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

SUMMARY: The Coast Guard proposes regulations to implement the

provisions of the Oil Pollution Act of 1990 (OPA 90) that permit it 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 proposal 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 proposes 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. The proposed rulemaking will provide the Coast

Guard an opportunity to identify an applicant who has been convicted of

certain motor vehicle offenses or convicted of certain serious crimes.

DATES: Comments must be received on or before June 12, 1995.

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine

Safety Council (G-LRA/3406) (CGD 91-212), U.S. Coast Guard

Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001, or

may be delivered to room 3406 at the same address between 8 a.m. and 3

p.m., Monday through Friday, except Federal holidays. The telephone

number is (202) 267-1477. Comments on collection-of-information

requirements must be mailed also to the Office of Information and

Regulatory Affairs, Office of Management and Budget, 725 17th Street

NW., Washington, DC 20503, Attn.: Desk Officer, U.S. Coast Guard.

The Executive Secretary maintains the public docket for this

rulemaking. Comments will become part of this docket and will be

available for inspection or copying at room 3406, U.S. Coast Guard

Headquarters between 8 a.m. and 3 p.m., Monday through Friday, except

Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. James W. Cratty, Project Manager,

Oil Pollution Act (OPA 90) Staff, (202) 267-6740. This telephone

records messages on a 24-hour basis.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages interested persons to participate in

this rulemaking by submitting written data, views, or arguments.

Persons submitting comments should include their names and addresses,

identify this rulemaking (CGD 91-212) and the specific section of this

proposal to which each comment applies, and give the reason for each

comment. Please submit two copies of all documents and attachments in

an unbound format, no larger than 8 by 11 inches, suitable for copying

and electronic filing. Persons wanting acknowledgment of receipt of

comments should enclose a stamped, self-addressed postcard or envelope.

The Coast Guard will consider all comments received during the

comment period. It may change this proposal in view of the comments.

The Coast Guard plans no public meeting. Persons may request a

public meeting by writing to the Marine Safety Council at the address

under ADDRESSES. The request should include the reasons why a public

meeting would be beneficial. If the Coast Guard determines that oral

presentations will aid this rulemaking, it will hold a public meeting

at a time and place announced by a later notice in the Federal

Register.

Drafting Information

The principal persons involved in drafting this document are Mr.

James W. Cratty, Project Manager, OPA 90 Staff, and Ms. Jacqueline

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

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. Individuals with criminal records may be unsuitable candidates

for a license, COR, or MMD because they may 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 (23 U.S.C. 401 note). 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 is not directly

related to his or her maritime career, a 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.

Section 4105(b) of OPA 90 amends 23 U.S.C. 401 note, 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. [[Page 13571]]

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 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 notifies

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 may also 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 Proposed Rules

In the discussion of the proposed rules, and the proposed rules

themselves, the procedures incident to a criminal record check and

those incident to obtaining information from the National Driver

Register are treated separately. Although there are differences, the

basic structure is the same: an applicant provides the Coast Guard with

the means of searching a data base and the Coast Guard evaluates the

information received to determine whether there is reason to deny a

license, COR, or MMD to the applicant. The decision is based on the

nature of the incidents reported, the number of incidents, and when the

incident occurred. The Coast Guard is considering whether the

processing of incidents reported under both systems can be consolidated

in the final rule and welcomes comments and suggestions in this regard.

1. Criminal Record Review

Congress has provided for new requirements on all merchant mariners

in order to promote a drug and alcohol-free maritime industry. These

requirements focus on chemical testing, criminal record reviews, and

NDR checks. The Coast Guard proposes to amend 46 CFR parts 10 and 12 to

reflect its authority to review the criminal record of an individual

applying for a license, COR, or MMD. The proposed rules would continue

the existing requirements concerning criminal record checks for the

issuance of original licenses or CORs and extend them to original

issuance of MMDs.

The Coast Guard also would amend the appropriate sections of 46 CFR

part 10 and 12 to allow 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.

The Coast Guard believes that an applicant who has been convicted

of violent criminal offenses or serious property-related offenses may

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

and safe operation of the ship, and should not be given the duties and

responsibilities of a licensed officer or holder of a COR or an MMD.

Life on board a ship is unique in that the protections normally

afforded the public (i.e., law enforcement) are not as readily

available. Evidence that an applicant has criminal convictions must

[[Page 13572]] be carefully weighed by the OCMI to ensure marine

safety.

In order to provide specific guidance on who has a ``conviction,''

the Coast Guard proposes to define ``conviction'' to include a finding

of guilty by judgment or plea by a court of record in the United

States. The definition would cover convictions for criminal felonies or

misdemeanors or for offenses described in section 205 of the National

Driver Register Act of 1982 (23 U.S.C. 401 note). It would also cover

expungements, deferred adjudications, and other forms of plea

agreements. An expungement of a conviction would not be considered

unless the expungement was based upon a showing that the conviction was

in error.

The tables in Secs. 10.201(h) and 12.02-4(c) list minimum

assessment periods after various criminal convictions before which an

application will normally not be approved and the maximum periods that

a conviction will normally be considered disqualifying. The lists are

not intended to be comprehensive. They include major categories of

criminal offenses. If an applicant has been convicted of an offense

that does not appear on the list, the OCMI may establish the assessment

period depending on the nature of the crime, using the list as a guide.

Because licensed officers and individuals employed under CORs have

greater responsibilities than MMD holders, additional categories of

offenses have been included in Table 10.201(h).

An assessment period commences when an applicant with a conviction

is no longer incarcerated or under supervised parole or probation. A

period of unsupervised parole or probation would be counted as part of

the assessment period. The OCMI will consider successful completion of

all conditions of parole or probation as evidence that the applicant is

suitable for service in the merchant marine.

In all cases where the application is complete and the applicant is

required to complete an assessment period before issuance or renewal of

a merchant mariner's credential, the OCMI would notify the applicant in

writing stating the reason for denial and explaining the right to

appeal and the appeal process as provided for in Sec. 1.03 of this

chapter.

There are several purposes in establishing minimum and maximum

assessment period guidelines in these tables. The tables give

applicants specific notice that certain criminal convictions may delay

issuance of merchant mariner's credentials and the approximate length

of the delay they can expect. Following a conviction, a period of time

must elapse for the individual to demonstrate that he or she does not

present a safety risk to fellow crew and passengers while at sea. The

minimum periods, as proposed in the tables, are estimates of the time

required to permit the OCMI to determine that, despite the criminal

conviction, the applicant may now be entrusted with the duties and

responsibilities of a merchant mariner. These estimates are based upon

the nature of the criminal conviction, with longer periods required for

convictions involving violence or drugs. The nature of violent or

dangerous drug convictions are such that, for the Coast Guard to

adequately safeguard the lives and well-being of crew and passengers,

it must be reasonably confident that these types of offenses will not

occur at sea.

In addition, a merchant mariner who holds a Coast Guard issued

credential is responsible for knowing, and following, a large body of

maritime law and regulation, much of it related to safety, health or

environmental protection. Before issuing a credential, the Coast Guard

must be satisfied that an applicant will obey these laws and

regulations without direct and immediate oversight by a law enforcement

agency. It would be imprudent, in such circumstances, to issue a

credential to an applicant with a criminal record without first waiting

beyond his or her court-ordered sentence to see whether the applicant

was a trustworthy and responsible member of society absent the

constraints of the criminal justice system. Recidivism among those with

criminal convictions is a legitimate Coast Guard concern. The

assessment periods provide a basis for excluding from the merchant

marine those individuals who may have recidivist tendencies and a basis

for concluding that these tendencies do not exist.

The guidelines in the tables are also intended to promote national

uniformity of results with respect to review of criminal convictions in

the issuance of merchant mariner's credentials. The tables are designed

to provide guidance for the OCMI when he or she is faced with an

applicant who has criminal convictions. This guidance will ensure that

all applicants will be treated fairly and uniformly, regardless of

where they apply.

The minimum assessment periods listed in the tables represent the

shortest amount of time in which the applicant normally may demonstrate

that he or she is now responsible enough to be entrusted with the

duties of a merchant mariner. If a person applies before the minimum

assessment period for his or her conviction has elapsed, then the

applicant must provide, as part of the application, compelling evidence

of suitability for employment. Such evidence includes, but is not

limited to, the following: proof of completion of an alcohol- or drug-

abuse treatment or education program; active membership in a

rehabilitation or counseling group, such as Alcoholics Anonymous or

Narcotics Anonymous; character references from persons who can attest

to the applicant's sobriety, reliability, and suitability for

employment in the merchant marine; steady employment; or successful

completion of all conditions of parole or probation. Any application

submitted prior to the minimum assessment period and which does not

include such additional evidence of suitability for employment in the

merchant marine will be considered incomplete and will not be

processed.

If a person applies for a license, COR, or MMD during the time

between the minimum and maximum assessment periods, the OCMI will

consider the conviction along with other factors in determining whether

to grant the credential. Normally, a single prior conviction older than

the minimum assessment period would not be disqualifying unless the

OCMI is aware of offsetting factors. Offsetting factors include

multiple convictions, failure to comply with court orders including

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 may disapprove the application.

The maximum assessment periods in the tables will protect merchant

mariners against arbitrary imposition of unreasonably long assessment

periods. Following the maximum assessment period, the OCMI may not

normally deny granting the license, COR or MMD. However, if an OCMI

considered a prior criminal conviction older than the maximum

assessment period in disapproving an application, then the OCMI would

be required to inform the applicant, in writing, of the reasons for the

decision, including the reasons why a conviction older than the maximum

was still being considered. The OCMI would also be required to inform

the applicant of the appeal procedures that apply.

The minimum assessment period for applicants with multiple

convictions, whether at a single trial or separate trials, would be the

longest minimum from among those listed in the tables for

[[Page 13573]] the applicant's convictions. However, convictions of

multiple offenses, whether at a single trial or separate trials, may be

sufficient evidence that the applicant is not suitable for service in

the merchant marine and may lead the OCMI to deny the application after

the minimum assessment period and, in extraordinary cases, even after

the maximum period in the tables has expired.

A mariner who already holds a license, COR, or MMD and who has been

convicted of a drug offense(s) and who applies for reissue of that

credential with a new expiration date including a renewal, raise of

grade, or endorsement may have his or her application withheld. The

OCMI will then take appropriate action under the marine investigation

regulations for personnel actions which appear in 46 CFR part 5.

The Coast Guard solicits comments on the appropriateness of the

criminal offense categories and assessment periods contained in Tables

10.201(h) and 12.02-4(c). The Coast Guard also solicits comments on the

factors to be considered in determining suitability for service in the

merchant marine contained in 10.201(j) and 12.12.02-4(e).

2. National Driver Register Access

The Oil Pollution Act of 1990 (Pub. L. 101-380) amended 46 U.S.C.

7101 and 7302 to prohibit issuance of merchant mariner's credentials

unless applicants make available information from the NDR. The

conference report states: ``The purpose of this section * * * is to

ensure that the Coast Guard can identify vessel personnel with motor

vehicle offenses related to the use of alcohol and drugs. Abuse of

these substances may evince possible unsafe vessel operations, leading

to additional accidents and oil spills.'' (House Conf. Rep. No. 101-

653, p. 128). The Coast Guard proposes to amend 46 CFR parts 10 and 12

to require an applicant for a merchant mariner's credential to make

available to the Coast Guard, at the time of making an application, the

information identified in section 205(a)(3) (A) or (B) of the NDR Act

concerning his or her driving record. The applicant would be required

to submit a pre-printed written consent form to the Coast Guard along

with the application package. The OCMI would obtain checks of the NDR.

The OCMI would not issue a license, COR, or MMD until it had received

and reviewed the NDR report.

The NDR report contains basic descriptive data about an individual,

the current status of an individual's license to operate a motor

vehicle, and an indication that a State may hold records regarding

criminal or administrative action taken against an individual's license

to operate a motor vehicle. The NDR report does not describe the

substantive offense that forms the basis for a State's license action.

The information required by section 205(a)(3) (A) or (B) of the NDR

Act, in addition to covering conviction of motor vehicle offenses

involving operation of a motor vehicle under the influence of or

impaired by alcohol or a controlled substance, covers conviction of a

traffic violation arising in connection with a fatal traffic accident,

reckless driving, or racing on the highways. Each applicant will have

an opportunity to review the NDR report and verify or refute any

information in the report by obtaining appropriate State records. The

OCMI will not process any application with NDR listed convictions

unless the applicant produces the underlying State records.

The holder of a merchant mariner's credential is closely involved

with the safe operation of a vessel. Performance of many routine duties

and all emergency duties affects the safety of the vessel. Unsafe

performance of duties could produce catastrophic consequences. To help

minimize the risk of unsafe operation, the Coast Guard may exclude from

holding seafarer's credentials individuals who have demonstrated a lack

of concern regarding the safety of themselves, others, or the marine

environment. The amendments to 46 U.S.C. 7101 and 7302 reflect the

conclusion that convictions of offenses listed in section 205(a)(3) (A)

or (B) of the NDR Act may demonstrate such a lack of concern.

Therefore, the OCMI will evaluate each NDR report to determine if there

is evidence of a problem affecting the applicant's qualification to

hold a merchant mariner credential.

The OCMI would use the following guidelines to evaluate applicants

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) or Table 12.02-04(d) as applicable.

a. Single NDR Listed Conviction

An NDR check disclosing a single conviction could indicate a

recurring problem or an isolated incident. A single conviction may

reveal the early stage of a developing long-term problem or it may mean

that an individual having a well-developed problem was caught only

once. It could also indicate a single incident in which poor judgment

was exercised. In cases where a long-term problem is developing and

corrective measures are not taken, additional time may result in

subsequent convictions.

(1) Single NDR listed conviction-less than 1 year old. If the

conviction is less than 1 year old, the application may be disapproved

for a period of time sufficient to ensure that a subsequent incident

does not occur (at least 1 year from the date of the conviction).

(2) Single NDR listed conviction--more than 1 but less than 3 years

old. If the conviction is more than 1 year old, but less than 3 years

old, the application would be processed unless a suspension or

revocation of a driver's license is still in effect. If a suspension or

revocation is still in effect, the OCMI would review the conviction

resulting in that suspension or revocation before processing the

application. The OCMI would not issue the credential until satisfied

that the applicant was suitable for employment in the merchant marine.

(3) Single NDR listed conviction--more than 3 years old. If the

conviction is more than 3 years old, further evaluation would not be

necessary unless a suspension or revocation of a driver's license is

still in effect. If a suspension or revocation is still in effect, the

OCMI would review the conviction resulting in that suspension or

revocation before processing the application. The OCMI would not issue

the credential until satisfied that the applicant was suitable for

employment in the merchant marine.

b. Multiple NDR Listed Convictions

Multiple (two or more) drug or alcohol related NDR listed

convictions may indicate a problem with alcohol or with the illegal use

of drugs. They may also indicate uncontrolled dependency (alcoholism),

drug addiction, or irresponsibility and dangerous disregard for the

safety of self and others. The OCMI will not issue a merchant mariner's

credential to an applicant with multiple convictions unless the

applicant shows that he or she is now suitable for employment in the

merchant marine and has no further convictions for a period of time.

Acceptable evidence of suitability for employment in the merchant

marine include the following, as appropriate to the particular case:

completion of an alcohol or drug-abuse treatment or education program;

active membership in a rehabilitation organization such as Alcoholics

Anonymous; and character references from persons who can attest to the

length of the applicant's current period of sobriety and applicant's

reliability. [[Page 13574]]

(1) Multiple NDR listed convictions--less than 3 years old. If an

applicant has multiple convictions within the last 3 years, the

application may be denied unless it has been at least 1 year from the

date of the last conviction or at least 3 years from the date of the

second most recent conviction, whichever is longer.

(2) Multiple NDR listed convictions--more than 3 years old. For an

applicant with multiple convictions, the most recent being more than 3

years old, further evaluation would not be necessary unless a

suspension or revocation of a driver's license is still in effect. If a

suspension or revocation is still in effect, the OCMI would review the

conviction resulting in that suspension or revocation before processing

the application. The OCMI would not issue the credential until

satisfied that the applicant was suitable for employment in the

merchant marine.

Regulatory Evaluation

This proposal 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 draft 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 proposed rulemaking,

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

costs associated with the proposed requirements for criminal record

reviews apply only to a raise in grade of a license or COR; an

endorsement on a 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.

Approximately 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

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

No. No.

Type of action applicants 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 $16 per criminal record

check to process the fingerprints through the FBI for an estimated

annual cost of $19,700.

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

license evaluation. Thus, only .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 respondent 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 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 costs 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 [[Page 13575]] 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 proposed 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 marine 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.

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, dangerous drug users, and serious traffic

offenders from seeking new credentials or renewals, and may also

encourage some applicants who are convicted criminals or dangerous drug

users to truthfully complete questions that address these issues on the

application forms. Dangerous drug users 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 is insufficient to quantify benefits; however,

should this program manage to save even one life per year at $2.6

million per statistical life saved (which recent research shows is a

reasonable estimate of people's 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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard must consider whether this proposal, if adopted, will have

a significant economic impact on a substantial number of small

entities. ``Small entities'' may include (1) small businesses and not-

for-profit organizations that are independently owned and operated and

are not dominant in their fields and (2) governmental jurisdictions

with populations of less than 50,000.

Because it expects the impact of this proposal to be minimal, the

Coast Guard certifies under 5 U.S.C. 605(b) that this proposal, if

adopted, will not have a significant economic impact on a substantial

number of small entities.

Collection of Information

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the

Office of Management and Budget (OMB) reviews each proposed rule that

contains a collection-of-information requirement to determine whether

the practical value of the information is worth the burden imposed by

its collection. Collection-of-information requirements include

reporting, recordkeeping, notification, and other, similar

requirements.

1. Criminal Record Review

This proposal contains collection-of-information requirements in

the following sections: Secs. 10.201, 10.205, 10.209, 10.805, 12.02-4,

and 12.02-9. The following particulars apply:

DOT No: 2115.

OMB Control No.: 2115-0514.

Administration: U.S. Coast Guard.

Title: National Driver Register and Criminal Record Review in

Issuing Licenses, Certificates of Registry, or Merchant Mariner's

Documents.

Need for Information: OPA 90 gives the Coast Guard discretionary

authority to review the criminal record of applicants for licenses,

CORs, and MMDs. OPA 90 also gives the Coast Guard discretionary

authority to review the criminal record of applicants for reissue of

licences, CORs, or MMDs with new expiration dates, including renewals,

raises of grade, or endorsements.

Proposed use of information: An applicant who has been convicted of

a serious crime may be found unfit to serve as a merchant mariner on a

vessel for safety reasons.

Frequency of Response: Whenever a person applies for an original

license, COR, or MMD; or whenever a person applies for a raise in grade

of a license or COR; an endorsement of an MMD with a new expiration

date; or renewal of a license, COR, or MMD, and that person is selected

for a criminal record check.

Burden Estimate: The Coast Guard estimates that the cost to the

applicants would be approximately $19,700 per year for compliance with

the criminal record review requirements of the proposed rule.

Respondents: The Coast Guard will spot-check the individual

criminal records of applicants for reissue of licences, CORs, or MMDs

with new expiration dates, including renewals, raises of grade, and

endorsements. An estimated 36,946 individuals will apply for these

merchant mariner's credentials. Every 30th applicant will be screened,

which will result in a total of 1,232 criminal record spot-checks

performed.

Form(s): FBI Fingerprint Card FD-258 (Revision 12-29-82).

Average Burden Hours per Respondent: Negligible for 308 respondents

and 1.5 hrs. for 924 respondents.

2. National Driver Register Access

This proposal contains collection-of-information requirements in

the following sections: Secs. 10.201, 10.205, 10.207, 10.209, 10.805,

12.02-4, and 12.02-9. The following particulars apply:

DOT No: 2115.

OMB Control Number: 2115-0514.

Administration: U.S. Coast Guard.

Title: National Driver Register and Criminal Record Review in

Issuing [[Page 13576]] Licenses, Certificates of Registry, or Merchant

Mariner's Documents.

Need for Information: OPA 90 requires that the Coast Guard not

issue a license, COR, or MMD to an applicant unless that individual

makes available to the Coast Guard any information contained in the

NDR. Information contained in the NDR may indicate that an individual

is not suitable for employment in the merchant marine. This information

must be made available to the applicant for review and written comment

before the Coast Guard uses the information as a basis for denying,

suspending, revoking, or taking other action against an individual's

license, COR, or MMD.

Proposed Use of Information: The Coast Guard will use the

information in the NDR to assist it in determining whether an applicant

is suitable for maritime employment. Although an individual's motor

vehicle record is not directly related to his or her maritime career, a

record of alcohol or drug-related, or other specified motor vehicle

offenses 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.

Frequency of Response: When an applicant applies for the original

issuance or renewal of a license, COR, or MMD or raise in grade or

endorsement of a license, COR, or MMD.

Burden Estimate: The Coast Guard estimates that costs to

individuals and industry will be negligible. The Coast Guard expects to

ask approximately 1,400 individuals to furnish court records to the

Coast Guard for an estimated cost of $26,700.

Respondents: The Coast Guard estimates that 57,435 merchant

mariners will be affected annually by this rulemaking.

Form(s): NDR Consent and Authorization Form.

Average Burden Hours Per Respondent: Negligible for initial check;

0.5 hrs. for persons with probable identifications.

The Coast Guard has submitted the requirement to OMB for review

under section 3504(h) of the Paperwork Reduction Act. Persons

submitting comments on the requirement should submit their comments

both to OMB and to the Coast Guard where indicated under ADDRESSES.

Federalism

The Coast Guard has analyzed this proposal under the principles and

criteria contained in Executive Order 12612 and has determined that

this proposal does not have sufficient federalism implications to

warrant the preparation of a Federalism Assessment.

Environment

The Coast Guard considered the environmental impact of this

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

Instruction M16475.1B, this proposal is categorically excluded from

further environmental documentation. Paragraph 2.B.2.l 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 proposes

to amend 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'' and ``National

Driver Register,'' 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 (23 U.S.C. 401 note). Conviction of more than 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 finding,

then the applicant will be considered to have received a conviction. A

later expungement of the conviction will not be considered unless it is

proved 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 23 U.S.C. 401 note.

* * * * *

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 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.

(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 [[Page 13577]] apply. No examination will be

given pending decision on appeal.

(2) The guidelines in Table 10.201(h) will be used by the OCMI in

evaluating 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. Time incarcerated or on supervised probation or parole will

not be considered as part of the assessment period. Convictions for

drug offenses more than 10 years prior to the date of application will

not be considered.

(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) based upon the applicant's convictions; the maximum

assessment period will be the longest shown in Table 10.201(h) 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 including 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 may

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.

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

molestation).

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\

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

[[Page 13578]]

Crimes Involving National Security

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

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

Espionage and related offenses.

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

Criminal Violations of Environmental Laws

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

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

laws involving improper handling of

pollutants or hazardous materials.

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

Dangerous Drug Offenses34

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

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

transfer).

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

Other dangerous drug convictions\5\

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

\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 assessment period shall not exceed 10 years from the date of

conviction.

\5\Other dangerous drug convictions are to be reviewed by the OCMI 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 information

that is more than 3 years old unless that information relates to the

current suspension or revocation of the applicant's license to operate

a motor vehicle. 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 applicant 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 not process any application

with NDR listed convictions unless the applicant produces 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.

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\

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

Number 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 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 (whichever is longer), 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.

[[Page 13579]]

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

related criminal or NDR listed convictions, 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.

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

education 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.

(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 Requirements for original licenses and certificates of

registry.

* * * * *

(f) * * *

(1) * * *

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

applicant for an original license or certificate of registry according

to the procedures set forth in 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 of 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 in 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 and 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 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'' and

``National Driver Register'' 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

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

(23 U.S.C. 401 note). 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 finding, then the applicant will be considered to have received a

conviction. A later expungement of the conviction will not be

considered unless it is proved 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 23 U.S.C. 401 note.

* * * * *

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

removed, 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 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.

(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 guidelines in Table 12.02-4(c) will be used by the Officer

in Charge, Marine Inspection in evaluating 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. Time incarcerated or on supervised probation or parole will not

be considered as part of the assessment period. Convictions for drug

offenses more than 10 years prior to the date of application will not

be considered.

(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) based upon the applicant's convictions; the maximum

assessment period will be the longest shown in Table 12.02-4(c) based

upon the applicant's convictions.

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

[[Page 13580]] 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 has

applied. Offsetting factors include such factors as multiple

convictions, failure to comply with court orders including 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 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 5 years........... 10 years.

molestation).

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, 7 years........... 20 years.

Espionage and related offenses.

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

Dangerous Drug Offenses34

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

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

transfer).

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

Other dangerous drug convictions\5\

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

\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.

[[Page 13581]]

\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 assessment period shall not exceed 10 years from the date of

conviction.

\5\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.

(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 information that is more than 3 years old unless that information

relates to the current suspension or revocation of the applicant's

license to operate a motor vehicle. 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 not

process any application with NDR listed convictions unless the

applicant produces 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.

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\

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

Number 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 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 (whichever is longer), 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.

(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, 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.

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

education 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.

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

[[Page 13582]] Dated: March 6, 1995.

J.C. Card,

Rear Admiral, U.S. Coast Guard Chief, Office of Marine Safety, Security

and Environmental Protection.

[FR Doc. 95-6033 Filed 3-10-95; 8:45 am]

BILLING CODE 4910-14-P