Consolidation of Merchant Mariner Qualification Credentials
Federal RegisterJan 25, 2007
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 1, 20, 70, 95, 101, 110, 141, 155, 156, 160, 162, 163, 164, and 165
46 CFR Parts 1, 4, 5, 10, 11, 12, 13, 14, 15, 16, 26, 28, 30, 31, 35, 42, 58, 61, 78, 97, 98, 105, 114, 115, 122, 125, 131, 151, 166, 169, 175, 176, 185, 196, 199, 401 and 402
Docket No. USCG-2006-24371
RIN 1625-AB02
Consolidation of Merchant Mariner Qualification Credentials
AGENCY:
United States Coast Guard, DHS.
ACTION:
Supplemental notice of proposed rulemaking.
SUMMARY:
The Coast Guard issues this Supplemental Notice of Proposed Rulemaking (SNPRM) for the Consolidation of Merchant Mariner Qualification Credentials rulemaking project to amend its Notice of Proposed Rulemaking (NPRM) published in May 2006. The purpose of this SNPRM is to address comments received from the public on the NPRM, revise the proposed rule based on those comments, and provide the public with an additional opportunity to comment on the proposed revisions. This revised proposed rule would work in tandem with the joint final rule published by the Coast Guard and the Transportation Security Administration (TSA) published elsewhere in today's
Federal Register
entitled “Transportation Worker Identification Credential (TWIC) Implementation in the Maritime Sector; Hazardous Materials Endorsement for a Commercial Driver's License”.
DATES:
Comments and related material must reach the Docket Management Facility on or before April 25, 2007.
ADDRESSES:
You may submit comments identified by Coast Guard docket number USCG-2006-24371 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., Room PL-401, 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 eRulemaking Portal:
http://www.regulations.gov.
See
SUPPLEMENTARY INFORMATION
for format and other information about comment submissions.
FOR FURTHER INFORMATION CONTACT:
For questions concerning this proposed rule, call Mr. Luke Harden (G-PSO-1), United States Coast Guard, 2100 Second Street, SW., Washington, DC 20593; telephone 1-877-687-2243.
For questions concerning viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street SW., Washington, DC 20590-0001; telephone (202) 493-0402.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation and Request for Comments
II. Background and Purpose
III. Discussion of the Proposed Rulemaking
IV. Quick Summary of Differences Between this SNPRM and the Current Regulations
V. Discussion of Comments and Changes
A. Comments From the Docket or Public Meetings
1. Comments Regarding TWIC
2. General Objections to the Rulemaking
3. Course of the Rulemaking
4. Appeals
5. Applicability
6. Application Process
7. Authority
8. Burden
9. Citizenship
10. Concurrent Processing of Applications
11. Continuity Licenses
12. Definitions
13. Editing
14. Expiration dates
15. Format of the MMC
16. General
17. International Agreements
18. Information Sharing
19. Interim Credentials
20. Invalid Credentials
21. License Creep
22. Loss of License as Separate Credential
23. Medical
24. National Driver Register
25. Port Access
26. Posting
27. Preemption
28. Personal Privacy
29. Public Meetings
30. Regulatory Requirements
31. Renewals and Duplicates
32. Suspension and Revocation
33. Safety and Suitability
34. Miscellaneous Comments Outside the Scope of this Rulemaking
35. Support for the Rulemaking
36. Travel
37. Vetting
B. Recommendations from Advisory Committees
1. MERPAC strongly recommends that TSA remove mariners from the TWIC project.
2. Given the size, complexity, and impact of these three rulemaking proposals; MERPAC recommends an extension of the comment period for at least another ninety days.
3. MERPAC recommends that the Coast Guard delay implementation of the MMC, separating the implementation of the MMC from the TWIC implementation.
4. MERPAC believes that this rulemaking exceeds the authority of the Coast Guard to create a consolidated credential.
5. Page 29464 states that there are no changes to the qualifications, experience, examinations, classes and other requirements needed, and that this is just a reorganization of existing regulations.
6. The Coast Guard needs to protect a mariner's financial information by removing the requirement to place the applicants Social Security Number on the face of the form of payment.
7. MERPAC suggests the removal of the language in section 10.211(e).
8. Section 10.217 allows the Coast Guard to designate other Coast Guard locations to provide service to applicants for MMCs, and MERPAC applauds this addition.
9. Section 10.225 states that mariners must surrender their old MMC, but 10.227 states that the mariner can retain an expired document.
10. MERPAC recommends that the Coast Guard create an MMC that is convenient for the mariner.
11. MERPAC recommends that the Coast Guard begin a new rulemaking that would harmonize the criminal background checks with TSA standards.
12. MERPAC recommends that Coast Guard remove the self-disclosure portion of the application process.
13. MERPAC has concerns about the appeal process, and encourages the agencies to further define and explain this process.
14. MERPAC recommends that Coast Guard redesign the rulemaking to assure that mariners can make application for their TWIC and their MMC simultaneously.
15. MERPAC recommends that the Coast Guard and TSA develop an interim clearance process be provided to a mariner, and that mariners be allowed to train and work, while awaiting a final determination.
C. Additional Changes Made in this SNPRM
1. Purpose of rules in this part. (10.101)
2. Definitions in Subchapter B. (10.107)
3. General characteristics of the Merchant Mariner Credential. (10.201)
4. Requirement to hold a TWIC and a Merchant Mariner Credential. (10.203)
5. Validity of a Merchant Mariner Credential. (10.205)
6. General application procedures. (10.209)
7. Criminal record review. (10.211)
8. Medical and physical requirements. (10.215)
9. MMC application and examination locations. (10.217)
10. Fees. (10.219)
11. Citizenship. (10.221)
12. Modification or removal of limitations or scope (10.223)
13. Requirements for originals. (10.225)
14. Requirements for renewal. (10.227)
15. Requirements for raises of grade or new endorsements. (10.231)
16. Obligations of the holder of a Merchant Mariner Credential. (10.233)
17. Suspension or revocation of Merchant Mariner Credentials. (10.235)
18. Right of appeal. (10.237)
19. Quick reference table for MMC requirements. (10.239)
20. Application process
21. Amendatory Instructions
22. Eligibility for officer endorsements, general. (11.201)
23. Identification Credentials for Persons Requiring Access to Waterfront Facilities or Vessels. (33 CFR part 125)
24. Amendments from the TWIC Final Rule. (10.113, 12.01-11 and 15.415)
25. Other Corrections Outside 46 CFR part 10
VI. Regulatory Evaluation
A. Executive Order 12866 (Regulatory Planning and Review)
B. Regulatory Flexibility Act
C. Assistance for Small Entities
D. Collection of Information
E. Executive Order 13132 (Federalism)
F. Unfunded Mandates Reform Act
G. Executive Order 12630 (Taking of Private Property)
H. Executive Order 12988 (Civil Justice Reform)
I. Executive Order 13045 (Protection of Children)
J. Executive Order 13175 (Indian Tribal Governments)
K. Executive Order 13211 (Energy Effects)
L. Technical Standards
M. National Environmental Policy Act
I. 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-2006-24371), 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 only once. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8
1/2
inches by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like the Coast Guard to acknowledge receipt, 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 proposed 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, click on “Simple Search,” enter the last five digits of the docket number for this rulemaking [24371], and click on “Search.” 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 published in the
Federal Register
on April 11, 2000 (65 FR 19477), or you may visit
http://dms.dot.gov.
II. Background and Purpose
On May 22, 2006, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) in the
Federal Register
titled “Consolidation of Merchant Mariner Qualification Credentials.” (71 FR 29462). The NPRM included a 45-day comment period, and announced four public meetings that were held in Newark, NJ, Tampa, FL, St. Louis, MO, and Long Beach, CA.
During the comment period for the NPRM, the Coast Guard received over 100 requests, both in writing in the docket for this rulemaking and in person at the public meetings, for additional time to comment. These requests came from individuals, large and small businesses, industry organizations, and members of Congress. Among other things, these comments stated that the 45 day comment period did not provide enough time to comment on the NPRM or on the accompanying Transportation Worker Identification Credential (TWIC) Implementation in the Maritime Sector; Hazardous Materials Endorsement for a Commercial Driver's License rule (“TWIC rule”) NPRM published the same day (71 FR 29395). Concerns were raised that the 45 day public review period prevented a thorough analysis of the proposed rulemakings.
After considering these requests, the Coast Guard chose not to extend the comment period on the NPRM, but instead to publish this Supplementary Notice of Proposed Rulemaking (SNPRM). This SNPRM should provide the public with more opportunity to participate in the rulemaking process than would have been provided by an extension of the comment period for the NPRM. This SNPRM addresses those substantive comments received during the NPRM comment period, proposes changes to the regulatory text as a result of those comments, solicits additional input on key points of interest, and most importantly, provides an additional opportunity for the public to comment on these proposed regulatory changes.
Public comment is sought on all proposed regulatory changes, not just those that are newly introduced in this SNPRM. The changes that were proposed in the NPRM were discussed in that document and are not discussed again in the preamble to this SNPRM. The regulatory text at the end of this document reflects the combination of the changes proposed in the NPRM as well as those changes that were made to the NPRM as a result of public comments and additional Coast Guard review. The Coast Guard seeks public comment on the regulatory text provided in this SNPRM, not the text provided in the NPRM. The preamble of the NPRM should be referenced as an aid, however, because it discusses changes that may not have been altered between the NPRM and SNPRM, and it is a useful tool to locate where proposed text originated in our current regulations. Because of the large number of amendatory instructions and numerous changes made to the proposed regulations since the NPRM, to further aid the public's review of this SNPRM, a redline version of the rule text, showing all changes to the text from the NPRM to the SNPRM, is available in the public docket for this rulemaking.
III. Discussion of the Proposed Rulemaking
This rulemaking was precipitated by the promulgation of the Maritime Transportation Security Act (MTSA), which included a requirement in 46 U.S.C. 70105 that the Secretary of the Department of Homeland Security issue a biometric transportation security card to, among others, every “individual issued a license, certificate of registry,
or merchant mariners document under part E of subtitle II of this title”. The Secretary designated the TWIC as this biometric security card, and tasked the Transportation Security Administration (TSA) to promulgate regulations implementing TWIC. Similarly, on October 13, 2006, the Security and Accountability for Every Port Act of 2006 (SAFE Port Act) (Pub.L. 109-347) was enacted. Among other things, the SAFE Port Act mandates concurrent processing of a mariner's TWIC and MMD by TSA and the Coast Guard. This mandate was not created for license applicants, however the Coast Guard has voluntarily extended concurrent processing to licenses as well, as discussed below.
TSA, with support from the Coast Guard, published a joint final rule for the TWIC regulatory project elsewhere in today's
Federal Register
. That final rule sets out the application requirements and implementation schedule for the TWIC. TSA will soon begin issuing the TWIC and will enroll port and vessel employees over a period of 18 months in over 125 TWIC enrollment centers.
All credentialed merchant mariners are required by 46 U.S.C. 70105 and the TWIC rule to apply for and obtain a TWIC. To apply for a TWIC, a mariner must appear in person at a TWIC enrollment center to be fingerprinted, photographed and show proof of identification. The new TWIC application requirements are duplicative for mariners. Currently, all mariners applying for a merchant mariner's document (MMD), merchant mariner's license (license) and/or certificate of registry (COR) must appear in person at a Coast Guard Regional Examination Center (REC) to be fingerprinted by and show proof of identification to an REC employee. The appearance requirement in the TWIC rule is less burdensome on mariners, however, because there will be over 125 TWIC enrollment centers vice the 17 RECs. This rule proposes to remove the requirement that mariners appear at an REC. As proposed in this SNPRM, once a mariner appears in person to apply for their TWIC, they can complete their entire MMC application process by mail unless an examination is required. Also, since TSA will be verifying the identity of and conducting a security threat assessment for all TWIC applicants, this rulemaking also proposes to remove the Coast Guard security and identity vetting requirements for mariners. This proposed rulemaking would remove those application requirements made duplicative by the TWIC rule.
The creation of the TWIC requirement increases the number of credentials that a mariner may be required to carry to five. To streamline the process and lessen the number of credentials that a mariner must carry, this rulemaking proposes to consolidate the license, MMD, COR and STCW endorsement into one credential, called the Merchant Mariner Credential (MMC). The MMC would be issued to every qualified mariner and would contain the mariner's photograph and other identity information currently shown on the MMD as well as endorsements reflecting the individual's particular job qualifications. The mariner's job qualifications would appear in the form of endorsements on the MMC. Endorsements currently associated with a License or COR would be referred to as officer endorsements, those currently provided on the MMD would be referred to as rating endorsements, and those currently appearing on the STCW endorsement would continue to be referred to as STCW endorsements. A full list of the available endorsements is provided in proposed 46 CFR 10.109. If this rulemaking goes into effect, mariners would hold two separate, but linked credentials: a TWIC as the MTSA-required biometric security card, and the MMC as the consolidated qualification credential for merchant mariners.
To consolidate the merchant mariner qualification documents into one, it is necessary to consolidate the Coast Guard's application and procedural regulatory requirements for MMDs, licenses, CORs and STCW endorsements that are currently contained in 46 CFR parts 10 and 12. As proposed in this rulemaking, part 10 would contain only those application and procedural requirements necessary to obtain the MMC for all applicants. Those requirements for licenses, that are currently in part 10 but are not directly applicable to all credential applicants, have been moved to create a new part 11. Part 12 would continue to hold only those requirements exclusive to ratings that do not directly apply to the procedures for application.
In this proposed rulemaking, although there are a large number of terminology changes proposed throughout titles 33 and 46 CFR, almost all of the proposed substantive changes were made in part 10. The large number of changes outside part 10 contain mostly editorial changes, removing references to the terms “license”, “MMD”, “COR”, “certificate”, “document”, etc that would no longer be appropriate, and replacing them with the terms “MMC”, “credential”, “endorsement”, “officer endorsement”, “rating endorsement”, etc. as appropriate.
Throughout this rulemaking, where possible, existing regulatory language was retained to minimize changes to the qualifications, experience, examinations, classes and other requirements needed to serve as a merchant mariner. At times, however, it was necessary to make substantive changes to the regulatory text in order to consolidate the application requirements for ratings and officers, or to simplify the application process.
The regulatory changes proposed in this SNPRM are intended to serve as a benefit to merchant mariners. This rulemaking is intended to take advantage of the TWIC requirement, and use it to reduce the travel burden on mariners and consolidate the credentialing process. It is not only expected to reduce the financial burden on mariners by removing the requirement that they travel to one of 17 Coast Guard RECs, but also improve clarity, reduce the processing time currently creating backlogs at the RECs, and reduce the number of fees paid to the Coast Guard by mariners.
If the regulatory changes proposed in this SNPRM are made final, it is not expected that they would become effective until approximately August, 2008. The delay in effectiveness coincides with the TWIC roll out schedule and is necessary to allow all mariners to obtain a TWIC before it is a prerequisite for the MMC. In addition, it allows for the construction and testing of the system that would transmit all applicants' personal data from TSA to the Coast Guard.
IV. Quick Summary of Differences Between This SNPRM and the Coast Guard's Current Regulations
This list is not intended to include every proposed change to the regulations, but provides a quick reference summary of some of the most important changes proposed.
General
• Creates the merchant mariner credential (MMC), which would contain the elements of the MMD, license, COR and STCW endorsement, reducing the total number of credentials a mariner could be required to hold to two: The MMC and the TWIC.
• Phases in the MMC over a period of five years to begin approximately August 2008.
• Transfers the security and identity vetting portion of the merchant mariner credentialing process entirely to TSA.
• Provides a complete list of officer, rating and STCW endorsements that a mariner could have on their MMC.
• Reorganizes 46 CFR parts 10 and 12, and adds a new part 11.
• Combines the definitions for Subpart B in part 10, with the exception of those in part 16.
• Makes non-substantive, linguistic changes throughout titles 33 and 46 of the CFR to reflect the new MMC, endorsements, and TWIC.
Fees
• Reduces the number of $45 issuance fees a mariner would have to pay.
• Includes a credit card as an acceptable method of payment.
• Removes the requirement that a full social security number be written on the face of all checks and money orders.
Application Process
• Requires an applicant to apply for a TWIC before they can apply for an MMC, but the applications may be processed simultaneously.
• Requires that an applicant must hold a TWIC before an MMC will be issued.
• Provides that an applicant's fingerprints, photograph, proof of citizenship and, if applicable, FBI number, criminal record, and/or proof of legal resident alien status will be received by the Coast Guard from TSA, not directly from the applicant.
Travel
• Removes the requirement for mariners to appear in person at a Coast Guard REC to be fingerprinted by, and show proof of identification to, an REC employee.
• Allows mariners to apply for an MMC entirely by mail unless an examination is required.
• Allows oaths to be taken by a notary and submitted by mail.
• Creates the ability for the Coast Guard to designate other facilities, in addition to RECs, to provide MMC services to applicants.
Citizenship
• Revises the regulations to clearly state that cadets at the United States Merchant Marine Academy are allowed to receive MMCs regardless of citizenship or alien status. This is a statutory requirement and is currently done under our regulations, but is not expressly stated.
Criminal Record Review
• Removes the criminal record review requirement for duplicates.
• Changes the Coast Guard criminal record review to remove crimes against national security.
Medical and Physical Requirements
• Resolves contradictory requirements for those who may currently perform exams for MMDs and licenses, and adds licensed nurse practitioners to the list of those who may perform, witness or review mariner tests, exams or demonstrations.
• Restates the requirement that pilots and those serving as pilots submit their annual physical to the Coast Guard, previously implemented through a
Federal Register
Notice.
• Restates the requirement that pilots and those serving as pilots submit their annual chemical test for dangerous drugs to the Coast Guard, previously implemented through a
Federal Register
notice.
• Clarifies the requirements for demonstrations of physical ability.
• Clarifies the STCW physical requirements for those mariners who would serve on vessels to which STCW applies.
• Requires hearing tests when the medical practitioner conducting the general medical exam has concerns that an applicant's ability to hear may impact maritime safety.
• Adds specifics about the hearing tests to provide information for medical professionals and applicants.
• Requires a demonstration of physical ability if the medical practitioner conducting the general medical exam is concerned that an applicant's physical ability may impact maritime safety, or if the mariner must pass a demonstration of physical ability but not a general medical exam.
• Specifies that if a state license issued to a medical doctor or professional nurse contains limitations, any staff officer endorsement issued will reflect the same limitation.
Expiration Dates
• Consolidates all expiration dates into one so that mariners do not have multiple qualification credentials or endorsements expiring on multiple days. (However, the TWIC and MMC expiration dates need not match.)
Memorabilia
• Requires mariners to return MMCs to the Coast Guard upon expiration, issuance of a duplicate and issuance of a renewal, but if the mariner submits a written request with their credential, the Coast Guard will return the cancelled MMC to the mariner.
Duplicates
• Requires proof that a mariner holds a valid TWIC before a duplicate MMC will be issued.
• Provides that during the five year phase in of the MMC, if a mariner requests a duplicate of their MMD, COR, STCW endorsement or license, the duplicate will be issued in the form of an MMC.
Renewal
• Removes the 1 year limitation on renewals.
• Introduces the Document of Continuity to replace the continuity endorsement placed on a license or MMD. The Document of Continuity would have no expiration date or fee unlike the current continuity endorsement.
Suspension, Revocation, and Appeal
• Includes failure to hold a TWIC as a basis for suspension and revocation of a mariner's MMC, MMD, license, COR and/or STCW endorsement.
• States that a mariner who has either been denied issuance of a TWIC or whose TWIC has been revoked by TSA will be deemed by the Coast Guard to be a security risk.
• Advises that the Coast Guard will not review TSA decisions to deny or revoke a TWIC.
V. Discussion of Comments and Changes
As discussed above, the Coast Guard conducted four public meetings for this rulemaking. We also received over 200 documents in the written docket. The Towing Safety Advisory Committee (TSAC) and the Merchant Marine Personnel Advisory Committee (MERPAC) were also asked to provide recommendations to the Coast Guard on the NPRM (USCG-2006-24371). This section addresses those comments and recommendations received.
A. Comments From the Docket or Public Meetings
The following comments were either submitted in writing to the docket for the MMC NPRM or orally at one of the four public meetings. All written comments received and transcripts from the public meetings are available for inspection in the public docket for this rulemaking.
1. Comments Regarding TWIC
We received numerous comments to the docket regarding the TWIC. Because this rulemaking project has its own docket number (USCG-2006-24371) and the TWIC rulemaking project has two dockets, one for the Coast Guard
portion (USCG-2006-24196) and one for the TSA portion (TSA-2006-24191), there were three dockets in which the public could comment. Most commenters submitted their comments to both rulemaking projects in one document, submitted to all three dockets. Comments regarding the TWIC rulemaking are inappropriate for discussion in this rulemaking. They are not addressed in this SNPRM, but are addressed in the TWIC final rule.
2. General Objection to the Rulemaking
We received six comments generally objecting to the NPRM that did not provide enough specificity for individual response. We do not agree with these comments, and are proceeding with this SNPRM.
3. Course of the Rulemaking
We received one comment recommending that the Coast Guard proceed with an Interim Rule rather than a Final Rule, two comments recommending that we go forward with a SNPRM and four comments requesting that the Coast Guard withdraw the rulemaking and propose an alternative.
We agree with the two comments that sought an SNPRM, and as previously discussed, this SNPRM provides a 90 day comment period to allow for public comment on our revised proposed rule. An Interim Rule would be inappropriate at this time as Interim Rules would not allow us to take into account the comments received by the public before becoming effective and they typically become effective upon publication, or soon thereafter. This SNPRM proposes that these regulatory changes not go into effect until approximately August 2008. This delay will allow the Coast Guard to accept and apply additional public comments before the proposed regulations go into effect as well as provide all mariners ample time to obtain TWICs before making the TWIC mandatory for issuance of the MMC. As for withdrawing the rulemaking, the Coast Guard believes that this rulemaking is beneficial and is opposed to withdrawal.
4. Appeals
We received seven comments either requesting a clarification of the appeal process for TWICs and MMCs, or requesting that an appeal process be created. We also received 12 comments asking that an Administrative Law Judge review the appeals on rejection of the TWIC, and/or expressing displeasure over the automatic loss of the MMC if a mariner's TWIC is revoked.
An individual who is denied a TWIC should not be working as a credentialed merchant mariner. According to the language of 46 U.S.C. 70105, a TWIC will be issued to an individual unless that individual poses a security risk. 46 U.S.C. 7703 and 7702, which provide for the suspension or revocation of mariner credentials, state that a mariner's credential may be suspended or revoked if the holder is a security risk who poses a threat to the safety or security of a vessel or to a public or commercial structure located within or adjacent to the marine environment. Allowing the Coast Guard to suspend or revoke a mariner's MMC or other credential for failure to hold a valid TWIC, is therefore, necessary and appropriate. The Coast Guard has determined, however, that automatically invalidating a mariner's credential upon notification from TSA that a mariner's TWIC has been revoked, or that their application has been denied, without a hearing, is improper. The language of 46 CFR 10.203(b) has been changed to remove the automatic invalidation.
If an MMC is issued, unless the situation calls for temporary suspension under 46 U.S.C. 7702, or the circumstances call for suspension and revocation for a reason other than security, the Coast Guard would not begin suspension and revocation proceedings until we were notified that the applicant had fully exhausted his or her TSA appeal rights. If the Coast Guard is notified by TSA that final agency action has occurred and a mariner has either been denied a TWIC or their TWIC has been revoked, the Coast Guard would begin suspension and revocation action against the individual's MMC. The suspension and revocation procedures for the MMC would remain the same as those presently used. The Coast Guard will not review a TSA decision regarding the issuance or revocation of a TWIC. Decisions regarding the issuance and revocation of TWICs are solely the responsibility of TSA. The Coast Guard does not have the authority to review, in any way, TSA decisions with respect to the issuance or revocation of TWICs. Language to this effect has been added to the proposed regulations in this SNPRM at 46 CFR 10.235(g) and 10.237(c).
The appeal processes for the MMC would remain the same as those presently used; the right of appeal for an applicant receiving an unfavorable decision during the application process remains in 46 CFR 1.03. The right of appeal associated with suspension and revocation remains as stated in 46 CFR 5.701. The proposed regulations have retained the paper appeal process for the Coast Guard's refusal to issue an MMC. Similarly, if a mariner is issued a license or document, he or she would be a “holder” of that license or document, and would be given a hearing before an Administrative Law Judge (ALJ) before adverse action, such as suspension and revocation, would be taken against that credential.
All appeals regarding the issuance or revocation of TWICs would be handled by TSA under the TWIC appeal process. That process involves a paper appeal for all denials, and the use of an ALJ for appeals of waiver decisions. For more information on the TWIC appeal process, please see the TWIC Final Rule published elsewhere in today's
Federal Register
.
5. Applicability
We received six comments opposing the proposed regulatory requirement that all merchant mariners hold a TWIC. Exemptions were requested for cadets, entry level ratings, officers serving aboard vessels that do not need a vessel security plan, and captains of Subchapter T (46 CFR parts 175 to 185) or smaller vessels.
The requirement for all credentialed mariners to hold a TWIC is contained in 46 U.S.C. 70105 and implemented in the TWIC final rule published elsewhere in today's
Federal Register
. By the terms of that statute, all mariners issued a credential under part E of subtitle II of Title 46 U.S.C. (currently the MMD, license and COR, and if this proposed rule becomes effective, the MMC), as well as all individuals seeking unescorted access to secure areas of 33 CFR Subchapter H vessels or facilities must obtain a TWIC. This is a statutory requirement imposed by Congress that the Coast Guard cannot alter through regulation. In addition to the statutory mandate, exempting classes of credentialed mariners from the TWIC requirement would be problematic because it would exempt those individuals from the identity and security review which would no longer be performed by the Coast Guard. No changes have been made in this SNPRM to exempt certain classes of mariners from the TWIC or MMC requirements.
One comment requested clarification on how the proposed 46 CFR 10.211 would affect requirements in section 312 of the Coast Guard and Maritime Transportation Act of 2006 that allow foreign riding gangs for 60 days at a time.
Section 10.211 discusses the criminal record review process for the MMC. If the foreign riding gangs are currently required to obtain a U.S. MMD, license, COR or STCW endorsement, they would be required to obtain an MMC. This
includes passing all requirements for the MMC, including the criminal record review, citizenship and TWIC requirements. This proposed regulation would not change the population of people who must obtain a mariner credential.
One comment requested clarification on how 46 CFR 10.211 would affect foreign security teams who are not mariners, but provide security services on U.S.-flagged vessels and need unescorted access on the vessel.
Generally, individuals who are not merchant mariners and are not currently required to hold a MMD, license, COR or STCW endorsement would not be required to get an MMC. The MMC merely changes the form in which the MMD, license, COR and STCW endorsements appear by consolidating them into one document. Anyone who currently has to hold one or more of those credentials would be required to hold an MMC. Individuals who are not required to get an MMC will not be required to undergo the criminal record review set out in section 10.211. More specifically, individuals who are engaged, employed, or serve on board a vessel of at least 100 gross tons, as measured under 46 U.S.C. 14502, or an alternate tonnage measured under section 14302 (except as set out in 46 U.S.C. 8701(a)) are currently required to obtain an MMD. In general this is interpreted by the Coast Guard to mean that any individual engaged or employed in the business of the ship, or a person whose efforts contribute to accomplishing the ships' business whether or not the person is involved with the operation of the vessel, must obtain an MMD, and therefore would be required to obtain an MMC. For additional information on the requirements for seamen on U.S. documented vessels and foreign vessels within U.S. jurisdiction, see Commandant Instruction M16000.8B, Marine Safety Manual Volume III, chapter 20, section E.
6. Application Process
We received one comment regarding the complexity of the application process and requesting that it be streamlined. We received eight comments that this rulemaking will hurt the ability of industry to recruit and retain qualified mariners.
The Coast Guard believes that the consolidation of the 46 U.S.C., subtitle II, part E credentials and the removal of the requirement that mariners travel to one of the 17 REC locations will serve as a benefit to mariners, and therefore, aid the industry's ability to recruit and retain employees. This rulemaking seeks to streamline the application process by removing the appearance requirement; through the consolidation and clarification of existing requirements; by reducing the number of issuance fees that must be paid to the Coast Guard; and through the sharing of information between TSA and the Coast Guard.
This proposed rulemaking should remove duplication of effort by the government and applicants resulting in a cost savings. The requirement that all merchant mariners obtain a TWIC, and the cost and burden associated with that requirement, is contained in the TWIC final rule which is published elsewhere in today's
Federal Register
and will go into effect even before the comment period on this SNPRM will close. If you believe that the regulatory changes in this proposed rulemaking, not the TWIC rulemaking, will add a burden, or will limit your ability to recruit and retain qualified mariners, please submit a comment to the docket explaining your concerns in detail.
Two comments requested a web-based application process and tracking.
This is something that the Coast Guard is contemplating. Although such a process is not in place at this time, 46 CFR 10.209(d) as currently proposed would support such an option, as it states that the written portion of the application may be submitted by mail, fax, “or other electronic means.”
One comment sought a single application process for the TWIC and MMC and another comment sought a more streamlined process stating “there is nearly a 50 percent failure rate in applying for the MMD due to multiple forms and information”. Finally, there were four comments received that were concerned that the consolidation would result in an increase in paperwork.
We acknowledge that the new requirement to apply for a TWIC will result in an increase in the overall number of applications that must be submitted by mariners because they will need to submit an application for the TWIC and a separate application for the MMC. We are making every feasible attempt to reduce the burden on applicants from the requirement added by the TWIC rule. Because TSA will share the fingerprint, photograph, proof of citizenship and, if applicable, FBI number, criminal record and/or proof of legal resident alien status with the Coast Guard, we propose to remove the requirement that all merchant mariners travel to one of 17 RECs. Instead, the proposed regulation would allow mariners to apply for the MMC by mail after applying for a TWIC and visiting one of the approximately 125 TWIC enrollment centers located throughout the country. The restructuring of the merchant mariner credentialing process is an ongoing and incremental process. This proposed consolidation of credentials and the associated TWIC rulemaking are only a small piece in the envisioned effort. The restructuring of the National Maritime Center (NMC), the publishing of additional Navigation and Vessel Inspection Circulars (NVICs), guidance documents, and future rulemaking projects are all intended to improve and streamline the merchant mariner credentialing process, reduce the review periods, and lower the application failure rate.
It is not feasible at this time for TWIC enrollment centers to receive and analyze the safety and suitability information necessary to determine whether a mariner should be issued an MMC. The Coast Guard is cooperating with TSA to shift the responsibility for reviewing the identification and security threat portion of the application for MMCs from the Coast Guard to TSA. However, because more than identity and security related issues are involved with merchant mariner credentialing, the Coast Guard will remain in control of those portions of the evaluation that address whether an individual is a safe and suitable person who should be authorized to serve in the merchant marine. Maintenance of the merchant marine is an area in which the Coast Guard has a long-standing history of regulation, and is one which we are inherently more qualified to manage. On the other hand, the security of our nation's transportation industry is the statutory responsibility of TSA, and should not be taken over by the Coast Guard. The creation of an identification credential which could span all sectors of the transportation industry is outside the scope of Coast Guard responsibility and expertise. The TWIC is best left in the hands of TSA with Coast Guard assistance with respect to vessels, ports, and merchant mariners. Due to the vastly different purpose and need associated with the TWIC and the MMC, the Coast Guard and TSA have opted not to consolidate their application processes and reviews into one.
One comment was received that sought walk-in service at the RECs, not only a mail submission process.
Mariners will have the option of submitting their MMC application entirely by mail, and would not be required to visit one of the 17 RECs unless an examination is required for the endorsement they seek. Some endorsements require written examination as currently provided in 46 CFR 10.901 (proposed § 11.901, in this SNPRM). The RECs, however, will
remain open and accessible to mariners for purposes other than the examinations. Mariners will still be able to walk into an REC to submit their applications in person, ask questions, and seek in-person guidance.
We received one comment that mariners will be required to hold both an MMD and a TWIC until the phase-in period is complete.
While this is true, it is temporary and necessary in order to facilitate a smooth transition while reducing the burden on mariners as much as possible. The Coast Guard is honoring the five year validity period of a mariner's current MMD, license, COR or STCW endorsement to meet our statutory obligations under 46 U.S.C. 7107 and 7302, as well as prevent mariners from undergoing an unnecessary early renewal. The MMC will be phased in over a five-year period, because it will be issued as mariners' current credentials expire.
During the five-year phase-in period of the MMC, when a mariner's MMD expires, he or she will apply for an MMC, not another MMD. The Coast Guard envisions that we will begin issuing MMCs exclusively once the TWIC becomes mandatory for all mariners. According to the TWIC implementation schedule, the TWIC will be phased in over an 18 month period, during which time individuals will be enrolled in the TWIC program at locations across the country. Although other vessel/facility workers are required to apply for a TWIC during their particular vessel/facility's scheduled enrollment period, merchant mariners are allowed to visit any of the TWIC enrollment centers at any time during the 18 month initial enrollment period. It is important to note, however, that vessels or facilities may begin to use the TWIC for access control once enrollment has been completed in their geographic location. Because mariners are inherently mobile, they may need to visit one of the vessels or facilities that have begun requiring the TWIC for access control before the end of the 18 month period. An interim measure has been created in the TWIC rule that will give mariners access to secure areas of 33 CFR Subchapter H regulated vessels and facilities with their MMD, or their license or COR and a valid photo ID until full TWIC enrollment has been completed.
The Coast Guard does not envision that this rule will become effective until TWICs are mandatory for all credentialed mariners. Because the Coast Guard will continue to issue MMDs, licenses, CORs and STCW endorsements under our current regulations until this rule becomes effective, for up to five years after the TWIC becomes mandatory individuals holding MMDs will also hold a TWIC until their MMD expires. The TWIC is an identity credential that Congress made mandatory for all merchant mariners as well as those seeking unescorted access to secure areas of 33 CFR Subchapter H regulated vessels and facilities. It does not contain the rating endorsements that appear on the MMD. Conversely, the MMD does not contain the electronic biometric information found on the TWIC, and does not satisfy the goal of having one unique credential for unescorted access. Until an MMC is issued containing the mariner's rating information, mariners will have to hold both a TWIC and an MMD.
In this SNPRM the Coast Guard is proposing to begin issuing MMCs in approximately August 2008. This 20 month delay coincides with the completion of the TWIC initial enrollment period. It is possible that the Coast Guard could begin issuing mariner credentials in the form of MMCs within the TWIC enrollment period if the credentialing material and production machinery is available before that time. In addition, it is possible that the Coast Guard and TSA could begin sharing application information before August 2008 if the technology infrastructure has been established and fully tested before that date.
7. Authority
We received 20 comments alleging that the Coast Guard lacks the legal authority to consolidate the MMD, COR and license into the MMC. More specifically, 13 of these 20 comments focused on the authority to change licenses to officer endorsements. We received one additional comment that claimed the Coast Guard is “attempting a regulatory short cut” through this regulation rather than through a legislative change proposal.
The proposed change will not affect the legal standing of merchant marine officers. Section 10.201 in the proposed rulemaking describes the characteristics and purpose of the MMC, explaining that it combines the elements of the MMD, COR, license and any other required endorsements (such as STCW) into a single document. This is a valid exercise of the Coast Guard's broad authority under 46 U.S.C. Part E. With respect to licenses, 46 U.S.C. 7101 provides the Coast Guard authority to issue licenses to various classes of qualified applicants. The Code is not specific regarding the required form of the mariner's credentials, including the license, allowing the Coast Guard to exercise discretion through the rulemaking process.
“Merchant Mariner Credential” is merely the term used to describe the document issued by the Coast Guard that incorporates the mariner's license with the MMD and other endorsements into one; with endorsements listed on it depending on the mariner's qualifications. The term “Officer Endorsement” is merely the term used to describe the qualifications of the mariner which are defined as licenses in the current regulations. The mariner's actual capacity to serve in the merchant marine as specified by the endorsements on his or her MMC is unchanged by this proposed rulemaking.
8. Burden
We received 17 comments that generally objected to the additional cost associated with this rulemaking, three comments that objected to the regulatory burden on mariners and one comment that complained of duplicative fees and costs to mariners. We received six comments that these proposed rules will seriously burden the operation of U.S.-flagged vessels and mariners without providing a genuine increase in security. We received three comments that the TWIC and MMC program costs would affect U.S. commerce negatively.
The Coast Guard disagrees with these comments. This proposed rule should neither create an additional cost or burden on mariners or U.S.-flagged vessels, nor should it negatively affect U.S. commerce. This rulemaking is intended to reduce the burdens on mariners and streamline the credentialing process. It should have little or no effect on the operation of U.S.-flagged vessels or U.S. commerce as these vessels are already required to hire only properly qualified and credentialed merchant mariners. If a mariner must currently hold a MMD, license, COR or STCW endorsement, he or she will be required to get an MMC in lieu of the MMD, license, COR or STCW endorsement. It does not add to, or subtract from, the population of mariners who would need to apply for credentials. It should not have a negative impact on employers, and if anything, it should be seen as a benefit because mariners would no longer need to take time away from work to travel to an REC to apply for their credential. In addition, the determination of security risk associated with the TWIC is no more stringent than that analysis currently employed for any of those four current credentials. Mariners should actually see at least two tangible benefits from this rule: (1) A reduction
in issuance fees for those holding multiple mariner credentials; and (2) the reduction of the cost and burden associated with the requirement to travel to an REC.
It is important to note that although this rule relies upon the TWIC rule to function properly, it is separate and distinct from the TWIC rule and that rule's statutory mandate requiring the issuance of a biometric transportation security card. Costs associated with the TWIC are discussed in that rulemaking and should not be attributed to this rulemaking.
Under the current regulations, applicants pay a $45 issuance fee for each credential that they apply for. Under the proposed rulemaking applicants would only apply for a single MMC and as a result would only be required to pay one $45 issuance fee regardless of the number of endorsements that they carry. Any mariner who would, under the current rules, require multiple mariner qualification documents, would benefit from this change in the fee structure. In addition, approximately 14,000 mariners have more than one credential without aligned expiration dates. The differences in these expiration dates would require multiple trips to an REC. The issuance of the MMC would be of particular benefit to those mariners as it would require them to track and update only one document. In addition, there would be no user fee charged, at all, for the issuance of a Document of Continuity, which is the proposed replacement for the license or MMD with a continuity endorsement. The Document of Continuity is discussed below in the comments received about continuity.
This rulemaking also proposes to remove the requirement that all mariners travel to an REC to be fingerprinted by, and show proof of identification to, an REC employee. Instead, since the proposed TWIC rule would require these same individuals to visit one of the many TWIC enrollment centers to supply this information, the Coast Guard and TSA have agreed to electronically share the information necessary to complete the Coast Guard's safety and suitability analysis. The TWIC rule anticipates that there will be more than 125 initial TWIC enrollment centers established nation-wide for enrollment. Although the final number of TWIC enrollment centers that will remain open after initial enrollment is not known at this time, it is almost certain that there will be significantly more than the 17 Coast Guard RECs. By allowing mariners to visit TWIC enrollment centers instead of RECs, this proposed rule would provide a potential benefit to mariners by reducing their time and travel costs currently required to receive a credential.
The Coast Guard asserts that the overall cost for mariners associated with this rulemaking would actually decrease or remain the same and would serve to provide more flexibility to mariners since there would be more TWIC enrollment centers than RECs.
We received one comment alleging that the rule is an unfunded mandate that does not provide for appropriate partnership between government and industry.
The Coast Guard disagrees, and does not believe that this proposed rulemaking will result in an unfunded mandate. The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 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. As discussed above, this rulemaking is actually expected to reduce costs associated with the credentialing of merchant mariners. In addition, it should not affect any cost expenditure upon a State, local or tribal government or private sector entity, and if it does create an increase in cost to any of those entities it should be well below $100,000,000 in any one year.
We received one comment that sought a particular economic review of the financial impact of the rule on tall ship operators, and one that sought an economic review of the financial impact of the rule on training vessels.
The economic impact of this proposed rulemaking is addressed in detail in the Regulatory Evaluation section below. Further economic review will take place between this SNPRM and any further rulemaking. If you believe that the consolidation of merchant mariner credentials (not the requirement that merchant mariners must obtain a TWIC) will negatively affect your business, please submit a detailed comment to this SNPRM. If such information is confidential commercial information, please mark the comment accordingly and submit it to Mr. Luke Harden at the address listed above in
FOR FURTHER INFORMATION CONTACT.
9. Citizenship
One comment noted that the citizenship exemption for Operator of Uninspected Passenger Vessels (OUPV) was removed from the regulatory text although the preamble table stated that it was retained.
This error has been corrected. In accordance with 46 U.S.C. 7102, licenses and CORs for individuals on documented vessels may be issued only to citizens of the United States. The Coast Guard has historically interpreted the statute to allow an exemption for alien OUPVs who do not work on documented vessels. Removal of this exemption from the regulatory text was unintentional. Corrections have been made to 46 CFR 10.221, table 10.239 and 11.467 accordingly. These individuals will still be required to meet the citizenship requirements for the TWIC set out in that rule in the new 49 CFR 1572.17. Although the Coast Guard does not believe that requiring a TWIC for OUPVs on undocumented vessels will cause many individuals to lose their mariner credentials, we are unable to create an exception from the TWIC requirement. It is clear in 46 U.S.C. 70105 that all credentialed merchant mariners must hold a TWIC. If an individual holds a license or an MMC with an officer endorsement as OUPV, they must have a TWIC. Since this proposed regulation is not expected to become effective until approximately August 2008, foreign mariners should have time to meet the requirements to obtain a TWIC, if possible.
On October 17, 2006, Congress passed the John Warner National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). In that Act, Congress amended 46 U.S.C. 8103 to permit an alien allowed to be employed in the U.S. under the Immigration and Nationality Act who meets additional requirements for service as a steward aboard large passenger vessels to obtain an MMD. Although language has not been proposed in this rulemaking to address this new statutory authority, the Coast Guard is aware of it and is initiating a separate rulemaking to address these new requirements.
We received four comments inquiring about the citizenship requirements for the crews of Offshore Supply Vessels (OSVs) and Mobile Offshore Drilling Units (MODUs) in foreign waters.
This question appears to seek clarification as to the language of 46 CFR 15.720(a) and (b), which provide for the waiver of the citizenship requirements in 46 U.S.C. 8103(a) and (b). The substance of 15.720(a) and (b) has not been removed in this proposed regulation. In the SNPRM, citizenship requirements continue to be waived for OSVs operating in a foreign port and MODUs operating beyond the water above the U.S. Outer Continental Shelf as they are in the Coast Guard's current regulations.
One comment expressed displeasure that lawful non-immigrants with work authorizations would be precluded from obtaining a credential even though they
may be lawfully employed on certain U.S.-flagged vessels and may require an endorsement in the performance of their duties. Four comments objected to limiting the issuance of MMCs to aliens admitted for permanent residence.
No changes to the regulations have been made as a result of these comments. The citizenship and alien status requirements are set by statute and cannot be changed by the Coast Guard through regulation. Statutory requirements in 46 U.S.C. 7102 mandate that licenses may only be issued to U.S. citizens. The Coast Guard has carved out of that language an exception for OUPVs serving on undocumented vessels, but the statutory language provides no additional room for exception. With respect to MMDs, 46 U.S.C. 8103 restricts the issuance of MMCs to aliens who present acceptable documentary evidence that they are lawfully admitted to the U.S. for permanent residence and cadets enrolled at the U.S. Merchant Marine Academy. The proposed 10.221 would not change the current requirements except that it now clearly states that credentials may be issued to cadets enrolled at the U.S. Merchant Marine Academy. This would not be a change from our statutory requirement or current practice.
Four comments requested a clarification of the immigration status requirements for the TWIC and their relationship to the MMC.
A full discussion of the immigration status requirements for the TWIC is beyond the scope of this rulemaking. That said, all merchant mariners holding a MMD, license, COR or STCW endorsement are required to obtain a TWIC. Therefore all credentialed merchant mariners must be U.S. citizens or would be required to meet the immigration requirements for the TWIC which are contained in the proposed TWIC rulemaking at 49 CFR 1572.105. Mariners who are not U.S. citizens and cannot meet those citizenship requirements, will not be issued a TWIC, and will be unable to obtain an MMC. With the exception of some alien holders of OUPV licenses, however, all mariners who are currently able to meet the citizenship or immigration requirements for the MMD or license will be able to meet the citizenship or immigration requirements for the TWIC.
10. Concurrent Processing of Applications
We received 32 comments about the current processing time for Coast Guard merchant mariner credentials. We received two comments that this rulemaking would increase the backlog of applications, and eight comments that the TWIC and MMC will slow the documentation process. Four comments were unclear as to whether the TWIC was required before the MMC. One comment suggested that the Coast Guard issue the MMC without the requirement for having a TWIC. Finally, we received 60 comments requesting concurrent processing of applications.
The Coast Guard acknowledges that mariners are dissatisfied with the current processing time for merchant mariner applications. This proposed rulemaking is one of the many ongoing projects that the Coast Guard is undertaking in an effort to streamline the process and reduce backlog. This proposed consolidation of credentials and the associated TWIC rulemaking are only a piece of this effort. The restructuring of the NMC, the creation of additional NVICs, guidance documents, as well as current and future rulemaking projects are all intended to reduce the evaluation period.
In addition to the Coast Guard's voluntary effort at restructuring the mariner credentialing process and attempting to reduce processing time, the recently passed SAFE Port Act mandates concurrent processing of a mariner's TWIC and MMD by TSA and the Coast Guard. The Coast Guard agrees that processing the MMC only after the TWIC has been issued could potentially increase this backlog and be overly burdensome to the mariner. As a result, changes have been made to 46 CFR 10.225(b)(2) to allow new applicants to apply for their MMC if they either hold a valid TWIC or can prove that they have applied for one in the past 30 days. The MMC application could be processed simultaneously with the individual's TWIC application. However, because of the Coast Guard's need to obtain biometric and biographic information submitted by the applicant at a TWIC enrollment center, the TWIC application must be submitted before the MMC application. In addition, because of the need to ensure that the applicant's identity has been verified and that he or she has been determined not to pose a security risk, the Coast Guard proposes to retain the requirement that the TWIC be issued to the applicant before an MMC would be issued. Because applicants for renewals, duplicates, or modifications should already hold a valid TWIC, concurrent processing should not be an issue for those applicants.
11. Continuity Licenses
One commenter was concerned about the loss of the continuity license. Another comment stated that the proposed certificate of continuity would be insufficient to meet the “significant amount of pride in the maritime industry evidenced by holding a license”, and recommended that we issue the MMC with continuity endorsement but exempt it from the TWIC requirement.
Although the actual continuity license has been removed from the regulations in this proposed rulemaking, the concept of the continuity license was retained. The concept existed in the NPRM at 46 CFR 10.227(i), and continues to exist in this SNPRM at 46 CFR 10.227(e), but has been revised substantially from the language proposed in the NPRM.
As proposed in this SNPRM, the Document of Continuity would take the place of the inactive “continuity” license or MMD renewal. The Coast Guard recognizes that one of the main purposes for the continuity document is to allow those mariners temporarily working ashore to apply as a renewal rather than as an original should they decide to return to active status after a period of inactivity. The language of the MTSA at 46 U.S.C. 70105, however, requires all holders of merchant mariner credentials issued under title 46 U.S.C. subtitle II, part E (the MMD, license, COR, and MMC) to hold a TWIC. The continuity license is a license, and is issued under 46 U.S.C. subtitle II, part E, therefore all mariners holding a continuity license must get a TWIC. The Coast Guard does not have the authority to limit this statutory requirement to certain classes of mariners. We thought it over-burdensome and unnecessary to require individuals who are not serving as merchant mariners to undergo the expense and burden of obtaining a TWIC, and thought that the addition of a TWIC requirement could reduce the number of mariners that would be available for service in a time of national need.
To avoid imposing the TWIC requirement on inactive mariners, we created the concept of a Document of Continuity. The Document of Continuity would not be an MMC, MMD, license or COR, and would not authorize a mariner to serve. It would not be issued under 46 U.S.C. subtitle II, part E. It is technically a receipt, issued by the OCMI, acknowledging that the mariner once held a valid credential. To obtain a Document of Continuity, a mariner would submit the same paperwork to the Coast Guard as they would currently submit to get a license or MMD with a continuity endorsement, except that mariners would also be required to return the credential being renewed so that it can be canceled. Since a
Document of Continuity will be issued only as a means to reserve an inactive mariner's ability to apply as a renewal at some time in the future, the mariner should not need to work under the authority of that credential while the Coast Guard processes their application and should not be burdened by the requirement to submit their current credential for cancellation. Photocopies would no longer be accepted.
The Document of Continuity would be issued free of charge (applicants for licenses or MMDs with a continuity endorsement are currently charged $45), and the Document of Continuity would have no expiration date (licenses or MMDs with a continuity endorsement are currently valid for only 5 years). Mariners who are working on shore and are not serving as merchant mariners, but who would prefer to hold an MMC may apply for and receive an MMC after meeting all of the requirements for renewal set out in 46 CFR10.227, including but not limited to obtaining a TWIC, meeting the medical and physical requirements in 46 CFR 10.215 and being drug tested.
12. Definitions
Four comments requested a definition of the term “entry level mariner”. A definition has been added to proposed 46 CFR 10.107 of this SNPRM.
One comment requested a definition of “DDE”. The definition for the term “designated duty engineer” existed in section 10.107 of the NPRM; we added the acronym for the term (“DDE”) to the definition in this SNPRM.
Four comments requested a definition of the term “U.S.C.G sector”. The term has been removed in favor of retaining the broader term “Officer in Charge, Marine Inspection”, or “OCMI”, which is defined in section 10.107.
One comment requested revision of the definition of “conviction” to read “a final judgment of guilty in a criminal case”. We have chosen to retain the definition of the term “conviction” as the requested language is too vague and would omit many convictions that the Coast Guard currently uses to determine whether an individual is safe and suitable to serve in the merchant marine.
13. Editing
Many small editorial changes were requested throughout the NPRM. Due to the large number of these requests, and because of their non-substantive nature, they are not discussed here individually. Most of the requested changes were made in the SNPRM. The following is a discussion of some of the more in-depth comments requesting editorial changes:
One comment pointed out an inconsistent use of the term “valid” through out the regulations. Although the Coast Guard recognizes that the regulations in Subchapter B could be written more clearly, since most of the language and inconsistency exists in the current regulations, this change is one that would be best handled in a separate rulemaking when the Coast Guard revises Subchapter B to make such linguistic changes throughout the subchapter.
Four comments requested a clarification of the intent behind 46 CFR 10.217(c)(3), and four comments noted that that section uses the undefined terms “regular certificates”, “temporary permit”, and “permanent certificate”.
The language regarding Merchant Marine Details at locations other than the RECs came directly from the current 46 CFR 12.02-3(b). In the NPRM, the language was expanded from “Coast Guard Merchant Marine Details abroad” to “Coast Guard Merchant Marine Details”, to allow for more operational flexibility. Upon additional review of the intent and language of the provision, the term “abroad” has been reinserted into the regulation in this SNPRM. Also, this provision currently exists for unlicensed personnel only, and was inadvertently extended to all mariners in the NPRM. Language has been added in this SNPRM to restrict this provision to ratings. Currently, 46 CFR 12.02-3(b) is intended to allow mariners who require a replacement or renewal of a Coast Guard issued credential to obtain temporary certificates from Coast Guard facilities while overseas. This provision is rarely used, and is typically associated with the need to support mariners assisting in international conflicts. It was last used during Operation Iraqi Freedom. Because the terms used in this section were merely carried over from the existing regulations, definitions of the terms noted in the comment were not added at this time.
Four comments requested a clarification of the relationship of 46 CFR 14.205 to 46 U.S.C. 8103(e).
The proposed change to 46 CFR 14.205 merely adds the TWIC and replaces the word “license” with “credential” for those items that a merchant mariner must present to the master or individual in charge of the vessel before engagement for a voyage upon which shipping articles are required. Individuals must present all those items that are “required by law for the service the mariner would perform”. If the mariner is required by law to carry a credential, he or she will have to present it before signing shipping articles. This requirement stems from the requirement in 46 U.S.C. 10306 which requires mariners to exhibit an MMD before signing shipping articles. Since the MMD will now be in the form of an MMC, and a TWIC is a requirement for an MMC, the TWIC and any other required “credential” must be exhibited. 46 U.S.C. 8103(e) involves the waiver of citizenship requirements for individuals (other than master and radio officer) on a documented vessel on a foreign voyage which must hire foreign mariners to fill a vacancy until the vessel returns to a port where a U.S. citizen can be obtained for the position. The current and proposed Coast Guard regulations include this waiver provision in 46 CFR 15.720(a).
We received one comment requesting that 46 CFR 10.219 be revised to allow payment with cash and credit cards when applying by mail, to conform to the allowable payment options for personal appearance.
As a result of this comment, 46 CFR 10.219(d) has been revised in this SNPRM, and credit card payment is proposed as an acceptable form of payment. Due to the risk of theft, the Coast Guard will not accept cash payment through the mail.
Three commenters requested that references to shipping commissioners be removed throughout the regulations to be consistent with amended statutes since shipping commissioners no longer exist.
46 CFR 12.10-1 has been revised in this SNPRM to remove the term shipping commissioner. The removal of that term throughout the Coast Guard's regulations will be considered in a separate rulemaking.
Two comments noted an inconsistent use of quotation marks throughout the NPRM.
We disagree. When quotation marks are used in conjunction with directions to the
Federal Register
, such as remove the word “the” and add, in its place, the word “for”, the quotation marks all appear to be used consistently. Quotation marks have also been used around the actual endorsement placed upon the MMC, such as an endorsement as “Master”. This is the proper use of quotation marks. We recognize that throughout the regulations, quotations have not been placed around the endorsement in this fashion. This is an editorial change that will be considered in the contemplated Subchapter B revision.
Four comments stated that the list of endorsements in proposed 10.109 are incomplete and restrictive.
We agree, and have revised 46 CFR 10.109 to include the missing endorsements.
Two comments requested a title for 46 CFR Part 11.
We have entitled Part 11 “OFFICER ENDORSEMENTS”.
One comment requested that we replace the words “not more than” with the words “less than”.
We disagree with this request. Because the term “not more than” includes “equal to”, and “less than” does not, this would change the meaning of the terminology as well as the current tonnage endorsements, and it would change the regulated populations of the various officer tonnage categories. A further review of these terms is envisioned in the STCW rulemaking that is currently in development.
14. Expiration Dates
We received two comments seeking an explanation of how the validity date for training certificates would align with the uniform expiration date of the MMC. We received three additional comments that the radar observer endorsement should align with the MMC expiration date.
As proposed in this rulemaking, there is no relationship between the expiration date of the MMC and the underlying training certificates. The MMC, and any endorsements on it, will be valid for a set 5 year period. It will be the mariner's responsibility to ensure that at the time of application their training is up to date, and that they ensure that their training certificates remain valid throughout the period of endorsement. Changes have been made to 46 CFR 11.480(g) to remove the requirement that the month and year of the radar-observer certificate appear on the MMC. Similarly, section 11.480(k) has been removed because it will be unnecessary to synchronize dates when there will only be one date on the new MMC. Finally, 46 CFR 15.815 has been revised to require mariners to have readily available evidence that they hold a valid radar-observer certificate. This will allow mariners the flexibility to maintain the actual certificate at home or at an employer's office, but still allow them to provide proof of compliance to inspectors.
Four comments were received that opposed aligning the expiration dates of the TWIC and MMC, and one comment was received in favor of making the expiration dates align.
It is not expected that mariners will be required to align the expiration dates for the TWIC and MMC. A mariner must hold a valid TWIC before an MMC will be issued, and failure to hold a valid TWIC may be grounds for suspension and revocation of an MMC, but the expiration dates do not need to match. Requiring them to match would cause the period of validity of the MMC to be shorter than five years due to the time it takes to apply for and process the TWIC and MMC applications. It would also remove the ability for the Coast Guard to allow mariners to apply for a renewal MMC at any time during the validity period (and up to 1 year after expiration) as proposed in this rulemaking, because the renewal periods for a TWIC remain limited. If mariners are required to match the expiration dates of their credentials, they would have to renew their MMC on the same schedule as their TWIC. Mariners are not prohibited from voluntarily aligning their expiration dates, but it is not required.
15. Format of the MMC
We received a large number of comments on the format of the MMC. Five comments wanted the biometric TWIC card to also contain the qualification information proposed for the MMC. Four comments wanted to do away with the TWIC, and instead, modify the MMC to include biometric data and an embedded chip. Nine comments wanted to retain the MMD, but modify it to include biometrics and an embedded chip. One comment generally objected to having a TWIC in addition to the MMC. One comment generally requested one card for the MMC/MMD and TWIC. One comment stated that the MMD is sufficient for mariners because the criminal record and immigration status are already reviewed. Finally one comment sought a more thorough analysis of why a single card cannot be issued.
Through 46 U.S.C. 70105, Congress has directed the Secretary of the Department of Homeland Security to issue a biometric transportation security card to all individuals who need unescorted access to secure areas designated in a vessel or facility security plan; individuals issued credentials under part E of subtitle II of Title 46 U.S.C. (credentialed mariners); vessel pilots; individuals working on a towing vessel that pushes, pulls, or hauls alongside a tank vessel; certain individuals with access to security sensitive information; and other individuals engaged in port security activities.
The House Committee Report, written when the statute was still a bill, but contained the language that was passed, states “Section 70105 establishes a national standard for issuance of biometric transportation security cards whose purpose is to control access to secure terminal areas to only authorized personnel.” The Department of Homeland Security has interpreted this language, and the language of the statute itself, to exhibit a Congressional intent that the Secretary create a single biometric identification credential. This national biometric transportation security card is to be used at all 33 CFR Subchapter H regulated vessels and facilities by everyone to whom the statute applies. Such a uniform requirement would improve security and reduce fraud through the creation of a single, recognizable identity credential instead of multiple credentials that would be dependant on the type of function that the individual would serve at the vessel or facility.
The population of individuals covered by 46 U.S.C. 70105 includes a large number of individuals outside of the merchant marine. Altering the MMD to include biometric capabilities would not only fail to satisfy the requirement for all of the people to whom the Secretary must issue the credential, but it would not even cover the entire population of mariners that are affected by the statutory mandate. Altering the MMD to include biometric capabilities would cover only those people who carry an MMD. As of December 31, 2005, of the total estimated 205,000 merchant mariner population, 67,637 held only an MMD; 41,343 mariners held both a license and MMD; and 27,790 mariners held a license, MMD and STCW endorsement (the remainder hold a license only, which is not an identity document).
Allowing the MMD to serve as an alternate to TWIC would violate this concept of a single uniform nationwide credential for all. Also for this reason, we have opted not to consolidate the merchant mariner credentials into the MMC with a biometric chip. Although this option would be more expansive because it would at least create a uniform biometric credential for all merchant mariners, it would not reach the other categories of people included under the 46 U.S.C. 70105 requirement, and would therefore violate the intent and benefits that could be derived from a single nationwide standard.
There are many other reasons why the Department of Homeland Security has chosen not to place a biometric on the MMD or MMC in an attempt at satisfying this statutory mandate. One of these reasons is cost. The process proposed in this SNPRM would allow all mariners to apply for their MMC entirely by mail. Mariners would apply for their TWIC by going to one of the
over 125 TWIC enrollment centers to be fingerprinted, photographed, and show proof of identification and citizenship status. TSA would then share this information electronically with the Coast Guard. This proposed regulation would result in a cost savings for mariners because it would completely remove the need for all mariners to travel to one of the 17 Coast Guard RECs. As proposed, the Coast Guard would no longer conduct identity verification and security vetting. If the MMD or MMC was to be re-vamped to include a TWIC-like biometric chip, then those mariners who would get the MMD or MMC would have to travel to one of the 17 RECs, instead of the 125 TWIC enrollment centers, to submit their application information. This would be more of an inconvenience to the mariner, as 125 locations are more likely to provide a shorter travel distance than the Coast Guard's current 17 REC locations.
TWIC enrollment centers are for the gathering of information from TWIC applicants only. Even if that were not the case, the collection of application information, security vetting and the maintenance of the database make up most of TSA's TWIC program expenses. If mariners were allowed to register for a biometric MMD or MMC at a TWIC enrollment center, they would still incur the security and application costs even if they weren't applying for a TWC. In that situation, the cost to mariners would increase, while the security benefit of a uniform credential would be lost.
The addition of a biometric chip to either the MMD or MMC would also significantly increase the costs to produce the card. Right now, this SNPRM does not propose to change the fees for the MMC from those that are currently charged for the license and MMD. If the Coast Guard changed the MMD or MMC to conform to the TWIC technology, the cost of the credential would increase.
The final option considered was to incorporate all of the merchant mariner qualification information onto the TWIC. This is a goal that the Coast Guard hopes to reach some time in the future; however, it is simply not feasible at this time. STCW requires foreign port state control officers to be able to read a mariner's qualification credentials, and not all countries have the ability to read smart cards. It is impractical, and for some it may be impossible, to print all of the information that will appear on an MMC on the face of the TWIC. In addition, although the technology continues to advance, the type of technology used for the TWIC does not offer sufficient storage for all of the information that the Coast Guard would need to put on the MMC. At some point in the future the Coast Guard hopes that new technology will be available, costs will be reduced, and international capabilities will exist to make this a viable alternative.
For these reasons, the Coast Guard and TSA have opted to present two separate, but linked credentials: a TWIC as the biometric security card required in 46 U.S.C. 70105, and the MMC as the consolidated qualification credential for merchant mariners.
We also received comments regarding the format of the MMC. One comment objected to a certificate suitable for framing, and sought a credential similar in size to the current MMD. One comment sought either a laminated card or a frameable document. Two comments requested a laminated card, and another two comments sought a smaller, wallet-size credential.
For the reasons stated above, a laminated wallet-sized card, much like the current MMD or the proposed TWIC, is not feasible at this time due to international requirements and technological limitations.
The Coast Guard is also considering a passport-style credential. The passport credential would have a thick, sturdy cover like the U.S. passport, would have a page with the individual's photograph and biographic information, and would have pages inside that would contain a mariner's endorsements. STCW endorsements, for example, could be contained on the center sheet and would contain all of the information necessary to meet the STCW convention and code requirements. Officer endorsements could be contained on opposing pages and would not contain personal privacy information so that the credential could be opened to that page for posting aboard vessels to satisfy the requirements of 46 U.S.C. 7110. Several other nations have already adopted a passport style document as the primary mariner qualification credential. The Coast Guard is currently investigating this option and the costs associated with this format. We are concerned that a credential that costs significantly more to produce could result in a future increase in user fees.
Finally, two comments stated that the proposed format does not meet the needs of blue-water or domestic mariners, and requested that the Coast Guard seek guidance from mariners on the format.
We explicitly request public input on this subject during the comment period for this SNPRM. Draft samples of a certificate format and passport style format are available for inspection in the public docket for this rulemaking. Please provide information as to the type of credential that would best serve your needs and still meet domestic and international requirements. Please provide comments on format, cost, production possibilities, technology availability, or any information you believe could help.
16. General
One commenter disagreed with the assertion that mariners could be required to carry up to five credentials.
The Coast Guard disagrees. A mariner could hold up to five credentials if the credentials are not consolidated. These five credentials are the MMD, license, COR, STCW endorsement and TWIC. For some mariners, the STCW endorsement is printed on the license, but in most cases the STCW endorsement is a separate document. As of July 16, 2006, 139,791 mariners held a license, 63,466 mariners held an MMD, 530 mariners held a COR, 49,994 mariners held an STCW endorsement, and 13 mariners held all four.
Ten commenters were completely against the consolidation of credentials.
The comments received to this point have not persuaded the Coast Guard to abandon our proposal to consolidate the merchant mariner credentials. This proposal will ultimately result in the simplification of procedures, increased national security, decreased costs and increased efficiency.
We received one comment that the Coast Guard has been unable to ascertain and report on the number and type of valid licenses and MMDs in existence at any time, suggesting a limitation on our ability to call on mariners in response to a national emergency.
We disagree that this information is not readily available, or that we have been unable to ascertain or report on this information. The Coast Guard maintains an electronic database with this information and can retrieve it whenever necessary. As stated above, as of July 16, 2006, 139,791 mariners held a license, 63,466 mariners held an MMD, 530 mariners held a COR, 49,994 mariners held an STCW endorsement, and 13 mariners held all four.
17. International Agreements
Seven comments stated that the proposed MMC fails to address the ILO 185 Convention, and two comments generally recommended that we harmonize the MMC with international standards.
The MMC will be harmonious with the International Convention on
Standards of Training, Certification, and Watchkeeping for Seafarers, 1978 as amended (STCW). However, efforts will not be taken to conform the MMC to the requirements of the International Labour Organization Seafarers' Identity Document Convention (Revised), 2003 (ILO-185) at this time. As the United States is not a signatory to ILO-185, no plans have been made at this time to produce an identification document complying with that particular standard. The Coast Guard will ensure that the MMC conforms to those international agreements to which the United States is a party.
18. Information Sharing
We received one comment requesting a process where TSA routinely notifies CG of TWIC evaluations.
The process for transferring data between TSA and the Coast Guard has not been finalized at this time. As currently envisioned, however, TSA would have the ability to push information to the Coast Guard upon notification by the applicant that they are a merchant mariner or applying to become a merchant mariner, and the Coast Guard would have the ability to pull application data directly from TSA upon receipt of an MMC application. The Coast Guard would also have access to TSA's Identity Management System (IDMS) to allow us to verify that the applicant holds a valid TWIC. Furthermore, if a mariner's TWIC is revoked, TSA will notify the Coast Guard so that after the applicant exhausts the TWIC appeal process, we could initiate suspension and revocation action against the individual's MMC.
19. Interim Credentials
We received one comment recommending that 46 CFR 10.209 be amended to allow the issuance of an interim MMC for applicants who have been approved for a TWIC and have simultaneously applied for the MMC but are awaiting final MMC approval. An additional comment requested that the Coast Guard issue MMCs without a TWIC for seasonal workers.
The statutory requirements of 46 U.S.C. 70105 do not provide for the exemption of seasonal workers from the obligation for all credentialed merchant mariners to hold a TWIC. The general requirement to hold a TWIC is discussed further in the TWIC final rule published elsewhere in today's
Federal Register
. The Coast Guard seeks additional pubic comment with respect to the issuance of interim MMCs. In 46 U.S.C. 7302(g), the Coast Guard was given the statutory authority to issue an interim credential to the following people:
(1) An individual to be employed as gaming personnel, entertainment personnel, wait staff, or other service personnel on board a passenger vessel not engaged in foreign service, with no duties, including emergency duties, related to the navigation of the vessel or the safety of the vessel, its crew, cargo or passengers; or
(2) An individual seeking renewal of a rating endorsement, or qualifying for a supplemental rating endorsement.
This interim credential could only be valid for up to 120 days and could only be issued one time to the people covered in paragraph (1) above. This statute gives the Coast Guard the authority to issue these interim credentials, but does not make them mandatory.
At this time, the Coast Guard is not in favor of adding interim MMCs to the regulations. We have amended the proposed regulations to include concurrent applications, which should speed the application process, and we believe that adding in the processing time to issue an interim credential would add a burden onto REC personnel which would negate the time benefit created by this concurrent review change. In addition, it is imperative that the Coast Guard verify that an individual has all required qualifications before they are allowed to serve aboard a commercial vessel. Ensuring that the individual is not a security risk through the TWIC is only a part of the merchant mariner credentialing process. The potential risks to life and property and the inherently dangerous nature of a career in the merchant marine creates a heightened need to ensure that the individual is a safe and suitable person for the job.
Although the Coast Guard is not currently in favor of adding interim credentials to our regulations, we specifically seek public comment on this issue to aid us in making a final decision.
We received one comment requesting a transition period that would permit mariners to continue working even if their current credentials are expired, as long as they can demonstrate that they have applied for and are awaiting a TWIC.
As discussed above, the security review is only a part of the merchant mariner credentialing process. Expiration dates are created so that a mariner's background and professional qualifications can be re-evaluated every five years to ensure that they are still qualified to hold that credential. Under the proposed regulations, although mariners will not be allowed to work after the credential expires, they will be allowed to renew their credentials at any time before expiration and up to one year after expiration, so mariners are free to renew their MMC at whatever time is most convenient to them. It will be up to the mariner to ensure that he or she applies for renewal early enough to ensure that they always hold a valid MMC.
20. Invalid Credentials
Four comments requested that the Coast Guard require mariners to send an invalid credential to the Coast Guard for cancellation, but agree to return the canceled credential to the mariner for sentimental purposes; and two additional comments requested that we resolve the inconsistency in the NPRM regarding the return of cancelled credentials.
We have revised 10.209(g), 10.225(b)(5), 10.227(d)(4) and (e)(2)(i), 10.223(c)(5), 10.231(c)(5) and 10.233(c) in response to these comments. The requirement to return credentials that are expired, invalid, or have been renewed remains; however, mariners may request in writing, at the time of submission, that the canceled credential be returned to them after cancellation.
21. License Creep
We received five comments requesting that the MMC be effective upon the original renewal date regardless of when the mariner applied for renewal.
The Coast Guard is aware of the “license creep” problem, and is working to solve it. License creep occurs because although a mariner's credential is technically valid for a five year term, they must apply to renew that credential before the close of that five year term so that there will not be a gap between when their new credential is issued and the old one expires. Mariners frequently find themselves applying for renewal many months before the expiration of their credential to ensure that they will receive their new credential in time. Licenses, MMDs (and as proposed, MMCs) are valid for five years from the date of issuance. This means that if their renewal is issued before the expiration date of the credential being renewed, the mariner loses the period of time they could have served on their expiring credential measured from the date the new credential is issued to the expiration date of the expiring credential. Essentially, the five-year validity term “creeps” back with each renewal.
The comments suggested that the Coast Guard issue renewal credentials with an effective date that would match the expiration date of their expiring credential so that there is continuity in validity and the preservation of a full five-year validity term. We deliberated over this comment for quite some time. In the end, we determined that the solution presented by the comments requires further research due to possible legal implications. Statutory limitations were placed on the Coast Guard by Congress in 46 U.S.C. 7702 and 7703 that restrict those bases on which we may initiate suspension and revocation procedures against a mariner's credential. Certain paragraphs in those sections only allow the Coast Guard to seek suspension and revocation against a mariner's credential for actions that they take while acting under the authority of the credential. The concern is that a mariner cannot be acting under the authority of a credential that is not yet effective. The Coast Guard can initiate suspension and revocation actions against a mariner's current credential for those acts done while acting under the authority of that credential, but that suspension and revocation action may not legally apply to a renewed credential that has already been issued but would become effective at some point in the future.
Considering other methods of solving the license creep issue, we also thought about linking the MMC expiration date to an applicant's birth date, much like the method used for state driver's licenses. We realized that this option, too, would not be feasible. It would punish applicants who sought to renew early after applying for new endorsements in the middle of the credential's validity period. They would receive those endorsements, but they would not be effective until their next birthday, so they would not be able to work in those jobs until that date. The same problem would occur with respect to new applicants. Unless the credential was actually issued on their birthday, it would either be shorter than the five year period (validity began in the past) or there would be a gap during which the mariner would not be able to work (validity would begin at some point in the future). Furthermore, making the credential effective on their last birthday would not only fail to solve the problem, but it would be a clear violation of 46 U.S.C. 7106 and 46 U.S.C. 7302(f) which state that credentials issued must be valid for five year periods and may be renewed for five year periods. This language provides no leeway to shorten or lengthen the validity period of the credentials.
These are only two of the regulatory options the Coast Guard has considered to end the problem of license creep. We will continue to analyze this issue and will attempt to address it in the final rule if a legally sufficient solution can be arranged. We encourage public comment on this issue, and welcome any solutions that the public wishes to propose. In the meantime we suggest that mariners request delayed issuance, in writing, at the time they submit their renewal applications. According to National Maritime Center (NMC) Policy Letter 09-03, RECs have been directed by the Commanding Officer of the National Maritime Center (NMC) to delay issuance of renewed credentials upon written request from the applicant. This policy was created in direct response to the license creep problem and has been in effect at the RECs since 2003. A copy of this policy letter is available in the public docket for this rulemaking.
22. Loss of License as Separate Credential
We received six comments expressing displeasure that the Coast Guard is proposing to change the license to a generic credential, 10 comments objecting to the license being substituted by a card, and 23 comments objecting to the loss of a license as a separate credential.
The Coast Guard is considering various formats for the MMC. We expressly request input as to how the credential should be arranged, the form in which it should appear, and methods that could be employed to differentiate between officers and ratings. The final document must balance the recognition of a mariner's accomplishment with the benefits of efficiency and savings associated with combining multiple credentials into one document. As noted above, we have received comments requesting that the MMC come in various forms, including 8.5 x 11, passport size, card size, and laminated. We are taking all of these comments into consideration and are working to create a credential that will satisfy the needs of mariners while being as cost efficient as possible.
The Coast Guard is also considering a different format of the MMC for officers and ratings. If it was passport style, perhaps the cover of an MMC with officer endorsements would appear in a different color from that of an MMC without officer endorsements. If it were in an 8.5 x 11 format, perhaps the MMC containing officer endorsements could have a distinctive border around it, a seal, or some other feature that would distinguish it from an MMC without officer endorsements.
As discussed above, at this time the Coast Guard has not been persuaded that there is a compelling need to retain the separate credentialing process for officers and ratings which would outweigh the benefits associated with the combined credential. In addition to the cost benefits associated with the omission of the requirement to appear at an REC resulting from the integration of the TWIC, the combined credential would serve to reduce issuance fees, and would allow for more streamlined and efficient processing at the RECs. Also, the consolidation of the regulations would remove the many inconsistencies that currently exist between the requirements and process associated with approving MMDs and licenses in our current regulations. If a format other than an 8.5 x 11 non-laminated sheet of paper is selected, the combined credential would reduce the likelihood of tearing and water damage that is currently associated with the license. It would assist the Master of a vessel when determining a mariner's qualifications under 46 CFR 15.401. It would aid the mariner in the renewal process by providing only one credential with one expiration date vice many. Finally, as of December 31, 2005, 41,343 mariners held both a license and MMD, and as of July 16, 2006, 13 mariners actually held all four credentials; the consolidation would reduce the number of credentials that they have to carry and issuance fees that they have to pay. For these reasons, the Coast Guard continues to believe that the consolidation of credentials is a good idea and continues forward with the concept in this SNPRM.
23. Medical
We received four comments that objected to the incorporation of medical and physical guidance contained in Navigation and Vessel Inspection Circulars (NVICs) without public review.
Policy guidance regarding the regulatory medical and physical requirements is contained in NVIC 2-98 which is available to the public in many places including the Internet at
http://www.uscg.mil/hq/g-m/nvic/index.htm.
The Coast Guard is currently working on a revision of NVIC 2-98, which has been provided to the public for comment and is available through the Docket Management System at docket number USCG-2006-25080, but is not yet final as of the signature date of this SNPRM. This proposed regulation does not seek to incorporate either NVIC by
reference. The intent of the sentence placed into 46 CFR 10.215(a) in the NPRM was to merely highlight that there is additional guidance on medical and physical competence issued by the Coast Guard. Due to the apparent confusion caused by that sentence, it has been removed.
One comment stated that 46 CFR 10.215 should address problems with medical issues, but provided insufficient information to determine what problems the commenter believed needs to be addressed.
One comment opposed allowing nurse practitioners to perform, witness, or review the required test, exam or demonstration in proposed section 10.215. Three comments, however, approved of the change and requested that nurse practitioners also be allowed to consult with the Coast Guard in the recommendation of a waiver.
Under our current regulations, licensed physician assistants are allowed to conduct these exams. There have been no problems with this policy. Licensed nurse practitioners are also recognized as independent mid-level practitioners within the medical community. No problems are contemplated with allowing nurse practitioners to provide this service as well. As a result, we have also amended proposed section 10.215(g) in this SNPRM to allow licensed nurse practitioners to consult with the Coast Guard with respect to medical waivers.
One comment suggested that we remove the table and text of section 10.215 or correct it to remove STCW standards that have been incorrectly applied to domestic mariners.
The table of section 10.215 provides a quick reference source for a mariner to determine what test, exam or demonstration applies to the endorsement sought. It is intended to supplement the regulatory text. Changes have been made to the table as a result of this comment to reflect the differences between the requirements for all mariners and those that apply only to individuals serving on vessels to which STCW applies.
The requirement for a demonstration of physical ability has been removed for staff officers, applicants seeking an endorsement for proficiency in survival craft, and food handlers serving on vessels to which STCW does not apply. As a practical matter, however, staff officers and those seeking endorsements for proficiency in survival craft typically will have rating or officer endorsements that would already require the applicant to satisfy this requirement. The language in the table was also revised to limit the requirement for ratings to pass a demonstration of physical ability. It now reads: “Ratings, including entry-level, serving on vessels to which STCW applies, other than those listed above”. This conforms to the exception for non-STCW mariners that existed in paragraph (e) in the NPRM and has carried over to the SNPRM. Also in the NPRM, the demonstration of physical ability was required for all food handlers, not just those to whom STCW applies. Food handlers have now been broken down to those to whom STCW applies, and those it does not.
Also, as a result of this comment, paragraph (e) was revised to further limit the demonstration of physical ability requirement to only those applicants whose medical practitioner, during the performance of the applicant's general medical exam, becomes concerned that the applicant's physical ability may impact maritime safety. It would also apply to those applicants who are not required to pass a general medical exam. This change was made because during the general medical exam, a medical practitioner should be able to determine whether an applicant's physical ability would impact maritime safety. If this is not a concern, requiring a demonstration of physical ability is not necessary. Finally, a new paragraph (h) has been added to the end of the section to specifically exclude individuals only seeking MMCs with staff officer endorsements from the requirements of section 10.215.
One comment recommended that the certifying person should be required to certify that they are familiar with the Coast Guard's physical standards and the rigors of marine employment.
The Coast Guard disagrees with this recommendation. Requiring medical professionals to sign such an additional statement is unnecessary. Forms CG-719K and CG-719K/E include a partial list of physical demands for performing the duties of a merchant mariner. In addition, medical professionals are referred to NVIC 2-98 discussed above, and the regulations. These notices should be sufficient to provide a minimal familiarization as to the Coast Guard's physical standards and the rigors of marine employment.
One comment sought penalties for mariners who supply false information to certifying physicians and/or employers or who fail to disclose material information about their physical condition.
The Coast Guard agrees with the general sentiment of this comment, but disagrees that such a change needs to be placed in our regulations. 18 U.S.C. 1001 provides criminal penalties for making a false official statement to the Federal government. That statutory penalty applies to any mariner that falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. The penalty is up to five years in prison and/or a $5,000 fine, and that increases if the offense involves international or domestic terrorism. This penalty would apply to any material misrepresentation or omission directly to the Coast Guard in the application, or any material misrepresentation or omission to the mariner's physician or employer that would affect the Coast Guard's credentialing decision.
We received 18 comments stating the inclusion of additional hearing standards in 10.215(c) are unnecessary, and one additional comment that the hearing test thresholds in that section are overly prescriptive and should be substituted with a more performance-based approach that is tied to the mariner's duties on the vessel.
Section 10.215(c) has been rewritten in this SNPRM. It has been revised to limit the categories of mariners who must undergo the hearing exam, and provides more information to medical professionals conducting the exam. In the NPRM, the introductory text to paragraph (c) referred to a different test than the hearing thresholds discussed in subparagraphs (c) (1) and (2). This was clarified and corrected in the SNPRM. In addition, in subparagraphs (c) (1) and (2), the word “should” was replaced with the word “must”, as the proposed hearing thresholds would be requirements, not general suggestions.
Finally, as a result of these comments, the newly proposed language would require a hearing test only if the medical professional conducting the general medical exam has concerns regarding the applicant's ability to hear, and a waiver may be requested if a mariner can pass one test but not another. We opted not to tie the hearing thresholds to each mariner's particular duties on the vessel in favor of minimal requirements that all mariners must meet. Such a standard for all mariners is less subjective and serves a safety purpose in that all mariners should be able to hear at the same minimum level.
We received 29 comments stating that the language of proposed 10.215(e) created an unnecessary burden on the mariner and physician by requiring the physician to travel to a vessel to document a mariner's physical ability.
The Coast Guard does not contemplate that every mariner must demonstrate physical ability, nor do we contemplate requiring medical professionals to travel to vessels to complete this test. It has, however, always been the responsibility of the medical professional to attest that the mariner is able to meet the physical requirements of the job. The information contained within 10.215(e) provides clarity as to the level of fitness necessary in the maritime industry and the level of satisfaction the medical professional must achieve to determine that the applicant meets these standards.
All eight of the enumerated abilities that must be satisfied to pass a demonstration of physical ability are able to be reviewed in a medical office. For example, a person standing on one leg anywhere can show no disturbance in the sense of balance; any ladder or staircase can be used to show ability to climb up and down vertical ladders and inclined stairs; and any obstruction of similar height can be used to show that a person can step over a door sill or coaming. Furthermore, weights can be used to show that the applicant would have the ability to grasp, lift and manipulate tools, and move hands and arms to open and close valve wheels; a general medical exam should detect a disease that would prevent normal movement and physical activity, or the ability to respond to a visual or audible alarm; finally, the ability to stand and walk for extended periods could be shown anywhere as could the determination as to whether the applicant is capable of normal conversation.
These enumerated abilities were taken from the STCW Code Table B-I/9-2, which is guidance on the assessment of minimum entry-level and in-service physical abilities for seafarers. These standards have been deemed effective minimum standards for mariners in the international community and the Coast Guard believes that they are good standards to employ in order to ensure that U.S. mariners have the physical ability to do their job without injuring themselves or others.
24. National Driver Register
We received one comment requesting that proposed 46 CFR 10.213(g)(1) be amended to add additional drug testing while on the vessel. Another comment requested that the three-year look back period in proposed 10.213(c) be extended to five years. Finally, another comment requested that land-based driving under the influence (DUI) convictions be given less weight than marine-based DUI convictions, and that the burden placed on the mariner to establish qualification should be changed so that the burden after a land-based DUI should not be as high as the burden associated with marine-based convictions.
The purpose of this rulemaking is to consolidate the merchant mariner qualification credentials. It is not intended to completely revise 46 CFR Subchapter B. These three comments are outside the scope of this rulemaking, but revisions to the drug testing requirements and evaluation criteria may be considered by the Coast Guard in subsequent rulemaking projects.
Twenty comments objected to an unlimited NDR check.
The Coast Guard did not intend to propose an unlimited NDR check in the NPRM. Paragraph 10.213(b) in the NPRM contained language that currently exists in our regulations regarding criminal record review, but was inadvertently moved into the NDR section of the NPRM. That section has been moved to 46 CFR 10.211(l) in this SNPRM. For the offenses described in section 205 of the National Driver Register Act of 1982, as amended, the Coast Guard will not be doing an unlimited look back in the NDR, but will only look at those crimes listed in that Act that are provided in the course of the criminal record review. The law allows the Coast Guard to look back beyond three years only when individuals have ongoing suspensions or revocation for NDR Act offenses. This is not an unlimited NDR check. The Coast Guard appreciates notification of this error.
25. Port Access
We received one comment that the Coast Guard should ensure that the international community accepts the TWIC as a replacement MMD for shore leave.
We agree and will provide information on the MMC and TWIC programs to the International Maritime Organization for communication to other parties.
One comment stated that the MMD, not the TWIC or MMC, should meet the standards for an identification credential and allow access to ports.
Under the statutory requirements of 46 U.S.C. 70105, a biometric identification credential (the TWIC) must be created by the Secretary to allow individuals unescorted access to all 33 CFR Subchapter H regulated vessels and facilities. The MMD does not satisfy the requirements of 46 U.S.C. 70105. For the reasons discussed above in “Format of the MMC”, the TWIC and MMD will not be combined at this time.
26. Posting
Seven comments stated that the requirement to post the license would be affected by this proposed rulemaking project.
The Coast Guard disagrees with these comments. We have not changed the requirement for posting an officer's qualification credential. This posting requirement is required by 46 U.S.C. 7110 and cannot be changed by Coast Guard regulation. The format of the MMC will be designed so that posting of the officer endorsement will be possible while also protecting the mariner's private personal information from view.
27. Preemption
One comment was received that States should not be allowed to permissibly bar a mariner access based on stricter criteria than the TWIC and MMC.
The MMC would be a qualification credential that would also contain a mariner's identity information, but would not be used to obtain access to port facilities. This comment, and the issues of State preemption, are discussed in the TWIC rulemaking and are beyond the scope of this MMC rulemaking.
28. Personal Privacy
Five comments objected to the requirement in the NPRM at 46 CFR 10.219(d) (2), that the front of all checks or money orders must contain the applicant's full social security number.
Although the social security number requirement proposed in section 10.219 in the NPRM was carried over from our current regulations, due to the increased concern over identity theft nationwide the Coast Guard is proposing an alternative in this SNPRM. Section 10.219(d)(4) has been revised to require that all checks and money orders contain the applicant's full legal name and last four digits of their social security number. The full legal name is necessary to link the individual to the payment, and the last four digits of the social security number would be used to differentiate between mariners who may have common names.
Two comments were received that stated a general concern for the protection of privacy information.
The Coast Guard is extremely concerned about the recent rise in identity theft and recognizes the need to protect personal privacy information. We have proposed several measures in this proposed rulemaking to protect that
information. We have proposed an alternative to the social security number requirement discussed above, we intend to design the MMC so that personal privacy information will not be visible when posted under the requirement in 46 U.S.C. 7110, and we will develop and test a secure electronic data sharing system for the transmission of mariners' application information from TSA to the Coast Guard before this rule would become effective.
29. Public Meetings
We received 12 comments to the docket requesting additional public meetings on the MMC NPRM.
We encourage public participation in this rulemaking. However, the Coast Guard received a relatively small number of comments on this rulemaking during the joint MMC/TWIC public meetings held in May and June 2006, and additional public meetings will not be held on the TWIC rulemaking project during the 90 day comment period for this MMC SNPRM. For those reasons, the Coast Guard does not intend to hold additional public meetings on this rulemaking at this time. Written and oral comments are given equal weight in the rulemaking process. Please submit written comments to the docket for this rulemaking project, which is available by conducting a simple search for docket number 24371 at
http://www.dms.dot.gov.
If, after reading this SNPRM, you believe that additional public meetings would be beneficial, please submit a request to the docket explaining why one would be beneficial. If the Coast Guard determines that additional public meetings would aid this rulemaking, we will provide advance notice in the
Federal Register
.
30. Regulatory Requirements
We received five comments that this rulemaking fails to resolve outstanding issues in the STCW Interim Rule published June 26, 1997 at 62 FR 34505.
This rulemaking is not intended to close or finalize the STCW rulemaking project. A Coast Guard rulemaking team is currently working on a Supplementary Notice of Proposed Rulemaking for that project that will address the public comments received on that Interim Rule, propose additional changes to the regulations to conform U.S. regulations to the STCW Code and Convention, and take additional public comment.
We received two comments that this rulemaking fails to resolve outstanding issues within the MMD and Licensing Interim Rules.
This rulemaking project is not intended to close or finalize either the Validation of Merchant Mariner's Vital Information and Issuance of Coast Guard Merchant Mariner's Documents (MMDs) (docket number USCG-2003-14500, the “MMD rule”), or Validation of Merchant Mariner's Vital Information and Issuance of Coast Guard Merchant Mariner's Licenses and Certificates of Registry (docket number USCG-2004-17455, the “Licensing rule”), projects. The Coast Guard intends to publish final rules on those projects to address the public comments received, and make any appropriate adjustments to the regulatory text as a result of those comments. This MMC rulemaking would, however, effectively address the bulk of the negative comments received to those rulemaking projects by removing the requirement that mariners appear at least once at one of the 17 RECs to be fingerprinted by, and show identification to, an REC employee. The majority of the comments received in the dockets to those rulemakings complained that the location of the 17 RECs require mariners to travel a great distance.
This proposed MMC rulemaking would remove, or at least reduce, that burden on mariners by removing the REC requirement and allowing them to apply for the MMC entirely by mail unless an examination is required. Instead, mariners would complete the fingerprint and identification portion of the MMC application process at one of the many TWIC enrollment centers spread across the country. This rulemaking, although proposing to remove the appearance requirement, will not finalize or close either the MMD or Licensing rulemaking projects. Final rules for those projects are expected to be drafted and published after the completion of this rulemaking project and the STCW rulemaking project discussed above.
One comment stated that the current language of our regulations in Subchapter B is poorly written and contains many issues that have not been addressed by this rulemaking. It suggested that we start from scratch, rewriting the Subchapter, instead of continuing to use existing regulatory language.
In this rulemaking, the Coast Guard decided to use the existing regulatory language wherever possible. This was done in an effort to make as few substantive changes as possible while consolidating the credentials into one while also adapting the system to transfer the security and identity verification process to TSA. The Coast Guard is currently undertaking many different actions, both regulatory and non-regulatory, to improve the merchant mariner credentialing process. There are currently five open Coast Guard rulemaking projects involving Subchapter B: (1) This rule, (2) the MMD rule, (3) the Licensing rule, (4) Implementation of 1995 Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (docket number USCG-2004-17914, the “STCW rule”), and (5) Training and Service Requirements for Merchant Marine Officers (the “Radar rule”) (docket number USCG-2006-26202). Each of these rulemaking projects is intended to address different issues within Subchapter B. Once these five rulemaking projects are completed, the Coast Guard intends to open a sixth rulemaking project unofficially referred to as the Subchapter B Revision, which would clean up the entire subchapter, to improve upon clarity, readability, correct editorial inconsistencies and make non-substantive procedural changes.
Three comments pointed out that the MMC NPRM did not appear in the Spring 2006 Regulatory Agenda.
The commenters are correct. At the time that information for the Spring 2006 Regulatory Agenda data call was requested, the substance of this regulation was incorporated into the TWIC rulemaking project, so it was not independently referenced. Now that it has been separated from TWIC and is an independent rulemaking project, it has been assigned Regulatory Identification Number 1625-AB02 and was included in the Fall 2006 Regulatory Agenda.
Three comments requested that the Coast Guard slow implementation of the TWIC and MMC.
Discussion of the implementation schedule of the TWIC is outside the scope of this rulemaking however, implementation of the card reader requirements has been delayed. A discussion of the TWIC implementation schedule and the delay in implementation of the reader requirements is provided in the TWIC final rule published elsewhere in today's
Federal Register
.
With respect to the MMC, if made effective, the proposed regulations in this SNPRM would not be implemented until approximately August 2008. This long delay before implementation has been proposed to allow all merchant mariners to obtain a TWIC before this proposed regulation would make it mandatory for the issuance of an MMC. The delay would also allow time for the Coast Guard to develop the form of the new credential and produce a sufficient
supply before the date of issuance. Furthermore, the delay would provide time to build and test the system that will transmit each MMC applicant's digital photograph, fingerprints, proof of identification, proof of citizenship, and if applicable, the applicant's criminal record and proof of legal resident alien status to the Coast Guard from TSA. The protection of this personal data is extremely important to the Coast Guard and TSA and we have planned this delay to allow sufficient time to test the system to ensure the security of that data. In addition, the new credential would be phased in over a five year period. A mariner would not be required to obtain an MMC until he or she either chooses to renew or upgrade their current MMD, license, COR or STCW endorsement, or they chose to apply for an MMC after this proposed rule is made effective. We find any additional delay to be unnecessary.
One comment stated that this is a substantive rulemaking.
We agree. This is a substantive, non-significant rulemaking. It proposes substantive changes to the Coast Guard's regulations that are not merely procedural or technical in nature, but will actually affect the public. Because this is a substantive rulemaking, the Coast Guard has published both an NPRM and SNPRM in the
Federal Register
and is seeking public comment to assist us in the rulemaking process.
We received one comment requesting that the Coast Guard hold the MMC regulatory project in abeyance until the TWIC regulatory project becomes final.
We agree in part with the commenter. The TWIC regulatory project published a final rule elsewhere in today's
Federal Register
. That final rule will become effective 60 days from today. This SNPRM, however, will remain open for a 90 day comment period after which it will be withdrawn, amended, or made effective through the publication of a final rule. At this time, the Coast Guard expects that a final rule would not be published for this rulemaking until some time in 2007, and that it would not become effective until approximately August 2008. This long period of time will allow enough time for the receipt and analysis of public comments, and would allow mariners to obtain a TWIC before this rulemaking would make them mandatory for the issuance of MMCs. The estimated August 2008 time period coincides with the expected close of the TWIC initial rollout period as established by today's TWIC final rule. As the MMC is reliant upon the TWIC enrollment, not the TWIC card readers, we are not tying this MMC rule to the card reader portion of the TWIC rulemaking project.
31. Renewals and Duplicates
We received one comment that requested a lower standard of safety and suitability review for renewals and duplicates than that required for originals; one comment that requested no safety and suitability review for renewals and duplicates; and one comment stating that a mandatory criminal history review for duplicates will add unnecessary time to the application review process.
We agree in part. We agree that requiring a mariner to undergo an additional safety and suitability review simply to obtain a duplicate credential with the same expiration date as the lost credential is unnecessary. A mariner who has undergone a safety and suitability review to obtain his or her five-year credential should not have to undergo an entirely new review, and the time associated with that review, simply because he or she lost the first credential. Changes have been made in this SNPRM to sections 10.211(b) and 10.229(f) to remove that requirement. This change should result in a reduction in the processing time for duplicate credentials.
The Coast Guard disagrees that mariners seeking renewals should be exempt from a safety and suitability review or that they should be subjected to a lesser standard. As an example, an officer could be involved in a DUI in year three of his credential, and in year four, he or she could be convicted of another. Under the existing and proposed regulations, that mariner would no longer be eligible for a license or MMC with an officer endorsement. Exempting that mariner from the safety and suitability review at renewal would prohibit the Coast Guard from learning of those DUI offenses. The Coast Guard, industry and international community rely on the safety and suitability review in the credential application process to ensure that merchant mariners working aboard commercial vessels do not present a safety hazard, and that they actually have the qualifications necessary to serve in their applicable grade and/or rating. Simply because a mariner was deemed safe and suitable at the initial application for their credential does not mean that they should be held to a lesser standard for the remainder of their career. To do so would essentially make the expiration date on the credential meaningless. Subjecting renewal applicants to a lesser standard would only increase the possibility of more safety incidents at sea, which is something the Coast Guard is working hard to prevent.
The Coast Guard sees a need for, and a value in, each and every one of its safety and suitability related disqualifying offenses and qualification requirements. Creating a lesser standard or removing them entirely for renewals would almost certainly lead to an increase in safety incidents, and would not be in the best interests of safety of life at sea.
32. Suspension and Revocation
One commenter was concerned about the effect that suspension or revocation would have on the remaining endorsements to a mariner's MMC when some, but not all of that mariner's endorsements are suspended or revoked.
Amendments have been made to 46 CFR 10.235(b) and (d) to address this issue. If one or more of a mariner's endorsements are revoked, the Coast Guard will issue an MMC containing any remaining endorsements for which the holder is qualified.
33. Safety and Suitability
We received one comment that sought a change in the suspension period for operating a vessel under the influence of illegal drugs to greater than one year and an increase in the assessment period so that it is longer than that applied to shore-based violations.
This recommendation is beyond the scope of this rulemaking, which is not intended to alter the safety and suitability assessment requirements. This rulemaking is intended only to make those changes necessary to consolidate the credentials, and streamline the application process. This recommendation may be considered, however, in future rulemaking projects.
We received two comments that requested the Coast Guard recognize expungements.
Like the comment discussed above, this comment is outside the scope of this rulemaking; however, the reason the Coast Guard does not automatically recognize expungements is that each State varies in the crimes and associated time periods after which they will grant record expungements. Some States grant expungements in a shorter time period than the assessment periods in subchapter B. Because there is no set national standard for expungement of State crimes within our assessment period, the Coast Guard has chosen to continue to review criminal records regardless of expungement.
One commenter requested that the Coast Guard provide an exact methodology and judgment criteria for
our safety and suitability review and how it is affected by TWIC.
The Coast Guard's safety and suitability review will not be affected by TWIC other than that if a mariner is not granted a TWIC he or she cannot be granted an MMC, therefore making the Coast Guard's safety and suitability determination unnecessary. The TWIC will remove the security review from the Coast Guard's credentialing process, but it will not otherwise affect the Coast Guard's determination as to whether an individual is a safe and suitable person to serve in the merchant marine. The crimes that will prohibit an applicant from receiving a TWIC are no more expansive than those that would prohibit an applicant from receiving an MMD or license under the Coast Guard's current regulations.
With respect to the methodology and judgment criteria for our safety and suitability review, the Coast Guard has the authority to review an applicant's safety and suitability under Chapters 71 and 73 of Title 46, United States Code. To determine whether a mariner is a safe and suitable person, the Coast Guard reviews that applicant's full application material. All training, sea service, medical evaluations, records, and criminal records are reviewed for this determination. A person fails to meet the safe and suitable person standard when the circumstances indicate that the person's character and habits of life would support the belief that permitting such a person to serve under the credential and/or endorsement sought would clearly be a threat to the safety of life or property, detrimental to good discipline, or adverse to the interests of the United States. The definition for “safe and suitable person” in 46 CFR.107 has been modified in this SNPRM to include these judgment criteria.
34. Miscellaneous Comments Outside the Scope of This Rulemaking
We received two comments requesting that we include well-control training program provisions to 46 CFR 10.470.
This request is outside the scope of this rulemaking as it does not involve the consolidation of credentials or the process for reviewing mariner credential applications. The Coast Guard has chosen not to include these program provisions in the regulations at this time.
We received one comment requesting the Coast Guard to revise the tonnage service requirements for license upgrades.
This too, is beyond the scope of this rulemaking; however, it will be addressed in the upcoming STCW rulemaking project.
We received one comment requesting consistency with respect to the 12-hour service time requirement.
Such a change is beyond the scope of this rulemaking; however, the Coast Guard has recently disseminated guidance to our application evaluators on this issue to assist in the consistent application of the 12-hour service time requirement. Additionally, in this SNPRM we have removed the language from the definition of “day” in 46 CFR 10.107.
35. Support for the Rulemaking
The Coast Guard received the following comments in support of the NPRM:
27 comments agreed with the need for increased rational national security measures.
One comment supported the proposal to renew credentials by mail.
One comment supported the proposal to allow oaths to be taken before a notary public and be submitted by mail.
Two comments supported the consolidation of credentials into one document and the associated $45 reduction in cost associated with renewing multiple credentials.
One comment supported the five year phase in period, saying that it will greatly reduce the backlog of applications and give mariners the opportunity to complete the process at a convenient time.
Three comments supported the proposal for numerous mobile enrollment centers and the associated ease in staff burdens at the RECs. One of those commenters also encouraged TSA to establish an enrollment facility at large refineries and petrochemical facilities. The location of TSA's enrollment facilities are discussed in the TWIC rulemaking.
18 comments were generally in favor of consolidating the merchant mariner credentials, and four of those comments went further to state that in general, the changes proposed to the MMC are beneficial to the mariner and include several positive features that will make the systems simpler and more user friendly.
One comment encouraged the sharing of information between the Coast Guard and TSA.
One comment stated that the option to renew MMCs at any time prior to the expiration of the old credentials is common sense and more convenient for mariners.
36. Travel
We received one comment that sought an increase in the number of application and examination centers; one comment that showed a general confusion about the appearance requirement; and 10 comments complaining about the heavy burden on mariners caused by the requirement to travel to an REC.
If this proposed MMC regulation goes into effect, mariners will only have to travel to the REC if an examination is required. The MMC application process could be done entirely by mail. There would no longer be a requirement to appear at one of the 17 RECs at least once in the application process. Instead, mariners are required by the TWIC rule to travel to one of the approximately 125 TWIC enrollment centers spread across the country. It is expected that there will be approximately 125 TWIC enrollment centers for initial rollout, however, the exact number, their locations, and the number that will remain in operation after initial roll out has yet to be determined. This information will not be known until a contract is awarded, but the Coast Guard is working with TSA to locate them in areas that will reduce the travel burden on mariners.
The TWIC/MMC enrollment process would work like this: To begin, a mariner would have the option of going online to provide pre-enrollment information for the TWIC to reduce the amount of time at the TWIC enrollment center. They would then travel to one of the many TWIC enrollment centers to be fingerprinted, photographed, show proof of ID and complete the TWIC application process. At any time after they have applied for their TWIC, the mariner would be able to mail his or her MMC application to the Coast Guard. The Coast Guard would then contact TSA to obtain electronic copies of the applicant's fingerprints, photograph, ID, and if applicable criminal record, FBI number and proof of alien status. If an examination is required, the mariner would be contacted to schedule the examination after the initial evaluation is completed. Once the TWIC has been issued, the MMC application approved, and the examination(s), if necessary, are completed, the MMC would be mailed to the applicant.
The RECs would remain open and mariners would be allowed to apply in person or seek assistance from REC personnel if they choose. Although the RECs would remain available to the mariner, mandatory appearance would no longer be required. This proposed change should result in a cost savings to mariners. The reduction in burden and the expected cost benefits from this proposed rulemaking are discussed further in the Regulatory Evaluation section below.
We received one comment seeking more detail on how mariners can select an application location.
The TWIC enrollment center locations will be established by TSA. Just like the current process with Coast Guard RECs, merchant mariners would be allowed to appear at any TWIC enrollment center they choose. TSA will be conducting initial enrollment on a rolling basis, standing up enrollment centers in different locations in phases. Merchant mariners are allowed to visit any of the TWIC enrollment centers at any time during the 18 month initial enrollment period. Some vessels or facilities may begin to use the TWIC for access control once enrollment has been completed in their geographic location. Because mariners are inherently mobile, they may need to visit one of the vessels or facilities that begin to use TWIC earlier in the initial enrollment period and a temporary exception has been created that will allow unescorted access to vessels and facilities with MMD or picture identification in addition to license or COR. This temporary exception only applies during the initial roll out period. All credentialed merchant mariners must obtain a TWIC by September 25, 2008. For more information on TWIC enrollment and the implications for merchant mariners, please read the TWIC final rule published elsewhere in today's
Federal Register
.
37. Vetting
One comment requested that the Coast Guard remove 46 CFR 10.211(e) because it applies to security vetting and mariners are entitled to disclosure of the reason for denial in all cases.
We agree in part. The entire paragraph has not been removed, but it has been amended. The language in question was inserted in the NPRM in case an applicant was refused a credential based on confidential national security information that was not releasable to the public, or even to the applicant. If this rulemaking becomes effective, the Coast Guard would only be vetting mariners for safety and suitability, no longer making a determination as to security threat, so there should not be a situation in which we would encounter such a protected reason for denial. Accordingly, paragraph 10.211(e) has been amended in this SNPRM to remove the words: “unless the Coast Guard determines that such disclosure of information is prohibited by law, regulation, or agency policy”. The language also appeared at 46 CFR 10.237(b) in the NPRM. That section has been moved in this SNPRM to 46 CFR 10.237(a) and has also been revised to remove this language.
One comment requested that the Coast Guard ensure consistency between the TWIC and MMC with respect to homicide.
In this instance, the Coast Guard believes that the inconsistency in the disqualifying crimes for TWIC and the MMC is appropriate. The TWIC regards murder as a permanently disqualifying crime for security vetting under 49 CFR 1572.103 of the proposed TWIC regulations. As with the current hazardous materials endorsement regulations, TWIC applicants will be allowed to seek waivers of disqualifying crimes. With respect to the hazardous materials endorsement, these waiver requests have been frequently granted. The Coast Guard has consistently split homicide into the categories of intentional (
i.e.
, murder) and unintentional, with the assessment period for intentional homicide being a minimum of 7 to a maximum of 20 years. This assessment period has not been changed in these proposed regulations.
The crimes listed in 46 CFR table 10.211(g) rarely overlap with the TWIC disqualifying crimes, but when they do, it is because that crime has a link to national security as well as safety and suitability. The Coast Guard and TSA would be reviewing these crimes for very different purposes. A record that may not rise to the level of a national security threat may rise to the level of a safety risk. The Coast Guard believes that we must retain those crimes that have a nexus to safety in the event that they are waived by TSA after the determination that the individual does not pose a threat to national security. Because of the remote locations and isolation associated with the mariner's workplace, the Coast Guard intends to continue reviewing intentional and unintentional homicide convictions in our safety and suitability review as we have for decades.
One comment stated that the Coast Guard should accept the American Bureau of Shipping (ABS) identification process and background check as meeting the TWIC process and issue TWIC cards based on it.
The background check and issuance of the TWIC is outside the scope of this rulemaking. Discussion of the TWIC background check and requirements for issuance can be found in the TWIC final rule published elsewhere in today's
Federal Register
.
One commenter stated that the current vetting process conducted by the Coast Guard for mariners meets or exceeds the standards of the hazardous materials endorsement vetting process proposed for TWIC. We also received one comment that the Coast Guard should enhance our vetting process to meet the requirements of 46 U.S.C. 70105.
Since February 3, 2003 for MMDs, and January 13, 2006 for licenses, the Coast Guard vetting process has met the TWIC vetting standards with respect to merchant mariners. Because of this, we have worked with TSA to create an exemption from the criminal record review and a related reduction in the TWIC application fee for mariners holding credentials issued after those dates. To remove the duplication of effort, and reduce the size of the MMC review process, this SNPRM would completely remove the Coast Guard's security vetting process and transfer that review entirely to TSA. MMDs and licenses do not, however, meet the standards for the 46 U.S.C. 70105 mandated biometric identity credential. For the reasons discussed above in “Format of the MMC”, the MMD, license and proposed MMC will not be able to meet the format and readability standards that would exist with the TWIC.
We received 41 comments stating that the Coast Guard and TSA should not conduct duplicate background checks. We received five additional comments that only one background check should be conducted and that it should be done by the Coast Guard, and one comment generally objecting to the Coast Guard conducting background checks. We received one comment that the Coast Guard and TSA should not conduct duplicate identity verification.
At this time, the option of having either TSA or the Coast Guard conduct all required background checks for individuals who require both an MMC and the TWIC is not feasible. TSA has established a system and process for ensuring individuals applying for the TWIC undergo a consistent security threat assessment and the USCG already has the authority and process in place for conducting the required safety and suitability checks for mariners. To create a new and unique system of background checks for approximately one fifth of the expected initial TWIC population would create the need for additional infrastructure within one agency and raise costs for the government and the entire TWIC population. In addition, the Coast Guard has more expertise and authority over the merchant marine than TSA and is in a much better position to determine whether an applicant is safe and suitable to serve in the merchant marine at the grade or rating sought. At this
time, the most efficient and cost effective method available for issuing TWICs to credentialed mariners is to have TSA conduct the security threat assessment and issue the identity document (TWIC) while the USCG issues qualifications on the MMC.
In addition, requiring only one criminal record review for both security and safety related crimes by one agency would negatively impact mariner flexibility. If only one background check were to occur, mariners would be required to apply for their MMC only at the time they applied for their TWIC. As currently proposed, the MMC and TWIC expiration dates need not align. This allows an individual who works at a port to decide later that he or she wants to become a merchant mariner. In addition, for those mariners who already hold a MMD, license or COR, they need not renew their credential upon the initial issuance of their TWIC because the effective period of their current credential is not affected by this proposed regulation. If we were to require only one background check by TSA for all mariners, the mariner credential would have to come into line with the expiration date of the TWIC. Requiring mariners who already hold credentials to renew so that their credential's expiration date matches their TWIC expiration date is currently impossible from a legal standpoint due to the statutory requirement that licenses and MMDs have a five year validity period under 46 U.S.C. 7106 and 46 U.S.C. 7302. Such a requirement would inherently shorten that five year duration. Finally, requiring only one security/safety/suitability criminal record review by TSA at the time of application would affect individuals who would like to seek raises in grade or new endorsements on their MMC during the five year validity period. The list of disqualifying offenses for officers is more extensive than that for ratings. Requiring TSA to run a new background check simply to determine a mariner's safety and suitability, when a TWIC application is not in process, would be improper.
Finally, both agencies will not verify the applicant's identity. The applicant will show proof of identity to TSA who will then share that identity information with the Coast Guard. The Coast Guard will trust TSA's identity verification determination. The only reasons we will require the identity information from TSA are (1) We need to affix the mariner's photograph to the MMC; (2) we need to verify the individual's age before issuing certain endorsements; and (3) we need to verify that the applicant meets the citizenship requirements for the endorsement sought because the citizenship requirements for the MMC are more strict than those required for the TWIC. The citizenship requirements for the MMC are established by statute in 46 U.S.C. chapters 71 and 73, and appear in proposed 46 CFR 10.221. These requirements have not been changed from the current citizenship requirements for MMDs, licenses or CORs.
On October 17, 2006, Congress passed the John Warner National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). In that Act, Congress amended 46 U.S.C. 8103 to permit an alien allowed to be employed in the U.S. under the Immigration and Nationality Act who meets additional requirements for service as a steward aboard large passenger vessels to obtain an MMD. Although language has not been proposed in this rulemaking to address this new statutory authority, the Coast Guard is aware of it and is initiating a separate rulemaking to address these new requirements.
We received three comments expressing concern that the TWIC background check will prevent an individual from obtaining an MMC.
With very few exceptions, the TWIC requirements are equal to, if not less than, those requirements currently in Coast Guard regulations for MMDs, licenses and CORs. Furthermore, TWIC applicants are allowed to seek a waiver of any disqualifying offense, and appeals of negative waiver determinations are determined by an Administrative Law Judge. By the language of 46 U.S.C. 70105, “The Secretary shall issue a biometric transportation security card to an individual specified in paragraph (2), unless the Secretary decides that the individual poses a security risk under subsection (c) warranting denial of the card.” If, under the current Coast Guard regulatory program, an individual applies for a MMD, license, COR or STCW endorsement, and that individual is deemed a security risk, the individual's application will be denied. If the individual is deemed ineligible for a TWIC, they should not be granted an MMC.
We received one comment expressing concern that applicants would be able to get a TWIC but would be denied an MMC because of higher standards.
The standards for the MMC and the TWIC are intentionally different, because the intent and purpose of the credentials are different. The TWIC is intended to prevent individuals who pose a terrorism security risk from gaining access to secure areas of title 33 CFR Subchapter H regulated vessels and facilities. The MMC, however, is intended to serve as a certificate of identity and a certificate of service, specifying the grade and rating in which the holder is qualified to serve on board commercial vessels. More individuals will qualify to receive a TWIC (because they do not pose a security risk) than would possess all of the qualifications necessary to serve as a merchant mariner aboard commercial vessels.
The qualification standards for the MMC have been kept, in large part, the same as those that are currently required to obtain an MMD, license, COR or STCW endorsement. With few exceptions as set out in this SNPRM, and the NPRM published May 22, 2006 in the
Federal Register
at 71 FR 29462, the standards for mariners have remained the same. Just as in the current regulations, if a mariner poses either a safety risk, or a security risk, he or she would be denied a mariner credential. Higher qualification standards are necessary for the MMC than for the TWIC as it will include a safety and suitability assessment due to the inherently dangerous nature of a career in the merchant marine, and the remote location and isolated workplaces associated with maritime transportation.
We received two comments that mariner fingerprints are already on file with the Coast Guard and therefore there should be no need for mariners to travel to a TWIC enrollment center to provide them again.
Although mariners are currently required to visit Coast Guard RECs to be fingerprinted, because the Coast Guard has had no use for the fingerprints other than to obtain the applicant's Federal Bureau of Investigation (FBI) criminal record, these fingerprints are not stored by the Coast Guard. The fingerprint images are immediately transferred to the FBI for processing, where they become property of the FBI. These fingerprints are not returned to the Coast Guard.
We received one comment that MMCs should not be denied based on statutes that impose strict criminal liability or liability based upon ordinary negligence or criminal violations of environmental law.
We disagree. The crimes listed in 46 CFR 10.211(g) were not changed from the Coast Guard's current credentialing regulations, because of their nexus to safety and the determination of suitability for the merchant marine. The only crimes that do not appear in these proposed regulations but exist in our current regulations are those involving national security. Those crimes would be removed because TSA is reviewing
them and the Coast Guard does not need to conduct a duplicate review of those offenses.
As for crimes based on statutes that impose strict criminal liability or liability based on ordinary negligence, the Coast Guard has determined that lack of intent should not exempt individuals from being considered a risk to safety or considered unsuitable for the rank or rating sought. Acting negligently, or failing to take reasonable care to meet a specific standard of conduct established to protect against an unreasonable risk of harm to others, resulting in a conviction for one or more of the offenses listed in 10.211(g) is certainly behavior that could denote an increased likelihood that the individual could pose a risk to safety. Furthermore, engaging in inherently dangerous activity is typically associated with strict liability crimes, and shows that the individual is likely to act in reckless or risky behavior that could result in a safety incident or otherwise make the individual unsuitable for the merchant marine.
Finally, the Coast Guard believes that individuals who have criminal violations of environmental laws involving the improper handling of pollutants or hazardous materials could pose a risk to the safety of the environment and could be unsuitable to serve in the merchant marine. Individuals with prior records of improper handling of pollutant materials have an increased likelihood of causing further damage to the environment if provided access to the large amount of pollutant material and possibly hazardous material aboard commercial vessels. The disqualifying criminal offenses have not been altered in this proposed rulemaking with respect to criminal violations of environmental laws.
We received four comments that opposed the Coast Guard's requirement for self disclosure of criminal convictions.
The Coast Guard disagrees, and has not eliminated the requirement for applicants to disclose possible or actual disqualifying crimes for several reasons. First, there is no guarantee that an arrest and conviction are documented in automated police records, particularly those police records maintained at the State and local levels. Disclosure of this information provides the Coast Guard the ability to know where to start looking in the correct Federal, State or local databases, either electronically or by mail, if records are not accessible through electronic means. Second, people assume new identities to either hide on-going or past criminal activities, or just as a matter of course (marriage, nickname, etc.) which makes it difficult to locate records and verify that they actually relate to the applicant. Third, there is no worldwide criminal record database. Without personal disclosure of foreign convictions, it is extremely difficult for the Coast Guard to know which countries to approach for records. Finally, requiring full disclosure from applicants supported by background checks demonstrate that the Coast Guard is putting as many processes in place as possible to ensure that the highest standards are met before issuing something as important as merchant mariner credentials. We welcome comments on the possibility of limiting this disclosure requirement to only those convictions not previously disclosed on a merchant mariner application.
B. Recommendations From Advisory Committees
The following recommendations were received from the Towing Safety Advisory Committee:
1. Extend the Public Comment Period 90 Days
As discussed above, in lieu of extending the public comment period on the NPRM 90 days, we have published this SNPRM addressing the comments already received, and providing additional changes to the proposed regulation in light of those comments. A 90 day comment period has been provided for this SNPRM.
2. Provide for Additional Public Meetings in the Gulf Coast, Great Lakes and Northwest
We encourage public participation in this rulemaking, however, the Coast Guard received a relatively small number of comments on this rulemaking during the joint TWIC/MMC public meetings held in May and June 2006, and additional public meetings will not be held on the TWIC rulemaking project during the 90 day comment period for this SNPRM. For those reasons, the Coast Guard does not intend to hold additional public meetings on this rulemaking at this time.
Written and oral comments are given equal weight in the rulemaking process. Please submit written comments to the docket for this rulemaking project, which is available by conducting a simple search for docket number 24371 at
http://www.dms.dot.gov
. If, after reading this SNPRM, you believe that additional public meetings would be beneficial, please submit a request to the docket explaining why one would be beneficial. If the Coast Guard determines that additional public meetings would aid this rulemaking, we will provide advance notice in the
Federal Register
.
The following recommendations were received from the Merchant Marine Personnel Advisory Committee (MERPAC):
1. MERPAC strongly recommends that TSA remove mariners from the TWIC project. TSA should modify the existing credential that most mariners already have, as this document, with the photo of each mariner already meets the standards called for in 46 U.S.C. 70105. By updating and creating new biometrics in the existing MMD, or creating a new MMC, mariners could meet the intent of TSA without the duplicative effort of the TWIC.
Through 46 U.S.C. 70105, Congress has directed the Secretary of the Department of Homeland Security to issue a biometric transportation security card to all individuals who need unescorted access to secure areas designated in a vessel or facility security plan; individuals issued credentials under part E of subtitle II of Title 46 U.S.C. (credentialed mariners); vessel pilots; individuals working on a towing vessel that pushes, pulls, or hauls alongside a tank vessel; certain individuals with access to security sensitive information; and other individuals engaged in port security activities.
The House Committee Report, written when the statute was still a bill, but contained the language that was passed, states “Section 70105 establishes a national standard for issuance of biometric transportation security cards whose purpose is to control access to secure terminal areas to only authorized personnel.” The Department of Homeland Security has interpreted this language, and the language of the statute itself, to exhibit a Congressional intent that the Secretary create a single biometric identification credential. This national biometric transportation security card is to be used at all 33 CFR Subchapter H regulated vessels and facilities by everyone to whom the statute applies. Such a uniform requirement would improve security and reduce fraud through the creation of a single, recognizable identity credential instead of multiple credentials that would be dependant on the type of function that the individual would serve at the vessel or facility.
The population of individuals covered by 46 U.S.C. 70105 includes a large number of individuals outside of the merchant marine. Altering the MMD to include biometric capabilities would not only fail to satisfy the requirement
for all of the people to whom the Secretary must issue the credential, but it would not even cover the entire population of mariners that are affected by the statutory mandate. Altering the MMD to include biometric capabilities would cover only those people who carry an MMD. As of December 31, 2005, of the total estimated 205,000 merchant mariner population, 67,637 held only an MMD; 41,343 mariners held both a license and MMD; and 27,790 mariners held a license, MMD and STCW endorsement (the remainder hold a license only, which is not an identity document).
Allowing the MMD to serve as an alternate to TWIC would violate this concept of a single uniform nation-wide credential for all. Also for this reason, we have opted not to consolidate the merchant mariner credentials into the MMC with a biometric chip. Although this option would be more expansive because it would at least create a uniform biometric cred
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