National Driver Register and Criminal Record Review in Issuing Licenses, Certificates of Registry, or Merchant Mariner's Documents

SUMMARY: In furtherance of the President's Regulatory Reinvention

Initiative, this rulemaking establishes Coast Guard regulations which

implement the provisions of the Oil Pollution Act of 1990 (OPA 90) that

permit the Coast Guard to review information from the National Driver

Register on an applicant prior to issuing or renewing a license,

certificate of registry (COR), or merchant mariner's document (MMD).

This rulemaking also addresses OPA 90 provisions that permit the Coast

Guard to review the criminal records of applicants prior to issuing a

license, COR or MMD. In addition, it establishes regulations that

permit criminal record checks of any individual applying for a raise in

grade of a license or COR; a renewal of a license, COR, or MMD; or an

endorsement of an MMD with a new expiration date. This rulemaking

provides the Coast Guard an opportunity to identify an applicant who

has been convicted of certain motor vehicle offenses or convicted of

certain serious crimes.

EFFECTIVE DATE: January 18, 1996.

ADDRESSES: Unless otherwise indicated, documents referred to in this

preamble are available for inspection or copying at the office of the

Executive Secretary, Marine Safety Council (G-LRA/3406) (CGD 91-212),

U.S. Coast Guard Headquarters, 2100 Second Street SW., room 3406,

Washington, DC 20593-0001 between 8 a.m. and 3 p.m., Monday through

Friday, except Federal holidays. The telephone number is (202) 267-

1477.

FOR FURTHER INFORMATION CONTACT:

Mr. Stewart Walker, Marine Personnel Qualifications (G-MCO-1), (202)

267-0475. This telephone records messages on a 24-hour basis.

SUPPLEMENTARY INFORMATION:

Drafting Information. The principal persons involved in drafting

this document are Mr. James W. Cratty, Project Manager, Project

Development Branch (G-MES-2) and Ms. Jacqueline Sullivan, Project

Counsel, Office of the Chief Counsel (G-LRA).

Regulatory History

On March 13, 1995, the Coast Guard published a notice of proposed

rulemaking (NPRM) entitled ``National Driver Register and Criminal

Record Review in Issuing Licenses, Certificates of Registry, or

Merchant Mariner's Documents'' in the Federal Register (60 FR 13570).

The Coast Guard received 29 letters commenting on the proposal. Several

comments requested a public hearing. The Coast Guard determined that a

public hearing is unnecessary and that all of the issues contained in

the comments are addressed in this rulemaking.

Background and Purpose

1. General

Under the authority of 46 U.S.C. 7101, the Coast Guard issues

licenses to qualified officers such as masters, mates, pilots,

engineers, operators, and radio officers. It also issues certificates

of registry (CORs) to qualified staff officers such as pursers, medical

doctors, and professional nurses.

The Coast Guard issues merchant mariner's documents (MMDs), with

certain exceptions described in 46 U.S.C. 8701, to vessel personnel for

service aboard U.S. flag merchant vessels of more than 100 gross tons

which operate on waters other than rivers and lakes. The MMD serves as

a certificate of identification and qualification, authorizing work in

different capacities on deck and in the engine and steward's

departments. The MMD, with an appropriate endorsement, is also the

credential issued to qualified tankermen. Many merchant mariners who

hold licenses and CORs also hold MMDs.

All licensing and documentation transactions are processed at Coast

Guard Regional Examination Centers (RECs) exercising the authority of

the Officer in Charge, Marine Inspection (OCMIs).

Sections 4101(a) and (b) and section 4102(e) of the Oil Pollution

Act of 1990 (OPA 90) (Pub. L. 101-380) amend 46 U.S.C. 7101, 7302, and

7109, respectively, to authorize the Coast Guard to conduct criminal

record checks of any individual applying for a license, COR, or MMD;

for a raise in grade of a license or COR; for a renewal of a license,

COR, or MMD; or for an endorsement of an MMD with a new expiration

date. Some individuals with criminal records may be unsuitable

candidates for a license, COR, or MMD because they present a risk to

passengers, fellow crew members, or the safe operation of a vessel.

As amended, 46 U.S.C. 7101 and 7302 prohibit the Coast Guard from

issuing a license, COR, or MMD to an applicant unless the applicant

makes available to the Coast Guard any information contained in the

National Driver Register (NDR) related to an offense committed by the

applicant that is described in sections 205(a)(3)(A) or (B) of the

National Driver Register Act of 1982 (49 U.S.C. Chapter 303). These

offenses are: operation of a motor vehicle under the influence of, or

while impaired by, alcohol or a controlled substance; and any traffic

violation(s) arising in connection with a fatal traffic accident,

reckless driving, or racing on the highways.

Although an individual's motor vehicle record may not be directly

related to his or her maritime career, a record of alcohol or drug-

related motor vehicle offenses, or other motor vehicle offenses as

specified in sections 205(a)(3)(A) and (B) of the NDR Act of 1982,

indicates that the individual may have a disregard for his or her own

safety or the safety of others and therefore may not be suitable for

maritime employment.

Section 4105(b) of OPA 90 amended 46 U.S.C. Chapter 75, to require

the Coast Guard to make the information received from the NDR available

to the applicant for review and written comment before the Coast Guard

uses this information as a basis for denying, suspending, revoking, or

taking other action on that individual's license, COR, or MMD.

Before Congress enacted OPA 90, an individual who applied for a

license, COR, or MMD was not required to provide the Coast Guard with

NDR information. However, an applicant for a license or COR was asked

on the application form if he or she had been convicted of any

offense(s) other than minor traffic violation(s). Information provided

by the applicant regarding conviction(s) for other than minor traffic

violation(s), including Driving Under the Influence (DUI) or Driving

While Intoxicated (DWI), was used to evaluate the applicant's

qualifications to hold a license or COR.

2. Criminal Record Review Under Current Regulations

a. Licenses and CORs. The current regulations at 46 CFR 10.205,

``Requirements for original licenses and certificates of registry,''

require the applicant to have his or her fingerprints taken during the

application process. The Coast Guard uses the fingerprints to determine

if a criminal record exists for

[[Page 65479]]

the individual. Section 10.205(f)(2) authorizes the OCMI to reject an

application if the criminal record check, or other information,

indicates that an applicant's habits of life and character are such

that the applicant cannot be entrusted with the duties and

responsibilities associated with a license or COR. The OCMI notifes the

applicant of the reason(s) for disapproval.

Section 10.205(f)(4) indicates that, in the event a license or COR

has been issued before adverse information on the applicant's character

or habits of life, or information indicating that the application is

false or incomplete, is obtained the OCMI may notify the individual

that the license or COR is null and void and direct the holder to

return the license or certificate to the OCMI.

Under 46 CFR 10.209, ``Requirements for renewal of a license,''

each renewal applicant must use a standard form furnished by the Coast

Guard. The form asks the applicant to identify any criminal convictions

or history of drug use. Under Sec. 10.209(b), an applicant may not have

his or her license renewed if facts which would render a renewal

improper have come to the Coast Guard's attention.

The Coast Guard currently performs a license renewal criminal

record check when an individual has identified a conviction or drug use

on the application. In addition, the Coast Guard performs a criminal

record check on applicants for renewal whom it suspects have criminal

records or a history of drug use. The Conference Report on OPA 90 (H.R.

Conf. Rep. No. 101-653) recognizes these existing Coast Guard

procedures.

Related regulations in 46 CFR part 10, ``Requirements for raise of

grade of a license'' (Sec. 10.207) and ``Issuance of duplicate of

license or certificate of registry'' (Sec. 10.219), currently do not

address criminal record checks.

b. Merchant Mariner's Documents. The regulations contained at 46

CFR part 12, ``Certification of Seamen,'' do not address fingerprinting

an applicant for an MMD specifically for a criminal record check;

however, under existing practice, the Coast Guard fingerprints an

individual applying for his or her original MMD and performs a criminal

record check on the applicant. The Coast Guard does not fingerprint and

check the criminal record of a person obtaining a duplicate MMD or an

additional MMD endorsement.

Under law existing prior to OPA 90, the Coast Guard was not

required to consider the character and habits of life of an applicant

for an MMD as it was for licenses and CORs. The only specific statutory

provision concerning dangerous drug use or criminal convictions

authorized the Coast Guard to deny an MMD to an applicant convicted for

a dangerous drug offense within 10 years prior to the date of

application (46 U.S.C. 7503). The Coast Guard has also been authorized

to deny an MMD to a person who has ever used or has ever been addicted

to a dangerous drug unless the applicant provides satisfactory proof

that he or she is suitable for employment in the merchant marine.

3. National Driver Register Access

The National Highway Traffic Safety Administration (NHTSA) of the

Department of Transportation (DOT) maintains the NDR, which is a

nationwide repository of information on drivers. The NDR is part of a

voluntary cooperative program that assists State motor vehicle driver

licensing agencies and certain Federal agencies in gaining access to

data on an individual's motor vehicle driving record. The NDR Act of

1982 prohibits the use of information in the NDR that is more than 3

years old, unless that information relates to a current suspension or

revocation of the individual's license to operate a motor vehicle.

At present, access to the NDR must be made through participating

States. DOT has proposed legislation to amend section 307 of the NDR

Act of 1982 to allow direct NDR access by Federal agencies. If the

proposed legislation is enacted, the Coast Guard intends to adopt the

direct access methodology.

Discussion of Comments and Changes

Twenty-nine letters were received in response to the NPRM. The

Coast Guard has considered all of the comments and, in some instances,

revised the proposed regulations as appropriate. The comments have been

grouped by issue and are discussed as follows.

1. Coast Guard Authority

Seven comments suggested the regulations are intrusive into the

lives of mariners and questioned the Coast Guard's authority to review

information from the National Driver Register and review criminal

record information in issuing licenses, CORs, or MMDs. OPA 90

authorized the Coast Guard to conduct criminal record checks and review

information from the National Driver Register on any individual

applying for a license, COR, or MMD; for a renewal of a license, COR,

or MMD; or for an endorsement of an MMD with a new expiration date. The

Coast Guard is implementing these provisions to exclude from holding

merchant mariner credentials those individuals whose history indicates

a lack of concern regarding the safety of themselves, others, the

marine environment, and the safe operation of a vessel.

Two comments suggested that since the term ``renewal'' is not

mentioned in 46 U.S.C. 7302(c) and (d), the review of criminal records

and the National Driver Register only applies to original document

applications. The Coast Guard disagrees. The review of criminal records

and the NDR is relevant to all documents applied for under 46 U.S.C.

7302, including renewal of MMDs or endorsement of MMDs with a new

expiration date. Similarly, in 46 U.S.C. 7101(h), individuals applying

for a license or COR include all individuals applying for a raise in

grade or renewal.

One comment stated that the Coast Guard, rather than the employer,

is in the best position to monitor and provide assurance of

rehabilitation for individuals with an alcohol or drug problem. The

Coast Guard lacks the legal authority and resources to continuously

monitor individuals with drug or alcohol problems. Checks can be made

at a point convenient to the mariner and the Coast Guard, for example,

renewal or raise in grade. Monitoring individuals is within the scope

of employer responsibilities because the employer is more likely to

evaluate an employee's work and conduct on a regular basis.

Two comments stated that the regulations are unnecessary because

the merchant marine is self-regulating. The comments submitted that

mariners who pose a threat to the safe operation of a ship, personnel,

or passengers will be excluded by other mariners or employers. The

Coast Guard determined that the mariners' or employer's ability to

self-regulate cannot attain the scope of the Coast Guard's ability to

regulate merchant marine personnel. Also, the Coast Guard has been

delegated the authority of general superintendence over the merchant

marine and merchant marine personnel in the interest of marine safety

and seamen's welfare. The Coast Guard, as the agency authorized to

issue merchant mariner's credentials, must ensure, to the best of its

ability, that individuals who receive these credentials do not present

a possible threat to personnel, passengers, or the safe operation of a

vessel.

2. Relationship Between Convictions and Job Performance

Eight comments suggested that there is little or no relationship

between a person's criminal or driving offenses on

[[Page 65480]]

land and their maritime related job performance. The Coast Guard

disagrees. An individual's record of alcohol or drug-related, or other

motor vehicle offenses as specified in sections 205(a)(3) (A) and (B)

of the NDR Act of 1982, indicates that the individual may have a

disregard for his or her own safety or the safety of others and

therefore may not be suitable for maritime employment. The Conference

Report on OPA 90 (H.R. Conf. Rep. No. 101-653) explains that alcohol

impairment may have played a role in the Exxon Valdez incident. Motor

vehicle offenses involving the abuse of alcohol and drugs may evince

possible unsafe vessel operations. Congressional intent, as presented

in the Conference Report on OPA 90, was to provide an additional tool

in an effort to promote a drug- and alcohol-free workplace in maritime

industry. Also, the Coast Guard concluded that applicants who have been

convicted of violent criminal offenses or serious property offenses may

pose a threat to ship personnel, passengers, the marine environment,

and the safe operation of the ship. The Coast Guard may increase ship

safety by denying seafarer's documents to individuals who demonstrate a

lack of concern for safety through a record of criminal or motor

vehicle offenses.

3. The National Driver Register

Two comments indicated that the Coast Guard is only able to review

information from the National Driver Register three years prior to the

check. The comments noted that the information from an NDR file check

would not cover the full 5 years between document renewal. The NDR Act

prohibits the Coast Guard from gaining access to information more than

three years old, unless the information is about a revocation or

suspension of driving privileges still in effect (49 U.S.C.

30305(b)(5)).

One comment suggested that NDR checks may be a federalism issue,

since most driving offenses are state offenses. The Coast Guard is

among the authorized agencies granted access to the NDR. The NDR Act

establishes guidelines for obtaining information from the NDR for the

purposes of evaluating individuals who hold, or are applying for a

license or certificate of registry under 46 U.S.C. 7101, or a merchant

mariner's document under 46 U.S.C. 7302 (49 U.S.C. 30305(b)(5)).

One comment requested clarification of ``racing on the highways.''

According to the National Highway Traffic Safety Administration, racing

on the highways means formal or informal contest racing on a public

highway.

Another comment stated that if the NDR is a voluntary system, the

Coast Guard may not be able to check information from non-participating

states. Since all of the states and the District of Columbia are

participants in the NDR program, the Coast Guard can conduct checks on

any individual in the United States with motor vehicle driving record

information.

One comment noted a decision rendered on April 5, 1995, by the

United States Circuit Court for the Fourth Circuit in a case entitled,

American Trucking Associations Inc. v. Federal Highway Administration.

In that case, the court's decision was based on the fact that off-duty

alcohol use is generally not relevant criteria in determining

eligibility for employment. In its decision, the court was interpreting

the Omnibus Transportation Employee Testing Act of 1991 (Pub. L. 102-

143), which applied to the Federal Aviation Administration, Federal

Highway Administration, Federal Railroad Administration, and the

Federal Transit Administration, but not to the Coast Guard. This case

involved preemployment testing requirements for alcohol use. This final

rule is under separate authority and does not involve the preemployment

testing of individuals for alcohol.

The Coast Guard is providing information to applicants who wish to

conduct an NDR file check for their personal use. The NDR allows

individuals to request a file check in accordance with the Federal

Privacy Act of 1974 (Pub. L. 93-579). New sections 10.201(i)(4) and

12.02-4(d)(4) describe the procedures to follow to receive the results

of a NDR file check. The information in a personal NDR file check is

intended for use by the applicant only, and may not be used in the

licensing and certification process.

The Coast Guard concluded the term ``NDR listed convictions''

needed further clarification. The final rule adds a definition for

``NDR listed convictions'' to its list of definitions in Sec. 10.103

and Sec. 12.01-6. The new definition will reflect the convictions in 49

U.S.C. 30304(a)(3)(A) and (B) which are authorized by the National

Highway Safety Transportation Administration to be used by the Coast

Guard to evaluate applicants for merchant mariner's documents.

In the NPRM, Sec. 10.201(b) and Sec. 12.02-4(a) did not discuss

individuals with NDR convictions due to the addiction or abuse of

alcohol. The Coast Guard added a statement to Sec. 10.201(b) and

Sec. 12.02-4(a) to ensure individuals with such NDR convictions furnish

satisfactory evidence of suitability for service in the merchant

mariner to be eligible for a license, COR, or a merchant mariner's

document.

4. Past Offenses

Several comments recommended implementing these regulations in a

prospective manner, where the Coast Guard would only consider offenses

occurring after the effective date of the regulations. These comments

stated that, in the past, many mariners have not challenged false

charges due to their work schedule and the threat of loss of

employment. The regulations allow mariners ample opportunity to provide

the OCMI with evidence of suitability for service in the merchant

marine, and to explain the circumstances of an offense. If the

application is denied, an appeal process and reconsideration are

available.

A few comments suggested that mariners would have altered their

behavior if they had prior knowledge of the effect of off-duty conduct

on employment. In the past, the Coast Guard has been conducting

criminal record review for original applications for licenses and CORs,

and under existing practice conducts a criminal record review of

original applicants for MMDs. Applicants are already accountable for

past behavior when they apply for their original documents. The Coast

Guard is expanding its requirements to include spot-checks of

individuals applying for a raise in grade of a license, COR, or MMD; an

endorsement on a MMD with a new expiration date; and a renewal of a

license, COR, or MMD. The NDR checks were created to identify vessel

personnel with motor vehicle offenses related to the use of alcohol and

drugs or the unsafe operation of a motor vehicle. The Coast Guard

determined that the certification and licensing of persons involved

with the abuse of these substances or the unsafe operation of a motor

vehicle may lead to unsafe vessel operations.

Some comments discussed the Coast Guard's consideration of charges

against mariners that have been stricken from the record through

remediation or compensation and how this defeats public policy and

discourages individuals from participating in remediation or

compensation. As stated in the definition of ``conviction'' provided in

this final rule, a later expungement of the conviction will not negate

a conviction unless it is proved to the OCMI that the expungement is

based upon a showing that the court's earlier conviction was in error.

The Coast Guard concluded that consideration of all convictions is

[[Page 65481]]

important to determining the character and habits of life of applicants

for merchant mariner's credentials.

Four comments stated that denial of credentials on the grounds of a

past offense is punishing an individual twice for the same offense, and

for this reason the final rule is unconstitutional. The Coast Guard

disagrees. Merchant mariner's credentials are certificates of

qualification that authorize individuals to perform certain duties on a

vessel. In the interest of marine safety, the Coast Guard examines

applicants to determine their suitability to hold merchant marine

credentials. Past offenses are a good indicator of whether a person is

a possible threat to the safety of ship operation, personnel, the

marine environment, or passengers. Basing the decision of whether to

grant a merchant mariner's credentials on the factors articulated in

this rule is not punishment of those whose applications are denied. It

is instead a reasonable way to protect life and property at sea.

The Coast Guard added the statement, ``Applicants must provide

written disclosure for all prior convictions at the time of

application,'' to Sec. 10.201(h) and Sec. 12.02-4(c). The sentence will

provide consistency between this final rule and the current application

procedures.

5. Assessment Periods

Five comments addressed the minimum and maximum assessment periods

for which the OCMI will consider a conviction in the evaluation of an

applicant for merchant mariner's credentials.

One comment expressed that the assessment periods appeared to be

arbitrary. The Coast Guard has reviewed three reports from the U.S.

Department of Justice, Bureau of Justice Statistics (BJS). These

reports are entitled, ``Recidivism of Prisoners Released in 1983'',

Recidivism of Felons on Probation, 1988-1989,'' and ``Recidivism of

Young Parolees''. The reports revealed high rates of rearrest for

released prisoners, felons on probation, and young parolees. Based on a

sample of State prisoners released in 1983, 62.5 percent were

rearrested for a felony or serious misdemeanor within 3 years. Using a

sample of felons sentenced to probation in 1986, a report found that 62

percent of the probationers either had a disciplinary hearing for

violating a condition of their probation or were arrested for another

felony within three years. Another BJS study, based on a sample of

young parolees between the ages of 17 and 22, found that 69 percent of

young parolees were rearrested for a serious crime within 6 years of

their release from prison. One of the reports found that of the

prisoners in the study, those with a prior arrest for a violent offense

had a greater likelihood of rearrest than other released prisoners.

Therefore, the categories of violent crimes in Tables 10.201(h) and

12.02-4(c) have longer assessment periods. The Coast Guard determined

that the assessment periods, as published in the NPRM, are a sufficient

guideline for the OCMI to consider the convictions of applicants. The

assessment periods take into account both recidivism of the categories

of crimes and the consequences of their occurrence.

Several comments suggested reducing the length of the assessment

periods and including supervised parole or probation as part of the

assessment periods. The Coast Guard established the assessment periods

as guidelines for the OCMI when evaluating an applicant with criminal

convictions. The assessment periods do not prevent an individual from

applying before the minimum assessment period has elapsed or between

minimum and maximum assessment periods.

A person who applies before the minimum time period has elapsed

must provide the OCMI with evidence of suitability for maritime

employment. This final rule provides a list of factors in

Sec. 10.201(j) and Sec. 12.02-4(e) for the OCMI to use as a guide in

considering an applicant before the minimum assessment period has

elapsed.

The applicant may also apply for merchant mariner's credentials

between the minimum and maximum assessment periods. During this period,

the Coast Guard will issue a license, COR, or MMD to the applicant

unless there are offsetting factors. Type of offsetting factors are

listed in Sec. 10.201(h)(5) and Sec. 12.02-4(c)(5).

After further review, the Coast Guard determined that the OCMI

would benefit from examining periods of supervised probation and parole

as part of the assessment periods. Periods of supervised probation and

parole, like periods of unsupervised probation and parole, allow

individuals to adjust to civilian life. Therefore, the OCMI may include

periods of probation and parole in the assessment periods with a letter

of recommendation from a parole or probation officer. The Coast Guard

also revised Sec. 10.201(h)(2) and Sec. 12.02-4(c)(2) to clarify when

the assessment period commences.

One comment objected to the evaluating factor in Secs. 10.201(j)

and 12.02-4(e) concerning membership in a rehabilitation group. The

comment noted that many of these groups are anonymous and information

on membership and attendance is usually confidential or nonexistent.

The Coast Guard will accept as proof of active membership a broad range

of items, such as a letter from a counselor, or the signature or stamp

of a secretary from the group an individual is attending.

6. Direct and Indirect Benefits

Three comments recommended supporting the benefit analysis in the

NPRM with statistical data. The Coast Guard stated in the NPRM that the

direct and societal benefits from this final rule are not quantifiable.

Historical data are insufficient to perform an analysis of benefits.

The Coast Guard concluded that even if maritime accidents are reduced

by a small percentage, savings will accrue to the maritime industry

through lower repair and medical costs and to the public through

environmental protection.

7. Additional Comments and Changes

Another comment suggested that the OCMI consider dangerous drug

offenses more than ten years prior to the application for a license,

COR, or MMD if there are subsequent dangerous drug offenses. The Coast

Guard determined that consideration of dangerous drug convictions

occurring ten years before application combined with subsequent

violations are helpful in establishing a behavior pattern. The Coast

Guard is amending Sec. 10.201(h)(2) and Sec. 12.02-4(c)(2) to include

dangerous drug convictions occurring more than 10 years prior to the

date of application if an individual has subsequent violations. Tables

10.201(h) and 12.02-4(c) were also amended to reflect the consideration

of dangerous drug offenses more than 10 years old if there are

subsequent dangerous drug offenses.

The Coast Guard determined that some NDR convictions could also be

criminal convictions. When deciding on an appropriate assessment

period, the OCMI should be able to use the guidelines found in the

criminal conviction table and the NDR conviction table. Therefore,

Sec. 10.201(h)(3) and Sec. 12.02-4(c)(3) were revised to add Table

10.201(i) and Table 12.02-4(d), respectively. Also, Sec. 10.201(i) and

Sec. 12.02-4(d) were revised to allow the OCMI to use criminal

conviction assessment period guidelines where appropriate.

The Coast Guard revised Tables 10.201(i) and 12.02-4(d) to clarify

the assessment period for 2 or more motor vehicle convictions. The

phrase ``which ever is longer'' was deleted from the assessment period

of applicants for merchant mariner's documents, licenses, and

certificates of registry with

[[Page 65482]]

2 or more motor vehicle convictions involving dangerous drugs or

alcohol.

The Coast Guard revised Sec. 10.201(j) and Sec. 12.02-4(e) to

include applicants who are users of, or addicted to dangerous drugs.

This revision was made to ensure consistency with Sec. 10.201(b) and

Sec. 12.02-4(e).

The other comments received were general in nature and supported

this Coast Guard rulemaking.

Regulatory Evaluation

This final rule is not a significant regulatory action under

section 3(f) of Executive Order 12866 and does not require an

assessment of potential costs and benefits under section 6(a)(3) of

that order. It has not been reviewed by the Office of Management and

Budget under that order. It is not significant under the regulatory

policies and procedures of the Department of Transportation (DOT) (44

FR 11040; February 26, 1979).

A final Regulatory Evaluation under paragraph 10e of the regulatory

policies and procedures of DOT has been prepared and is available in

the docket for inspection or copying where indicated under ADDRESSES.

The Evaluation is summarized as follows.

1. Criminal Record Review

Coast Guard costs attributable to implementing the provisions

authorizing the criminal record review of applicants for licenses,

CORs, and MMDs in sections 4101(a) and 4102(e) of OPA 90 will be

incurred by the RECs and Coast Guard Headquarters. These costs are

associated with reviewing and processing the criminal record review

data through the Federal Bureau of Investigation (FBI). The REC will

assume the primary responsibility for the final review of the criminal

record report received from the FBI.

Because current Coast Guard regulations and practices require all

applicants for the original issuance of licenses, CORs, or MMDs to

submit to criminal record reviews by the taking of fingerprints, these

costs are not newly incurred as a result of this rulemaking, and

therefore, are not included in this regulatory assessment. The costs

associated with the requirements for criminal record reviews apply only

to a raise in grade of a license or COR; an endorsement on an MMD with

a new expiration date; or renewal of a license, COR, or MMD. The Coast

Guard plans to spot-check the criminal records of individuals applying

for these merchant mariner credentials. For the purpose of estimating

costs, the Coast Guard has assumed that 1 of every 30 of these

applicants will be spot-checked.

Approximately 10,881 licenses are expected to be renewed each year.

An estimated 363 (10,881/30) spot criminal record checks will be

performed on these applicants.

Approximately 18,000 MMDs are expected to be renewed each year. An

estimated 600 (18,000/30) spot criminal record checks will be done on

these applicants.

Approximately 300 CORs are expected to be renewed each year. An

estimated 10 (300/30) spot criminal record checks will be performed on

these applicants.

Approximately 3,740 raises of grade for license and COR

endorsements are expected to be issued each year. An estimated 125

(3,740/30) spot criminal record checks will be performed on these

applicants.

Approximatley 4,025 supplemental MMD endorsements are issued each

year. An estimated 134 (4,025/30) spot criminal record checks will be

done on these applicants.

The total number of spot criminal record checks will amount to

approximately 1,232 (See Table I.).

Table I

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

Type of action No. applicants No. checked

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

License Renewal................... 10,881 363

MMD Renewals...................... 18,000 600

COR Renewals...................... 300 10

Raise of grade (licenses) and

higher grade of COR.............. 3,740 125

Supplemental endorsements (MMDs).. 4,025 134

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

Total Number of Spot Criminal

Record Checks................ ................. 1,232

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

It will cost the Coast Guard approximately $17 per criminal record

check to process the fingerprints through the FBI for an estimated

annual cost of $20,944.

Based on a sample survey of the REC's experience with criminal

records conducted by the Coast Guard in 1992, 8 percent of the

applicants are estimated to have records with the FBI. Of those with

records, it is estimated that 9 percent have records significant to the

application evaluation. Thus, only 0.72 percent of the applicants had

actionable convictions on their records. Therefore, of the reissue and

renewal applicants sampled, it is estimated that 99 will have records

with the FBI, and a total of 9 of the 1,232 applicants will have

records significant to the license evaluation. The Coast Guard

estimates that the costs for the 99 applicants with convictions to

furnish the necessary documents to exonerate themselves will be

minimal. Costs are expected to total approximately $19 per court record

for aggregate annual applicant costs of approximately $1,900.

The Coast Guard estimates that 75 percent, or 924, of the spot-

checked applicants for a raise in grade of a license or COR, a renewal

of a license or COR, or any MMD with a new expiration date will apply

by mail. For those 924 applicants, the estimated costs include the time

for the applicant to go to his or her local police department, submit

to fingerprinting, and return to his or her residence. The Coast Guard

estimates that this would take approximately 1.5 hrs. of the

applicant's time. Total respondent costs are estimated to be $22,700.

Twenty-five percent, or 308, of the spot-checked applicants are

expected to choose to go to an REC to conduct their renewal

transactions. For those 308 applicants, additional costs attributed to

the criminal record check will be insignificant.

2. National Driver Register Access

The Coast Guard estimates that it will conduct 57,435 NDR checks

annually for all individuals applying for the original issuance,

renewal, or endorsement with a new expiration date of merchant

mariner's credentials. The Coast Guard's costs for NDR checks involve

providing an interface with the NDR computer and clerical resources to

process record checks and notifications to applicants with NDR records.

These costs are estimated to be $120,000 annually, with the potential

for substantial reduction in cost if direct

[[Page 65483]]

access to the NDR data by the RECs is authorized. The RECs will write

letters to those applicants who have a probable identification (hit),

and review any associated court records as forwarded by applicants.

The Coast Guard estimates that initial computer hardware and

software and necessary connection to the NDR will be under $20,000. The

Coast Guard estimates the annual cost of a dedicated telephone line

from Coast Guard Headquarters to the Commonwealth of Virginia will be

$12,000 ($6/hr. x 8 hrs./day x 250 days/yr.). The initial annual Coast

Guard REC costs are estimated to be $58,354 (57,435 checks x 0.05 hr./

check x /$20/hr. for a clerical employee, plus $0.32/stamp x 2,872

hits). Initially, the Coast Guard will dedicate one full-time clerical

employee at Coast Guard Headquarters to forward data to the

Commonwealth of Virginia for processing. This cost is estimated to be

$40,000 ($20/hr. for a clerical employee x 8 hrs./day x 250 days).

Therefore, the initial annual Coast Guard cost associated with the

National Driver Register portion of the rule is estimated to total

approximately $111,400.

Annual respondent costs associated with NDR checks include the time

to fill out the NDR consent form which is considered to be

insignificant. In 50 percent of the 2,872 hits, or 1,436 cases,

applicants will have clean driving records and the OCMI will issue

their merchant mariner's credentials without further expense. For the

other 50 percent of applicants, or 1,436, costs are expected to be less

than $20.00 per court record submitted to the Coast Guard for estimated

annual respondent costs of $26,700.

The dollar value of direct and societal benefits flowing from spot-

checking applicants' criminal records and from reviewing applicants'

NDR records are not quantifiable but may be substantial.

The Coast Guard anticipates that, as a result of this rule, a

number of applicants will be identified, based upon their criminal

record or adverse driving record, whose conduct indicates that they

should not be trusted to safely perform shipboard duties. Those

applicants will not be granted merchant mariner credentials.

Direct benefits would include the potential for--

Fewer margin groundings and other accidents;

Reduced property loss;

Fewer releases of oil and hazardous materials into the

marine environment; and

Fewer injuries and reduced loss of life among merchant

mariners and other seagoing personnel.

The Coast Guard also anticipates several indirect benefits. Within

the community of applicants for merchant mariner's credentials,

knowledge of the Coast Guard's enhanced periodic record-checking

program may dissuade recidivism among merchant mariners with past

criminal, or serious traffic records. The program may also discourage

some convicted criminals, users of dangerous drugs, and serious traffic

offenders from seeking new credentials or renewals, and may also

encourage some applicants who are convicted criminals or users of

dangerous drugs to truthfully complete questions that address these

issues on the applications forms. Users of dangerous drugs in the U.S.

merchant marine may be encouraged to seek counseling and treatment

before incurring a criminal record or dangerous drug history with the

FBI. In addition, merchant mariners and prospective merchant mariners

may be encouraged to maintain a satisfactory standard of personal

conduct.

Historical data are insufficient to quantify benefits; however,

should this program manage to save even one line per year at $2.7

million per statistical life saved (which reflects a reasonable

estimate of people's presumed willingness-to-pay for safety), its

benefits would exceed its costs. If maritime accidents were reduced

even by a small percentage, savings would accrue to the maritime

industry through lower repair and medical costs and to the public

through environmental protection.

Small Entities

The costs to small entities will not be significant because the

costs of spot-checking applicants' criminal records and reviewing NDR

records will be borne by the Coast Guard. The Coast Guard expects the

impact of this regulation on small entities to be minimal. Therefore,

the Coast Guard certifies under section 605(b) of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.) that this rule will not have a

significant economic impact on a substantial number of small entities.

Collection of Information

This rule contains collection-of-information requirements. The

Coast Guard has submitted the requirements to the office of Management

and Budget (OMB) for review under section 3504(h) of the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.), and OMB has approved them. The

section numbers are Secs. 10.201, 10.205, 10.207, 10.209, 10.805,

12.02-4, and 12.02-9. The corresponding OMB number is OMB Control

Number 2115-0514.

Federalism

The Coast Guard has analyzed these regulations under the principles

and criteria contained in Executive Order 12612 and has determined that

this rule does not have sufficient federalism implications to warrant

the preparation of a Federalism Assessment.

Environment

The Coast Guard considered the environmental impact of this rule

and concluded that, under paragraph 2.B.2 of Commandant Instruction

M16475.1B, the regulations are categorically excluded from further

environmental documentation. Paragraph 2.B.2 of that instruction

excludes administrative actions and procedural regulations and policies

which clearly do not have any environmental impact. A ``Categorical

Exclusion Determination'' is available in the docket for inspection or

copying where indicated under ADDRESSES.

List of Subjects

46 CFR Part 10

Fees, Reporting and recordkeeping requirements, Schools, Seamen.

46 CFR Part 12

Fees, Reporting and recordkeeping requirements, Seamen.

For the reasons set out in the preamble, the Coast Guard amends 46

CFR parts 10 and 12 as follows:

PART 10--LICENSING OF MARITIME PERSONNEL

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

follows:

Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7101,

7106, 7107, 7109, 7302, 7505, 7701; 49 CFR 1.46. Section 10.107 also

issued under 44 U.S.C. 3507.

2. In Sec. 10.103, the definitions of ``conviction,'' ``National

Driver Register,'' and ``NDR listed convictions'' are added to read as

follows:

Sec. 10.103 Definitions of terms used in this part.

* * * * *

Conviction means the applicant for a license or certificate of

registry has been found guilty by judgment or plea by a court of record

of the United States, the District of Columbia or any State or

territory of the United States of a criminal felony or misdemeanor or

of an offense described in section 205 of the National Driver Register

Act of 1982 (49 U.S.C. 30304). Conviction of more than

[[Page 65484]]

one offense at a single trial will be considered to be multiple

convictions. If an applicant pleads guilty or no contest, is granted

deferred adjudication, or is required by the court to attend classes,

make contributions of time or money, receive treatment, submit to any

manner of probation or supervision, or forego appeal of a trial court's

conviction, then the applicant will be considered to have received a

conviction. A later expungement of the conviction will not negate a

conviction unless it is proved to the OCMI that the expungement is

based upon a showing that the court's earlier conviction was in error.

* * * * *

National Driver Register (NDR) means the nationwide repository of

information on drivers maintained by the National Highway Traffic

Safety Administration as provided under 49 U.S.C. Chapter 303.

NDR listed convictions means a conviction of any of the following

motor vehicle-related offenses or comparable offenses:

(a) Operating a motor vehicle while under the influence of, or

impaired by, alcohol or a controlled substance; or

(b) A traffic violation arising in connection with a fatal traffic

accident, reckless driving, or racing on the highways.

* * * * *

3. In Sec. 10.201, paragraph (b) is revised and paragraphs (h),

(i), and (j) are added to read as follows:

Sec. 10.201 Eligibility for licenses and certificates of registry,

general.

* * * * *

(b) No person who has been convicted by a court of record of a

violation of the dangerous drug laws of the United States, the District

of Columbia, or any State or territory of the United States is eligible

for a license or certificate of registry, except as provided by the

provisions of paragraph (h) of this section. No person who has ever

been the user of, or addicted to the use of, a dangerous drug, or has

ever been convicted of an offense described in section 205 of the

National Driver Register Act of 1982 (49 U.S.C. 30304) due to the

addiction or abuse of alcohol is eligible for a license or certificate

of registry unless he or she furnishes satisfactory evidence of

suitability for service in the merchant marine as provided in paragraph

(j) of this section.

* * * * *

(h) Criminal Record Review. The OCMI may review the criminal record

of an applicant for the issuance of a license or certificate of

registry issued as an original or reissued with a new expiration date.

An applicant conducting simultaneous merchant mariner's credential

transactions shall undergo only one criminal record check. Applicants

must provide written disclosure of all prior convictions at the time of

application.

(1) If the applicant is advised that a criminal record check is

required by the OCMI, applicants shall provide their fingerprints at

the time of application. The fingerprints will be used to determine

whether the applicant has a record of a criminal conviction. An

application may be disapproved if a criminal record review leads the

OCMI to determine that the applicant's habits of life and character are

such that the applicant cannot be entrusted with the duties and

responsibilities of the license or certificate of registry for which

application is made. If an application is disapproved, the OCMI will

notify the applicant in writing of the reason(s) for disapproval and

advise the applicant that the reconsideration and appeal procedures in

Sec. 1.03 of this chapter apply. No examination will be given pending

decision on appeal.

(2) The OCMI may use Table 10.201(h) to evaluate applicants for

licenses and certificates of registry who have criminal convictions.

The table lists major categories of criminal activity and is not to be

construed as an all-inclusive list. If an applicant is convicted of an

offense that does not appear on the list, the OCMI will establish an

appropriate assessment period using the list as a guide. The assessment

period commences when an applicant is no longer incarcerated. The

applicant must establish proof of the time incarcerated and periods of

probation and parole to the satisfaction of the OCMI. The assessment

period may include supervised or unsupervised probation or parole. A

conviction for a drug offense more than 10 years prior to the date of

application will not alone be grounds for denial.

(3) When an applicant has convictions for more than one offense,

the minimum assessment period will be the longest minimum in Table

10.201(h) and Table 10.201(i) based upon the applicant's convictions;

the maximum assessment period will be the longest shown in Table

10.201(h) and Table 10.201(i) based upon the applicant's convictions.

(4) If a person with a criminal conviction applies for a license or

certificate of registry before the minimum assessment period shown in

Table 10.201(h), or established by the OCMI under paragraph (h)(2) of

this section has elapsed, then the applicant must provide evidence of

suitability for service in the merchant marine. Factors which are

evidence of suitability for service in the merchant marine are listed

in paragraph (j) of this section. The OCMI will consider the

applicant's evidence and may issue the license or certificate of

registry in less than the listed minimum assessment period if the OCMI

is satisfied that the applicant is suitable to hold the license or

certificate of registry for which he or she has applied. If an

applicant does not provide evidence of suitability for service in the

merchant marine, then the application will be considered incomplete and

will not be processed by the OCMI.

(5) If a person with a criminal conviction applies for a license or

certificate of registry during the time between the minimum and maximum

assessment periods shown in Table 10.201(h) or established by the OCMI

under paragraph (h)(2) of this section, the OCMI will consider the

conviction and, unless there are offsetting factors, may grant the

applicant the license or certificate of registry for which he or she

has applied. Offsetting factors include multiple convictions, failure

to comply with court orders (e.g., child support orders), previous

failures at rehabilitation or reform, inability to maintain steady

employment, or any connection between the crime and the safe operation

of a vessel. If the OCMI considers the applicant unsuitable for service

in the merchant marine at the time of application, the OCMI will

disapprove the application.

(6) If a person with a criminal conviction applies for a license or

certificate of registry after the maximum assessment period shown in

Table 10.201(h) or established by the OCMI under paragraph (h)(2) of

this section has elapsed, then the OCMI will grant the applicant the

license or certificate of registry for which he or she has applied

unless the OCMI has reason to believe the applicant is still unsuitable

for service in the merchant marine. If the OCMI disapproves an

application based upon a conviction older than the maximum assessment

period, the OCMI will notify the applicant in writing of the reason(s)

for the disapproval. The OCMI will also inform the applicant, in

writing, that the reconsideration and appeal procedures contained in

Sec. 1.03 of this chapter apply.

[[Page 65485]]

Table 10.201(h).--Guidelines for Evaluating Applicants for Licenses and Certificates of Registry Who Have

Criminal Convictions

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

Assessment periods

Crime\1\ --------------------------------------------------------------------

Minimum Maximum

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

Crimes Against Persons

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

Homicide (intentional)..................... 7 years.......................... 20 years.

Homicide (unintentional)................... 5 years.......................... 10 years.

Assault (aggravated)....................... 5 years.......................... 10 years.

Assault (simple)........................... 1 year........................... 5 years.

Sexual Assault (rape, child molestation)... 5 years.......................... 10 years.

Robbery.................................... 5 years.......................... 10 years.

Other crimes against persons \2\...........

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

Crimes Against Property

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

Burglary................................... 3 years.......................... 10 years.

Larceny (embezzlement)..................... 3 years.......................... 5 years.

Other crimes against property \2\..........

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

Vehicular Crimes

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

Conviction involving fatality.............. 1 year........................... 5 years.

Reckless Driving........................... 1 year........................... 2 years.

Racing on the Highways..................... 1 year........................... 2 years.

Other vehicular crimes \2\.................

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

Crimes Against Public Safety

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

Destruction of Property.................... 5 years.......................... 10 years.

Other crimes against public safety \2\.....

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

Crimes Involving National Security

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

Terrorism, Acts of Sabotage, Espionage and 7 years.......................... 20 years.

related offenses.

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

Criminal Violations of Environmental Laws

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

Criminal violations of environmental laws 1 year........................... 10 years.

involving improper handling of pollutants

or hazardous materials.

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

Dangerous Drug Offenses 3, 4, 5

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

Trafficking (sale, distribution, transfer). 5 years.......................... 10 years.

Dangerous drugs (Use or possession)........ 1 year........................... 10 years.

Other dangerous drug convictions \6\.......

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

\1\ Conviction of attempt, solicitation, aiding and abetting, accessory after the fact, and conspiracy to commit

the criminal conduct listed in this table carry the same minimum and maximum assessment periods provided in

the table.

\2\ Other crimes are to be reviewed by the OCMI to determine the minimum and maximum assessment periods

depending on the nature of the crime.

\3\ Applicable only to original applications for licenses or CORs. Any applicant who has ever been the user of,

or addicted to the use of, a dangerous drug shall meet the requirements of paragraph (b) of this section.

Note: Applicants for reissue of a license or COR with a new expiration date including a renewal or a raise of

grade, who have been convicted of a dangerous drug offense while holding a license or COR, may have their

applications withheld until appropriate action has been completed by the OCMI under the regulations which

appear in 46 CFR part 5 governing administrative actions against merchant mariner credentials.

\4\ The OCMI may consider dangerous drug convictions more than 10 years old only if there has been a dangerous

drug conviction within the past 10 years.

\5\ Applicants must demonstrate rehabilitation under paragraph (j) of this section, including applicants with

dangerous drug use convictions more than ten years old.

\6\ Other dangerous drug convictions are to be reviewed by the Officer in Charge, Marine Inspection on a case by

case basis to determine the appropriate assessment periods depending on the nature of the offense.

(i) National Driver Register. A license or certificate of registry

will not be issued as an original or reissued with a new expiration

date unless the applicant consents to a check of the NDR for offenses

described in section 205(a)(3) (A) or (B) of the NDR Act (i.e.,

operation of a motor vehicle while under the influence of, or impaired

by, alcohol or a controlled substance; and any traffic violations

arising in connection with a fatal traffic accident, reckless driving,

or racing on the highways). The OCMI will not consider NDR listed civil

convictions that are more than 3 years old from the date of request

unless that information relates to the current suspension or revocation

of the applicant's license to operate a motor vehicle. The OCMI may

determine minimum and maximum

[[Page 65486]]

assessment periods for NDR listed criminal convictions using Table

10.201(h). An applicant conducting simultaneous merchant mariner's

credential transactions is subject to only one NDR check.

(1) Any application may be disapproved if information from the NDR

check leads the OCMI to determine that the applicant cannot be

entrusted with the duties and responsibilities of the license or

certificate of registry for which the application is made. If an

application is disapproved, the OCMI will notify the applicant in

writing of the reason(s) for disapproval and advise the application

that the appeal procedures in Sec. 1.03 of this chapter apply. No

examination will be given pending decision on appeal.

(2) Prior to disapproving an application because of information

received from the NDR, the OCMI will make the information available to

the applicant for review and written comment. The applicant may submit

records from the applicable State concerning driving record and

convictions to the Coast Guard Regional Examination Center (REC)

processing the application. The REC will hold an application with NDR

listed convictions pending the completion of the evaluation and

delivery by the individual of the underlying State records.

(3) The guidelines in Table 10.201(i) will be used by the OCMI in

evaluating applicants for licenses and certificates of registry who

have drug or alcohol related NDR listed convictions. Non-drug or

alcohol related NDR listed convictions will be evaluated by the OCMI

under Table 10.201(h) as applicable.

(4) An applicant may request an NDR file check for personal use in

accordance with the Federal Privacy Act of 1974 (Pub. L. 93-579) by

contacting the NDR at the following address: National Driver Register,

Nassif Building, 400 7th Street, SW., Washington, DC 20590.

(i) Applicants should request Form NDR-PRV or provide the following

information on a notarized letter:

(A) Full legal name;

(B) Other names used;

(C) Complete mailing address;

(D) Driver license number;

(E) Eye color;

(F) Social security number;

(G) Height;

(H) Weight; and

(I) Sex.

(ii) The NDR will respond to every valid inquiry including requests

which produce no record(s) on the NDR file. Records can be made

available, within a reasonable amount of time after the request, for

personal inspection and copying during regular working hours at 7:45

a.m. to 4:15 p.m., each day except Federal holidays.

Table 10.201(i).--Guidelines for Evaluating Applicants for Licenses and Certificates of Registry Who Have NDR

Motor Vehicle Convictions Involving Dangerous Drugs or Alcohol \1\

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

No. of convictions Date of conviction Assessment period

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

1................................ Less than 1 year........................... 1 year from date of conviction.

1................................ More than 1, less than 3 years............. Application will be processed,

unless suspension or revocation

\2\ is still in effect.

Applicant will be advised that

additional conviction(s) may

jeopardize merchant mariner

credentials.

1................................ More than 3 years old...................... Not necessary unless suspension

or revocation is still in

effect.

2 or more........................ Any less than 3 years old.................. 1 year since last conviction and

at least 3 years from 2nd most

recent conviction, unless

suspension or revocation is

still in effect.

2 or more........................ All more than 3 years old.................. Application will be processed

unless suspension or revocation

is still in effect.

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

\1\ Any applicant who has ever been the user of, or addicted to the use of, a dangerous drug shall meet the

requirements of paragraph (b) of this section.

\2\ Suspension or revocation, when referred to in Table 10.201(i), means a State suspension or revocation of a

motor vehicle operator's license.

(j) If an applicant has one or more alcohol or dangerous drug

related criminal or NDR listed convictions; if the applicant has ever

been the user of, or addicted to the use of, a dangerous drug; or if

the applicant applies before the minimum assessment period for his or

her conviction has elapsed; the OCMI may consider the following

factors, as applicable, in assessing the applicant's suitability to

hold a license or certificate of registry. This list is intended as a

guide for the OCMI. The OCMI may consider other factors which he or she

judges appropriate to a particular applicant, such as:

(1) Proof of completion of an accredited alcohol- or drug-abuse

rehabilitation program.

(2) Active membership in a rehabilitation or counseling group, such

as Alcoholics Anonymous or Narcotics Anonymous.

(3) Character references from persons who can attest to the

applicant's sobriety, reliability, and suitability for employment in

the merchant marine including parole or probation officers.

(4) Steady employment.

(5) Successful completion of all conditions of parole or probation.

4. In Sec. 10.205, paragraph (f)(2) is revised and paragraph (k) is

added to read as follows:

Sec. 10.205 Requriements for original licensees and certificates of

registry.

* * * * *

(f) * * *

(1) * * *

(2) The OCMI may review the criminal record check of each applicant

for an original license or certificate of registry according to the

procedures set forth in Sec. 10.201(h).

* * * * *

(k) National Driver Register. Each applicant for an original

license or certificate of registry shall consent to an NDR check under

Sec. 10.201(i).

5. In Sec. 10.207, paragraphs (h) and (i) are added to read as

follows:

Sec. 10.207 Requirements for raise in grade of license.

* * * * *

(h) Criminal Record Review. Each applicant for a raise of grade may

be required to submit to a criminal record check under Sec. 10.201(h).

(i) National Driver Register. Each applicant for a raise of grade

of a license shall consent to an NDR check under Sec. 10.201(i) if the

license is reissued with a new expiration date.

6. In Sec. 10.209, paragraphs (i) and (j) are added to read as

follows:

Sec. 10.209 Requirements for the renewal of licenses or certificates

of registry.

* * * * *

(i) Each applicant for a renewal may be required to consent to a

criminal record check under Sec. 10.201(h).

(j) Each applicant for renewal of a license or certificate of

registry shall

[[Page 65487]]

consent to an NDR check under Sec. 10.201(i).

PART 12--CERTIFICATION OF SEAMEN

7. The authority citation for part 12 is revised to read as

follows:

Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301,

7302, 7503, 7505, 7701; 49 CFR 1.46.

8. In Sec. 12.01-6, the definitions of ``conviction,'' ``National

Driver Register,'' and ``NDR listed convictions'' are added to read as

follows:

Sec. 12.01-6 Definitions of terms used in this part.

* * * * *

Conviction means the applicant for a merchant mariner's document

has been found guilty by judgment or plea by a court of record of the

Untied States, the District of Columbia or any State or territory of

the United States of a criminal felony or misdemeanor or of an offense

described in section 205 of the National Driver Register Act of 1982

(49 U.S.C. 30304). If an applicant pleads guilty or no contest, is

granted deferred adjudication, or is required by the court to attend

classes, make contributions of time or money, receive treatment, submit

to any manner of probation or supervision, or forego appeal of a trial

court's conviction, then the applicant will be considered to have

received a conviction. A later expungement of the conviction will not

negate a conviction unless it is proved to the OCMI that the

expungement is based upon a showing that the court's earlier conviction

was in error.

* * * * *

National Driver Register (NDR) means the nationwide repository of

information on drivers maintained by the National Highway Traffic

Safety Administration as provided under 49 U.S.C. Chapter 303.

NDR listed convictions means a conviction of any of the following

motor vehicle-related offenses or comparable offenses:

(a) Operating a motor vehicle while under the influence of, or

impaired by, alcohol or a controlled substance; or

(b) A traffic violation arising in connection with a fatal traffic

accident, reckless driving, or racing on the highways.

9. In Sec. 12.02-4, paragraph (a) is revised, paragraph (b) is

removed, existing paragraph (c) is redesignated as paragraph (b), and

new paragraphs (c), (d) and (e) are added to read as follows:

Sec. 12.02-4 Basis for denial of documents.

(a) No person who has been convicted by a court of record of a

violation of the dangerous drug laws of the United States, the District

of Columbia, or any State or territory of the United States is eligible

for an original merchant mariner's document, except as provided by the

provisions of paragraph (c) of this section. No person who has ever

been the user of, or addicted to the use of, a dangerous drug, or has

ever been convicted of an offense described in section 205 of the

National Driver Register Act of 1982 (49 U.S.C. 30304) due to the

addiction or abuse of alcohol is eligible for a merchant mariner's

document unless he or she furnishes satisfactory evidence of

suitability for service in the merchant marine as provided in paragraph

(e) of this section.

* * * * *

(c) Criminal Record Review. The Officer in Charge, Marine

Inspection, may require a criminal record check of an applicant for a

merchant mariner's document issued as an original or reissued with a

new expiration date. An applicant conducting simultaneous merchant

mariner's credential transactions shall undergo only one criminal

record check. Applicants must provide written disclosure of all prior

convictions at the time of application.

(1) If a criminal record check is required by the Officer in

Charge, Marine Inspection, applicants shall provide fingerprints at the

time of application. The fingerprints will be used to determine whether

the applicant has a record of a criminal conviction. An application may

be disapproved if the individual's criminal record leads the Officer in

Charge, Marine Inspection to determine that the applicant cannot be

entrusted with the duties and responsibilities of the merchant

mariner's document for which application is made. If an application is

disapproved, the Officer in Charge, Marine Inspection will notify the

applicant in writing of the reason(s) for disapproval and advise the

applicant that the appeal procedures in Sec. 1.03 of this chapter

apply. No examination will be given pending decision on appeal.

(2) The Officer in Charge, Marine Inspection will use Table 12.02-

4(c) to evaluate applicants for merchant mariner's documents who have

criminal convictions. The table lists major categories of criminal

activity and is not to be construed as an all-inclusive list. If an

applicant is convicted of an offense that does not appear on the list,

the Officer in Charge, Marine Inspection will establish an appropriate

assessment period using the list as a guide. The assessment period

commences when an applicant is no longer incarcerated. The applicant

must establish proof of the time incarcerated and periods of probation

and parole to the satisfaction of the Officer in Charge, Marine

Inspection. The assessment period may include supervised or

unsupervised probation or parole. A conviction for a drug offense more

than 10 years prior to the date of application will not alone be

grounds for denial.

(3) When an applicant has convictions for more than one offense,

the minimum assessment period will be the longest minimum in Table

12.02-4(c) and Table 12.02-4(d) based upon the applicant's convictions;

the maximum assessment period will be the longest shown in Table 12.02-

4(c) and Table 12.02-4(d) based upon the applicant's convictions.

(4) If a person with a criminal conviction applies for a merchant

mariner's document before the minimum assessment period shown in Table

12.02-4(c), or established by the Officer in Charge, Marine Inspection

under paragraph (c)(2) of this section has elapsed, then the applicant

must provide, as part of the application package, evidence of

suitability for service in the merchant marine. Factors which are

evidence of suitability for service in the merchant marine are listed

in paragraph (e) of this section. The Officer in Charge, Marine

Inspection will consider the applicant's evidence submitted with the

application and may issue the merchant mariner's document in less than

the listed minimum assessment period if the Officer in Charge, Marine

Inspection is satisfied that the applicant is suitable to hold the

merchant mariner's document for which he or she has applied. If an

application filed before the minimum assessment period has elapsed does

not include evidence of suitability for service in the merchant marine,

then the application will be considered incomplete and will not be

processed by the Officer in Charge, Marine Inspection until the

applicant provides the necessary evidence as set forth in paragraph (e)

of this section.

(5) If a person with a criminal conviction applies for a merchant

mariner's document during the time between the minimum and maximum

assessment periods shown in Table 12.02-4(c) or established by the

Officer in Charge, Marine Inspection under paragraph (c)(2) of this

section, then the Officer in Charge, Marine Inspection shall consider

the conviction and, unless there are offsetting factors, shall grant

the applicant the merchant mariner's document for which he or she

[[Page 65488]]

has applied. Offsetting factors include such factors as multiple

convictions, failure to comply with court orders (e.g., child support

orders), previous failures at rehabilitation or reform, inability to

maintain steady employment, or any connection between the crime and the

safe operation of a vessel. If the Officer in Charge, Marine Inspection

considers the applicant unsuitable for service in the merchant marine

at the time of application, the Officer in Charge, Marine Inspection

may disapprove the application.

(6) If a person with a criminal conviction applies for a merchant

mariner's document after the maximum assessment period shown in Table

12.02-4(c) or established by the Officer in Charge, Marine Inspection

under paragraph (c)(2) of this section has elapsed, then the Officer in

Charge, Marine Inspection will grant the applicant the merchant

mariner's document for which he or she has applied unless the Officer

in Charge, Marine Inspection considers the applicant still unsuitable

for service in the merchant marine. If the Officer in Charge, Marine

Inspection disapproves an applicant with a conviction older than the

maximum assessment period listed in Table 12.02-4(c), the Officer in

Charge, Marine Inspection will notify the applicant in writing of the

reason(s) for the disapproval including the Officer in Charge, Marine

Inspection's reason(s) for considering a conviction older than the

maximum assessment period listed in Table 12.02-4(c). The Officer in

Charge, Marine Inspection will also inform the applicant, in writing,

that the reconsideration and appeal procedures contained in Sec. 1.03

of this chapter apply.

Table 12.02-4(c).--Guidelines for Evaluating Applicants for Merchant Mariner's Documents Who Have Criminal

Convictions

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

Assessment periods

Crime \1\ --------------------------------------------------------------------

Minimum Maximum

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

Crimes Against Persons

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

Homicide (intentional)..................... 7 years.......................... 20 years.

Homicide (unintentional)................... 5 years.......................... 10 years.

Assault (aggravated)....................... 5 years.......................... 10 years.

Assault (simple)........................... 1 year........................... 5 years.

Sexual Assault (rape, child molestation)... 5 years.......................... 10 years.

Other crimes against persons \2\...........

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

Vehicular Crimes

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

Conviction involving fatality.............. 1 year........................... 5 years.

Reckless Driving........................... 1 year........................... 2 years.

Racing on the Highway...................... 1 year........................... 2 years.

Other vehicular crimes \2\.................

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

Crimes Against Public Safety

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

Destruction of Property.................... 5 years.......................... 10 years.

Other crimes against public safety \2\.....

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

Crimes Involving National Security

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

Terrorism, Acts of Sabotage, Espionage and 7 years.......................... 20 years.

related offenses.

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

Dangerous Drug Offenses 3,4,5

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

Trafficking (sale, distribution, transfer). 5 years.......................... 10 years.

Dangerous drugs (Use or possession)........ 1 year........................... 10 years.

Other dangerous drug convictions \6\.......

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

\1\ Conviction of attempts, solicitations, aiding and abetting, accessory after the fact, and conspiracies to

commit the criminal conduct listed in this table carry the same minimum and maximum assessment periods

provided in the table.

\2\ Other crimes are to be reviewed by the Officer in Charge, Marine Inspection to determine the minimum and

maximum assessment periods depending on the nature of the crime.

\3\ Applicable to original applications only. Any applicant who has ever been the user of, or addicted to the

use of, a dangerous drug shall meet the requirements of paragraph (a) of this section. Note: Applicants for

reissue of a merchant mariner's document with a new expiration date including a renewal or additional

endorsement(s), who have been convicted of a dangerous drug offense while holding a merchant mariner's

document, may have their application withheld until appropriate action has been completed by the Officer in

Charge, Marine Inspection under the regulations which appear in 46 CFR part 5 governing the administrative

actions against merchant mariner credentials.

\4\ The OCMI may consider dangerous drug convictions more than 10 years old only if there has been a dangerous

drug conviction within the past 10 years.

\5\ Applicants must demonstrate rehabilitation under paragraph (e) of this section, including applicants with

dangerous drug use convictions more than ten years old.

\6\ Other dangerous drug convictions are to be reviewed by the Officer in Charge, Marine Inspection on a case by

case basis to determine the appropriate assessment period depending on the nature of the offense.

[[Page 65489]]

(d) National Driver Register. A merchant mariner's document will

not be issued or reissued with a new expiration date unless the

applicant consents to a check of the NDR for offenses described in

section 205(a)(3)(A) or (B) of the NDR Act (i.e., operation of a motor

vehicle while under the influence of, or impaired by, alcohol or a

controlled substance; and any traffic violations arising in connection

with a fatal traffic accident, reckless driving, or racing on the

highways). The Officer in Charge, Marine Inspection will not consider

NDR listed civil convictions that are more than 3 years old from the

date of request unless that information relates to the current

suspension or revocation of the applicant's license to operate a motor

vehicle. The Officer in Charge Marine Inspection may determine minimum

and maximum assessment periods for NDR listed criminal convictions

using Table 12.02-4(c). An applicant conducting simultaneous merchant

mariner's credential transactions is subject to only one NDR check.

(1) Any application may be disapproved if information from the NDR

check leads the Officer in Charge, Marine Inspection to determine that

the applicant cannot be entrusted with the duties and responsibilities

of the merchant mariner's document for which the application is made.

If an application is disapproved, the Officer in Charge, Marine

Inspection will notify the applicant in writing of the reason(s) for

disapproval and advise the applicant that the appeal procedures in

Sec. 1.03 of this chapter apply. No examination will be given or

merchant mariner's document issued pending decision on appeal.

(2) Prior to disapproving an application because of information

received from the NDR, the Officer in Charge, Marine Inspection will

make the information available to the applicant for review and written

comment. The applicant may submit reports from the applicable State

concerning driving record and convictions to the Coast Guard Regional

Examination Center (REC) processing the application. The REC will hold

an application with NDR listed convictions pending the completion of

the evaluation and delivery by the individual of the underlying State

records.

(3) The guidelines in Table 12.02-4(d) will be used by the Officer

in Charge, Marine Inspection when evaluating applicants for merchant

mariner's documents who have drug or alcohol related NDR listed

convictions. Non-drug or alcohol related NDR listed convictions will be

evaluated by the Officer in Charge, Marine Inspection under Table

12.02-4(c) as applicable.

(4) An applicant may request an NDR file check for personal use in

accordance with the Federal Privacy Act of 1974 (Pub. L. 93-579) by

contacting the NDR at the following address: National Driver Register,

Nassif Building, 400 7th Street SW., Washington, DC 20590.

(i) Applicants should request Form NDR-PRV or provide the following

information on a notarized letter:

(A) Full legal name;

(B) Other names used;

(C) Complete mailing address;

(D) Driver license number;

(E) Eye color;

(F) Social security number;

(G) Height;

(H) Weight; and

(I) Sex.

(ii) The NDR will respond to every valid inquiry including requests

which produce no record(s) on the NDR file. Records can be made

available, within a reasonable amount of time after the request, for

personal inspection and copying during regular working hours at 7:45

a.m. to 4:15 p.m., each day except Federal holidays.

Table 12.02-4(d).--Guidelines for Evaluating Applicants for Merchant Mariner's Documents Who Have NDR Motor

Vehicle Convictions Involving Dangerous Drugs or Alcohol \1\

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

No. of convictions Date of conviction Assessment period

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

1................................ Less than 1 year........................... 1 year from date of conviction.

1................................ More than 1, less than 3 years............. Application will be processed,

unless suspension, or

revocation \2\ is still in

effect. Applicant will be

advised that additional

conviction(s) may jeopardize

merchant mariner credentials.

1................................ More than 3 years old...................... Not necessary unless suspension

or revocation is still in

effect.

2 or more........................ Any less than 3 years old.................. 1 year since last conviction and

at least 3 years from 2nd most

recent conviction, unless

suspension or revocation is

still in effect.

2 or more........................ All more than 3 years old.................. Application will be processed

unless suspension or revocation

is still in effect.

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

\1\ Any applicant who has ever been the user of, or addicted to the use of, a dangerous drug shall meet the

requirements of paragraph (a) of this section.

\2\ Suspension or revocation, when referred to in Table 12.02-4(d), means a State suspension or revocation of a

motor vehicle operator's license.

(e) If an applicant for an original merchant mariner's document has

one or more alcohol or dangerous drug related criminal or NDR listed

convictions; if the applicant has ever been the user of, or addicted to

the use of, a dangerous drug; or if the applicant applies before the

minimum assessment period for his or her conviction has elapsed; the

Officer in Charge, Marine Inspection may consider the following

factors, as applicable, in assessing the applicant's suitability to

hold a merchant mariner's document. This list is intended as a

guideline. The Officer in Charge, Marine Inspection may consider other

factors which he or she judges appropriate, such as:

(1) Proof of completion of an accredited alcohol- or drug-abuse

rehabilitation program.

(2) Active membership in a rehabilitation or counseling group, such

as Alcoholics or Narcotics Anonymous.

(3) Character references from persons who can attest to the

applicant's sobriety, reliability, and suitability for employment in

the merchant marine including parole or probation officers.

(4) Steady employment.

(5) Successful completion of all conditions of parole or probation.

10. In Sec. 12.02-9, paragraphs (g) and (h) are added to read as

follows:

Sec. 12.02-9 Application for documents.

* * * * *

(g) Each applicant for an original merchant mariner's document may

be required to submit to a criminal record check as required by

Sec. 12.02-4(c).

(h) Each applicant for an original merchant mariner's document or a

merchant mariner's document reissued with a new expiration date shall

comply

[[Page 65490]]

with the NDR requirements in Sec. 12.02-4(d).

Dated: December 12, 1995.

G.N. Naccara,

Captain, U.S. Coast Guard, Acting Chief, Office of Marine Safety,

Security and Environmental Protection.

[FR Doc. 95-30677 Filed 12-18-95; 8:45 am]

BILLING CODE 4910-14-M