65478 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

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
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations 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 § 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’’ (§ 10.207) and ‘‘Issuance of

duplicate of license or certificate of

registry’’ (§ 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
65480 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

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

§ 10.103 and § 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, § 10.201(b) and § 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 § 10.201(b) and

§ 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
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations 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 § 10.201(h)

and § 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 § 10.201(j) and § 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 § 10.201(h)(5) and

§ 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 § 10.201(h)(2) and § 12.02–

4(c)(2) to clarify when the assessment

period commences.

One comment objected to the

evaluating factor in §§ 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 § 10.201(h)(2) and § 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,

§ 10.201(h)(3) and § 12.02–4(c)(3) were

revised to add Table 10.201(i) and Table

12.02–4(d), respectively. Also,

§ 10.201(i) and § 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
65482 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

2 or more motor vehicle convictions

involving dangerous drugs or alcohol.

The Coast Guard revised § 10.201(j)

and § 12.02–4(e) to include applicants

who are users of, or addicted to

dangerous drugs. This revision was

made to ensure consistency with

§ 10.201(b) and § 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
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations 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.×8 hrs./

day×250 days/yr.). The initial annual

Coast Guard REC costs are estimated to

be $58,354 (57,435 checks×0.05 hr./

check×/$20/hr. for a clerical employee,

plus $0.32/stamp×2,872 hits). Initially,

the Coast Guard will dedicate one fulltime 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×8 hrs./day×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 spotchecking 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-ofinformation 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 §§ 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 § 10.103, the definitions of

‘‘conviction,’’ ‘‘National Driver

Register,’’ and ‘‘NDR listed convictions’’

are added to read as follows:

§ 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
65484 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

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 § 10.201, paragraph (b) is revised

and paragraphs (h), (i), and (j) are added

to read as follows:

§ 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 § 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 allinclusive 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 § 1.03 of

this chapter apply.
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations 65485

TABLE 10.201(h).—GUIDELINES FOR EVALUATING APPLICANTS FOR LICENSES AND CERTIFICATES OF REGISTRY WHO

HAVE CRIMINAL CONVICTIONS

Crime1

Assessment periods

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 related offenses ........................................................................ 7 years ............. 20 years.

Criminal Violations of Environmental Laws

Criminal violations of environmental laws involving improper handling of pollutants or hazardous materials . 1 year ............... 10 years.

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. 2Other crimes are to be reviewed by the OCMI to determine the minimum and maximum assessment periods depending on the nature of the

crime. 3Applicable 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. 4The 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. 5Applicants must demonstrate rehabilitation under paragraph (j) of this section, including applicants with dangerous drug use convictions more

than ten years old. 6Other 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
65486 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

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 § 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. Nondrug 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.

1Any 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. 2Suspension 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 § 10.205, paragraph (f)(2) is

revised and paragraph (k) is added to

read as follows:

§ 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 § 10.201(h).

* * * * *

(k) National Driver Register. Each

applicant for an original license or

certificate of registry shall consent to an

NDR check under § 10.201(i).

5. In § 10.207, paragraphs (h) and (i)

are added to read as follows:

§ 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 § 10.201(h).

(i) National Driver Register. Each

applicant for a raise of grade of a license

shall consent to an NDR check under

§ 10.201(i) if the license is reissued with

a new expiration date.

6. In § 10.209, paragraphs (i) and (j)

are added to read as follows:

§ 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 § 10.201(h).

(j) Each applicant for renewal of a

license or certificate of registry shall
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations 65487

consent to an NDR check under

§ 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 § 12.01–6, the definitions of

‘‘conviction,’’ ‘‘National Driver

Register,’’ and ‘‘NDR listed convictions’’

are added to read as follows:

§ 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 § 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:

§ 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 § 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
65488 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

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 § 1.03 of this chapter

apply.

TABLE 12.02–4(c).—GUIDELINES FOR EVALUATING APPLICANTS FOR MERCHANT MARINER’S DOCUMENTS WHO HAVE

CRIMINAL CONVICTIONS

Crime 1

Assessment periods

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 related offenses ........................................................................ 7 years ............. 20 years.

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. 2Other 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. 3Applicable 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. 4The 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. 5Applicants must demonstrate rehabilitation under paragraph (e) of this section, including applicants with dangerous drug use convictions more

than ten years old. 6Other 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.
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations 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 § 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. Nondrug 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.

1Any 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. 2Suspension 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 § 12.02–9, paragraphs (g) and

(h) are added to read as follows:

§ 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 § 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
65490 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

with the NDR requirements in § 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