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

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, selfaddressed 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.
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 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 § 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 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 alcoholfree 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
13572 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

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 §§ 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 § 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
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 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.
13574 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

(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 spotchecked.

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

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 $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
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 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 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

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—

• Fewer marine 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.

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-ofinformation requirements include

reporting, recordkeeping, notification,

and other, similar requirements.

1. Criminal Record Review

This proposal contains collection-ofinformation requirements in the

following sections: §§ 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-ofinformation requirements in the

following sections: §§ 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
13576 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

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 drugrelated, 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 § 10.103, the definitions of

‘‘conviction’’ and ‘‘National Driver

Register,’’ 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 (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 § 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 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 § 1.03 of this chapter
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 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 § 1.03 of

this chapter apply.

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
13578 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

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

HAVE CRIMINAL CONVICTIONS—Continued

Crime1

Assessment periods

Minimum Maximum

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

Trafficking (sale, distribution, transfer) ........................................................................................................................ 5 years ............ 10 years.

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. 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 assessment period shall not exceed 10 years from the date of conviction.

5Other 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 § 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. Nondrug 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.

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.
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 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 alcoholor 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 § 10.205, paragraph (f)(2) is

revised and paragraph (k) is added to

read as follows:

§ 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 § 10.201(i).

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

are added to read as follows:

§ 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 § 10.201(h).

(i) National Driver Register. Each

applicant for a raise in 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 and 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

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’’ and ‘‘National Driver

Register’’ 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 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 § 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:

§ 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 § 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
13580 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

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 § 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

Trafficking (sale, distribution, transfer) ........................................................................................................................ 5 years ............ 10 years.

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.
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13581

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 assessment period shall not exceed 10 years from the date of conviction.

5Other 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 § 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. 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.

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.

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.

(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 alcoholor 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 § 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

with the NDR requirements in § 12.02–

4(d).
13582 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

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