[Federal Register Volume 60, Number 48 (Monday, March 13, 1995)]
[Proposed Rules]
[Pages 13570-13582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6033]




[[Page 13569]]

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Part VII





Department of Transportation





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Coast Guard



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46 CFR Parts 10 and 12



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

Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / 
Proposed Rules 
[[Page 13570]] 

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: Notice of proposed rulemaking.

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

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

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

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine 
Safety Council (G-LRA/3406) (CGD 91-212), U.S. Coast Guard 
Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001, or 
may be delivered to room 3406 at the same address between 8 a.m. and 3 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 267-1477. Comments on collection-of-information 
requirements must be mailed also to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street 
NW., Washington, DC 20503, Attn.: Desk Officer, U.S. Coast Guard.
    The Executive Secretary maintains the public docket for this 
rulemaking. Comments will become part of this docket and will be 
available for inspection or copying at room 3406, U.S. Coast Guard 
Headquarters between 8 a.m. and 3 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. James W. Cratty, Project Manager, 
Oil Pollution Act (OPA 90) Staff, (202) 267-6740. This telephone 
records messages on a 24-hour basis.

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their names and addresses, 
identify this rulemaking (CGD 91-212) and the specific section of this 
proposal to which each comment applies, and give the reason for each 
comment. Please submit two copies of all documents and attachments in 
an unbound format, no larger than 8 by 11 inches, suitable for copying 
and electronic filing. Persons wanting acknowledgment of receipt of 
comments should enclose a stamped, self-addressed postcard or envelope.
    The Coast Guard will consider all comments received during the 
comment period. It may change this proposal in view of the comments.
    The Coast Guard plans no public meeting. Persons may request a 
public meeting by writing to the Marine Safety Council at the address 
under ADDRESSES. The request should include the reasons why a public 
meeting would be beneficial. If the Coast Guard determines that oral 
presentations will aid this rulemaking, it will hold a public meeting 
at a time and place announced by a later notice in the Federal 
Register.

Drafting Information

    The principal persons involved in drafting this document are Mr. 
James W. Cratty, Project Manager, OPA 90 Staff, and Ms. Jacqueline 
Sullivan, Project Counsel, Office of the Chief Counsel (G-LRA).

Background and Purpose

1. General

    Under the authority of 46 U.S.C. 7101, the Coast Guard issues 
licenses to qualified officers such as masters, mates, pilots, 
engineers, operators, and radio officers. It also issues certificates 
of registry (CORs) to qualified staff officers such as pursers, medical 
doctors, and professional nurses.
    The Coast Guard issues merchant mariner's documents (MMDs), with 
certain exceptions described in 46 U.S.C. 8701, to vessel personnel for 
service aboard U.S. flag merchant vessels of more than 100 gross tons 
which operate on waters other than rivers and lakes. The MMD serves as 
a certificate of identification and qualification, authorizing work in 
different capacities on deck and in the engine and steward's 
departments. The MMD, with an appropriate endorsement, is also the 
credential issued to qualified tankermen. Many merchant mariners who 
hold licenses and CORs also hold MMDs.
    All licensing and documentation transactions are processed at Coast 
Guard Regional Examination Centers (RECs) exercising the authority of 
the Officer in Charge, Marine Inspection (OCMIs).
    Sections 4101 (a) and (b) and section 4102(e) of the Oil Pollution 
Act of 1990 (OPA 90) (Pub. L. 101-380) amend 46 U.S.C. 7101, 7302, and 
7109, respectively, to authorize the Coast Guard to conduct criminal 
record checks of any individual applying for a license, COR, or MMD; 
for a raise in grade of a license or COR; for a renewal of a license, 
COR, or MMD; or for an endorsement of an MMD with a new expiration 
date. Individuals with criminal records may be unsuitable candidates 
for a license, COR, or MMD because they may present a risk to 
passengers, fellow crew members, or the safe operation of a vessel.
    As amended, 46 U.S.C. 7101 and 7302 prohibit the Coast Guard from 
issuing a license, COR, or MMD to an applicant unless the applicant 
makes available to the Coast Guard any information contained in the 
National Driver Register (NDR) related to an offense committed by the 
applicant that is described in sections 205(a)(3) (A) or (B) of the 
National Driver Register Act of 1982 (23 U.S.C. 401 note). These 
offenses are: operation of a motor vehicle under the influence of, or 
while impaired by, alcohol or a controlled substance; and any traffic 
violation(s) arising in connection with a fatal traffic accident, 
reckless driving, or racing on the highways.
    Although an individual's motor vehicle record is not directly 
related to his or her maritime career, a record of alcohol or drug-
related, or other motor vehicle offenses as specified in sections 
205(a)(3) (A) and (B) of the NDR Act of 1982, indicates that the 
individual may have a disregard for his or her own safety or the safety 
of others and therefore may not be suitable for maritime employment.
    Section 4105(b) of OPA 90 amends 23 U.S.C. 401 note, to require the 
Coast Guard to make the information received from the NDR available to 
the applicant for review and written comment before the Coast Guard 
uses this information as a basis for denying, suspending, revoking, or 
taking other action on that individual's license, COR, or 
MMD. [[Page 13571]] 
    Before Congress enacted OPA 90, an individual who applied for a 
license, COR, or MMD was not required to provide the Coast Guard with 
NDR information. However, an applicant for a license or COR was asked 
on the application form if he or she had been convicted of any 
offense(s) other than minor traffic violation(s). Information provided 
by the applicant regarding conviction(s) for other than minor traffic 
violation(s), including Driving Under the Influence (DUI) or Driving 
While Intoxicated (DWI), was used to evaluate the applicant's 
qualifications to hold a license or COR.

2. Criminal Record Review Under Current Regulations

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

3. National Driver Register Access

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

Discussion of Proposed Rules

    In the discussion of the proposed rules, and the proposed rules 
themselves, the procedures incident to a criminal record check and 
those incident to obtaining information from the National Driver 
Register are treated separately. Although there are differences, the 
basic structure is the same: an applicant provides the Coast Guard with 
the means of searching a data base and the Coast Guard evaluates the 
information received to determine whether there is reason to deny a 
license, COR, or MMD to the applicant. The decision is based on the 
nature of the incidents reported, the number of incidents, and when the 
incident occurred. The Coast Guard is considering whether the 
processing of incidents reported under both systems can be consolidated 
in the final rule and welcomes comments and suggestions in this regard.

1. Criminal Record Review

    Congress has provided for new requirements on all merchant mariners 
in order to promote a drug and alcohol-free maritime industry. These 
requirements focus on chemical testing, criminal record reviews, and 
NDR checks. The Coast Guard proposes to amend 46 CFR parts 10 and 12 to 
reflect its authority to review the criminal record of an individual 
applying for a license, COR, or MMD. The proposed rules would continue 
the existing requirements concerning criminal record checks for the 
issuance of original licenses or CORs and extend them to original 
issuance of MMDs.
    The Coast Guard also would amend the appropriate sections of 46 CFR 
part 10 and 12 to allow criminal record checks of any individual 
applying for a raise in grade of a license or COR; a renewal of a 
license, COR, or MMD; or an endorsement of an MMD with a new expiration 
date.
    The Coast Guard believes that an applicant who has been convicted 
of violent criminal offenses or serious property-related offenses may 
pose a threat to ship personnel, passengers, the marine environment, 
and safe operation of the ship, and should not be given the duties and 
responsibilities of a licensed officer or holder of a COR or an MMD. 
Life on board a ship is unique in that the protections normally 
afforded the public (i.e., law enforcement) are not as readily 
available. Evidence that an applicant has criminal convictions must 
[[Page 13572]] be carefully weighed by the OCMI to ensure marine 
safety.
    In order to provide specific guidance on who has a ``conviction,'' 
the Coast Guard proposes to define ``conviction'' to include a finding 
of guilty by judgment or plea by a court of record in the United 
States. The definition would cover convictions for criminal felonies or 
misdemeanors or for offenses described in section 205 of the National 
Driver Register Act of 1982 (23 U.S.C. 401 note). It would also cover 
expungements, deferred adjudications, and other forms of plea 
agreements. An expungement of a conviction would not be considered 
unless the expungement was based upon a showing that the conviction was 
in error.
    The tables in Secs. 10.201(h) and 12.02-4(c) list minimum 
assessment periods after various criminal convictions before which an 
application will normally not be approved and the maximum periods that 
a conviction will normally be considered disqualifying. The lists are 
not intended to be comprehensive. They include major categories of 
criminal offenses. If an applicant has been convicted of an offense 
that does not appear on the list, the OCMI may establish the assessment 
period depending on the nature of the crime, using the list as a guide. 
Because licensed officers and individuals employed under CORs have 
greater responsibilities than MMD holders, additional categories of 
offenses have been included in Table 10.201(h).
    An assessment period commences when an applicant with a conviction 
is no longer incarcerated or under supervised parole or probation. A 
period of unsupervised parole or probation would be counted as part of 
the assessment period. The OCMI will consider successful completion of 
all conditions of parole or probation as evidence that the applicant is 
suitable for service in the merchant marine.
    In all cases where the application is complete and the applicant is 
required to complete an assessment period before issuance or renewal of 
a merchant mariner's credential, the OCMI would notify the applicant in 
writing stating the reason for denial and explaining the right to 
appeal and the appeal process as provided for in Sec. 1.03 of this 
chapter.
    There are several purposes in establishing minimum and maximum 
assessment period guidelines in these tables. The tables give 
applicants specific notice that certain criminal convictions may delay 
issuance of merchant mariner's credentials and the approximate length 
of the delay they can expect. Following a conviction, a period of time 
must elapse for the individual to demonstrate that he or she does not 
present a safety risk to fellow crew and passengers while at sea. The 
minimum periods, as proposed in the tables, are estimates of the time 
required to permit the OCMI to determine that, despite the criminal 
conviction, the applicant may now be entrusted with the duties and 
responsibilities of a merchant mariner. These estimates are based upon 
the nature of the criminal conviction, with longer periods required for 
convictions involving violence or drugs. The nature of violent or 
dangerous drug convictions are such that, for the Coast Guard to 
adequately safeguard the lives and well-being of crew and passengers, 
it must be reasonably confident that these types of offenses will not 
occur at sea.
    In addition, a merchant mariner who holds a Coast Guard issued 
credential is responsible for knowing, and following, a large body of 
maritime law and regulation, much of it related to safety, health or 
environmental protection. Before issuing a credential, the Coast Guard 
must be satisfied that an applicant will obey these laws and 
regulations without direct and immediate oversight by a law enforcement 
agency. It would be imprudent, in such circumstances, to issue a 
credential to an applicant with a criminal record without first waiting 
beyond his or her court-ordered sentence to see whether the applicant 
was a trustworthy and responsible member of society absent the 
constraints of the criminal justice system. Recidivism among those with 
criminal convictions is a legitimate Coast Guard concern. The 
assessment periods provide a basis for excluding from the merchant 
marine those individuals who may have recidivist tendencies and a basis 
for concluding that these tendencies do not exist.
    The guidelines in the tables are also intended to promote national 
uniformity of results with respect to review of criminal convictions in 
the issuance of merchant mariner's credentials. The tables are designed 
to provide guidance for the OCMI when he or she is faced with an 
applicant who has criminal convictions. This guidance will ensure that 
all applicants will be treated fairly and uniformly, regardless of 
where they apply.
    The minimum assessment periods listed in the tables represent the 
shortest amount of time in which the applicant normally may demonstrate 
that he or she is now responsible enough to be entrusted with the 
duties of a merchant mariner. If a person applies before the minimum 
assessment period for his or her conviction has elapsed, then the 
applicant must provide, as part of the application, compelling evidence 
of suitability for employment. Such evidence includes, but is not 
limited to, the following: proof of completion of an alcohol- or drug-
abuse treatment or education program; active membership in a 
rehabilitation or counseling group, such as Alcoholics Anonymous or 
Narcotics Anonymous; character references from persons who can attest 
to the applicant's sobriety, reliability, and suitability for 
employment in the merchant marine; steady employment; or successful 
completion of all conditions of parole or probation. Any application 
submitted prior to the minimum assessment period and which does not 
include such additional evidence of suitability for employment in the 
merchant marine will be considered incomplete and will not be 
processed.
    If a person applies for a license, COR, or MMD during the time 
between the minimum and maximum assessment periods, the OCMI will 
consider the conviction along with other factors in determining whether 
to grant the credential. Normally, a single prior conviction older than 
the minimum assessment period would not be disqualifying unless the 
OCMI is aware of offsetting factors. Offsetting factors include 
multiple convictions, failure to comply with court orders including 
child support orders, previous failures at rehabilitation or reform, 
inability to maintain steady employment, or any connection between the 
crime and the safe operation of a vessel. If the OCMI considers the 
applicant unsuitable for service in the merchant marine at the time of 
application, the OCMI may disapprove the application.
    The maximum assessment periods in the tables will protect merchant 
mariners against arbitrary imposition of unreasonably long assessment 
periods. Following the maximum assessment period, the OCMI may not 
normally deny granting the license, COR or MMD. However, if an OCMI 
considered a prior criminal conviction older than the maximum 
assessment period in disapproving an application, then the OCMI would 
be required to inform the applicant, in writing, of the reasons for the 
decision, including the reasons why a conviction older than the maximum 
was still being considered. The OCMI would also be required to inform 
the applicant of the appeal procedures that apply.
    The minimum assessment period for applicants with multiple 
convictions, whether at a single trial or separate trials, would be the 
longest minimum from among those listed in the tables for 
[[Page 13573]] the applicant's convictions. However, convictions of 
multiple offenses, whether at a single trial or separate trials, may be 
sufficient evidence that the applicant is not suitable for service in 
the merchant marine and may lead the OCMI to deny the application after 
the minimum assessment period and, in extraordinary cases, even after 
the maximum period in the tables has expired.
    A mariner who already holds a license, COR, or MMD and who has been 
convicted of a drug offense(s) and who applies for reissue of that 
credential with a new expiration date including a renewal, raise of 
grade, or endorsement may have his or her application withheld. The 
OCMI will then take appropriate action under the marine investigation 
regulations for personnel actions which appear in 46 CFR part 5.
    The Coast Guard solicits comments on the appropriateness of the 
criminal offense categories and assessment periods contained in Tables 
10.201(h) and 12.02-4(c). The Coast Guard also solicits comments on the 
factors to be considered in determining suitability for service in the 
merchant marine contained in 10.201(j) and 12.12.02-4(e).

2. National Driver Register Access

    The Oil Pollution Act of 1990 (Pub. L. 101-380) amended 46 U.S.C. 
7101 and 7302 to prohibit issuance of merchant mariner's credentials 
unless applicants make available information from the NDR. The 
conference report states: ``The purpose of this section * * * is to 
ensure that the Coast Guard can identify vessel personnel with motor 
vehicle offenses related to the use of alcohol and drugs. Abuse of 
these substances may evince possible unsafe vessel operations, leading 
to additional accidents and oil spills.'' (House Conf. Rep. No. 101-
653, p. 128). The Coast Guard proposes to amend 46 CFR parts 10 and 12 
to require an applicant for a merchant mariner's credential to make 
available to the Coast Guard, at the time of making an application, the 
information identified in section 205(a)(3) (A) or (B) of the NDR Act 
concerning his or her driving record. The applicant would be required 
to submit a pre-printed written consent form to the Coast Guard along 
with the application package. The OCMI would obtain checks of the NDR. 
The OCMI would not issue a license, COR, or MMD until it had received 
and reviewed the NDR report.
    The NDR report contains basic descriptive data about an individual, 
the current status of an individual's license to operate a motor 
vehicle, and an indication that a State may hold records regarding 
criminal or administrative action taken against an individual's license 
to operate a motor vehicle. The NDR report does not describe the 
substantive offense that forms the basis for a State's license action. 
The information required by section 205(a)(3) (A) or (B) of the NDR 
Act, in addition to covering conviction of motor vehicle offenses 
involving operation of a motor vehicle under the influence of or 
impaired by alcohol or a controlled substance, covers conviction of a 
traffic violation arising in connection with a fatal traffic accident, 
reckless driving, or racing on the highways. Each applicant will have 
an opportunity to review the NDR report and verify or refute any 
information in the report by obtaining appropriate State records. The 
OCMI will not process any application with NDR listed convictions 
unless the applicant produces the underlying State records.
    The holder of a merchant mariner's credential is closely involved 
with the safe operation of a vessel. Performance of many routine duties 
and all emergency duties affects the safety of the vessel. Unsafe 
performance of duties could produce catastrophic consequences. To help 
minimize the risk of unsafe operation, the Coast Guard may exclude from 
holding seafarer's credentials individuals who have demonstrated a lack 
of concern regarding the safety of themselves, others, or the marine 
environment. The amendments to 46 U.S.C. 7101 and 7302 reflect the 
conclusion that convictions of offenses listed in section 205(a)(3) (A) 
or (B) of the NDR Act may demonstrate such a lack of concern. 
Therefore, the OCMI will evaluate each NDR report to determine if there 
is evidence of a problem affecting the applicant's qualification to 
hold a merchant mariner credential.
    The OCMI would use the following guidelines to evaluate applicants 
who have drug or alcohol related NDR listed convictions. Non-drug or 
alcohol related NDR listed convictions will be evaluated by the OCMI 
under Table 10.201(h) or Table 12.02-04(d) as applicable.
a. Single NDR Listed Conviction
    An NDR check disclosing a single conviction could indicate a 
recurring problem or an isolated incident. A single conviction may 
reveal the early stage of a developing long-term problem or it may mean 
that an individual having a well-developed problem was caught only 
once. It could also indicate a single incident in which poor judgment 
was exercised. In cases where a long-term problem is developing and 
corrective measures are not taken, additional time may result in 
subsequent convictions.
    (1) Single NDR listed conviction-less than 1 year old. If the 
conviction is less than 1 year old, the application may be disapproved 
for a period of time sufficient to ensure that a subsequent incident 
does not occur (at least 1 year from the date of the conviction).
    (2) Single NDR listed conviction--more than 1 but less than 3 years 
old. If the conviction is more than 1 year old, but less than 3 years 
old, the application would be processed unless a suspension or 
revocation of a driver's license is still in effect. If a suspension or 
revocation is still in effect, the OCMI would review the conviction 
resulting in that suspension or revocation before processing the 
application. The OCMI would not issue the credential until satisfied 
that the applicant was suitable for employment in the merchant marine.
    (3) Single NDR listed conviction--more than 3 years old. If the 
conviction is more than 3 years old, further evaluation would not be 
necessary unless a suspension or revocation of a driver's license is 
still in effect. If a suspension or revocation is still in effect, the 
OCMI would review the conviction resulting in that suspension or 
revocation before processing the application. The OCMI would not issue 
the credential until satisfied that the applicant was suitable for 
employment in the merchant marine.
b. Multiple NDR Listed Convictions
    Multiple (two or more) drug or alcohol related NDR listed 
convictions may indicate a problem with alcohol or with the illegal use 
of drugs. They may also indicate uncontrolled dependency (alcoholism), 
drug addiction, or irresponsibility and dangerous disregard for the 
safety of self and others. The OCMI will not issue a merchant mariner's 
credential to an applicant with multiple convictions unless the 
applicant shows that he or she is now suitable for employment in the 
merchant marine and has no further convictions for a period of time. 
Acceptable evidence of suitability for employment in the merchant 
marine include the following, as appropriate to the particular case: 
completion of an alcohol or drug-abuse treatment or education program; 
active membership in a rehabilitation organization such as Alcoholics 
Anonymous; and character references from persons who can attest to the 
length of the applicant's current period of sobriety and applicant's 
reliability. [[Page 13574]] 
    (1) Multiple NDR listed convictions--less than 3 years old. If an 
applicant has multiple convictions within the last 3 years, the 
application may be denied unless it has been at least 1 year from the 
date of the last conviction or at least 3 years from the date of the 
second most recent conviction, whichever is longer.
    (2) Multiple NDR listed convictions--more than 3 years old. For an 
applicant with multiple convictions, the most recent being more than 3 
years old, further evaluation would not be necessary unless a 
suspension or revocation of a driver's license is still in effect. If a 
suspension or revocation is still in effect, the OCMI would review the 
conviction resulting in that suspension or revocation before processing 
the application. The OCMI would not issue the credential until 
satisfied that the applicant was suitable for employment in the 
merchant marine.

Regulatory Evaluation

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

1. Criminal Record Review

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

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

    It will cost the Coast Guard approximately $16 per criminal record 
check to process the fingerprints through the FBI for an estimated 
annual cost of $19,700.
    Based on a sample survey of the REC's experience with criminal 
records conducted by the Coast Guard in 1992, 8 percent of the 
applicants are estimated to have records with the FBI. Of those with 
records, it is estimated that 9 percent have records significant to the 
license evaluation. Thus, only .72 percent of the applicants had 
actionable convictions on their records. Therefore, of the reissue and 
renewal applicants sampled, it is estimated that 99 will have records 
with the FBI, and a total of 9 of the 1,232 applicants will have 
records significant to the license evaluation. The Coast Guard 
estimates that the costs for the 99 applicants with convictions to 
furnish the necessary documents to exonerate themselves will be 
minimal. Costs are expected to total approximately $19 per court record 
for aggregate annual respondent costs of approximately $1,900.
    The Coast Guard estimates that 75 percent, or 924, of the spot-
checked applicants for a raise in grade of a license or COR, a renewal 
of a license or COR, or any MMD with a new expiration date will apply 
by mail. For those 924 applicants, the estimated costs include the time 
for the applicant to go to his or her local police department, submit 
to fingerprinting, and return to his or her residence. The Coast Guard 
estimates that this would take approximately 1.5 hrs. of the 
applicant's time. Total respondent costs are estimated to be $22,700.
    Twenty-five percent, or 308, of the spot-checked applicants are 
expected to choose to go to an REC to conduct their renewal 
transactions. For those 308 applicants, additional costs attributed to 
the criminal record check will be insignificant.

2. National Driver Register Access

    The Coast Guard estimates that it will conduct 57,435 NDR checks 
annually for all individuals applying for the original issuance, 
renewal, or endorsement with a new expiration date of merchant 
mariner's credentials. The Coast Guard's costs for NDR checks involve 
providing an interface with the NDR computer and clerical resources to 
process record checks and notifications to applicants with NDR records. 
These costs are estimated to be $120,000 annually, with the potential 
for substantial reduction in cost if direct access to the NDR data by 
the RECs is authorized. The RECs will write letters to those applicants 
who have a probable identification (hit), and review any associated 
court records as forwarded by applicants.
    The Coast Guard estimates that initial computer hardware and 
software costs and necessary connection to the NDR will be under 
$20,000. The Coast Guard estimates the annual cost of a dedicated 
telephone line from Coast Guard [[Page 13575]] Headquarters to the 
Commonwealth of Virginia will be $12,000 ($6/hr. x 8 hrs./day x 250 
days/yr.). The initial annual Coast Guard REC costs are estimated to be 
$58,354 (57,435 checks x 0.05 hr./check x $20/hr. for a clerical 
employee, plus $0.32/stamp x 2,872 hits). Initially, the Coast Guard 
will dedicate one full-time clerical employee at Coast Guard 
Headquarters to forward data to the Commonwealth of Virginia for 
processing. This cost is estimated to be $40,000 ($20/hr. for a 
clerical employee x 8 hrs./day x 250 days). Therefore, the initial 
annual Coast Guard cost associated with the National Driver Register 
portion of the proposed rule is estimated to total approximately 
$111,400.
    Annual respondent costs associated with NDR checks include the time 
to fill out the NDR consent form which is considered to be 
insignificant. In 50 percent of the 2,872 hits, or 1,436 cases, 
applicants will have clean driving records and the OCMI will issue 
their merchant mariner's credentials without further expense. For the 
other 50 percent of applicants, or 1,436, costs are expected to be less 
than $20.00 per court record submitted to the Coast Guard for estimated 
annual respondent costs of $26,700.
    The dollar value of direct and societal benefits flowing from spot-
checking applicants' criminal records and from reviewing applicants' 
NDR records are not quantifiable but may be substantial.
    The Coast Guard anticipates that, as a result of this rule, a 
number of applicants will be identified, based upon their criminal 
record or adverse driving record, whose conduct indicates that they 
should not be trusted to safely perform shipboard duties. Those 
applicants will not be granted merchant mariner credentials.
    Direct benefits would include the potential for--
    <bullet> Fewer marine groundings and other accidents;
    <bullet> Reduced property loss;
    <bullet> Fewer releases of oil and hazardous materials into the 
marine environment; and
    <bullet> Fewer injuries and reduced loss of life among merchant 
mariners.
    The Coast Guard also anticipates several indirect benefits. Within 
the community of applicants for merchant mariner's credentials, 
knowledge of the Coast Guard's enhanced periodic record-checking 
program may dissuade recidivism among merchant mariners with past 
criminal, or serious traffic records. The program may also discourage 
some convicted criminals, dangerous drug users, and serious traffic 
offenders from seeking new credentials or renewals, and may also 
encourage some applicants who are convicted criminals or dangerous drug 
users to truthfully complete questions that address these issues on the 
application forms. Dangerous drug users in the U.S. merchant marine may 
be encouraged to seek counseling and treatment before incurring a 
criminal record or dangerous drug history with the FBI. In addition, 
merchant mariners and prospective merchant mariners may be encouraged 
to maintain a satisfactory standard of personal conduct.
    Historical data is insufficient to quantify benefits; however, 
should this program manage to save even one life per year at $2.6 
million per statistical life saved (which recent research shows is a 
reasonable estimate of people's willingness-to-pay for safety), its 
benefits would exceed its costs. If maritime accidents were reduced 
even by a small percentage, savings would accrue to the maritime 
industry through lower repair and medical costs and to the public 
through environmental protection.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider whether this proposal, if adopted, will have 
a significant economic impact on a substantial number of small 
entities. ``Small entities'' may include (1) small businesses and not-
for-profit organizations that are independently owned and operated and 
are not dominant in their fields and (2) governmental jurisdictions 
with populations of less than 50,000.
    Because it expects the impact of this proposal to be minimal, the 
Coast Guard certifies under 5 U.S.C. 605(b) that this proposal, if 
adopted, will not have a significant economic impact on a substantial 
number of small entities.

Collection of Information

    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the 
Office of Management and Budget (OMB) reviews each proposed rule that 
contains a collection-of-information requirement to determine whether 
the practical value of the information is worth the burden imposed by 
its collection. Collection-of-information requirements include 
reporting, recordkeeping, notification, and other, similar 
requirements.

1. Criminal Record Review

    This proposal contains collection-of-information requirements in 
the following sections: Secs. 10.201, 10.205, 10.209, 10.805, 12.02-4, 
and 12.02-9. The following particulars apply:
    DOT No: 2115.
    OMB Control No.: 2115-0514.
    Administration: U.S. Coast Guard.
    Title: National Driver Register and Criminal Record Review in 
Issuing Licenses, Certificates of Registry, or Merchant Mariner's 
Documents.
    Need for Information: OPA 90 gives the Coast Guard discretionary 
authority to review the criminal record of applicants for licenses, 
CORs, and MMDs. OPA 90 also gives the Coast Guard discretionary 
authority to review the criminal record of applicants for reissue of 
licences, CORs, or MMDs with new expiration dates, including renewals, 
raises of grade, or endorsements.
    Proposed use of information: An applicant who has been convicted of 
a serious crime may be found unfit to serve as a merchant mariner on a 
vessel for safety reasons.
    Frequency of Response: Whenever a person applies for an original 
license, COR, or MMD; or whenever a person applies for a raise in grade 
of a license or COR; an endorsement of an MMD with a new expiration 
date; or renewal of a license, COR, or MMD, and that person is selected 
for a criminal record check.
    Burden Estimate: The Coast Guard estimates that the cost to the 
applicants would be approximately $19,700 per year for compliance with 
the criminal record review requirements of the proposed rule.
    Respondents: The Coast Guard will spot-check the individual 
criminal records of applicants for reissue of licences, CORs, or MMDs 
with new expiration dates, including renewals, raises of grade, and 
endorsements. An estimated 36,946 individuals will apply for these 
merchant mariner's credentials. Every 30th applicant will be screened, 
which will result in a total of 1,232 criminal record spot-checks 
performed.
    Form(s): FBI Fingerprint Card FD-258 (Revision 12-29-82).
    Average Burden Hours per Respondent: Negligible for 308 respondents 
and 1.5 hrs. for 924 respondents.

2. National Driver Register Access

    This proposal contains collection-of-information requirements in 
the following sections: Secs. 10.201, 10.205, 10.207, 10.209, 10.805, 
12.02-4, and 12.02-9. The following particulars apply:
    DOT No: 2115.
    OMB Control Number: 2115-0514.
    Administration: U.S. Coast Guard.
    Title: National Driver Register and Criminal Record Review in 
Issuing [[Page 13576]] Licenses, Certificates of Registry, or Merchant 
Mariner's Documents.
    Need for Information: OPA 90 requires that the Coast Guard not 
issue a license, COR, or MMD to an applicant unless that individual 
makes available to the Coast Guard any information contained in the 
NDR. Information contained in the NDR may indicate that an individual 
is not suitable for employment in the merchant marine. This information 
must be made available to the applicant for review and written comment 
before the Coast Guard uses the information as a basis for denying, 
suspending, revoking, or taking other action against an individual's 
license, COR, or MMD.
    Proposed Use of Information: The Coast Guard will use the 
information in the NDR to assist it in determining whether an applicant 
is suitable for maritime employment. Although an individual's motor 
vehicle record is not directly related to his or her maritime career, a 
record of alcohol or drug-related, or other specified motor vehicle 
offenses indicates that the individual may have a disregard for his or 
her own safety or the safety of others and therefore may not be 
suitable for maritime employment.
    Frequency of Response: When an applicant applies for the original 
issuance or renewal of a license, COR, or MMD or raise in grade or 
endorsement of a license, COR, or MMD.
    Burden Estimate: The Coast Guard estimates that costs to 
individuals and industry will be negligible. The Coast Guard expects to 
ask approximately 1,400 individuals to furnish court records to the 
Coast Guard for an estimated cost of $26,700.
    Respondents: The Coast Guard estimates that 57,435 merchant 
mariners will be affected annually by this rulemaking.
    Form(s): NDR Consent and Authorization Form.
    Average Burden Hours Per Respondent: Negligible for initial check; 
0.5 hrs. for persons with probable identifications.
    The Coast Guard has submitted the requirement to OMB for review 
under section 3504(h) of the Paperwork Reduction Act. Persons 
submitting comments on the requirement should submit their comments 
both to OMB and to the Coast Guard where indicated under ADDRESSES.

Federalism

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

Environment

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

List of Subjects

46 CFR Part 10

    Fees, Reporting and recordkeeping requirements, Schools, Seamen.

46 CFR Part 12

    Fees, Reporting and recordkeeping requirements, Seamen.

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

PART 10--LICENSING OF MARITIME PERSONNEL

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

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

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


Sec. 10.103  Definitions of terms used in this part.

* * * * *
    Conviction means the applicant for a license or certificate of 
registry has been found guilty by judgment or plea by a court of record 
of the United States, the District of Columbia or any State or 
territory of the United States of a criminal felony or misdemeanor or 
of an offense described in section 205 of the National Driver Register 
Act of 1982 (23 U.S.C. 401 note). Conviction of more than one offense 
at a single trial will be considered to be multiple convictions. If an 
applicant pleads guilty or no contest, is granted deferred 
adjudication, or is required by the court to attend classes, make 
contributions of time or money, receive treatment, submit to any manner 
of probation or supervision, or forego appeal of a trial court finding, 
then the applicant will be considered to have received a conviction. A 
later expungement of the conviction will not be considered unless it is 
proved that the expungement is based upon a showing that the court's 
earlier conviction was in error.
* * * * *
    National Driver Register (NDR) means the nationwide repository of 
information on drivers maintained by the National Highway Traffic 
Safety Administration as provided under 23 U.S.C. 401 note.
* * * * *
    3. In Sec. 10.201, paragraph (b) is revised and paragraphs (h), 
(i), and (j) are added to read as follows:


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

* * * * *
    (b) No person who has been convicted by a court of record of a 
violation of the dangerous drug laws of the United States, the District 
of Columbia, or any State or territory of the United States is eligible 
for a license or certificate of registry, except as provided by the 
provisions of paragraph (h) of this section. No person who has ever 
been the user of, or addicted to the use of, a dangerous drug is 
eligible for a license or certificate of registry unless he or she 
furnishes satisfactory evidence of suitability for service in the 
merchant marine as provided in paragraph (j) of this section.
* * * * *
    (h) Criminal record review. The OCMI may review the criminal record 
of an applicant for the issuance of a license or certificate of 
registry issued as an original or reissued with a new expiration date. 
An applicant conducting simultaneous merchant mariner's credential 
transactions shall undergo only one criminal record check.
    (1) If the applicant is advised that a criminal record check is 
required by the OCMI, applicants shall provide their fingerprints at 
the time of application. The fingerprints will be used to determine 
whether the applicant has a record of a criminal conviction. An 
application may be disapproved if a criminal record review leads the 
OCMI to determine that the applicant's habits of life and character are 
such that the applicant cannot be entrusted with the duties and 
responsibilities of the license or certificate of registry for which 
application is made. If an application is disapproved, the OCMI will 
notify the applicant in writing of the reason(s) for disapproval and 
advise the applicant that the reconsideration and appeal procedures in 
Sec. 1.03 of this chapter [[Page 13577]] apply. No examination will be 
given pending decision on appeal.
    (2) The guidelines in Table 10.201(h) will be used by the OCMI in 
evaluating applicants for licenses and certificates of registry who 
have criminal convictions. The table lists major categories of criminal 
activity and is not to be construed as an all-inclusive list. If an 
applicant is convicted of an offense that does not appear on the list, 
the OCMI will establish an appropriate assessment period using the list 
as a guide. Time incarcerated or on supervised probation or parole will 
not be considered as part of the assessment period. Convictions for 
drug offenses more than 10 years prior to the date of application will 
not be considered.
    (3) When an applicant has convictions for more than one offense, 
the minimum assessment period will be the longest minimum in Table 
10.201(h) based upon the applicant's convictions; the maximum 
assessment period will be the longest shown in Table 10.201(h) based 
upon the applicant's convictions.
    (4) If a person with a criminal conviction applies for a license or 
certificate of registry before the minimum assessment period shown in 
Table 10.201(h) or established by the OCMI under paragraph (h)(2) of 
this section has elapsed, then the applicant must provide evidence of 
suitability for service in the merchant marine. Factors which are 
evidence of suitability for service in the merchant marine are listed 
in paragraph (j) of this section. The OCMI will consider the 
applicant's evidence and may issue the license or certificate of 
registry in less than the listed minimum assessment period if the OCMI 
is satisfied that the applicant is suitable to hold the license or 
certificate of registry for which he or she has applied. If an 
applicant does not provide evidence of suitability for service in the 
merchant marine, then the application will be considered incomplete and 
will not be processed by the OCMI.
    (5) If a person with a criminal conviction applies for a license or 
certificate of registry during the time between the minimum and maximum 
assessment periods shown in Table 10.201(h) or established by the OCMI 
under paragraph (h)(2) of this section, the OCMI will consider the 
conviction and, unless there are offsetting factors, may grant the 
applicant the license or certificate of registry for which he or she 
has applied. Offsetting factors include multiple convictions, failure 
to comply with court orders including child support orders, previous 
failures at rehabilitation or reform, inability to maintain steady 
employment, or any connection between the crime and the safe operation 
of a vessel. If the OCMI considers the applicant unsuitable for service 
in the merchant marine at the time of application, the OCMI may 
disapprove the application.
    (6) If a person with a criminal conviction applies for a license or 
certificate of registry after the maximum assessment period shown in 
Table 10.201(h) or established by the OCMI under paragraph (h)(2) of 
this section has elapsed, then the OCMI will grant the applicant the 
license or certificate of registry for which he or she has applied 
unless the OCMI has reason to believe the applicant is still unsuitable 
for service in the merchant marine. If the OCMI disapproves an 
application based upon a conviction older than the maximum assessment 
period, the OCMI will notify the applicant in writing of the reason(s) 
for the disapproval. The OCMI will also inform the applicant, in 
writing, that the reconsideration and appeal procedures contained in 
Sec. 1.03 of this chapter apply.

 Table 10.201(h).--Guidelines for Evaluating Applicants for Licenses and
         Certificates of Registry Who Have Criminal Convictions         
------------------------------------------------------------------------
                                               Assessment periods       
               Crime\1\               ----------------------------------
                                             Minimum          Maximum   
------------------------------------------------------------------------
                         Crimes Against Persons                         
                                                                        
------------------------------------------------------------------------
Homicide (intentional)...............  7 years...........  20 years.    
Homicide (unintentional).............  5 years...........  10 years.    
Assault (aggravated).................  5 years...........  10 years.    
Assault (simple).....................  1 year............  5 years.     
Sexual Assault (rape, child            5 years...........  10 years.    
 molestation).                                                          
Robbery..............................  5 years...........  10 years.    
Other crimes against persons\2\                                         
                                                                        
------------------------------------------------------------------------
                         Crimes Against Property                        
                                                                        
------------------------------------------------------------------------
Burglary.............................  3 years...........  10 years.    
Larceny (embezzlement)...............  3 years...........  5 years.     
Other crimes against property\2\                                        
                                                                        
------------------------------------------------------------------------
                            Vehicular Crimes                            
                                                                        
------------------------------------------------------------------------
Conviction involving fatality........  1 year............  5 years.     
Reckless Driving.....................  1 year............  2 years.     
Racing on the Highways...............  1 year............  2 years.     
Other vehicular crimes\2\                                               
                                                                        
------------------------------------------------------------------------
                      Crimes Against Public Safety                      
                                                                        
------------------------------------------------------------------------
Destruction of Property..............  5 years...........  10 years.    
Other crimes against public safety\2\                                   
                                                                        
------------------------------------------------------------------------
 [[Page 13578]]                                                         
                                                                        
                   Crimes Involving National Security                   
                                                                        
------------------------------------------------------------------------
Terrorism, Acts of Sabotage,           7 years...........  20 years.    
 Espionage and related offenses.                                        
                                                                        
------------------------------------------------------------------------
                Criminal Violations of Environmental Laws               
                                                                        
------------------------------------------------------------------------
Criminal violations of environmental   1 year............  10 years.    
 laws involving improper handling of                                    
 pollutants or hazardous materials.                                     
                                                                        
------------------------------------------------------------------------
                        Dangerous Drug Offenses<SUP>34                       
                                                                        
------------------------------------------------------------------------
Trafficking (sale, distribution,       5 years...........  10 years.    
 transfer).                                                             
Dangerous drugs (Use or possession)..  1 year............  10 years.    
Other dangerous drug convictions\5\                                     
------------------------------------------------------------------------
\1\Conviction of attempt, solicitation, aiding and abetting, accessory  
  after the fact, and conspiracy to commit the criminal conduct listed  
  in this table carry the same minimum and maximum assessment periods   
  provided in the table.                                                
\2\Other crimes are to be reviewed by the OCMI to determine the minimum 
  and maximum assessment periods depending on the nature of the crime.  
\3\Applicable only to original applications for licenses or CORs. Any   
  applicant who has ever been the user of, or addicted to the use of, a 
  dangerous drug shall meet the requirements of paragraph (b) of this   
  section. Note: Applicants for reissue of a license or COR with a new  
  expiration date including a renewal or a raise of grade, who have been
  convicted of a dangerous drug offense while holding a license or COR, 
  may have their applications withheld until appropriate action has been
  completed by the OCMI under the regulations which appear in 46 CFR    
  part 5 governing administrative actions against merchant mariner      
  credentials.                                                          
\4\The assessment period shall not exceed 10 years from the date of     
  conviction.                                                           
\5\Other dangerous drug convictions are to be reviewed by the OCMI on a 
  case by case basis to determine the appropriate assessment periods    
  depending on the nature of the offense.                               

    (i) National Driver Register. A license or certificate of registry 
will not be issued as an original or reissued with a new expiration 
date unless the applicant consents to a check of the NDR for offenses 
described in section 205(a)(3) (A) or (B) of the NDR Act (i.e., 
operation of a motor vehicle while under the influence of, or impaired 
by, alcohol or a controlled substance; and any traffic violations 
arising in connection with a fatal traffic accident, reckless driving, 
or racing on the highways). The OCMI will not consider NDR information 
that is more than 3 years old unless that information relates to the 
current suspension or revocation of the applicant's license to operate 
a motor vehicle. An applicant conducting simultaneous merchant 
mariner's credential transactions is subject to only one NDR check.
    (1) Any application may be disapproved if information from the NDR 
check leads the OCMI to determine that the applicant cannot be 
entrusted with the duties and responsibilities of the license or 
certificate of registry for which the application is made. If an 
application is disapproved, the OCMI will notify the applicant in 
writing of the reason(s) for disapproval and advise the applicant that 
the appeal procedures in Sec. 1.03 of this chapter apply. No 
examination will be given pending decision on appeal.
    (2) Prior to disapproving an application because of information 
received from the NDR, the OCMI will make the information available to 
the applicant for review and written comment. The applicant may submit 
records from the applicable State concerning driving record and 
convictions to the Coast Guard Regional Examination Center (REC) 
processing the application. The REC will not process any application 
with NDR listed convictions unless the applicant produces the 
underlying State records.
    (3) The guidelines in Table 10.201(i) will be used by the OCMI in 
evaluating applicants for licenses and certificates of registry who 
have drug or alcohol related NDR listed convictions. Non-drug or 
alcohol related NDR listed convictions will be evaluated by the OCMI 
under Table 10.201(h) as applicable.

    Table 10.201(i).--Guidelines for Evaluating Applicants for Licenses and Certificates of Registry Who Have NDR Motor Vehicle Convictions Involving   
                                                              Dangerous Drugs or Alcohol\1\                                                             
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Number of convictions                           Date of conviction                                       Assessment period                     
--------------------------------------------------------------------------------------------------------------------------------------------------------
1......................................  Less than 1 year..................................  1 year from date of conviction.                            
1......................................  More than 1, less than 3 years....................  Application will be processed, unless suspension or        
                                                                                              revocation is still in effect. Applicant will be advised  
                                                                                              that additional conviction(s) may jeopardize merchant     
                                                                                              mariner credentials.                                      
1......................................  More than 3 years old.............................  Not necessary unless suspension or revocation is still in  
                                                                                              effect.                                                   
2 or more..............................  Any less than 3 years old.........................  1 year since last conviction and at least 3 years from 2nd 
                                                                                              most recent conviction (whichever is longer), unless      
                                                                                              suspension or revocation is still in effect.              
2 or more..............................  All more than 3 years old.........................  Application will be processed unless suspension or         
                                                                                              revocation is still in effect.                            
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Any applicant who has ever been the user of, or addicted to the use of, a dangerous drug shall meet the requirements of paragraph (b) of this        
  section.                                                                                                                                              


[[Page 13579]]

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


Sec. 10.205  Requirements for original licenses and certificates of 
registry.

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


Sec. 10.207  Requirements for raise of grade of license.

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


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

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

PART 12--CERTIFICATION OF SEAMEN

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

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

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


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

    Conviction means the applicant for a merchant mariner's document 
has been found guilty by judgment or plea by a court of record of the 
United States, the District of Columbia or any State or territory of 
the United States of a criminal felony or misdemeanor or of an offense 
described in section 205 of the National Driver Register Act of 1982 
(23 U.S.C. 401 note). If an applicant pleads guilty or no contest, is 
granted deferred adjudication, or is required by the court to attend 
classes, make contributions of time or money, receive treatment, submit 
to any manner of probation or supervision, or forego appeal of a trial 
court finding, then the applicant will be considered to have received a 
conviction. A later expungement of the conviction will not be 
considered unless it is proved that the expungement is based upon a 
showing that the court's earlier conviction was in error.
* * * * *
    National Driver Register (NDR) means the nationwide repository of 
information on drivers maintained by the National Highway Traffic 
Safety Administration as provided under 23 U.S.C. 401 note.
* * * * *
    9. In Sec. 12.02-4, paragraph (a) is revised, paragraph (b) is 
removed, paragraph (c) is redesignated as paragraph (b), and new 
paragraphs (c), (d) and (e) are added to read as follows:


Sec. 12.02-4  Basis for denial of documents.

    (a) No person who has been convicted by a court of record of a 
violation of the dangerous drug laws of the United States, the District 
of Columbia, or any State or territory of the United States is eligible 
for an original merchant mariner's document, except as provided by the 
provisions of paragraph (c) of this section. No person who has ever 
been the user of, or addicted to the use of, a dangerous drug is 
eligible for a merchant mariner's document unless he or she furnishes 
satisfactory evidence of suitability for service in the merchant marine 
as provided in paragraph (e) of this section.
* * * * *
    (c) Criminal record review. The Officer in Charge, Marine 
Inspection, may require a criminal record check of an applicant for a 
merchant mariner's document issued as an original or reissued with a 
new expiration date. An applicant conducting simultaneous merchant 
mariner's credential transactions shall undergo only one criminal 
record check.
    (1) If a criminal record check is required by the Officer in 
Charge, Marine Inspection, applicants shall provide fingerprints at the 
time of application. The fingerprints will be used to determine whether 
the applicant has a record of a criminal conviction. An application may 
be disapproved if the individual's criminal record leads the Officer in 
Charge, Marine Inspection to determine that the applicant cannot be 
entrusted with the duties and responsibilities of the merchant 
mariner's document for which application is made. If an application is 
disapproved, the Officer in Charge, Marine Inspection will notify the 
applicant in writing of the reason(s) for disapproval and advise the 
applicant that the appeal procedures in Sec. 1.03 of this chapter 
apply. No examination will be given pending decision on appeal.
    (2) The guidelines in Table 12.02-4(c) will be used by the Officer 
in Charge, Marine Inspection in evaluating applicants for merchant 
mariner's documents who have criminal convictions. The table lists 
major categories of criminal activity and is not to be construed as an 
all-inclusive list. If an applicant is convicted of an offense that 
does not appear on the list, the Officer in Charge, Marine Inspection 
will establish an appropriate assessment period using the list as a 
guide. Time incarcerated or on supervised probation or parole will not 
be considered as part of the assessment period. Convictions for drug 
offenses more than 10 years prior to the date of application will not 
be considered.
    (3) When an applicant has convictions for more than one offense, 
the minimum assessment period will be the longest minimum in Table 
12.02-4(c) based upon the applicant's convictions; the maximum 
assessment period will be the longest shown in Table 12.02-4(c) based 
upon the applicant's convictions.
    (4) If a person with a criminal conviction applies for a merchant 
[[Page 13580]] mariner's document before the minimum assessment period 
shown in Table 12.02-4(c) or established by the Officer in Charge, 
Marine Inspection under paragraph (c)(2) of this section has elapsed, 
then the applicant must provide, as part of the application package, 
evidence of suitability for service in the merchant marine. Factors 
which are evidence of suitability for service in the merchant marine 
are listed in paragraph (e) of this section. The Officer in Charge, 
Marine Inspection will consider the applicant's evidence submitted with 
the application and may issue the merchant mariner's document in less 
than the listed minimum assessment period if the Officer in Charge, 
Marine Inspection is satisfied that the applicant is suitable to hold 
the merchant mariner's document for which he or she has applied. If an 
application filed before the minimum assessment period has elapsed does 
not include evidence of suitability for service in the merchant marine, 
then the application will be considered incomplete and will not be 
processed by the Officer in Charge, Marine Inspection until the 
applicant provides the necessary evidence as set forth in paragraph (e) 
of this section.
    (5) If a person with a criminal conviction applies for a merchant 
mariner's document during the time between the minimum and maximum 
assessment periods shown in Table 12.02-4(c) or established by the 
Officer in Charge, Marine Inspection under paragraph (c)(2) of this 
section, then the Officer in Charge, Marine Inspection shall consider 
the conviction and, unless there are offsetting factors, shall grant 
the applicant the merchant mariner's document for which he or she has 
applied. Offsetting factors include such factors as multiple 
convictions, failure to comply with court orders including child 
support orders, previous failures at rehabilitation or reform, 
inability to maintain steady employment, or any connection between the 
crime and the safe operation of a vessel. If the Officer in Charge, 
Marine Inspection considers the applicant unsuitable for service in the 
merchant marine at the time of application, the Officer in Charge, 
Marine Inspection may disapprove the application.
    (6) If a person with a criminal conviction applies for a merchant 
mariner's document after the maximum assessment period shown in Table 
12.02-4(c) or established by the Officer in Charge, Marine Inspection 
under paragraph (c)(2) of this section has elapsed, then the Officer in 
Charge, Marine Inspection will grant the applicant the merchant 
mariner's document for which he or she has applied unless the Officer 
in Charge, Marine Inspection considers the applicant still unsuitable 
for service in the merchant marine. If the Officer in Charge, Marine 
Inspection disapproves an applicant with a conviction older than the 
maximum assessment period listed in Table 12.02-4(c), the Officer in 
Charge, Marine Inspection will notify the applicant in writing of the 
reason(s) for the disapproval including the Officer in Charge, Marine 
Inspection's reason(s) for considering a conviction older than the 
maximum assessment period listed in Table 12.02-4(c). The Officer in 
Charge, Marine Inspection will also inform the applicant, in writing, 
that the appeal procedures contained in Sec. 1.03 of this chapter 
apply.

  Table 12.02-4(c).--Guidelines for Evaluating Applicants for Merchant  
            Mariner's Documents Who Have Criminal Convictions           
------------------------------------------------------------------------
                                               Assessment periods       
               Crime\1\               ----------------------------------
                                             Minimum          Maximum   
------------------------------------------------------------------------
                         Crimes Against Persons                         
                                                                        
------------------------------------------------------------------------
Homicide (intentional)...............  7 years...........  20 years.    
Homicide (unintentional).............  5 years...........  10 years.    
Assault (aggravated).................  5 years...........  10 years.    
Assault (simple).....................  1 year............  5 years.     
Sexual Assault (rape, child            5 years...........  10 years.    
 molestation).                                                          
Other crimes against persons\2\                                         
                                                                        
------------------------------------------------------------------------
                            Vehicular Crimes                            
                                                                        
------------------------------------------------------------------------
Conviction involving fatality........  1 year............  5 years.     
Reckless Driving.....................  1 year............  2 years.     
Racing on the Highway................  1 year............  2 years.     
Other vehicular crimes\2\                                               
                                                                        
------------------------------------------------------------------------
                      Crimes Against Public Safety                      
                                                                        
------------------------------------------------------------------------
Destruction of Property..............  5 years...........  10 years.    
Other crimes against public safety\2\                                   
                                                                        
------------------------------------------------------------------------
                   Crimes Involving National Security                   
                                                                        
------------------------------------------------------------------------
Terrorism, Acts of Sabotage,           7 years...........  20 years.    
 Espionage and related offenses.                                        
                                                                        
------------------------------------------------------------------------
                        Dangerous Drug Offenses<SUP>34                       
                                                                        
------------------------------------------------------------------------
Trafficking (sale, distribution,       5 years...........  10 years.    
 transfer).                                                             
Dangerous drugs (Use or possession)..  1 year............  10 years.    
Other dangerous drug convictions\5\                                     
------------------------------------------------------------------------
\1\Conviction of attempts, solicitations, aiding and abetting, accessory
  after the fact, and conspiracies to commit the criminal conduct listed
  in this table carry the same minimum and maximum assessment periods   
  provided in the table.                                                
[[Page 13581]]                                                          
                                                                        
\2\Other crimes are to be reviewed by the Officer in Charge, Marine     
  Inspection to determine the minimum and maximum assessment periods    
  depending on the nature of the crime.                                 
\3\Applicable to original applications only. Any applicant who has ever 
  been the user of, or addicted to the use of, a dangerous drug shall   
  meet the requirements of paragraph (a) of this section. Note:         
  Applicants for reissue of a merchant mariner's document with a new    
  expiration date including a renewal or additional endorsement(s), who 
  have been convicted of a dangerous drug offense while holding a       
  merchant mariner's document, may have their application withheld until
  appropriate action has been completed by the Officer in Charge, Marine
  Inspection under the regulations which appear in 46 CFR part 5        
  governing the administrative actions against merchant mariner         
  credentials.                                                          
\4\The assessment period shall not exceed 10 years from the date of     
  conviction.                                                           
\5\Other dangerous drug convictions are to be reviewed by the Officer in
  Charge, Marine Inspection on a case by case basis to determine the    
  appropriate assessment period depending on the nature of the offense. 

    (d) National Driver Register. A merchant mariner's document will 
not be issued or reissued with a new expiration date unless the 
applicant consents to a check of the NDR for offenses described in 
section 205(a)(3)(A) or (B) of the NDR Act (i.e., operation of a motor 
vehicle while under the influence of, or impaired by, alcohol or a 
controlled substance; and any traffic violations arising in connection 
with a fatal traffic accident, reckless driving, or racing on the 
highways). The Officer in Charge, Marine Inspection will not consider 
NDR information that is more than 3 years old unless that information 
relates to the current suspension or revocation of the applicant's 
license to operate a motor vehicle. An applicant conducting 
simultaneous merchant mariner's credential transactions is subject to 
only one NDR check.
    (1) Any application may be disapproved if information from the NDR 
check leads the Officer in Charge, Marine Inspection to determine that 
the applicant cannot be entrusted with the duties and responsibilities 
of the merchant mariner's document for which the application is made. 
If an application is disapproved, the Officer in Charge, Marine 
Inspection will notify the applicant in writing of the reason(s) for 
disapproval and advise the applicant that the appeal procedures in 
Sec. 1.03 of this chapter apply. No examination will be given or 
merchant mariner's document issued pending decision on appeal.
    (2) Prior to disapproving an application because of information 
received from the NDR, the Officer in Charge, Marine Inspection will 
make the information available to the applicant for review and written 
comment. The applicant may submit reports from the applicable State 
concerning driving record and convictions to the Coast Guard Regional 
Examination Center (REC) processing the application. The REC will not 
process any application with NDR listed convictions unless the 
applicant produces the underlying State records.
    (3) The guidelines in Table 12.02-4(d) will be used by the Officer 
in Charge, Marine Inspection when evaluating applicants for merchant 
mariner's documents who have drug or alcohol related NDR listed 
convictions. Non-drug or alcohol related NDR listed convictions will be 
evaluated by the Officer in Charge, Marine Inspection under Table 
12.02-4(c) as applicable.

   Table 12.02-4(d).--Guidelines for Evaluating Applicants for Merchant Mariner's Documents Who Have NDR Motor Vehicle Convictions Involving Dangerous  
                                                                   Drugs or Alcohol\1\                                                                  
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Number of convictions                           Date of conviction                                       Assessment period                     
--------------------------------------------------------------------------------------------------------------------------------------------------------
1......................................  Less than 1 year..................................  1 year from date of conviction.                            
1......................................  More than 1, less than 3 years....................  Application will be processed, unless suspension or        
                                                                                              revocation is still in effect. Applicant will be advised  
                                                                                              that additional conviction(s) may jeopardize merchant     
                                                                                              mariner credentials.                                      
1......................................  More than 3 years old.............................  Not necessary unless suspension or revocation is still in  
                                                                                              effect.                                                   
2 or more..............................  Any less than 3 years old.........................  1 year since last conviction and at least 3 years from 2nd 
                                                                                              most recent conviction (whichever is longer), unless      
                                                                                              suspension or revocation is still in effect.              
2 or more..............................  All more than 3 years old.........................  Application will be processed unless suspension or         
                                                                                              revocation is still in effect.                            
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Any applicant who has ever been the user of, or addicted to the use of, a dangerous drug shall meet the requirements of paragraph (a) of this        
  section.                                                                                                                                              

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


Sec. 12.02-9  Application for documents.

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

    [[Page 13582]] Dated: March 6, 1995.
J.C. Card,
Rear Admiral, U.S. Coast Guard Chief, Office of Marine Safety, Security 
and Environmental Protection.
[FR Doc. 95-6033 Filed 3-10-95; 8:45 am]
BILLING CODE 4910-14-P