[Federal Register Volume 62, Number 23 (Tuesday, February 4, 1997)]
[Rules and Regulations]
[Pages 5158-5160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2746]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 349

[Docket No. R 169]
RIN 2133-AB28


Reemployment Rights of Certain Merchant Seamen

AGENCY: Maritime Administration, Department of Transportation.

ACTION: Final rule.

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SUMMARY: The Maritime Administration (MARAD) is issuing this procedural 
rule to implement provisions of the Maritime Security Act of 1996. 
These provisions amend the Merchant Marine Act, 1936, to grant 
reemployment rights and other benefits to certain merchant seamen 
serving on vessels used by the United States for a war, armed conflict, 
national emergency or maritime mobilization need. This rule establishes 
the procedure for obtaining the necessary MARAD certification for 
reemployment rights and other benefits conferred by statute and its 
assistance in pursuing these statutory rights and benefits.

EFFECTIVE DATE: This final rule is effective February 6, 1997.

FOR FURTHER INFORMATION CONTACT: Christopher E. Krusa, Maritime 
Training Specialist, Maritime Administration, MAR-250, Room 7302, 400 
Seventh Street, SW, Washington, DC 20590-0001, tel. (202) 366-2648.

SUPPLEMENTARY INFORMATION: Section 2 of Pub. L. 104-239, the Maritime 
Security Act of 1996 (MSA), enacted on October 8, 1996, in amending 
Title VI of the Merchant Marine Act, 1936 (Act), 46 App. U.S.C. 1171 et 
seq., directs the Secretary of Transportation to establish a Maritime 
Security Program (MSP). The MSP will provide, over a period of ten 
years, financial assistance for the commercial operation of militarily 
useful vessels in the foreign commerce of the United States, employing 
U.S. citizen crews. Pursuant to contract, participating vessel 
operators are required to make their ships and other commercial 
transportation resources available to the Government during time of war 
or national emergency. Section 10 of the MSA also amends Title III of 
the Act, 46 App. U.S.C. 1131, to provide ``reemployment rights and 
other benefits'' for certain merchant seamen who have been certified'' 
by the Secretary of Transportation.
    In order to receive certification, those merchant seamen must 
submit an application not later than 45 days following completion of 
employment in the activation or operation of a vessel used by the 
United States for a ``war, armed conflict, national emergency, or 
maritime mobilization need (including for training purposes or testing 
for readiness and suitability for mission performance).'' The MSA 
provides that the reemployment rights and other benefits shall be 
``substantially equivalent to the rights and benefits provided for by 
chapter 43 of Title 38, United States Code, for any member of the Armed 
Forces of the United States who is ordered to active duty.'' The 
Secretary has delegated this certification authority to the Maritime 
Administrator (61 FR 64029; Dec. 3, 1996).
    Section 10 of the MSA requires the Secretary to issue regulations 
implementing this section not later than 120 days after its enactment. 
Accordingly, pursuant to delegation of this authority by the Secretary 
to the Maritime Administrator, MARAD is issuing this final rule to 
establish the procedure for obtaining MARAD certification and to 
provide for MARAD administrative assistance to merchant seamen alleging 
denial of their statutory rights to reemployment and other benefits.

Rulemaking Analysis and Notices

Executive Order 12866 (Regulatory Planning and Review; Department of 
Transportation (DOT) Regulatory Policies and Procedures; Pub. L. 104-
121

    This procedural rulemaking is not considered to be an economically 
significant regulatory action under E.O. 12866, and is also not 
considered a major rule for purposes of Congressional review under Pub. 
L. 104-121. It is not considered to be a significant rule under DOT's 
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    Section 10 of Pub. L. 104-239, which added section 302 to the Act 
(46 App. U.S.C. 1132), mandates that regulations be issued by February 
5, 1997. This rule merely prescribes the procedures for MARAD to 
certify certain merchant seamen as being eligible for reemployment 
rights and other benefits granted by the Congress and to provide 
assistance to them in obtaining those rights and other benefits. 
Accordingly, pursuant to 5 U.S.C. 553, the notice and comment 
requirements of the Administrative Procedure Act are inapplicable and 
this is being published as a final rule.

Federalism

    MARAD has analyzed this rulemaking in accordance with principles 
and criteria contained in E.O. 12612 and has determined that these 
regulations do not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Regulatory Flexibility

    The Maritime Administrator certifies that this rulemaking will not 
have a significant economic impact on a substantial number of small 
entities. This is a procedural rule mandated by the Congress to allow 
individuals to be certified as eligible to claim their statutory rights 
to reemployment and other benefits.

Environmental Assessment

    MARAD has concluded that this final rule has no environmental 
impact and that an environmental impact statement is not required.

Paperwork Reduction Act

    This rulemaking contains new information collection requirements 
which will be submitted to the Office of Management and Budget for 
review and approval.
    This rule does not impose any unfunded mandates.

List of Subjects in 46 CFR Part 349

    Employment, National defense, Seamen.

    Accordingly, new part 349 is added to Title 46 CFR to read as 
follows:

[[Page 5159]]

PART 349--REEMPLOYMENT RIGHTS OF CERTAIN MERCHANT SEAMEN

Sec.
349.1  Purpose.
349.2  Application for certification.
349.3  Certification criteria.
349.4  Decision on application.
349.5  Reemployment rights and benefits.
349.6  Enforcement.

    Authority: Secs. 204(b), 302, Merchant Marine Act, 1936, as 
amended (46 App. U.S.C. 1114(b), 1132); 38 U.S.C. 4301 et seq; 49 
CFR 1.66


Sec. 349.1  Purpose.

    This part prescribes regulations implementing section 302, Merchant 
Marine Act, 1936 (Act), as amended (46 App. U.S.C. 1132), added by 
section 10 of Pub. L. 104-239, the Maritime Security Act of 1996. These 
regulations provide the procedures by which the Maritime Administration 
(MARAD), under authority delegated by the Secretary of Transportation 
to the Maritime Administrator, certifies, upon application, that 
certain merchant seamen are entitled to reemployment rights and other 
benefits after completion of their service on vessels used by the 
United States for a war, armed conflict, national emergency or maritime 
mobilization need. It also describes the form of administrative 
assistance MARAD will provide to the seamen certified.


Sec. 349.2  Application for certification.

    Pursuant to 46 App. U.S.C. 1132, an individual may submit an 
application to MARAD not later than 45 days after the date the 
individual completes the period of employment described in Sec. 349.3 
of this part.


Sec. 349.3  Certification criteria.

    The Administrator shall apply the following criteria for certifying 
that an individual merchant seaman is entitled to reemployment rights 
and other benefits substantially equivalent to the rights and benefits 
provided by chapter 43 of title 38, United States Code, for any member 
of a Reserve Component of the Armed Forces of the United States who is 
ordered to active duty. It shall be the responsibility of each 
applicant for certification to submit relevant documentation to MARAD, 
Office of Maritime Labor, Training, and Safety, MAR-250, 400 Seventh 
St., S.W., Room 7302, Washington, D.C. 20590, establishing that--
    (a) Employment as merchant seaman. The applicant was employed after 
October 8, 1996, in the activation or operation of a vessel--
    (1) in the National Defense Reserve Fleet maintained by MARAD under 
authority of section 11 of the Merchant Ship Sales Act of 1946 (50 
U.S.C. App. 1744) in a period in which that vessel was in use or being 
activated for use under 50 U.S.C. App. 1744(b);
    (2) that is requisitioned under section 902 of the Act (46 App. 
U.S.C. 1242); or
    (3) that is owned, chartered, or controlled by the United States 
and used by the United States for a war, armed conflict, national 
emergency, or maritime mobilization need (including for training 
purposes or testing for readiness and suitability for mission 
performance).
    (b) Seaman credentials. During the period of employment described 
in paragraph (a) of this section, the seaman possessed a valid license, 
certificate of registry, or merchant mariner's document issued under 
chapter 73 (as applicable) of title 46, United States Code, as required 
by 46 App. U.S.C. 1132(c).
    (c) Additional information. If applicable, periods of 
hospitalization, convalescence, illness, injury, shipwreck or detention 
beyond the mariner's control were incurred in, or aggravated during, 
the performance of employment described in Sec. 349.3(a).


Sec. 349.4  Decision on application.

    MARAD will issue or deny certification (accompanied by an 
explanation in writing) to each applicant not later than 20 days after 
receipt of an application for certification.


Sec. 349.5  Reemployment rights and benefits.

    (a) General. An individual who is absent from a position of 
employment, in the private or public (federal, state or local 
government) sector, because of temporary employment of any duration 
described in Sec. 349.3(a), shall be entitled to reemployment rights 
and benefits upon completion of the temporary employment as a merchant 
seaman.
    (b) Superior claims. Pursuant to 38 U.S.C. 4312(g), the right of a 
person to reemployment shall not entitle such person to retention 
preference or displacement rights over any person with a superior claim 
under the provisions of title 5, United States Code, relating to 
veterans and other preference eligibles.
    (c) Notification of employer. Any person who is absent from a 
position of employment by reason of service as described in 
Sec. 349.3(a) shall be entitled to reemployment rights and benefits 
provided in Sec. 349.3(e) if--
    (1) The person has given advance written or verbal notice of such 
service to such person's employer, unless giving notice is precluded by 
military necessity, under regulations prescribed by the Secretary of 
Defense, or, under all relevant circumstances, is impossible or 
unreasonable, pursuant to the provisions of 38 U.S.C. 4312(b); and
    (2) The person submits an application for reemployment with the 
employer not later than 14 days after completion of a period of service 
of less than 181 days, or not later than 90 days after the completion 
of a period of service greater than 180 days, or if submitting such 
application within such period is impossible or unreasonable through no 
fault of the person, the next first full calendar day when submission 
of such application becomes possible.
    (d) Waiver of notice requirements. A person who has not given 
notice, or who fails to report or apply for employment or re-employment 
within the appropriate period specified in paragraph (c) of this 
section shall not automatically forfeit such person's entitlement to 
the rights and benefits referred to in Sec. 349.5(e), but shall be 
subject to the rules of conduct, established by policy, and the general 
practices of the employer pertaining to explanations and discipline 
with respect to absence from scheduled work. MARAD will make a 
determination on the issue of whether notice of service was required in 
acting on the application for certification.
    (e) Exception to reemployment rights. An employer is not required 
to reemploy an individual if the employer satisfies the burden of 
proving that, pursuant to 38 U.S.C. 4312(d)--
    (1) The employer's circumstances have so changed as to make such 
reemployment impossible or unreasonable, or such reemployment, if 
required, would impose an undue hardship on the employer, as defined in 
38 U.S.C. 4303(15); or
    (2) The employment which the individual left for employment as a 
merchant seaman was for a brief, nonrecurrent period and there was not 
at the time of leaving such employment any reasonable expectation that 
such employment would continue indefinitely or for a significant 
period.
    (f) Reemployment benefits. An individual certified by MARAD to be 
entitled to reemployment shall also be entitled to other ``benefits of 
employment'' (other than wages or salary for work performed), as 
defined in 38 U.S.C. 4303(2), that would have accrued to that 
individual by reason of an employment contract or agreement or an 
employer policy, plan or practice and includes rights and benefits 
under a pension plan, a health plan, an employee stock ownership plan, 
insurance coverage and awards,

[[Page 5160]]

bonuses, severance pay, supplemental unemployment and benefits, 
vacations and the opportunity to select work hours or location of 
employment.
    (g) Reemployment position. (1) An individual certified by MARAD as 
being entitled to reemployment shall be promptly reemployed by the 
former employer, according to the order of priority specified in 38 
U.S.C. 4313(a), after submitting an application for reemployment. The 
three categories of priority, in ascending order, are for a merchant 
seaman who:
    (i) Served for 90 days or less;
    (ii) Served for more than 90 days; or
    (iii) Has a disability incurred in, or aggravated during, the 
performance of such merchant service.
    (2) For a person with such service related disability, the employer 
shall make ``reasonable efforts'', as defined in 38 U.S.C. 4303(10), 
``to accommodate the disability'' to allow that person to be employed 
in the position that would have been occupied had the employment with 
the employer been continuous, or in the position in which employed on 
the date service began as a merchant seaman, and if that person is 
``not qualified'' for either position, in a substantially equivalent 
position, as specified in 38 U.S.C. 4313(a)(3) and (a)(4).


Sec. 349.6  Enforcement.

    MARAD shall provide administrative assistance to any individual 
certified to be entitled to reemployment rights and benefits pursuant 
to chapter 43 of title 38, United States Code, made applicable by 46 
App. U.S.C. 1132(a) and these regulations, who alleges in writing to 
MARAD the failure, refusal, or imminent failure or refusal of an 
employer to grant such rights or other benefits. The complaint must be 
sent to MARAD at the address in Sec. 349.3. Such complaint may be in 
any format and shall include the name and address of the employer 
against whom the complaint is filed and a summary of the allegations 
that form the basis for the complaint. MARAD will review, investigate 
and attempt to resolve the complaint by taking one or more of the 
following actions:
    (a) Consultation with claimant. MARAD will communicate with the 
individual filing the complaint, in writing and/or by telephone or 
other means, to provide assistance in pursuing reemployment rights and 
benefits with the employer.
    (b) Employer contact. MARAD may contact the employer and attempt to 
resolve the complaint to the mutual satisfaction of the complainant and 
the employer.
    (c) Consultation with Department of Labor. If attempts by MARAD to 
resolve the complaint are unsuccessful, MARAD may seek advice on the 
matter from the U.S. Department of Labor.
    (d) Referral to Attorney General or Merit Systems Protection Board. 
MARAD will notify the complainant of an unsuccessful effort to resolve 
a complaint. Pursuant to 38 U.S.C. 4323 and 4324, if the complainant so 
requests, MARAD will refer to the Attorney General a complaint relating 
to a private or State employer, or to the Merit Systems Protection 
Board, for litigation, a complaint relating to a Federal executive 
agency employer.

    Dated: January 30, 1997.

    By Order of the Maritime Administrator.
Joel C. Richard,
 Secretary.
[FR Doc. 97-2746 Filed 2-3-97; 8:45 am]
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