Transportation Worker Identification Credential
U.S.C. U.S. Code

Basis and Purpose

    On January 6, 2004, the Coast Guard published in the Federal 
Register (69 FR 526) an interim rule with request for comments. The 
interim rule described enhancements to the application procedures for 
the Merchant Mariner Licensing and Documentation program, which were 
necessary to improve maritime safety and promote the national security 
interest of the United States. However, subsequent rulemakings have 
addressed the majority of the interim rule provisions. As a result, the 
Coast Guard intends to finalize the single remaining section that has 
not been addressed in subsequent rulemakings.
    The most recent significant rulemaking documents for rulemakings 
addressing the interim rule provisions are as follows \1\: (1) 
Transportation Worker Identification Credential (TWIC) Implementation 
in the Maritime Sector; Hazardous Materials Endorsement for a 
Commercial Driver's License (74 FR 13114); (2) Seafarer's Training, 
Certification and Watchkeeping Code (STCW Code) (75 FR 13715); (3) 
Maritime Identification Credentials (74 FR 2865); (4) Consolidation of 
Merchant Mariner Qualification Credentials (74 FR 11196); (5) Training 
and Service Requirements for Merchant Marine Officers (73 FR 52789); 
(6) Large Passenger Vessel Crew Requirements (74 FR 47729); and (7) 
Crewmember Identification Documents (74 FR 19135).
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    \1\ To find all the rulemaking documents associated with the 
rulemakings listed here, you can view each rulemaking's docket on 
http://www.regulations.gov.
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    The one section of the January 6, 2004 interim rule that has 
remained unfinalized is 46 CFR 12.01-1(a)(1): Purpose of rules in this 
part, which states the rules are to provide 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''. Our intent is to finalize this one remaining section 
of the interim rule, and we are asking for comment on this section 
only. You may submit a comment to the docket using one of the methods 
specified under ADDRESSES.

Discussion of Comments

    As a result of our request for comments in the interim rule 
published on January 6, 2004 in the Federal Register, (69 FR 526), the 
Coast Guard heard from eight respondents representing mariners and the 
industry. The respondents submitted numerous comments addressing a wide 
range of issues related to the interim rule. A discussion of the 
comments follows.
    One commenter requested a public hearing in order to ``develop a 
complete and accurate record regarding the provisions and consequences 
of the interim rule.''
    The Coast Guard believes a public hearing is unnecessary. This 
rulemaking qualifies as an informal rulemaking

[[Page 35175]]

under Sec. 553 of the Administrative Procedure Act, and as such does 
not require formal hearing procedures. The Coast Guard believes that 
the commenter's desire for a complete and accurate record of rulemaking 
actions related to this interim rule is available in the public docket 
USCG-2003-14500, available online by going to http://regulations.gov, 
inserting USCG-2003-14500 in the ``Keyword'' box, and then clicking 
``Search.''
    One commenter looked favorably on the removal of the term 
``shipping commissioner'' and the removal of social security numbers 
from the Merchant Mariners Documents (MMDs).
    At each revision, the Coast Guard attempts to update terminology in 
its regulations. In this rulemaking specifically, we removed social 
security numbers from MMDs to safeguard mariners' personally 
identifiable information. We believe that changes such as these better 
serve the mariners.
    One commenter said that the Coast Guard does not understand and 
fails to communicate with lower-level mariners.
    The Coast Guard disagrees. The Coast Guard communicates with all 
branches of the maritime community through publications, Web sites, 
responses to inquiries, and other personal and mass media efforts. In 
fact, the Merchant Marine Personnel Advisory Committee has several 
``limited-service'' mariners as members while several other members 
represent companies that employ these mariners. MERPAC periodically 
studies and discusses issues pertinent to limited-service mariner 
employment and advancement, such as Able Seamen Qualifications and 
ratings attaining Officer in Charge of a Navigational Watch and Officer 
in Charge of an Engineering Watch coming up through the hawsepipe.
    One commenter warned that ``adding extra and vague requirements to 
the already burdensome ones'' will only serve to drive more people away 
from the maritime industry.
    The Coast Guard agrees that excessive regulatory burdens must be 
avoided. However, extra security measures are a reality for all 
transportation sectors. Making ports, facilities, and vessels more 
secure is a part of doing business in today's world that cannot be 
avoided. New security measures take extra effort from all parties--
government, industry, and the individual mariner--and we believe these 
measures are not excessive.
    The Coast Guard also agrees with the commenter that ``vague 
requirements'' should be avoided. To make our requirements more clear, 
we have provided definitions of ``safe and suitable person'', 
``criminal record check'', and ``National Driver Register (NDR)'' with 
specific language in 46 CFR 10.107. Mariners who feel they were 
unfairly denied a credential can appeal under the process available 
from the Transportation Security Administration (TSA) (49 CFR 1515) 
and/or the Coast Guard (46 CFR 1.03). Those mariners who are not 
required to obtain a TWIC must still undergo another vetting process.
    Five commenters stated that, in addition to the current 17 Regional 
Examination Centers (RECs), additional locations were needed for 
mariners to show proof of identity and be fingerprinted.
    This comment has been overcome by events with the establishment of 
the TWIC rulemaking. Those mariners who are not required to obtain a 
TWIC must still undergo another vetting process, which requires a 
showing of proof of identity and provision of fingerprints. The Coast 
Guard agrees that maximizing the number of locations where this may be 
accomplished is best, and is evaluating the options available for how 
to best meet mariners' identification needs. However, this is beyond 
the scope of this rulemaking finalizing one remaining section: 46 CFR 
12.01-1(a)(1): Purpose of rules in this part.
    One commenter said the RECs are unable to provide adequate services 
to mariners while performing current duties and that the RECs' attempt 
``to accomplish even more with fewer resources is the basis of the 
current problem with the RECs.''
    One commenter predicted that the RECs will be unable to provide 
timely identification and fingerprinting services.
    These comments have been overcome by events with the establishment 
of the TWIC rulemaking. Those mariners who are not required to obtain a 
TWIC must still undergo another vetting process.
    One of these commenters also stated that evaluators should be 
trained, temporary licenses and documents should be issued, a hotline 
should be set up to receive credential-related inquiries, and that the 
licensing procedures should be simplified.
    These subjects are not directly related to this rulemaking but were 
considered during subsequent revisions of the entire subchapter, 46 CFR 
subchapter B.
    As part of documentation centralization at the National Maritime 
Center (NMC) in West Virginia, evaluators are being trained, and extra 
evaluators may be applied to any surges that might occur.
    One commenter stated that 5-year renewals of MMDs and licenses 
should be good for 5 full years with renewal dates falling on the 
mariner's birthday, and that current documents should be extended as 
necessary to implement this change.
    Title 46 U.S.C. 7302(f) currently states that an MMD is valid for 5 
years and may be renewed for an additional 5-year period. To help 
alleviate the problem created by the 5-year validity period, the NMC is 
issuing credentials that have a delayed start-date to coincide with the 
expiration date of the previous credential.
    One commenter pointed out that the interim rule is unrealistic 
because it focuses on only one aspect of security without addressing 
other areas where enhanced security is necessary.
    Two commenters expressed concern that mariners on deep-draft U.S. 
flag vessels pose the least risk to national security and that threats 
to national security lie in exceptions to documentation requirements 
for mariners on inland waters and/or those serving on vessels of less 
than 100 gross tons (GRT). The commenters recommended that persons on 
all types of vessels be required to undergo a security screening.
    These comments have been overcome by events with the establishment 
of the TWIC rulemaking. In addition, there are approved courses 
available for company, facility, and vessel security officer training 
as well as security familiarization for other crewmembers.
    One commenter pointed out that the Coast Guard should require 
criminal record disclosure in applications for mariner credentials, but 
should not continuously require repeated documentation of previously 
disclosed information.
    The Coast Guard agrees that the application process should be 
updated and simplified. As one major step, the Coast Guard has 
centralized all mariners' credential records at the NMC. This new 
process may, in the future, negate the need for repeated collection of 
established reporting.
    Two commenters called for a clear and workable appeals process in 
the event that a mariner is denied a credential. One of these 
commenters stated the Coast Guard can withhold any explanation of the 
reason for disproving an MMD.
    The Coast Guard agrees with the commenters and has comprehensively 
revised the regulation. The Coast Guard has developed an appeals 
process for mariners who believe they were wrongly denied a credential. 
The appeal process is available from the TSA (See 49 CFR 1515) and/or 
the Coast Guard (See 46 CFR 1.03). Those mariners who

[[Page 35176]]

are not required to obtain a TWIC must still undergo another vetting 
process.
    We received many comments relating to our estimates of costs in the 
interim final rule. Three commenters stated that applicant visits to an 
REC for the purposes of showing identification and fingerprinting could 
not be accomplished in 1 hour, and that the 1-hour approximation was 
underestimated.
    Two commenters stated that 1-day round-trip travel does not 
constitute close proximity to an REC, and that the 100-mile average was 
unreasonable for 1-day round-trip travel to an REC.
    Three commenters disagreed with the Coast Guard's travel cost 
estimate that most mariners live within 1-day round trip travel of an 
REC.
    One commenter stated that several mariners in the Great Lakes Basin 
did not live in close proximity to an REC.
    Another commenter stated that the assumptions used by the Coast 
Guard in calculating travel costs for applicants did not adequately 
reflect real travel costs in the Great Lakes.
    One commenter stated that the cost in the interim rule looked at 
the cost on a 5-year basis, but in the long term, there was an enormous 
cost impact for all mariners given the multiple renews required during 
the course of a career.
    One commenter stated that the Coast Guard's analysis was not 
correct to say, ``not all mariners will incur costs from this rule.'' 
The commenter further stated that every mariner seeking a new or 
reissue MMD was going to incur costs.
    One commenter stated that the hours spent traveling should be 
acknowledged as the opportunity cost of the individual's wages.
    Five commenters said the costs to mariners and the total cost of 
this rulemaking were underestimated.
    One commenter wanted clarification on the application of 
convictions for misdemeanors and was concerned about its effect on 
recruitment and retention.
    One commenter suggested that anyone who was denied a credential 
because of a safety and security check should be advised in writing as 
to the reason without exception.
    One commenter said that an administrative law judge should make 
final decisions on appeals.
    One commenter argued that the definition of the term ``safety and 
security check'' should include a statement on the extent of the check 
that may be performed.
    These comments have been overcome by events with the establishment 
of the TWIC rulemaking. Those mariners who are not required to obtain a 
TWIC must still undergo another vetting process. However, we note that 
the regulatory evaluations which accompanied the TWIC rulemaking 
considered many of the comments regarding cost estimation we received 
here.
    One commenter believed that regulations in effect prior to the 
interim rule create a presumption of adequacy, and that further safety 
and security checks were unnecessary.
    The Coast Guard does not agree. As part of the Coast Guard's goal 
of increasing security in all aspects of the maritime domain, all 
mariners who then held an MMD were screened to determine if they 
presented a potential security risk to our nation. As a result, the 
Coast Guard found instances where an applicant had been issued a 
credential and was later found to pose a threat to security. The prior 
regulations did not require mariners to have their fingerprints taken 
at the RECs, and it allowed a candidate to submit a fingerprint card 
from an uncontrolled location. Similarly, the prior regulations allowed 
renewal of documents by mail and an applicant's identity could not be 
verified. The new regulations require a candidate's presence before the 
Coast Guard or its authorized agent to be certain that the person 
applying for the document can validate his or her identity and the 
fingerprints are indeed those of the applicant.
    Three commenters believed that the regulation concerning a ``safe 
and suitable person'' and one's ``character and habits of life'' was 
vague, lacked criteria for making this determination, and did not 
provide adequate safeguards to the mariner. Additionally, one of these 
commenters added that the ``character and habits of life'' standard 
would infringe on the mariners' First Amendment rights and ignored the 
Supreme Court's limiting construction.
    The Coast Guard agrees and changes to the terms were made with the 
Consolidation of Merchant Mariner Qualification Credentials final rule. 
74 FR 11196.
    One commenter believed that the requirement in 46 CFR 12.02-4(a) 
was too harsh.
    One commenter wanted clarification regarding 46 CFR 12.02-4(c) as 
it related to applicants who have been arrested but not convicted.
    One commenter suggested revising 46 CFR 12.02-9(a), which read, 
``The Coast Guard may refuse to process an incomplete MMC 
application.'' by replacing the word ``process'' with the words ``issue 
a credential based upon''.
    One commenter asked for a definition for the word ``incomplete'' in 
46 CFR 12.02-9(a).
    These subjects are not directly related to this rulemaking but were 
addressed with the Consolidation of Merchant Mariner Qualification 
Credentials final rule, which removed and reserved 46 CFR 12.02-4 and 
12.02-9. (74 FR 11196). Application regulations for all endorsements 
are now contained in 46 CFR 10.209.

Intent To Finalize; Request for Comments

    The Coast Guard invites further comments related to this Notice of 
Intent to finalize the one section of the January 6, 2004 interim rule 
that has remained unfinalized, 46 CFR 12.01-1(a)(1): Purpose of rules 
in this part. Written comments and responses related to finalizing 46 
CFR 12.01-1(a)(1) will be added to the docket number for this 
rulemaking (USCG-2003-14500). Upon close of the comment period, the 
Coast Guard will consider all comments received. We anticipate that we 
will be able to finalize 46 CFR 12.01-1(a)(1) soon thereafter.

    Dated: June 9, 2011.
F.J. Sturm,
Acting Director of Commercial Regulations and Standards.
[FR Doc. 2011-14921 Filed 6-15-11; 8:45 am]
BILLING CODE 9110-04-P