`[Federal Register Volume 60, Number 243 (Tuesday, December 19, 1995)]
[Rules and Regulations]
[Pages 65478-65490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30677]




[[Page 65477]]

_______________________________________________________________________

Part V





Department of Transportation





_______________________________________________________________________



Coast Guard



_______________________________________________________________________



46 CFR Parts 10 and 12



National Driver Registration and Criminal Record Review in Issuing 
Licenses, Certificates of Registry, or Merchant Mariner's Documents; 
Final Rule

  Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / 
Rules and Regulations  

[[Page 65478]]


DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Parts 10 and 12

[CGD 91-212]
RIN 2115-AD93


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

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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

SUMMARY: In furtherance of the President's Regulatory Reinvention 
Initiative, this rulemaking establishes Coast Guard regulations which 
implement the provisions of the Oil Pollution Act of 1990 (OPA 90) that 
permit the Coast Guard to review information from the National Driver 
Register on an applicant prior to issuing or renewing a license, 
certificate of registry (COR), or merchant mariner's document (MMD). 
This rulemaking also addresses OPA 90 provisions that permit the Coast 
Guard to review the criminal records of applicants prior to issuing a 
license, COR or MMD. In addition, it establishes regulations that 
permit criminal record checks of any individual applying for a raise in 
grade of a license or COR; a renewal of a license, COR, or MMD; or an 
endorsement of an MMD with a new expiration date. This rulemaking 
provides the Coast Guard an opportunity to identify an applicant who 
has been convicted of certain motor vehicle offenses or convicted of 
certain serious crimes.

EFFECTIVE DATE: January 18, 1996.

ADDRESSES: Unless otherwise indicated, documents referred to in this 
preamble are available for inspection or copying at the office of the 
Executive Secretary, Marine Safety Council (G-LRA/3406) (CGD 91-212), 
U.S. Coast Guard Headquarters, 2100 Second Street SW., room 3406, 
Washington, DC 20593-0001 between 8 a.m. and 3 p.m., Monday through 
Friday, except Federal holidays. The telephone number is (202) 267-
1477.

FOR FURTHER INFORMATION CONTACT:
Mr. Stewart Walker, Marine Personnel Qualifications (G-MCO-1), (202) 
267-0475. This telephone records messages on a 24-hour basis.

SUPPLEMENTARY INFORMATION: 

    Drafting Information. The principal persons involved in drafting 
this document are Mr. James W. Cratty, Project Manager, Project 
Development Branch (G-MES-2) and Ms. Jacqueline Sullivan, Project 
Counsel, Office of the Chief Counsel (G-LRA).

Regulatory History

    On March 13, 1995, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled ``National Driver Register and Criminal 
Record Review in Issuing Licenses, Certificates of Registry, or 
Merchant Mariner's Documents'' in the Federal Register (60 FR 13570). 
The Coast Guard received 29 letters commenting on the proposal. Several 
comments requested a public hearing. The Coast Guard determined that a 
public hearing is unnecessary and that all of the issues contained in 
the comments are addressed in this rulemaking.

Background and Purpose

1. General

    Under the authority of 46 U.S.C. 7101, the Coast Guard issues 
licenses to qualified officers such as masters, mates, pilots, 
engineers, operators, and radio officers. It also issues certificates 
of registry (CORs) to qualified staff officers such as pursers, medical 
doctors, and professional nurses.
    The Coast Guard issues merchant mariner's documents (MMDs), with 
certain exceptions described in 46 U.S.C. 8701, to vessel personnel for 
service aboard U.S. flag merchant vessels of more than 100 gross tons 
which operate on waters other than rivers and lakes. The MMD serves as 
a certificate of identification and qualification, authorizing work in 
different capacities on deck and in the engine and steward's 
departments. The MMD, with an appropriate endorsement, is also the 
credential issued to qualified tankermen. Many merchant mariners who 
hold licenses and CORs also hold MMDs.
    All licensing and documentation transactions are processed at Coast 
Guard Regional Examination Centers (RECs) exercising the authority of 
the Officer in Charge, Marine Inspection (OCMIs).
    Sections 4101(a) and (b) and section 4102(e) of the Oil Pollution 
Act of 1990 (OPA 90) (Pub. L. 101-380) amend 46 U.S.C. 7101, 7302, and 
7109, respectively, to authorize the Coast Guard to conduct criminal 
record checks of any individual applying for a license, COR, or MMD; 
for a raise in grade of a license or COR; for a renewal of a license, 
COR, or MMD; or for an endorsement of an MMD with a new expiration 
date. Some individuals with criminal records may be unsuitable 
candidates for a license, COR, or MMD because they present a risk to 
passengers, fellow crew members, or the safe operation of a vessel.
    As amended, 46 U.S.C. 7101 and 7302 prohibit the Coast Guard from 
issuing a license, COR, or MMD to an applicant unless the applicant 
makes available to the Coast Guard any information contained in the 
National Driver Register (NDR) related to an offense committed by the 
applicant that is described in sections 205(a)(3)(A) or (B) of the 
National Driver Register Act of 1982 (49 U.S.C. Chapter 303). These 
offenses are: operation of a motor vehicle under the influence of, or 
while impaired by, alcohol or a controlled substance; and any traffic 
violation(s) arising in connection with a fatal traffic accident, 
reckless driving, or racing on the highways.
    Although an individual's motor vehicle record may not be directly 
related to his or her maritime career, a record of alcohol or drug-
related motor vehicle offenses, or other motor vehicle offenses as 
specified in sections 205(a)(3)(A) and (B) of the NDR Act of 1982, 
indicates that the individual may have a disregard for his or her own 
safety or the safety of others and therefore may not be suitable for 
maritime employment.
    Section 4105(b) of OPA 90 amended 46 U.S.C. Chapter 75, to require 
the Coast Guard to make the information received from the NDR available 
to the applicant for review and written comment before the Coast Guard 
uses this information as a basis for denying, suspending, revoking, or 
taking other action on that individual's license, COR, or MMD.
    Before Congress enacted OPA 90, an individual who applied for a 
license, COR, or MMD was not required to provide the Coast Guard with 
NDR information. However, an applicant for a license or COR was asked 
on the application form if he or she had been convicted of any 
offense(s) other than minor traffic violation(s). Information provided 
by the applicant regarding conviction(s) for other than minor traffic 
violation(s), including Driving Under the Influence (DUI) or Driving 
While Intoxicated (DWI), was used to evaluate the applicant's 
qualifications to hold a license or COR.

2. Criminal Record Review Under Current Regulations

    a. Licenses and CORs. The current regulations at 46 CFR 10.205, 
``Requirements for original licenses and certificates of registry,'' 
require the applicant to have his or her fingerprints taken during the 
application process. The Coast Guard uses the fingerprints to determine 
if a criminal record exists for 

[[Page 65479]]
the individual. Section 10.205(f)(2) authorizes the OCMI to reject an 
application if the criminal record check, or other information, 
indicates that an applicant's habits of life and character are such 
that the applicant cannot be entrusted with the duties and 
responsibilities associated with a license or COR. The OCMI notifes the 
applicant of the reason(s) for disapproval.
    Section 10.205(f)(4) indicates that, in the event a license or COR 
has been issued before adverse information on the applicant's character 
or habits of life, or information indicating that the application is 
false or incomplete, is obtained the OCMI may notify the individual 
that the license or COR is null and void and direct the holder to 
return the license or certificate to the OCMI.
    Under 46 CFR 10.209, ``Requirements for renewal of a license,'' 
each renewal applicant must use a standard form furnished by the Coast 
Guard. The form asks the applicant to identify any criminal convictions 
or history of drug use. Under Sec. 10.209(b), an applicant may not have 
his or her license renewed if facts which would render a renewal 
improper have come to the Coast Guard's attention.
    The Coast Guard currently performs a license renewal criminal 
record check when an individual has identified a conviction or drug use 
on the application. In addition, the Coast Guard performs a criminal 
record check on applicants for renewal whom it suspects have criminal 
records or a history of drug use. The Conference Report on OPA 90 (H.R. 
Conf. Rep. No. 101-653) recognizes these existing Coast Guard 
procedures.
    Related regulations in 46 CFR part 10, ``Requirements for raise of 
grade of a license'' (Sec. 10.207) and ``Issuance of duplicate of 
license or certificate of registry'' (Sec. 10.219), currently do not 
address criminal record checks.
    b. Merchant Mariner's Documents. The regulations contained at 46 
CFR part 12, ``Certification of Seamen,'' do not address fingerprinting 
an applicant for an MMD specifically for a criminal record check; 
however, under existing practice, the Coast Guard fingerprints an 
individual applying for his or her original MMD and performs a criminal 
record check on the applicant. The Coast Guard does not fingerprint and 
check the criminal record of a person obtaining a duplicate MMD or an 
additional MMD endorsement.
    Under law existing prior to OPA 90, the Coast Guard was not 
required to consider the character and habits of life of an applicant 
for an MMD as it was for licenses and CORs. The only specific statutory 
provision concerning dangerous drug use or criminal convictions 
authorized the Coast Guard to deny an MMD to an applicant convicted for 
a dangerous drug offense within 10 years prior to the date of 
application (46 U.S.C. 7503). The Coast Guard has also been authorized 
to deny an MMD to a person who has ever used or has ever been addicted 
to a dangerous drug unless the applicant provides satisfactory proof 
that he or she is suitable for employment in the merchant marine.

3. National Driver Register Access

    The National Highway Traffic Safety Administration (NHTSA) of the 
Department of Transportation (DOT) maintains the NDR, which is a 
nationwide repository of information on drivers. The NDR is part of a 
voluntary cooperative program that assists State motor vehicle driver 
licensing agencies and certain Federal agencies in gaining access to 
data on an individual's motor vehicle driving record. The NDR Act of 
1982 prohibits the use of information in the NDR that is more than 3 
years old, unless that information relates to a current suspension or 
revocation of the individual's license to operate a motor vehicle.
    At present, access to the NDR must be made through participating 
States. DOT has proposed legislation to amend section 307 of the NDR 
Act of 1982 to allow direct NDR access by Federal agencies. If the 
proposed legislation is enacted, the Coast Guard intends to adopt the 
direct access methodology.

Discussion of Comments and Changes

    Twenty-nine letters were received in response to the NPRM. The 
Coast Guard has considered all of the comments and, in some instances, 
revised the proposed regulations as appropriate. The comments have been 
grouped by issue and are discussed as follows.

1. Coast Guard Authority

    Seven comments suggested the regulations are intrusive into the 
lives of mariners and questioned the Coast Guard's authority to review 
information from the National Driver Register and review criminal 
record information in issuing licenses, CORs, or MMDs. OPA 90 
authorized the Coast Guard to conduct criminal record checks and review 
information from the National Driver Register on any individual 
applying for a license, COR, or MMD; for a renewal of a license, COR, 
or MMD; or for an endorsement of an MMD with a new expiration date. The 
Coast Guard is implementing these provisions to exclude from holding 
merchant mariner credentials those individuals whose history indicates 
a lack of concern regarding the safety of themselves, others, the 
marine environment, and the safe operation of a vessel.
    Two comments suggested that since the term ``renewal'' is not 
mentioned in 46 U.S.C. 7302(c) and (d), the review of criminal records 
and the National Driver Register only applies to original document 
applications. The Coast Guard disagrees. The review of criminal records 
and the NDR is relevant to all documents applied for under 46 U.S.C. 
7302, including renewal of MMDs or endorsement of MMDs with a new 
expiration date. Similarly, in 46 U.S.C. 7101(h), individuals applying 
for a license or COR include all individuals applying for a raise in 
grade or renewal.
    One comment stated that the Coast Guard, rather than the employer, 
is in the best position to monitor and provide assurance of 
rehabilitation for individuals with an alcohol or drug problem. The 
Coast Guard lacks the legal authority and resources to continuously 
monitor individuals with drug or alcohol problems. Checks can be made 
at a point convenient to the mariner and the Coast Guard, for example, 
renewal or raise in grade. Monitoring individuals is within the scope 
of employer responsibilities because the employer is more likely to 
evaluate an employee's work and conduct on a regular basis.
    Two comments stated that the regulations are unnecessary because 
the merchant marine is self-regulating. The comments submitted that 
mariners who pose a threat to the safe operation of a ship, personnel, 
or passengers will be excluded by other mariners or employers. The 
Coast Guard determined that the mariners' or employer's ability to 
self-regulate cannot attain the scope of the Coast Guard's ability to 
regulate merchant marine personnel. Also, the Coast Guard has been 
delegated the authority of general superintendence over the merchant 
marine and merchant marine personnel in the interest of marine safety 
and seamen's welfare. The Coast Guard, as the agency authorized to 
issue merchant mariner's credentials, must ensure, to the best of its 
ability, that individuals who receive these credentials do not present 
a possible threat to personnel, passengers, or the safe operation of a 
vessel.

2. Relationship Between Convictions and Job Performance

    Eight comments suggested that there is little or no relationship 
between a person's criminal or driving offenses on 

[[Page 65480]]
land and their maritime related job performance. The Coast Guard 
disagrees. An individual's record of alcohol or drug-related, or other 
motor vehicle offenses as specified in sections 205(a)(3) (A) and (B) 
of the NDR Act of 1982, indicates that the individual may have a 
disregard for his or her own safety or the safety of others and 
therefore may not be suitable for maritime employment. The Conference 
Report on OPA 90 (H.R. Conf. Rep. No. 101-653) explains that alcohol 
impairment may have played a role in the Exxon Valdez incident. Motor 
vehicle offenses involving the abuse of alcohol and drugs may evince 
possible unsafe vessel operations. Congressional intent, as presented 
in the Conference Report on OPA 90, was to provide an additional tool 
in an effort to promote a drug- and alcohol-free workplace in maritime 
industry. Also, the Coast Guard concluded that applicants who have been 
convicted of violent criminal offenses or serious property offenses may 
pose a threat to ship personnel, passengers, the marine environment, 
and the safe operation of the ship. The Coast Guard may increase ship 
safety by denying seafarer's documents to individuals who demonstrate a 
lack of concern for safety through a record of criminal or motor 
vehicle offenses.

3. The National Driver Register

    Two comments indicated that the Coast Guard is only able to review 
information from the National Driver Register three years prior to the 
check. The comments noted that the information from an NDR file check 
would not cover the full 5 years between document renewal. The NDR Act 
prohibits the Coast Guard from gaining access to information more than 
three years old, unless the information is about a revocation or 
suspension of driving privileges still in effect (49 U.S.C. 
30305(b)(5)).
    One comment suggested that NDR checks may be a federalism issue, 
since most driving offenses are state offenses. The Coast Guard is 
among the authorized agencies granted access to the NDR. The NDR Act 
establishes guidelines for obtaining information from the NDR for the 
purposes of evaluating individuals who hold, or are applying for a 
license or certificate of registry under 46 U.S.C. 7101, or a merchant 
mariner's document under 46 U.S.C. 7302 (49 U.S.C. 30305(b)(5)).
    One comment requested clarification of ``racing on the highways.'' 
According to the National Highway Traffic Safety Administration, racing 
on the highways means formal or informal contest racing on a public 
highway.
    Another comment stated that if the NDR is a voluntary system, the 
Coast Guard may not be able to check information from non-participating 
states. Since all of the states and the District of Columbia are 
participants in the NDR program, the Coast Guard can conduct checks on 
any individual in the United States with motor vehicle driving record 
information.
    One comment noted a decision rendered on April 5, 1995, by the 
United States Circuit Court for the Fourth Circuit in a case entitled, 
American Trucking Associations Inc. v. Federal Highway Administration. 
In that case, the court's decision was based on the fact that off-duty 
alcohol use is generally not relevant criteria in determining 
eligibility for employment. In its decision, the court was interpreting 
the Omnibus Transportation Employee Testing Act of 1991 (Pub. L. 102-
143), which applied to the Federal Aviation Administration, Federal 
Highway Administration, Federal Railroad Administration, and the 
Federal Transit Administration, but not to the Coast Guard. This case 
involved preemployment testing requirements for alcohol use. This final 
rule is under separate authority and does not involve the preemployment 
testing of individuals for alcohol.
    The Coast Guard is providing information to applicants who wish to 
conduct an NDR file check for their personal use. The NDR allows 
individuals to request a file check in accordance with the Federal 
Privacy Act of 1974 (Pub. L. 93-579). New sections 10.201(i)(4) and 
12.02-4(d)(4) describe the procedures to follow to receive the results 
of a NDR file check. The information in a personal NDR file check is 
intended for use by the applicant only, and may not be used in the 
licensing and certification process.
    The Coast Guard concluded the term ``NDR listed convictions'' 
needed further clarification. The final rule adds a definition for 
``NDR listed convictions'' to its list of definitions in Sec. 10.103 
and Sec. 12.01-6. The new definition will reflect the convictions in 49 
U.S.C. 30304(a)(3)(A) and (B) which are authorized by the National 
Highway Safety Transportation Administration to be used by the Coast 
Guard to evaluate applicants for merchant mariner's documents.
    In the NPRM, Sec. 10.201(b) and Sec. 12.02-4(a) did not discuss 
individuals with NDR convictions due to the addiction or abuse of 
alcohol. The Coast Guard added a statement to Sec. 10.201(b) and 
Sec. 12.02-4(a) to ensure individuals with such NDR convictions furnish 
satisfactory evidence of suitability for service in the merchant 
mariner to be eligible for a license, COR, or a merchant mariner's 
document.

4. Past Offenses

    Several comments recommended implementing these regulations in a 
prospective manner, where the Coast Guard would only consider offenses 
occurring after the effective date of the regulations. These comments 
stated that, in the past, many mariners have not challenged false 
charges due to their work schedule and the threat of loss of 
employment. The regulations allow mariners ample opportunity to provide 
the OCMI with evidence of suitability for service in the merchant 
marine, and to explain the circumstances of an offense. If the 
application is denied, an appeal process and reconsideration are 
available.
    A few comments suggested that mariners would have altered their 
behavior if they had prior knowledge of the effect of off-duty conduct 
on employment. In the past, the Coast Guard has been conducting 
criminal record review for original applications for licenses and CORs, 
and under existing practice conducts a criminal record review of 
original applicants for MMDs. Applicants are already accountable for 
past behavior when they apply for their original documents. The Coast 
Guard is expanding its requirements to include spot-checks of 
individuals applying for a raise in grade of a license, COR, or MMD; an 
endorsement on a MMD with a new expiration date; and a renewal of a 
license, COR, or MMD. The NDR checks were created to identify vessel 
personnel with motor vehicle offenses related to the use of alcohol and 
drugs or the unsafe operation of a motor vehicle. The Coast Guard 
determined that the certification and licensing of persons involved 
with the abuse of these substances or the unsafe operation of a motor 
vehicle may lead to unsafe vessel operations.
    Some comments discussed the Coast Guard's consideration of charges 
against mariners that have been stricken from the record through 
remediation or compensation and how this defeats public policy and 
discourages individuals from participating in remediation or 
compensation. As stated in the definition of ``conviction'' provided in 
this final rule, a later expungement of the conviction will not negate 
a conviction unless it is proved to the OCMI that the expungement is 
based upon a showing that the court's earlier conviction was in error. 
The Coast Guard concluded that consideration of all convictions is 

[[Page 65481]]
important to determining the character and habits of life of applicants 
for merchant mariner's credentials.
    Four comments stated that denial of credentials on the grounds of a 
past offense is punishing an individual twice for the same offense, and 
for this reason the final rule is unconstitutional. The Coast Guard 
disagrees. Merchant mariner's credentials are certificates of 
qualification that authorize individuals to perform certain duties on a 
vessel. In the interest of marine safety, the Coast Guard examines 
applicants to determine their suitability to hold merchant marine 
credentials. Past offenses are a good indicator of whether a person is 
a possible threat to the safety of ship operation, personnel, the 
marine environment, or passengers. Basing the decision of whether to 
grant a merchant mariner's credentials on the factors articulated in 
this rule is not punishment of those whose applications are denied. It 
is instead a reasonable way to protect life and property at sea.
    The Coast Guard added the statement, ``Applicants must provide 
written disclosure for all prior convictions at the time of 
application,'' to Sec. 10.201(h) and Sec. 12.02-4(c). The sentence will 
provide consistency between this final rule and the current application 
procedures.

5. Assessment Periods

    Five comments addressed the minimum and maximum assessment periods 
for which the OCMI will consider a conviction in the evaluation of an 
applicant for merchant mariner's credentials.
    One comment expressed that the assessment periods appeared to be 
arbitrary. The Coast Guard has reviewed three reports from the U.S. 
Department of Justice, Bureau of Justice Statistics (BJS). These 
reports are entitled, ``Recidivism of Prisoners Released in 1983'', 
Recidivism of Felons on Probation, 1988-1989,'' and ``Recidivism of 
Young Parolees''. The reports revealed high rates of rearrest for 
released prisoners, felons on probation, and young parolees. Based on a 
sample of State prisoners released in 1983, 62.5 percent were 
rearrested for a felony or serious misdemeanor within 3 years. Using a 
sample of felons sentenced to probation in 1986, a report found that 62 
percent of the probationers either had a disciplinary hearing for 
violating a condition of their probation or were arrested for another 
felony within three years. Another BJS study, based on a sample of 
young parolees between the ages of 17 and 22, found that 69 percent of 
young parolees were rearrested for a serious crime within 6 years of 
their release from prison. One of the reports found that of the 
prisoners in the study, those with a prior arrest for a violent offense 
had a greater likelihood of rearrest than other released prisoners. 
Therefore, the categories of violent crimes in Tables 10.201(h) and 
12.02-4(c) have longer assessment periods. The Coast Guard determined 
that the assessment periods, as published in the NPRM, are a sufficient 
guideline for the OCMI to consider the convictions of applicants. The 
assessment periods take into account both recidivism of the categories 
of crimes and the consequences of their occurrence.
    Several comments suggested reducing the length of the assessment 
periods and including supervised parole or probation as part of the 
assessment periods. The Coast Guard established the assessment periods 
as guidelines for the OCMI when evaluating an applicant with criminal 
convictions. The assessment periods do not prevent an individual from 
applying before the minimum assessment period has elapsed or between 
minimum and maximum assessment periods.
    A person who applies before the minimum time period has elapsed 
must provide the OCMI with evidence of suitability for maritime 
employment. This final rule provides a list of factors in 
Sec. 10.201(j) and Sec. 12.02-4(e) for the OCMI to use as a guide in 
considering an applicant before the minimum assessment period has 
elapsed.
    The applicant may also apply for merchant mariner's credentials 
between the minimum and maximum assessment periods. During this period, 
the Coast Guard will issue a license, COR, or MMD to the applicant 
unless there are offsetting factors. Type of offsetting factors are 
listed in Sec. 10.201(h)(5) and Sec. 12.02-4(c)(5).
    After further review, the Coast Guard determined that the OCMI 
would benefit from examining periods of supervised probation and parole 
as part of the assessment periods. Periods of supervised probation and 
parole, like periods of unsupervised probation and parole, allow 
individuals to adjust to civilian life. Therefore, the OCMI may include 
periods of probation and parole in the assessment periods with a letter 
of recommendation from a parole or probation officer. The Coast Guard 
also revised Sec. 10.201(h)(2) and Sec. 12.02-4(c)(2) to clarify when 
the assessment period commences.
    One comment objected to the evaluating factor in Secs. 10.201(j) 
and 12.02-4(e) concerning membership in a rehabilitation group. The 
comment noted that many of these groups are anonymous and information 
on membership and attendance is usually confidential or nonexistent. 
The Coast Guard will accept as proof of active membership a broad range 
of items, such as a letter from a counselor, or the signature or stamp 
of a secretary from the group an individual is attending.

6. Direct and Indirect Benefits

    Three comments recommended supporting the benefit analysis in the 
NPRM with statistical data. The Coast Guard stated in the NPRM that the 
direct and societal benefits from this final rule are not quantifiable. 
Historical data are insufficient to perform an analysis of benefits. 
The Coast Guard concluded that even if maritime accidents are reduced 
by a small percentage, savings will accrue to the maritime industry 
through lower repair and medical costs and to the public through 
environmental protection.

7. Additional Comments and Changes

    Another comment suggested that the OCMI consider dangerous drug 
offenses more than ten years prior to the application for a license, 
COR, or MMD if there are subsequent dangerous drug offenses. The Coast 
Guard determined that consideration of dangerous drug convictions 
occurring ten years before application combined with subsequent 
violations are helpful in establishing a behavior pattern. The Coast 
Guard is amending Sec. 10.201(h)(2) and Sec. 12.02-4(c)(2) to include 
dangerous drug convictions occurring more than 10 years prior to the 
date of application if an individual has subsequent violations. Tables 
10.201(h) and 12.02-4(c) were also amended to reflect the consideration 
of dangerous drug offenses more than 10 years old if there are 
subsequent dangerous drug offenses.
    The Coast Guard determined that some NDR convictions could also be 
criminal convictions. When deciding on an appropriate assessment 
period, the OCMI should be able to use the guidelines found in the 
criminal conviction table and the NDR conviction table. Therefore, 
Sec. 10.201(h)(3) and Sec. 12.02-4(c)(3) were revised to add Table 
10.201(i) and Table 12.02-4(d), respectively. Also, Sec. 10.201(i) and 
Sec. 12.02-4(d) were revised to allow the OCMI to use criminal 
conviction assessment period guidelines where appropriate.
    The Coast Guard revised Tables 10.201(i) and 12.02-4(d) to clarify 
the assessment period for 2 or more motor vehicle convictions. The 
phrase ``which ever is longer'' was deleted from the assessment period 
of applicants for merchant mariner's documents, licenses, and 
certificates of registry with 

[[Page 65482]]
2 or more motor vehicle convictions involving dangerous drugs or 
alcohol.
    The Coast Guard revised Sec. 10.201(j) and Sec. 12.02-4(e) to 
include applicants who are users of, or addicted to dangerous drugs. 
This revision was made to ensure consistency with Sec. 10.201(b) and 
Sec. 12.02-4(e).
    The other comments received were general in nature and supported 
this Coast Guard rulemaking.

Regulatory Evaluation

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that order. It has not been reviewed by the Office of Management and 
Budget under that order. It is not significant under the regulatory 
policies and procedures of the Department of Transportation (DOT) (44 
FR 11040; February 26, 1979).
    A final Regulatory Evaluation under paragraph 10e of the regulatory 
policies and procedures of DOT has been prepared and is available in 
the docket for inspection or copying where indicated under ADDRESSES. 
The Evaluation is summarized as follows.

1. Criminal Record Review

    Coast Guard costs attributable to implementing the provisions 
authorizing the criminal record review of applicants for licenses, 
CORs, and MMDs in sections 4101(a) and 4102(e) of OPA 90 will be 
incurred by the RECs and Coast Guard Headquarters. These costs are 
associated with reviewing and processing the criminal record review 
data through the Federal Bureau of Investigation (FBI). The REC will 
assume the primary responsibility for the final review of the criminal 
record report received from the FBI.
    Because current Coast Guard regulations and practices require all 
applicants for the original issuance of licenses, CORs, or MMDs to 
submit to criminal record reviews by the taking of fingerprints, these 
costs are not newly incurred as a result of this rulemaking, and 
therefore, are not included in this regulatory assessment. The costs 
associated with the requirements for criminal record reviews apply only 
to a raise in grade of a license or COR; an endorsement on an MMD with 
a new expiration date; or renewal of a license, COR, or MMD. The Coast 
Guard plans to spot-check the criminal records of individuals applying 
for these merchant mariner credentials. For the purpose of estimating 
costs, the Coast Guard has assumed that 1 of every 30 of these 
applicants will be spot-checked.
    Approximately 10,881 licenses are expected to be renewed each year. 
An estimated 363 (10,881/30) spot criminal record checks will be 
performed on these applicants.
    Approximately 18,000 MMDs are expected to be renewed each year. An 
estimated 600 (18,000/30) spot criminal record checks will be done on 
these applicants.
    Approximately 300 CORs are expected to be renewed each year. An 
estimated 10 (300/30) spot criminal record checks will be performed on 
these applicants.
    Approximately 3,740 raises of grade for license and COR 
endorsements are expected to be issued each year. An estimated 125 
(3,740/30) spot criminal record checks will be performed on these 
applicants.
    Approximatley 4,025 supplemental MMD endorsements are issued each 
year. An estimated 134 (4,025/30) spot criminal record checks will be 
done on these applicants.
    The total number of spot criminal record checks will amount to 
approximately 1,232 (See Table I.).

                                 Table I                                
------------------------------------------------------------------------
          Type of action              No. applicants      No. checked   
------------------------------------------------------------------------
License Renewal...................             10,881                363
MMD Renewals......................             18,000                600
COR Renewals......................                300                 10
Raise of grade (licenses) and                                           
 higher grade of COR..............              3,740                125
Supplemental endorsements (MMDs)..              4,025                134
                                                      ------------------
    Total Number of Spot Criminal                                       
     Record Checks................  .................              1,232
------------------------------------------------------------------------

    It will cost the Coast Guard approximately $17 per criminal record 
check to process the fingerprints through the FBI for an estimated 
annual cost of $20,944.
    Based on a sample survey of the REC's experience with criminal 
records conducted by the Coast Guard in 1992, 8 percent of the 
applicants are estimated to have records with the FBI. Of those with 
records, it is estimated that 9 percent have records significant to the 
application evaluation. Thus, only 0.72 percent of the applicants had 
actionable convictions on their records. Therefore, of the reissue and 
renewal applicants sampled, it is estimated that 99 will have records 
with the FBI, and a total of 9 of the 1,232 applicants will have 
records significant to the license evaluation. The Coast Guard 
estimates that the costs for the 99 applicants with convictions to 
furnish the necessary documents to exonerate themselves will be 
minimal. Costs are expected to total approximately $19 per court record 
for aggregate annual applicant costs of approximately $1,900.
    The Coast Guard estimates that 75 percent, or 924, of the spot-
checked applicants for a raise in grade of a license or COR, a renewal 
of a license or COR, or any MMD with a new expiration date will apply 
by mail. For those 924 applicants, the estimated costs include the time 
for the applicant to go to his or her local police department, submit 
to fingerprinting, and return to his or her residence. The Coast Guard 
estimates that this would take approximately 1.5 hrs. of the 
applicant's time. Total respondent costs are estimated to be $22,700.
    Twenty-five percent, or 308, of the spot-checked applicants are 
expected to choose to go to an REC to conduct their renewal 
transactions. For those 308 applicants, additional costs attributed to 
the criminal record check will be insignificant.

2. National Driver Register Access

    The Coast Guard estimates that it will conduct 57,435 NDR checks 
annually for all individuals applying for the original issuance, 
renewal, or endorsement with a new expiration date of merchant 
mariner's credentials. The Coast Guard's costs for NDR checks involve 
providing an interface with the NDR computer and clerical resources to 
process record checks and notifications to applicants with NDR records. 
These costs are estimated to be $120,000 annually, with the potential 
for substantial reduction in cost if direct 

[[Page 65483]]

access to the NDR data by the RECs is authorized. The RECs will write 
letters to those applicants who have a probable identification (hit), 
and review any associated court records as forwarded by applicants.
    The Coast Guard estimates that initial computer hardware and 
software and necessary connection to the NDR will be under $20,000. The 
Coast Guard estimates the annual cost of a dedicated telephone line 
from Coast Guard Headquarters to the Commonwealth of Virginia will be 
$12,000 ($6/hr. x 8 hrs./day x 250 days/yr.). The initial annual Coast 
Guard REC costs are estimated to be $58,354 (57,435 checks x 0.05 hr./
check x /$20/hr. for a clerical employee, plus $0.32/stamp x 2,872 
hits). Initially, the Coast Guard will dedicate one full-time clerical 
employee at Coast Guard Headquarters to forward data to the 
Commonwealth of Virginia for processing. This cost is estimated to be 
$40,000 ($20/hr. for a clerical employee x 8 hrs./day x 250 days). 
Therefore, the initial annual Coast Guard cost associated with the 
National Driver Register portion of the rule is estimated to total 
approximately $111,400.
    Annual respondent costs associated with NDR checks include the time 
to fill out the NDR consent form which is considered to be 
insignificant. In 50 percent of the 2,872 hits, or 1,436 cases, 
applicants will have clean driving records and the OCMI will issue 
their merchant mariner's credentials without further expense. For the 
other 50 percent of applicants, or 1,436, costs are expected to be less 
than $20.00 per court record submitted to the Coast Guard for estimated 
annual respondent costs of $26,700.
    The dollar value of direct and societal benefits flowing from spot-
checking applicants' criminal records and from reviewing applicants' 
NDR records are not quantifiable but may be substantial.
    The Coast Guard anticipates that, as a result of this rule, a 
number of applicants will be identified, based upon their criminal 
record or adverse driving record, whose conduct indicates that they 
should not be trusted to safely perform shipboard duties. Those 
applicants will not be granted merchant mariner credentials.
    Direct benefits would include the potential for--
     Fewer margin groundings and other accidents;
     Reduced property loss;
     Fewer releases of oil and hazardous materials into the 
marine environment; and
     Fewer injuries and reduced loss of life among merchant 
mariners and other seagoing personnel.
    The Coast Guard also anticipates several indirect benefits. Within 
the community of applicants for merchant mariner's credentials, 
knowledge of the Coast Guard's enhanced periodic record-checking 
program may dissuade recidivism among merchant mariners with past 
criminal, or serious traffic records. The program may also discourage 
some convicted criminals, users of dangerous drugs, and serious traffic 
offenders from seeking new credentials or renewals, and may also 
encourage some applicants who are convicted criminals or users of 
dangerous drugs to truthfully complete questions that address these 
issues on the applications forms. Users of dangerous drugs in the U.S. 
merchant marine may be encouraged to seek counseling and treatment 
before incurring a criminal record or dangerous drug history with the 
FBI. In addition, merchant mariners and prospective merchant mariners 
may be encouraged to maintain a satisfactory standard of personal 
conduct.
    Historical data are insufficient to quantify benefits; however, 
should this program manage to save even one line per year at $2.7 
million per statistical life saved (which reflects a reasonable 
estimate of people's presumed willingness-to-pay for safety), its 
benefits would exceed its costs. If maritime accidents were reduced 
even by a small percentage, savings would accrue to the maritime 
industry through lower repair and medical costs and to the public 
through environmental protection.

Small Entities

    The costs to small entities will not be significant because the 
costs of spot-checking applicants' criminal records and reviewing NDR 
records will be borne by the Coast Guard. The Coast Guard expects the 
impact of this regulation on small entities to be minimal. Therefore, 
the Coast Guard certifies under section 605(b) of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) that this rule will not have a 
significant economic impact on a substantial number of small entities.

Collection of Information

    This rule contains collection-of-information requirements. The 
Coast Guard has submitted the requirements to the office of Management 
and Budget (OMB) for review under section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.), and OMB has approved them. The 
section numbers are Secs. 10.201, 10.205, 10.207, 10.209, 10.805, 
12.02-4, and 12.02-9. The corresponding OMB number is OMB Control 
Number 2115-0514.

Federalism

    The Coast Guard has analyzed these regulations under the principles 
and criteria contained in Executive Order 12612 and has determined that 
this rule does not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that, under paragraph 2.B.2 of Commandant Instruction 
M16475.1B, the regulations are categorically excluded from further 
environmental documentation. Paragraph 2.B.2 of that instruction 
excludes administrative actions and procedural regulations and policies 
which clearly do not have any environmental impact. A ``Categorical 
Exclusion Determination'' is available in the docket for inspection or 
copying where indicated under ADDRESSES.

List of Subjects

46 CFR Part 10

    Fees, Reporting and recordkeeping requirements, Schools, Seamen.

46 CFR Part 12

    Fees, Reporting and recordkeeping requirements, Seamen.

    For the reasons set out in the preamble, the Coast Guard amends 46 
CFR parts 10 and 12 as follows:

PART 10--LICENSING OF MARITIME PERSONNEL

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

    Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7101, 
7106, 7107, 7109, 7302, 7505, 7701; 49 CFR 1.46. Section 10.107 also 
issued under 44 U.S.C. 3507.

    2. In Sec. 10.103, the definitions of ``conviction,'' ``National 
Driver Register,'' and ``NDR listed convictions'' are added to read as 
follows:


Sec. 10.103  Definitions of terms used in this part.

* * * * *
    Conviction means the applicant for a license or certificate of 
registry has been found guilty by judgment or plea by a court of record 
of the United States, the District of Columbia or any State or 
territory of the United States of a criminal felony or misdemeanor or 
of an offense described in section 205 of the National Driver Register 
Act of 1982 (49 U.S.C. 30304). Conviction of more than 

[[Page 65484]]
one offense at a single trial will be considered to be multiple 
convictions. If an applicant pleads guilty or no contest, is granted 
deferred adjudication, or is required by the court to attend classes, 
make contributions of time or money, receive treatment, submit to any 
manner of probation or supervision, or forego appeal of a trial court's 
conviction, then the applicant will be considered to have received a 
conviction. A later expungement of the conviction will not negate a 
conviction unless it is proved to the OCMI that the expungement is 
based upon a showing that the court's earlier conviction was in error.
* * * * *
    National Driver Register (NDR) means the nationwide repository of 
information on drivers maintained by the National Highway Traffic 
Safety Administration as provided under 49 U.S.C. Chapter 303.
    NDR listed convictions means a conviction of any of the following 
motor vehicle-related offenses or comparable offenses:
    (a) Operating a motor vehicle while under the influence of, or 
impaired by, alcohol or a controlled substance; or
    (b) A traffic violation arising in connection with a fatal traffic 
accident, reckless driving, or racing on the highways.
* * * * *
    3. In Sec. 10.201, paragraph (b) is revised and paragraphs (h), 
(i), and (j) are added to read as follows:


Sec. 10.201  Eligibility for licenses and certificates of registry, 
general.

* * * * *
    (b) No person who has been convicted by a court of record of a 
violation of the dangerous drug laws of the United States, the District 
of Columbia, or any State or territory of the United States is eligible 
for a license or certificate of registry, except as provided by the 
provisions of paragraph (h) of this section. No person who has ever 
been the user of, or addicted to the use of, a dangerous drug, or has 
ever been convicted of an offense described in section 205 of the 
National Driver Register Act of 1982 (49 U.S.C. 30304) due to the 
addiction or abuse of alcohol is eligible for a license or certificate 
of registry unless he or she furnishes satisfactory evidence of 
suitability for service in the merchant marine as provided in paragraph 
(j) of this section.
* * * * *
    (h) Criminal Record Review. The OCMI may review the criminal record 
of an applicant for the issuance of a license or certificate of 
registry issued as an original or reissued with a new expiration date. 
An applicant conducting simultaneous merchant mariner's credential 
transactions shall undergo only one criminal record check. Applicants 
must provide written disclosure of all prior convictions at the time of 
application.
    (1) If the applicant is advised that a criminal record check is 
required by the OCMI, applicants shall provide their fingerprints at 
the time of application. The fingerprints will be used to determine 
whether the applicant has a record of a criminal conviction. An 
application may be disapproved if a criminal record review leads the 
OCMI to determine that the applicant's habits of life and character are 
such that the applicant cannot be entrusted with the duties and 
responsibilities of the license or certificate of registry for which 
application is made. If an application is disapproved, the OCMI will 
notify the applicant in writing of the reason(s) for disapproval and 
advise the applicant that the reconsideration and appeal procedures in 
Sec. 1.03 of this chapter apply. No examination will be given pending 
decision on appeal.
    (2) The OCMI may use Table 10.201(h) to evaluate applicants for 
licenses and certificates of registry who have criminal convictions. 
The table lists major categories of criminal activity and is not to be 
construed as an all-inclusive list. If an applicant is convicted of an 
offense that does not appear on the list, the OCMI will establish an 
appropriate assessment period using the list as a guide. The assessment 
period commences when an applicant is no longer incarcerated. The 
applicant must establish proof of the time incarcerated and periods of 
probation and parole to the satisfaction of the OCMI. The assessment 
period may include supervised or unsupervised probation or parole. A 
conviction for a drug offense more than 10 years prior to the date of 
application will not alone be grounds for denial.
    (3) When an applicant has convictions for more than one offense, 
the minimum assessment period will be the longest minimum in Table 
10.201(h) and Table 10.201(i) based upon the applicant's convictions; 
the maximum assessment period will be the longest shown in Table 
10.201(h) and Table 10.201(i) based upon the applicant's convictions.
    (4) If a person with a criminal conviction applies for a license or 
certificate of registry before the minimum assessment period shown in 
Table 10.201(h), or established by the OCMI under paragraph (h)(2) of 
this section has elapsed, then the applicant must provide evidence of 
suitability for service in the merchant marine. Factors which are 
evidence of suitability for service in the merchant marine are listed 
in paragraph (j) of this section. The OCMI will consider the 
applicant's evidence and may issue the license or certificate of 
registry in less than the listed minimum assessment period if the OCMI 
is satisfied that the applicant is suitable to hold the license or 
certificate of registry for which he or she has applied. If an 
applicant does not provide evidence of suitability for service in the 
merchant marine, then the application will be considered incomplete and 
will not be processed by the OCMI.
    (5) If a person with a criminal conviction applies for a license or 
certificate of registry during the time between the minimum and maximum 
assessment periods shown in Table 10.201(h) or established by the OCMI 
under paragraph (h)(2) of this section, the OCMI will consider the 
conviction and, unless there are offsetting factors, may grant the 
applicant the license or certificate of registry for which he or she 
has applied. Offsetting factors include multiple convictions, failure 
to comply with court orders (e.g., child support orders), previous 
failures at rehabilitation or reform, inability to maintain steady 
employment, or any connection between the crime and the safe operation 
of a vessel. If the OCMI considers the applicant unsuitable for service 
in the merchant marine at the time of application, the OCMI will 
disapprove the application.
    (6) If a person with a criminal conviction applies for a license or 
certificate of registry after the maximum assessment period shown in 
Table 10.201(h) or established by the OCMI under paragraph (h)(2) of 
this section has elapsed, then the OCMI will grant the applicant the 
license or certificate of registry for which he or she has applied 
unless the OCMI has reason to believe the applicant is still unsuitable 
for service in the merchant marine. If the OCMI disapproves an 
application based upon a conviction older than the maximum assessment 
period, the OCMI will notify the applicant in writing of the reason(s) 
for the disapproval. The OCMI will also inform the applicant, in 
writing, that the reconsideration and appeal procedures contained in 
Sec. 1.03 of this chapter apply.

                                                                        

[[Page 65485]]
    Table 10.201(h).--Guidelines for Evaluating Applicants for Licenses and Certificates of Registry Who Have   
                                              Criminal Convictions                                              
----------------------------------------------------------------------------------------------------------------
                                                                      Assessment periods                        
                  Crime\1\                  --------------------------------------------------------------------
                                                          Minimum                            Maximum            
----------------------------------------------------------------------------------------------------------------
                                             Crimes Against Persons                                             
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Homicide (intentional).....................  7 years..........................  20 years.                       
Homicide (unintentional)...................  5 years..........................  10 years.                       
Assault (aggravated).......................  5 years..........................  10 years.                       
Assault (simple)...........................  1 year...........................  5 years.                        
Sexual Assault (rape, child molestation)...  5 years..........................  10 years.                       
Robbery....................................  5 years..........................  10 years.                       
Other crimes against persons \2\...........                                                                     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                             Crimes Against Property                                            
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Burglary...................................  3 years..........................  10 years.                       
Larceny (embezzlement).....................  3 years..........................  5 years.                        
Other crimes against property \2\..........                                                                     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                                Vehicular Crimes                                                
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Conviction involving fatality..............  1 year...........................  5 years.                        
Reckless Driving...........................  1 year...........................  2 years.                        
Racing on the Highways.....................  1 year...........................  2 years.                        
Other vehicular crimes \2\.................                                                                     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                          Crimes Against Public Safety                                          
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Destruction of Property....................  5 years..........................  10 years.                       
Other crimes against public safety \2\.....                                                                     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                       Crimes Involving National Security                                       
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Terrorism, Acts of Sabotage, Espionage and   7 years..........................  20 years.                       
 related offenses.                                                                                              
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                    Criminal Violations of Environmental Laws                                   
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Criminal violations of environmental laws    1 year...........................  10 years.                       
 involving improper handling of pollutants                                                                      
 or hazardous materials.                                                                                        
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                         Dangerous Drug Offenses 3, 4, 5                                        
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Trafficking (sale, distribution, transfer).  5 years..........................  10 years.                       
Dangerous drugs (Use or possession)........  1 year...........................  10 years.                       
Other dangerous drug convictions \6\.......                                                                     
----------------------------------------------------------------------------------------------------------------
\1\ Conviction of attempt, solicitation, aiding and abetting, accessory after the fact, and conspiracy to commit
  the criminal conduct listed in this table carry the same minimum and maximum assessment periods provided in   
  the table.                                                                                                    
\2\ Other crimes are to be reviewed by the OCMI to determine the minimum and maximum assessment periods         
  depending on the nature of the crime.                                                                         
\3\ Applicable only to original applications for licenses or CORs. Any applicant who has ever been the user of, 
  or addicted to the use of, a dangerous drug shall meet the requirements of paragraph (b) of this section.     
  Note: Applicants for reissue of a license or COR with a new expiration date including a renewal or a raise of 
  grade, who have been convicted of a dangerous drug offense while holding a license or COR, may have their     
  applications withheld until appropriate action has been completed by the OCMI under the regulations which     
  appear in 46 CFR part 5 governing administrative actions against merchant mariner credentials.                
\4\ The OCMI may consider dangerous drug convictions more than 10 years old only if there has been a dangerous  
  drug conviction within the past 10 years.                                                                     
\5\ Applicants must demonstrate rehabilitation under paragraph (j) of this section, including applicants with   
  dangerous drug use convictions more than ten years old.                                                       
\6\ Other dangerous drug convictions are to be reviewed by the Officer in Charge, Marine Inspection on a case by
  case basis to determine the appropriate assessment periods depending on the nature of the offense.            


    (i) National Driver Register. A license or certificate of registry 
will not be issued as an original or reissued with a new expiration 
date unless the applicant consents to a check of the NDR for offenses 
described in section 205(a)(3) (A) or (B) of the NDR Act (i.e., 
operation of a motor vehicle while under the influence of, or impaired 
by, alcohol or a controlled substance; and any traffic violations 
arising in connection with a fatal traffic accident, reckless driving, 
or racing on the highways). The OCMI will not consider NDR listed civil 
convictions that are more than 3 years old from the date of request 
unless that information relates to the current suspension or revocation 
of the applicant's license to operate a motor vehicle. The OCMI may 
determine minimum and maximum 

[[Page 65486]]
assessment periods for NDR listed criminal convictions using Table 
10.201(h). An applicant conducting simultaneous merchant mariner's 
credential transactions is subject to only one NDR check.
    (1) Any application may be disapproved if information from the NDR 
check leads the OCMI to determine that the applicant cannot be 
entrusted with the duties and responsibilities of the license or 
certificate of registry for which the application is made. If an 
application is disapproved, the OCMI will notify the applicant in 
writing of the reason(s) for disapproval and advise the application 
that the appeal procedures in Sec. 1.03 of this chapter apply. No 
examination will be given pending decision on appeal.
    (2) Prior to disapproving an application because of information 
received from the NDR, the OCMI will make the information available to 
the applicant for review and written comment. The applicant may submit 
records from the applicable State concerning driving record and 
convictions to the Coast Guard Regional Examination Center (REC) 
processing the application. The REC will hold an application with NDR 
listed convictions pending the completion of the evaluation and 
delivery by the individual of the underlying State records.
    (3) The guidelines in Table 10.201(i) will be used by the OCMI in 
evaluating applicants for licenses and certificates of registry who 
have drug or alcohol related NDR listed convictions. Non-drug or 
alcohol related NDR listed convictions will be evaluated by the OCMI 
under Table 10.201(h) as applicable.
    (4) An applicant may request an NDR file check for personal use in 
accordance with the Federal Privacy Act of 1974 (Pub. L. 93-579) by 
contacting the NDR at the following address: National Driver Register, 
Nassif Building, 400 7th Street, SW., Washington, DC 20590.
    (i) Applicants should request Form NDR-PRV or provide the following 
information on a notarized letter:
    (A) Full legal name;
    (B) Other names used;
    (C) Complete mailing address;
    (D) Driver license number;
    (E) Eye color;
    (F) Social security number;
    (G) Height;
    (H) Weight; and
    (I) Sex.
    (ii) The NDR will respond to every valid inquiry including requests 
which produce no record(s) on the NDR file. Records can be made 
available, within a reasonable amount of time after the request, for 
personal inspection and copying during regular working hours at 7:45 
a.m. to 4:15 p.m., each day except Federal holidays.

  Table 10.201(i).--Guidelines for Evaluating Applicants for Licenses and Certificates of Registry Who Have NDR 
                       Motor Vehicle Convictions Involving Dangerous Drugs or Alcohol \1\                       
----------------------------------------------------------------------------------------------------------------
        No. of convictions                      Date of conviction                      Assessment period       
----------------------------------------------------------------------------------------------------------------
1................................  Less than 1 year...........................  1 year from date of conviction. 
1................................  More than 1, less than 3 years.............  Application will be processed,  
                                                                                 unless suspension or revocation
                                                                                 \2\ is still in effect.        
                                                                                 Applicant will be advised that 
                                                                                 additional conviction(s) may   
                                                                                 jeopardize merchant mariner    
                                                                                 credentials.                   
1................................  More than 3 years old......................  Not necessary unless suspension 
                                                                                 or revocation is still in      
                                                                                 effect.                        
2 or more........................  Any less than 3 years old..................  1 year since last conviction and
                                                                                 at least 3 years from 2nd most 
                                                                                 recent conviction, unless      
                                                                                 suspension or revocation is    
                                                                                 still in effect.               
2 or more........................  All more than 3 years old..................  Application will be processed   
                                                                                 unless suspension or revocation
                                                                                 is still in effect.            
----------------------------------------------------------------------------------------------------------------
\1\ Any applicant who has ever been the user of, or addicted to the use of, a dangerous drug shall meet the     
  requirements of paragraph (b) of this section.                                                                
\2\ Suspension or revocation, when referred to in Table 10.201(i), means a State suspension or revocation of a  
  motor vehicle operator's license.                                                                             

    (j) If an applicant has one or more alcohol or dangerous drug 
related criminal or NDR listed convictions; if the applicant has ever 
been the user of, or addicted to the use of, a dangerous drug; or if 
the applicant applies before the minimum assessment period for his or 
her conviction has elapsed; the OCMI may consider the following 
factors, as applicable, in assessing the applicant's suitability to 
hold a license or certificate of registry. This list is intended as a 
guide for the OCMI. The OCMI may consider other factors which he or she 
judges appropriate to a particular applicant, such as:
    (1) Proof of completion of an accredited alcohol- or drug-abuse 
rehabilitation program.
    (2) Active membership in a rehabilitation or counseling group, such 
as Alcoholics Anonymous or Narcotics Anonymous.
    (3) Character references from persons who can attest to the 
applicant's sobriety, reliability, and suitability for employment in 
the merchant marine including parole or probation officers.
    (4) Steady employment.
    (5) Successful completion of all conditions of parole or probation.
    4. In Sec. 10.205, paragraph (f)(2) is revised and paragraph (k) is 
added to read as follows:


Sec. 10.205  Requriements for original licensees and certificates of 
registry.

* * * * *
    (f) * * *
    (1) * * *
    (2) The OCMI may review the criminal record check of each applicant 
for an original license or certificate of registry according to the 
procedures set forth in Sec. 10.201(h).
* * * * *
    (k) National Driver Register. Each applicant for an original 
license or certificate of registry shall consent to an NDR check under 
Sec. 10.201(i).
    5. In Sec. 10.207, paragraphs (h) and (i) are added to read as 
follows:


Sec. 10.207  Requirements for raise in grade of license.

* * * * *
    (h) Criminal Record Review. Each applicant for a raise of grade may 
be required to submit to a criminal record check under Sec. 10.201(h).
    (i) National Driver Register. Each applicant for a raise of grade 
of a license shall consent to an NDR check under Sec. 10.201(i) if the 
license is reissued with a new expiration date.
    6. In Sec. 10.209, paragraphs (i) and (j) are added to read as 
follows:


Sec. 10.209  Requirements for the renewal of licenses or certificates 
of registry.

* * * * *
    (i) Each applicant for a renewal may be required to consent to a 
criminal record check under Sec. 10.201(h).
    (j) Each applicant for renewal of a license or certificate of 
registry shall 

[[Page 65487]]
consent to an NDR check under Sec. 10.201(i).

PART 12--CERTIFICATION OF SEAMEN

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

    Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301, 
7302, 7503, 7505, 7701; 49 CFR 1.46.

    8. In Sec. 12.01-6, the definitions of ``conviction,'' ``National 
Driver Register,'' and ``NDR listed convictions'' are added to read as 
follows:


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

* * * * *
    Conviction means the applicant for a merchant mariner's document 
has been found guilty by judgment or plea by a court of record of the 
Untied States, the District of Columbia or any State or territory of 
the United States of a criminal felony or misdemeanor or of an offense 
described in section 205 of the National Driver Register Act of 1982 
(49 U.S.C. 30304). If an applicant pleads guilty or no contest, is 
granted deferred adjudication, or is required by the court to attend 
classes, make contributions of time or money, receive treatment, submit 
to any manner of probation or supervision, or forego appeal of a trial 
court's conviction, then the applicant will be considered to have 
received a conviction. A later expungement of the conviction will not 
negate a conviction unless it is proved to the OCMI that the 
expungement is based upon a showing that the court's earlier conviction 
was in error.
* * * * *
    National Driver Register (NDR) means the nationwide repository of 
information on drivers maintained by the National Highway Traffic 
Safety Administration as provided under 49 U.S.C. Chapter 303.
    NDR listed convictions means a conviction of any of the following 
motor vehicle-related offenses or comparable offenses:
    (a) Operating a motor vehicle while under the influence of, or 
impaired by, alcohol or a controlled substance; or
    (b) A traffic violation arising in connection with a fatal traffic 
accident, reckless driving, or racing on the highways.
    9. In Sec. 12.02-4, paragraph (a) is revised, paragraph (b) is 
removed, existing paragraph (c) is redesignated as paragraph (b), and 
new paragraphs (c), (d) and (e) are added to read as follows:


Sec. 12.02-4  Basis for denial of documents.

    (a) No person who has been convicted by a court of record of a 
violation of the dangerous drug laws of the United States, the District 
of Columbia, or any State or territory of the United States is eligible 
for an original merchant mariner's document, except as provided by the 
provisions of paragraph (c) of this section. No person who has ever 
been the user of, or addicted to the use of, a dangerous drug, or has 
ever been convicted of an offense described in section 205 of the 
National Driver Register Act of 1982 (49 U.S.C. 30304) due to the 
addiction or abuse of alcohol is eligible for a merchant mariner's 
document unless he or she furnishes satisfactory evidence of 
suitability for service in the merchant marine as provided in paragraph 
(e) of this section.
* * * * *
    (c) Criminal Record Review. The Officer in Charge, Marine 
Inspection, may require a criminal record check of an applicant for a 
merchant mariner's document issued as an original or reissued with a 
new expiration date. An applicant conducting simultaneous merchant 
mariner's credential transactions shall undergo only one criminal 
record check. Applicants must provide written disclosure of all prior 
convictions at the time of application.
    (1) If a criminal record check is required by the Officer in 
Charge, Marine Inspection, applicants shall provide fingerprints at the 
time of application. The fingerprints will be used to determine whether 
the applicant has a record of a criminal conviction. An application may 
be disapproved if the individual's criminal record leads the Officer in 
Charge, Marine Inspection to determine that the applicant cannot be 
entrusted with the duties and responsibilities of the merchant 
mariner's document for which application is made. If an application is 
disapproved, the Officer in Charge, Marine Inspection will notify the 
applicant in writing of the reason(s) for disapproval and advise the 
applicant that the appeal procedures in Sec. 1.03 of this chapter 
apply. No examination will be given pending decision on appeal.
    (2) The Officer in Charge, Marine Inspection will use Table 12.02-
4(c) to evaluate applicants for merchant mariner's documents who have 
criminal convictions. The table lists major categories of criminal 
activity and is not to be construed as an all-inclusive list. If an 
applicant is convicted of an offense that does not appear on the list, 
the Officer in Charge, Marine Inspection will establish an appropriate 
assessment period using the list as a guide. The assessment period 
commences when an applicant is no longer incarcerated. The applicant 
must establish proof of the time incarcerated and periods of probation 
and parole to the satisfaction of the Officer in Charge, Marine 
Inspection. The assessment period may include supervised or 
unsupervised probation or parole. A conviction for a drug offense more 
than 10 years prior to the date of application will not alone be 
grounds for denial.
    (3) When an applicant has convictions for more than one offense, 
the minimum assessment period will be the longest minimum in Table 
12.02-4(c) and Table 12.02-4(d) based upon the applicant's convictions; 
the maximum assessment period will be the longest shown in Table 12.02-
4(c) and Table 12.02-4(d) based upon the applicant's convictions.
    (4) If a person with a criminal conviction applies for a merchant 
mariner's document before the minimum assessment period shown in Table 
12.02-4(c), or established by the Officer in Charge, Marine Inspection 
under paragraph (c)(2) of this section has elapsed, then the applicant 
must provide, as part of the application package, evidence of 
suitability for service in the merchant marine. Factors which are 
evidence of suitability for service in the merchant marine are listed 
in paragraph (e) of this section. The Officer in Charge, Marine 
Inspection will consider the applicant's evidence submitted with the 
application and may issue the merchant mariner's document in less than 
the listed minimum assessment period if the Officer in Charge, Marine 
Inspection is satisfied that the applicant is suitable to hold the 
merchant mariner's document for which he or she has applied. If an 
application filed before the minimum assessment period has elapsed does 
not include evidence of suitability for service in the merchant marine, 
then the application will be considered incomplete and will not be 
processed by the Officer in Charge, Marine Inspection until the 
applicant provides the necessary evidence as set forth in paragraph (e) 
of this section.
    (5) If a person with a criminal conviction applies for a merchant 
mariner's document during the time between the minimum and maximum 
assessment periods shown in Table 12.02-4(c) or established by the 
Officer in Charge, Marine Inspection under paragraph (c)(2) of this 
section, then the Officer in Charge, Marine Inspection shall consider 
the conviction and, unless there are offsetting factors, shall grant 
the applicant the merchant mariner's document for which he or she 

[[Page 65488]]
has applied. Offsetting factors include such factors as multiple 
convictions, failure to comply with court orders (e.g., child support 
orders), previous failures at rehabilitation or reform, inability to 
maintain steady employment, or any connection between the crime and the 
safe operation of a vessel. If the Officer in Charge, Marine Inspection 
considers the applicant unsuitable for service in the merchant marine 
at the time of application, the Officer in Charge, Marine Inspection 
may disapprove the application.
    (6) If a person with a criminal conviction applies for a merchant 
mariner's document after the maximum assessment period shown in Table 
12.02-4(c) or established by the Officer in Charge, Marine Inspection 
under paragraph (c)(2) of this section has elapsed, then the Officer in 
Charge, Marine Inspection will grant the applicant the merchant 
mariner's document for which he or she has applied unless the Officer 
in Charge, Marine Inspection considers the applicant still unsuitable 
for service in the merchant marine. If the Officer in Charge, Marine 
Inspection disapproves an applicant with a conviction older than the 
maximum assessment period listed in Table 12.02-4(c), the Officer in 
Charge, Marine Inspection will notify the applicant in writing of the 
reason(s) for the disapproval including the Officer in Charge, Marine 
Inspection's reason(s) for considering a conviction older than the 
maximum assessment period listed in Table 12.02-4(c). The Officer in 
Charge, Marine Inspection will also inform the applicant, in writing, 
that the reconsideration and appeal procedures contained in Sec. 1.03 
of this chapter apply.

   Table 12.02-4(c).--Guidelines for Evaluating Applicants for Merchant Mariner's Documents Who Have Criminal   
                                                   Convictions                                                  
----------------------------------------------------------------------------------------------------------------
                                                                      Assessment periods                        
                 Crime \1\                  --------------------------------------------------------------------
                                                          Minimum                            Maximum            
----------------------------------------------------------------------------------------------------------------
                                             Crimes Against Persons                                             
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Homicide (intentional).....................  7 years..........................  20 years.                       
Homicide (unintentional)...................  5 years..........................  10 years.                       
Assault (aggravated).......................  5 years..........................  10 years.                       
Assault (simple)...........................  1 year...........................  5 years.                        
Sexual Assault (rape, child molestation)...  5 years..........................  10 years.                       
Other crimes against persons \2\...........                                                                     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                                Vehicular Crimes                                                
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Conviction involving fatality..............  1 year...........................  5 years.                        
Reckless Driving...........................  1 year...........................  2 years.                        
Racing on the Highway......................  1 year...........................  2 years.                        
Other vehicular crimes \2\.................                                                                     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                          Crimes Against Public Safety                                          
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Destruction of Property....................  5 years..........................  10 years.                       
Other crimes against public safety \2\.....                                                                     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                       Crimes Involving National Security                                       
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Terrorism, Acts of Sabotage, Espionage and   7 years..........................  20 years.                       
 related offenses.                                                                                              
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                          Dangerous Drug Offenses 3,4,5                                         
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Trafficking (sale, distribution, transfer).  5 years..........................  10 years.                       
Dangerous drugs (Use or possession)........  1 year...........................  10 years.                       
Other dangerous drug convictions \6\.......                                                                     
----------------------------------------------------------------------------------------------------------------
\1\ Conviction of attempts, solicitations, aiding and abetting, accessory after the fact, and conspiracies to   
  commit the criminal conduct listed in this table carry the same minimum and maximum assessment periods        
  provided in the table.                                                                                        
\2\ Other crimes are to be reviewed by the Officer in Charge, Marine Inspection to determine the minimum and    
  maximum assessment periods depending on the nature of the crime.                                              
\3\ Applicable to original applications only. Any applicant who has ever been the user of, or addicted to the   
  use of, a dangerous drug shall meet the requirements of paragraph (a) of this section. Note: Applicants for   
  reissue of a merchant mariner's document with a new expiration date including a renewal or additional         
  endorsement(s), who have been convicted of a dangerous drug offense while holding a merchant mariner's        
  document, may have their application withheld until appropriate action has been completed by the Officer in   
  Charge, Marine Inspection under the regulations which appear in 46 CFR part 5 governing the administrative    
  actions against merchant mariner credentials.                                                                 
\4\ The OCMI may consider dangerous drug convictions more than 10 years old only if there has been a dangerous  
  drug conviction within the past 10 years.                                                                     
\5\ Applicants must demonstrate rehabilitation under paragraph (e) of this section, including applicants with   
  dangerous drug use convictions more than ten years old.                                                       
\6\ Other dangerous drug convictions are to be reviewed by the Officer in Charge, Marine Inspection on a case by
  case basis to determine the appropriate assessment period depending on the nature of the offense.             


[[Page 65489]]

    (d) National Driver Register. A merchant mariner's document will 
not be issued or reissued with a new expiration date unless the 
applicant consents to a check of the NDR for offenses described in 
section 205(a)(3)(A) or (B) of the NDR Act (i.e., operation of a motor 
vehicle while under the influence of, or impaired by, alcohol or a 
controlled substance; and any traffic violations arising in connection 
with a fatal traffic accident, reckless driving, or racing on the 
highways). The Officer in Charge, Marine Inspection will not consider 
NDR listed civil convictions that are more than 3 years old from the 
date of request unless that information relates to the current 
suspension or revocation of the applicant's license to operate a motor 
vehicle. The Officer in Charge Marine Inspection may determine minimum 
and maximum assessment periods for NDR listed criminal convictions 
using Table 12.02-4(c). An applicant conducting simultaneous merchant 
mariner's credential transactions is subject to only one NDR check.
    (1) Any application may be disapproved if information from the NDR 
check leads the Officer in Charge, Marine Inspection to determine that 
the applicant cannot be entrusted with the duties and responsibilities 
of the merchant mariner's document for which the application is made. 
If an application is disapproved, the Officer in Charge, Marine 
Inspection will notify the applicant in writing of the reason(s) for 
disapproval and advise the applicant that the appeal procedures in 
Sec. 1.03 of this chapter apply. No examination will be given or 
merchant mariner's document issued pending decision on appeal.
    (2) Prior to disapproving an application because of information 
received from the NDR, the Officer in Charge, Marine Inspection will 
make the information available to the applicant for review and written 
comment. The applicant may submit reports from the applicable State 
concerning driving record and convictions to the Coast Guard Regional 
Examination Center (REC) processing the application. The REC will hold 
an application with NDR listed convictions pending the completion of 
the evaluation and delivery by the individual of the underlying State 
records.
    (3) The guidelines in Table 12.02-4(d) will be used by the Officer 
in Charge, Marine Inspection when evaluating applicants for merchant 
mariner's documents who have drug or alcohol related NDR listed 
convictions. Non-drug or alcohol related NDR listed convictions will be 
evaluated by the Officer in Charge, Marine Inspection under Table 
12.02-4(c) as applicable.
    (4) An applicant may request an NDR file check for personal use in 
accordance with the Federal Privacy Act of 1974 (Pub. L. 93-579) by 
contacting the NDR at the following address: National Driver Register, 
Nassif Building, 400 7th Street SW., Washington, DC 20590.
    (i) Applicants should request Form NDR-PRV or provide the following 
information on a notarized letter:
    (A) Full legal name;
    (B) Other names used;
    (C) Complete mailing address;
    (D) Driver license number;
    (E) Eye color;
    (F) Social security number;
    (G) Height;
    (H) Weight; and
    (I) Sex.
    (ii) The NDR will respond to every valid inquiry including requests 
which produce no record(s) on the NDR file. Records can be made 
available, within a reasonable amount of time after the request, for 
personal inspection and copying during regular working hours at 7:45 
a.m. to 4:15 p.m., each day except Federal holidays.

   Table 12.02-4(d).--Guidelines for Evaluating Applicants for Merchant Mariner's Documents Who Have NDR Motor  
                          Vehicle Convictions Involving Dangerous Drugs or Alcohol \1\                          
----------------------------------------------------------------------------------------------------------------
        No. of convictions                      Date of conviction                      Assessment period       
----------------------------------------------------------------------------------------------------------------
1................................  Less than 1 year...........................  1 year from date of conviction. 
1................................  More than 1, less than 3 years.............  Application will be processed,  
                                                                                 unless suspension, or          
                                                                                 revocation \2\ is still in     
                                                                                 effect. Applicant will be      
                                                                                 advised that additional        
                                                                                 conviction(s) may jeopardize   
                                                                                 merchant mariner credentials.  
1................................  More than 3 years old......................  Not necessary unless suspension 
                                                                                 or revocation is still in      
                                                                                 effect.                        
2 or more........................  Any less than 3 years old..................  1 year since last conviction and
                                                                                 at least 3 years from 2nd most 
                                                                                 recent conviction, unless      
                                                                                 suspension or revocation is    
                                                                                 still in effect.               
2 or more........................  All more than 3 years old..................  Application will be processed   
                                                                                 unless suspension or revocation
                                                                                 is still in effect.            
----------------------------------------------------------------------------------------------------------------
\1\ Any applicant who has ever been the user of, or addicted to the use of, a dangerous drug shall meet the     
  requirements of paragraph (a) of this section.                                                                
\2\ Suspension or revocation, when referred to in Table 12.02-4(d), means a State suspension or revocation of a 
  motor vehicle operator's license.                                                                             

    (e) If an applicant for an original merchant mariner's document has 
one or more alcohol or dangerous drug related criminal or NDR listed 
convictions; if the applicant has ever been the user of, or addicted to 
the use of, a dangerous drug; or if the applicant applies before the 
minimum assessment period for his or her conviction has elapsed; the 
Officer in Charge, Marine Inspection may consider the following 
factors, as applicable, in assessing the applicant's suitability to 
hold a merchant mariner's document. This list is intended as a 
guideline. The Officer in Charge, Marine Inspection may consider other 
factors which he or she judges appropriate, such as:
    (1) Proof of completion of an accredited alcohol- or drug-abuse 
rehabilitation program.
    (2) Active membership in a rehabilitation or counseling group, such 
as Alcoholics or Narcotics Anonymous.
    (3) Character references from persons who can attest to the 
applicant's sobriety, reliability, and suitability for employment in 
the merchant marine including parole or probation officers.
    (4) Steady employment.
    (5) Successful completion of all conditions of parole or probation.
    10. In Sec. 12.02-9, paragraphs (g) and (h) are added to read as 
follows:


Sec. 12.02-9  Application for documents.

* * * * *
    (g) Each applicant for an original merchant mariner's document may 
be required to submit to a criminal record check as required by 
Sec. 12.02-4(c).
    (h) Each applicant for an original merchant mariner's document or a 
merchant mariner's document reissued with a new expiration date shall 
comply 

[[Page 65490]]
with the NDR requirements in Sec. 12.02-4(d).
    Dated: December 12, 1995.
G.N. Naccara,
Captain, U.S. Coast Guard, Acting Chief, Office of Marine Safety, 
Security and Environmental Protection.
[FR Doc. 95-30677 Filed 12-18-95; 8:45 am]
BILLING CODE 4910-14-M`