Merchant Mariner Medical Advisory Committee Meeting April 2017 Legal Authority

Navigation and Vessel Inspection Circulars Provide detailed guidance about the enforcement or compliance with certain Federal marine safety regulations and Coast Guard marine safety programs.  Do not have the force of law but are important "tools" for complying with the law.  07-56 Manned LSTs; Structural Reinforcement and Drydocking; Hull Inspection Requirements

NVIC 04-08 Medical and Physical Evaluation Guidelines for Merchant Mariner Credentials. September 15, 2008 Ch1, June 7, 2013 Ch2, April 25, 2016 Describes the Coast Guard’s policies for determining medical fitness, 46 CFR Part 10

NVIC 04-08

Standards of Training, Certification and Watchkeeping for Seafarers Regulation I/9 Administration to set medical standards iaw A-I/9 Two year medical certificates unless under 18 yoa Section A-I/9 Physical ability to complete basic training Adequate hearing and speech No condition likely to be aggravated or imperil others No medication impairing judgment or balance Self-executing?

Statutory Basis Enabling Statute—Title 46, Shipping May be issued to those found to be physically fit 46 USC 7101(c) masters, mates, engineers, pilots, operators, radio officers Pilots also 7101(e) Certificates of Registry (COR)[pursers, doctors, nurses] no fitness requirement Qualified as to sight, hearing and physical condition 46 USC 7306(a)(4) Able Seaman Qualified as to sight, hearing and physical condition 46 USC 7313(c)(3) Qualified Members of the Engine Department (QMED) Wiper and coal passer are not QMED Nothing for COR, entry level (deck or engine)

Other Statutes May Apply Americans with Disabilities Act Does not apply to Coast Guard in regulatory role Rehabilitation Act No OTHERWISE QUALIFIED individual with a disability ... shall, SOLELY by reason of her or his disability, be excluded from ... any program or activity conducted by any Executive agency. INDIVIDUALIZED DETERMINATION whenever the applicant is otherwise qualified. Health Insurance Portability and Accountability Act of 1996 Does not apply, but…… Privacy Act Paperwork Reduction Act Administrative Procedure Act

Title 46 CFR, Part 10, Subpart C Establishes the medical and physical requirements for the mariner credential. Disqualifying Conditions Conditions that pose a significant risk of sudden incapacitation or debilitating complication. Conditions requiring medication that impairs judgment or reaction time.

Substantive Rules will first appear in the Federal Register and then the Code of Federal Regulations Federal Register Table of Contents • Documents are listed by agency name in alphabetical order • Cross-references direct you from cabinet departments to subordinate agencies • Each agency document is arranged by category: Rules [and Regulations] Proposed Rules Notices • Presidential Documents are arranged as follows: Executive Orders Proclamations Determinations/Memoranda From Daily FEDERAL REGISTER Finding Aids & Research Tools (on CD in Research Guides folder)

APA Requirements for Informal Rulemaking Four basic steps — Issue notice of proposed rulemaking (NPRM), Provide an opportunity for public comments, Issue final rule with concise statement of its basis and purpose, and Make rule effective not less than 30 days after publication.

Non-APA Authority Controlling Rulemaking DHS Directive and Coast Guard Rules and Instructions Statutes Executive Orders

DHS and Coast Guard Rulemaking Requirements DHS Management Directive 0490.1: Federal Register Notices and Rules. Coast Guard rulemaking rules, 33 CFR part 1, subpart 1.05. Headquarters Instruction 16703.2, Marine Safety [and Security] Council: Development and Review of Headquarters Rulemakings

Other Statutes Governing Rulemaking Regulatory Flexibility Act (5 U.S.C. 601-612). Small Business Regulatory Enforcement Fairness Act (Pub. L. No 104-121 (1996)), Subtitle A-D) Congressional Review of Agency Rulemaking (5 U.S.C. 801-808) Unfunded Mandates Reform Act; Title II—Regulatory Accountability and Reform (2 U.S.C. 1532-1538) Paperwork Reduction Act (44 U.S.C. 3501-3520) Privacy Act (5 U.S.C. §552a) and Related Requirements Quality, Objectivity, Utility, and Integrity of Information (Treasury and General Government Appropriations Act of FY 2000, Pub. L. No. 106-554; § 515) Small Business Paperwork Relief Act of 2002 (44 U.S.C. 101 note) Federal Advisory Committee Act (FACA) (5 U.S.C. App. II) National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347) Trade Agreements Act (19 U.S.C. 2531-2533) National Technology Transfer and Advancement Act, Section 12 (d)(15 U.S.C. 272 note) Assessment of Federal Regulations and Policies on Families (Omnibus Appropriations Act FY 99, Pub. L. No. 105-277 (a998); § 654) E-Government Act of 2002 (Pub. L. No. 107-347) (2002) Agency Authorizing (“Enabling” or “organic”) Statute

Executive Orders Governing Rulemaking Executive Order 12866, Regulatory Planning and Review (1993) (As amended by E.O. 13258 (2002)) Executive Order 13132, Federalism (1999) Executive Order 13175: Consultation and Coordination with Indian Trial Governments (2000) Executive Order 12988: Civil Justice Reform (1996) Executive Order 12630: Governmental Actions and Interferences with Constitutionally Protected Property Rights (1988) Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (1994) Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks (1997) Executive Order 12889: Implementation of the North American Free Trade Agreement (1993) Executive Order 13211: Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution or Use (2001) Executive Order 13783 : Promoting Energy Independence and Economic Growth (2017)

Judicial Review Various statutes impose different standards, but as APA § 706 states, you can challenge a rule based on it being — • Arbitrary, capricious, abuse of discretion; • Unconstitutional; or • In excess of statutory authority. • Or based on the agency failing to follow legal procedure in promulgating the rule. You can also “compel action unlawfully withheld or unreasonably delayed” through a writ of mandamus.

Legal Standards for Reasonableness Reasonable application of statutory criteria. Factual support for agency’s conclusion. Disclosure of data on which decision based for public comment. Adequate explanation for chain of reasoning. Reasonable consideration of an important aspect of the problem. Adequate explanation for any change in position. Appropriate consideration of important alternatives. Adequate consideration and response to relevant and significant comments. Fairness of remedies. Reasonable decision making catch-all. Clifford v. US.

Why does all this matter? It is complex It takes a long time Any standard is subject to compromise based upon competing interests It can’t deal with every possible situation It is the lowest common denominator Minimum requirements—Employers may have higher standards based on bona fide job requirements