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###### Department of Homeland Security

###### Coast Guard

          - [USCG 2006-25080]

# ACTION:

Notice of availability.

# SUMMARY:

The purpose of this notice is to announce the availability of the final version of a Navigation and Vessel Inspection Circular. This NVIC contains revised guidelines for evaluating the physical and medical conditions of applicants for merchant mariner's documents, licenses, certificates of registry and STCW endorsements, collectively referred to as “credential(s).”

The new NVIC is numbered 04-08, and it is entitled “Medical and Physical Evaluation Guidelines for Merchant Mariner Credentials.” It replaces NVIC 2-98, which is cancelled as of the effective date of NVIC 04-08.

# DATES:

NVIC 04-08 is effective on October 29, 2008.

# ADDRESSES:

                        NVIC 04-08 is available on the internet at                         *http://www.regulations.gov,*                         under this docket number [USCG 2006-25080]. It is also permanently available on the HOMEPORT internet Web site at:                         *http://homeport.uscg.mil/​mycg/​portal/​ep/​browse.do?​channelId=​-25023.*

                        The Department of Transportation Docket Management Facility maintains the public docket for this notice. All materials related to this NVIC are part of this docket and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Copies of the docket may also be viewed on the Internet at:                         *http://www.regulations.gov.*

# FOR FURTHER INFORMATION CONTACT:

                        For questions on this notice or on NVIC 04-08, e-mail or call Captain Matthew D. Hall, MD, USPHS at the National                               ( print page 56601)                            Maritime Center, 304-433-3551,  e-mail:                         *matthew.d.hall@uscg.mil.*

                        For questions on viewing the docket, contact Renee V. Wright, Program Manager, Docket Operations, Office of Information Services, Office of the Assistant Secretary for Administration, Office of the Secretary, at M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone: 202-366-9826; e-mail:                         *renee.wright@dot.gov.*

# SUPPLEMENTARY INFORMATION:

                    On September 26, 2006, the Coast Guard published a notice announcing the availability of, and seeking public comment on, a draft Navigation and Vessel Inspection Circular (NVIC) to replace the existing NVIC 2-98, “Physical Evaluation Guidelines for Merchant Mariner's Documents and Licenses.”                     *See*71 FR 56998. The contents of the draft NVIC (September 2006 draft NVIC) were developed from recommendations and input provided by the Merchant Marine Personnel Advisory Committee (MERPAC), the Towing Safety Advisory Committee (TSAC), and experienced maritime community medical practitioners. The public comment period ended on November 27, 2006.                

The Coast Guard received comments from 46 mariners, 15 shipping companies, 6 pilots and pilot organizations, 2 government agencies, 8 advocacy groups, and 4 maritime unions.

                    The Coast Guard has made numerous changes to the draft NVIC based upon the public comments received, and further input provided by MERPAC and TSAC after the Notice of Availability for the draft NVIC published in the                     **Federal Register**                    . These changes have been incorporated into NVIC 04-08, entitled “Medical and Physical Evaluation Guidelines for Merchant Mariner Credentials,” so as to create a guidance document that is more viable and responsive to the needs of the impacted community.                

## Discussion of the Changes From the Draft NVIC

We have revised the format of the NVIC to make it easier to understand and use, and we have added a direct link to the National Maritime Center (NMC) Medical Evaluations Web site on HOMEPORT. This Web site contains additional useful medical related information for credential applicants, such as recent articles and links to other relevant information.

There are now six enclosures instead of five to reflect a stand-alone enclosure for medications, and we have added a separate index and table of abbreviations for the medical conditions in enclosure (3) for ease of reference. We have also clarified, in the main body of the NVIC as opposed to only discussing it in the enclosures, that the guidance contained in the NVIC applies to applicants for original, renewal and raise in grade credentials.

## Enclosure (1)—Medical Certification Standards

Minor changes were made to enclosure (1) to clarify a few concerns expressed in some comments. It was clarified that mariners with short-term conditions, such as a broken arm, have numerous flexible options at their disposal. They can request the credential be issued if they want to immediately deposit it with the Coast Guard until such time as they are healed. They may also choose not to apply for the credential until their condition has improved, or they may renew the credential for continuity purposes only until such time as their condition improves. We also added a warning in paragraph 10 of enclosure (1) advising that, under 18 U.S.C. 1001, criminal prosecution may result if false information is submitted to the Coast Guard with respect to the credential application process, by either the applicant or the medical practitioner responsible for the exams, tests, and/or physical demonstrations.

Finally, the information contained in the paragraphs of enclosure (1) was reorganized, at the recommendation of MERPAC, to make the enclosure flow more logically. Now, the first paragraph discusses original credentials, the second paragraph discusses renewals, the third paragraph discusses raises in grade, and the fourth and fifth paragraphs discuss STCW endorsements and certificates of registry, respectively.

## Enclosure (2)—Physical Ability Guidelines

There were numerous changes made to this enclosure, starting with its title being changed from “physical ability standards” to “physical ability guidelines” at the request of TSAC and MERPAC. The physical ability guidelines listed in the table of enclosure (2) were significantly revised, based largely on input provided by TSAC. There were also three important changes made to the introductory text of the enclosure.

First, in response to multiple comments from vessel owner/operators expressing safety concerns related to obesity, we stated that if the examining medical practitioner doubts the applicant's ability to meet the guidelines contained within this table, and for all applicants with a Body Mass Index (BMI) of 40.0 or higher, the practitioner should require that the applicant demonstrate the ability to meet the guidelines. This does not mean, for example, that the applicant must actually don an exposure suit, pull an uncharged 1.5 inch diameter 50′ fire hose with nozzle to full extension, or lift a charged 1.5 inch diameter fire hose to fire fighting position. Rather, the medical practitioner may utilize alternative measures to satisfy himself or herself that the applicant possesses the ability to meet the guidelines in the third column. If an individual is unable to satisfactorily demonstrate the ability to meet these guidelines, a credential with appropriate limitations may be issued by the Coast Guard.

Second, in response to comments from the towing, offshore, and small passenger vessel industries expressing concern that the table (which is largely based upon Regulation I/9 and Table B-I/9-2 of the International Convention on Standards of Training, Certification & Watchkeeping for Seafarers, 1978 as (amended)) does not accurately reflect operating conditions on many “smaller” vessels, we clarified that applicants who cannot meet all of the physical ability standards contained in the table may propose suitable alternate standards that are reflective of their particular operating conditions. Such proposals will be given consideration by the Coast Guard on an individual case-by-case basis.

No consideration is being given to excluding broad classes of credential applicants from the guidance contained in the table, because for the most part, credentials issued by the Coast Guard are not vessel specific. They provide authority to work on different types and sizes of vessels, with each vessel having its own equipment and operating conditions.

Third, language was added to reflect the Coast Guard's understanding that all medical practitioners may not have the equipment necessary to test all of the tasks as listed in the third column of the table. In such cases, equivalent alternate testing methodologies may be used.

                    Various changes were made to the table itself to make compliance less burdensome for applicants. For example, the criterion listed in the third column of the table for “participate in firefighting activities” now states that the applicant should be able to pull an uncharged 1.5″ diameter, 50′ fire hose with nozzle to full extension, and to lift a charged 1.5″ diameter fire hose to fire fighting position. This criterion previously asked the applicant to                           ( print page 56602)                        handle a 2.5″ diameter fire hose for a distance of 400′.                

## Enclosure (3)—Medical Conditions Subject to Further Review

First, at the request of MERPAC and TSAC, the title of enclosure (3) was changed and now more clearly reflects the Coast Guard's intended use of the information provided in enclosure (3). It is now called “Medical Conditions Subject to Further Review” instead of “Potentially Disqualifying Medical Conditions.” We also added the word “recommended” in front of “evaluation data” in the header of the table, so that it now reads “recommended evaluation data.” This change reflects the voluntary nature of this guidance document.

Moreover, this enclosure, which is the central component of the NVIC because it lists the medical conditions subject to further review, underwent substantial revision. Technical comments were received on specific medical conditions and were presented to MERPAC for review and recommendations. Many of the comments were implemented into this revision of the NVIC. Some of the significant changes to enclosure (3) are described below.

In the preface to enclosure (3), we clarified that the term “history” means a single previous diagnosis or treatment of a medical condition, even once in the applicant's life, unless otherwise specified in the table listing the medical conditions. For example, condition number 131 in the enclosure (3) table states “history of invertebral disc surgery within the last 5 years.” This means that invertebral disc surgery six years ago is not considered a medical condition which needs to be reported for review for purposes of this NVIC.

We also revised the discussion of evaluation data in the preface to enclosure (3). We clarified that all time frames specified in the table are measured from the date that the application is received by the Coast Guard. For example, if the table requires a medical test that is no more than 90 days old, the test should have been completed within the 90 days prior to the date that the application for the credential is received by the Coast Guard.

                    We also noted that for most conditions, the table does not contain a specific time frame as to how old a status report, evaluation report, or consultation (of whatever type) may be. For all active conditions, we added that the status report, evaluation report or consultation should have been completed no more than 1 year prior to the date the application is received by the Coast Guard. For conditions which are not active but for which the table indicates that a “history of” the condition should be reported, we added that the appropriate time frame depends on what is medically relevant given the individual circumstances of the applicant's condition. Medical providers may contact NMC, listed under                     **FOR FURTHER INFORMATION CONTACT**                    , if they have any question about how recent a status report, evaluation report, or consultation should be.                

For example, an applicant with an acquired right bundle branch block (listed as condition number 54 under “Heart” in the enclosure (3) table) should submit a cardiology consultation that is no more than a year old at the time of application. An applicant with a prior history of gastrointestinal bleeding who is not currently suffering from, or under current treatment or observation for, the condition (listed as condition number 96 under “Abdomen, Viscera and Anus Conditions” in the enclosure (3) table), may be able to submit an internal medicine or gastroenterology consultation that is more than a year old if the report confirms that the applicant is free of symptoms and that the bleeding source has healed. In such a case, there would be no need for the applicant to undergo another consultation just for purposes of applying for a credential.

We also revised the respective evaluation data associated with the medical conditions to remove the word “current” that formerly preceded many of status reports, evaluation reports or consultations in the table. We discovered that in some places, the word “current” preceded the evaluation data, while in others it did not. As pointed out by MERPAC, this caused confusion as to how old the evaluation data may be because there is no definition of the term “current” in the NVIC.

We also clarified that medical providers may contact the NMC to discuss submitting acceptable alternate evaluation data to demonstrate that the applicant's medical status is appropriate for his/her duties and the limited scope of the credential being sought.

Finally, we added a paragraph explaining that the NMC may issue a letter specifying the extent of the evaluation data, if any, that should be submitted to the Coast Guard for any medical conditions that have been previously reported to, and evaluated by, the NMC. This means that an individual who has properly reported a medical condition, and provided the requisite evaluation data regarding it, may be excused from having to resubmit evaluation data for that condition in the future, but only if authorized by the NMC.

With respect to the table of medical conditions in enclosure (3), a number of changes were made to reduce unnecessary evaluations and clarify ambiguous criteria. The former condition number 111, pylonephrosis, was consolidated with condition number 110 and number 111 was deleted from the table. The former condition number 150, allergic encephalomyelitis, was also deleted from the table after it was determined, at the recommendation of MERPAC, that this condition was unnecessary.

A history of asthma symptoms was modified to episodes requiring emergency treatment in the past 2 years. A history of head trauma was revised to include only conditions within the last 10 years, and history of seizure disorder was changed to exclude febrile seizures prior to age 5. The criteria for asthma was changed to include only clinically significant moderate to severe asthma.

The supplemental evaluation information needed for cardiac conditions was clarified to include an exercise stress test versus a pharmacologic stress test. Mariners need to demonstrate adequate cardiopulmonary capacity to perform safety duties such as fire fighting and passenger evacuation. Pharmacologic stress tests evaluate coronary artery disease but do not provide information on cardiopulmonary capacity.

The recommended evaluation data for sarcoidosis, at the urging of certain maritime labor unions, was restated to be less extensive. The table now simply asks for pertinent medical records, pulmonology consultations, and names and dosages of medications.

In recognition of the distinction between substance or alcohol abuse and substance or alcohol dependence, conditions number 186 & 186a, respectively, in the enclosure (3) table were revised. Consistent with the medical diagnoses of these conditions, condition number 186 now covers history of substance or alcohol abuse, as defined in the current Diagnostic and Statistical Manual (DSM), within the last 5 years. Condition number 186a now covers history of substance or alcohol dependence, as defined in the current DSM, within the last 10 years. Reference to the Coast Guard standard of “cure,” which applies when credentials are subject to suspension and revocation but not necessarily when credentials are issued, has been deleted.

                    The evaluation data for these conditions has been accordingly changed to request only a current                           ( print page 56603)                        evaluation report, including a determination that the individual is safe to return to work, from a DOT-qualified substance abuse professional (SAP), physician certified by the American Society of Addiction Medicine, or any other addiction specialist accepted by the Coast Guard, and reports from the rehabilitation clinic/center (if any). Documentation of at least 90 days of objectively measured and sustained total abstinence is also recommended evaluation data for dependence.                

It was further modified that, for applicants with a history of substance abuse, if they are renewal and/or raise in grade applicants who have been subject to the dangerous drug testing requirements in 46 CFR Part 16 for at least 3 years, and if they have no verified non-negative drug test results for the entire time that they have held the credential being renewed and/or raised in grade, they need not submit any evaluation data for substance abuse.

Likewise, for applicants with a history of substance dependence, if they are renewal and/or raise in grade applicants who have been subject to the dangerous drug testing requirements in 46 CFR part 16 for at least 5 years, and if they have no verified non-negative drug test results for the entire time that they have held the credential being renewed and/or raised in grade, they need not submit any evaluation data for substance dependence.

This exception does not apply to alcohol abuse or dependence because there are no random, pre-employment, or periodic testing requirements for alcohol in 46 CFR Part 16 or 33 CFR part 95.

## Enclosure (4)—Medications

The newly renumbered enclosure (4) contains information about illegal substances and intoxicants, and a non-exhaustive list of potentially disqualifying medications that may be subject to further medical review in accordance with enclosure (6). This information was a subset of the larger enclosure (3) in the September 2006 draft NVIC, but the Coast Guard agrees with the public comments and MERPAC input that there should be a separate enclosure dedicated to medications.

The information was also reorganized to make it a more useful reference. A definitions section has been added to the enclosure, and a new prohibitions section dealing with illegal substances and intoxicants has been included.

It was clarified that applicants, who complete a general medical exam, should report all prescription medications prescribed, filled or refilled and/or taken, and all non-prescription (over-the-counter) medications, including dietary supplements and vitamins, within 30 days prior to the date that they sign the CG-719K or approved equivalent form. The September 2006 draft NVIC stated that applicants should report all prescription and over-the-counter medications “at the time of application,” but the new language is much more precise in specifying what should be reported.

The non-exhaustive list of prescription and over-the-counter medications that may be subject to further medical review was also revised, primarily to eliminate redundancies in the medications listed and to adjust the allowable time frames for usage of some of the medications.

The use of motion sickness medications was also addressed to allow their use in accordance with directions. The use of anti-depressants for use in smoking cessation and other off-label indications was also allowed.

The Coast Guard understands the complexities associated with over-the-counter (OTC) medications and has revised the NVIC to strike a balance between the medical needs of mariners and public safety in response to comments. The Coast Guard intends to publish a guide for mariners on the use of OTC medications.

## Enclosure (5)—Vision & Hearing Standards

                    The newly renumbered enclosure (5), which was previously enclosure (4) in the September 2006 draft NVIC, contains the same, unrevised vision standards from NVIC 2-98, but notes that the Coast Guard has proposed revising its vision standards in an ongoing rulemaking. The proposed vision standards would require applicants to meet vision acuity standards in one eye only rather than both eyes under the current rule.                     *See*72 FR 3605, 3656 (Jan. 2007) (proposed 46 CFR 10.215(b)). The proposed vision standards would become the new visions standards for NVIC 04-08 if the proposed rule becomes an effective, final rule.                

Color vision testing standards have also been clarified, with reference to the specific acceptable tests: 14 plate (which replaces the obsolete 16 plate), 24 plate, or 38 plate Ishihara plates tests, Farnsworth Lantern, or an alternative test approved by the NMC. We have also added an express reference to the 46 CFR 10.205(d)(2) prohibition on using color sensing lenses to assist applicants with passing the color vision test.

Finally, audiometer test hearing standards were adjusted from 20 decibels or less in each ear (unaided) to 30 decibels or less in the best ear (unaided). This allows for monaural hearing, provided the applicant has an unaided threshold of 30 decibels (unaided) in the ear. Applicants who are unable to meet the standards of the audiometer test, but who can pass the functional speech discrimination test, may be eligible for a waiver.

## Enclosure (6)—Medical Review Process

Important changes were made to the newly renumbered enclosure (6), which was previously enclosure (5) in the September 2006 draft NVIC, in response to various public comments and MERPAC and TSAC input. Paragraph 2 of this enclosure was revised to clarify that a waiver may be granted in all cases, not necessarily limited to situations “for a mariner with a borderline condition.” Language was added at the end of paragraph 5.f. to expressly state that recommendations from private employers (and government agencies) made on behalf of applicants will be given full consideration by the NMC when considering a waiver. 

Paragraph 7 was revised to clearly state that the NMC will review all information provided and make an appropriate determination as to one of the following outcomes: (a) Applicant is physically and medically qualified without any limitations, waivers and/or other conditions for issuance of the credential, (b) applicant is physically and medically qualified with limitations and/or other conditions for issuance of the credential, (c) applicant is not physically or medically qualified, but a credential may be issued with appropriate limitations, waivers and/or other conditions for issuance, (d) additional information is necessary to determine if applicant is physically and/or medically qualified, or (e) applicant is not physically and/or medically qualified.

Paragraph 8 was revised to clarify that the NMC will inform the applicant of the results of their waiver review. The appellate rights of applicants, who are affected by a waiver determination, are now fully explained in this paragraph as well. Likewise, in paragraph 9, the appellate rights of applicants who disagree with any conditions placed on their waivers are fully explained.

                    A new paragraph 10 was added to this enclosure to state that the NMC will, on a case-by-case basis, consider individual proposals from applicants (and their employers) for credentials to be issued with appropriate limitations, waivers, and/or other conditions in order to address concerns associated with                           ( print page 56604)                        medical conditions (enclosure (3)) or the inability to meet the physical ability standards (enclosure (2)). This was added to articulate the Coast Guard's flexibility and willingness to consider the unique needs and work environments of individual mariners who are otherwise unable to meet the medical and/or physical standards specified in the NVIC.                

Finally, at the request of both MERPAC and TSAC, a new paragraph 11 was added to this enclosure authorizing—but not requiring—the Coast Guard to designate certain medical practitioners as “trusted agents” to perform physical examinations on mariners. Physical examinations conducted by these designated trusted agents and/or their recommendations may be given more weight by the Coast Guard. The Coast Guard would specify the criteria for designation as a trusted agent if/when the Coast Guard initiates this program.

It is not anticipated that the NVIC will result in significantly higher rates of disqualification for mariners, nor in increased processing time for credential applications with physical and/or medical issues. To the contrary, the Coast Guard expects the process to be more consistent and less subjective, and that the application processing time will be reduced because all parties will know precisely what information is needed at the outset of the application process.

The Coast Guard did receive some comments that the NVIC may increase costs. Based on consultation with medical practitioners and MERPAC, we determined exams and documentation addressed by the NVIC are commonly required by current medical practice and will not represent a significant additional cost to the individual. The NVIC guidelines apply if the applicant has an underlying medical condition. The majority of medical evaluations and tests specified in the NVIC will be provided by the mariner's primary care provider or specialist as part of standard care.

Potential benefits associated with adoption of this NVIC include decreased credential application processing time and clearer medical and physical guidelines for merchant mariners. We also anticipate that public safety will improve as result of this NVIC, since mariners and the medical community would be aware of complete policy guidance that is consistent with current industry health care practice when evaluating medical conditions.

Dated: September 17, 2008.

J.G. Lantz,

Director of Commercial Regulations & Standards.

[FR Doc. E8-22724 Filed 9-26-08; 8:45 am]

BILLING CODE 4910-15-P