5158 Federal Register / Vol. 62, No. 23 / Tuesday, February 4, 1997 / Rules and Regulations

List of Subjects in 40 CFR Part 721

Environmental protection, Chemicals,

Hazardous materials, Recordkeeping

and reporting requirements.

Dated: January 27, 1997.

Charles M. Auer,

Director, Chemical Control Division, Office

of Pollution Prevention and Toxics.

Therefore, 40 CFR part 721 is

amended as follows:

PART 721—[AMENDED]

1. The authority citation for part 721

continues to read as follows:

Authority: 15 U.S.C. 2604, 2607, and

2625(c).

§ 721.2980 [Removed]

2. By removing § 721.2980.

[FR Doc. 97–2710 Filed 2–3–97; 8:45 am]

BILLING CODE 6560–50–F

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.

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:
Federal Register / Vol. 62, No. 23 / Tuesday, February 4, 1997 / Rules and Regulations 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

§ 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.

§ 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

§ 349.3 of this part.

§ 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 § 349.3(a).

§ 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.

§ 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 § 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 § 349.3(a) shall be entitled

to reemployment rights and benefits

provided in § 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 § 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,
5160 Federal Register / Vol. 62, No. 23 / Tuesday, February 4, 1997 / Rules and Regulations

1Notice of Office of Management and Budget

Action, at 2 (OMB No. 3060–0701) (released May

30, 1996). OMB suggests a change to § 65.500(b). We

assume this to be a typographical error. ALLTEL,

whose suggestion OMB specifically supports, also

suggests a change to § 65.600(b).

2Notice of Office of Management and Budget

Action, at 2.

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).

§ 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 § 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]

BILLING CODE 4910–81–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 43, 63, 64, and 65

[CC Docket No. 96–23, DA 96–1873]

Revision of Filing Requirements

AGENCY: Federal Communications

Commission.

ACTION: Final Rule.

SUMMARY: On November 8, 1996, the

Common Carrier Bureau adopted a

Report and Order, ‘‘Revision of Filing

Requirements,’’ that eliminates or

significantly reduces reporting

requirements imposed on

communications common carriers by

the Commission’s policies and rules. As

a result of this action, thirteen reporting

requirements have been eliminated, and

the frequency of filing for four other

reports has been reduced.

EFFECTIVE DATE: March 6, 1997.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Beers, Deputy Chief, Industry

Analysis Division, Common Carrier

Bureau, at (202) 418–0952, or Scott

Bergmann, Industry Analysis Division,

Common Carrier Bureau, at (202)

418–7102.

SUPPLEMENTARY INFORMATION: This is a

summary of the Common Carrier

Bureau’s Report and Order, ‘‘Revision of

Filing Requirements,’’ adopted

November 8, 1996 and released

November 13, 1996 (CC Docket No. 96–

23, DA 96–1873). The full text of the

Report and Order is available for

inspection and copying during normal

business hours in the FCC Reference

Center, Room 239, 1919 M Street,

Washington, DC 20554. The Report and

Order has been analyzed with respect to

the Paperwork Reduction Act of 1995,

Public Law 104–13, and has been

approved in accordance with the

provisions of that Act (OMB Control No.

3060–0701). The Office of Management

and Budget (OMB) offered its strong

support for the actions as proposed. The

complete text also may be purchased

from the Commission’s copy contractor,

International Transcription Service, Inc.

(202) 857–3800, 2100 M Street, NW.,

Suite 140, Washington, DC 20037.

PAPERWORK REDUCTION ACT: The actions

taken regarding the collections of

information contained in the Report and

Order have been analyzed with respect

to the Paperwork Reduction Act of 1995,

Public Law 104–13, and have been

approved by the Office of Management

and Budget (OMB) under OMB control

number 3060–0701. OMB offered its

strong support for the actions. In

addition, OMB made three suggestions

in addition to the proposals: (1) That the

word ‘‘annual’’ be added to the revised

language for § 65.600(b) 1 to make clear

that the reports are required on an

annual basis; (2) that the Commission

conduct a rulemaking to address the

filing requirements associated with the

ARMIS and CAM reporting thresholds;

and (3) that the Commission consider

modifying the annual access tariff filing

periods to coincide with the periods

covered by the interstate rate of return

monitoring reports.2 First, we agree with

OMB and ALLTEL that the revised

language for § 65.600(b) should more

clearly specify that reports are required

on an annual basis. We believe that the

revised language for § 65.600(b),

adopted in the Report and Order,

achieves that result. Second, as

discussed at Part IV of the Report and

Order, the Commission will address

ARMIS and CAM filing requirements

and carrier classification in another

proceeding. Finally, we decline to alter

the annual access tariff filing period

because the present schedule allows the

Commission to use the current years

rate-of-return reports to evaluate and

calculate annual access tariffs.

OMB Approval Number: 3060–0701.

Title: Revision of Filing

Requirements, CC Docket 96–23, DA

96–1873.

Form Number: FCC 492.