[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Rules and Regulations]
[Pages 47729-47737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22355]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Parts 12 and 15
[USCG-2007-27761]
RIN 1625-AB16
Large Passenger Vessel Crew Requirements
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: This rule finalizes, with minor non-substantive changes, the
amendments to Coast Guard regulations on merchant mariner documentation
which were published as an interim rule with request for comments on
April 24, 2007. These amendments implement section 3509 of the John
Warner National Defense Authorization Act for Fiscal Year 2007 (Warner
Act), which allows for the issuance of merchant mariner's documents
(MMDs), (which have since been consolidated by the Coast Guard into
merchant mariner credentials (MMCs)), to certain non-resident aliens
for service in the steward's departments of U.S. flag large passenger
vessels endorsed for coastwise trade. Prior to publication of the
interim rule, the regulations prohibited the Coast Guard from issuing
MMDs, which are required for service on large passenger vessels, to
non-resident aliens. Specifically, this rule finalizes the amendments
to Coast Guard regulations allowing the Coast Guard to issue MMCs to
qualified non-resident aliens who are authorized to be employed in the
United States, the amendments setting the requirements these aliens
must meet in order to qualify for MMCs, and the requirements
[[Page 47730]]
for the large passenger vessels that may choose to hire these aliens.
This rule only applies to large passenger vessels, as defined under the
Warner Act.
DATES: This final rule is effective on October 19, 2009.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2007-27761 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. You may also find this
docket on the Internet by going to http://www.regulations.gov,
inserting USCG-2007-27761 in the ''Keyword'' box, and then clicking
``Search.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Mayte Medina, Coast Guard; telephone 202-372-1406, e-
mail [email protected]. If you have questions on viewing the
docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Background
IV. Discussion of Final Rule
V. Discussion of Comments and Changes
VI. Regulatory Analyses
A. Regulatory Planning and Review
i. Affected Population
ii. Industry Profile
iii. Direct Impacts
iv. Indirect Impacts
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. Abbreviations
DHS Department of Homeland Security
FR Federal Register
GRT Gross register tons
ILO 147 International Labor Organization's Merchant Shipping
(Minimum Standards) Convention of 1976
INA Immigration and Nationality Act
MMC Merchant Mariner Credential
NAICS North American Industry Classification System
NCLA Norwegian Cruise Line America
NMC National Maritime Center
NSEERS National Security Entry-Exit Registration System
SBA Small Business Administration
SIU Seafarers International Union
SUP Sailors' Union of the Pacific
TWIC Transportation Worker Identification Credential
U.S.C. United States Code
US-VISIT United States Visitor and Immigrant Status Indicator
Technology Program
II. Regulatory History
On April 24, 2007, we published an interim rule with request for
comments entitled ``Large Passenger Vessel Crew Requirements'' in the
Federal Register (72 FR 20278). We received 14 letters commenting on
the proposed rule. No public meeting was requested and none was held.
On March 16, 2009, we published a final rule entitled
``Consolidation of Merchant Mariner Credentials (MMCs)'' in the Federal
Register (74 FR 11196). That final rule reorganized the regulations
found in title 46, chapter I, subchapter B, and also consolidated the
number of credentials issued to mariners by the Coast Guard. Changes
made in that final rule have been included in this document, and are
highlighted below in section V. ``Discussion of Comments and Changes.''
III. Background
The discussion of the background that follows largely repeats the
discussion of the background and purpose set forth in the interim rule.
Prior to October 17, 2006, Sec. 8103 of title 46 United States
Code generally required that unlicensed seamen on documented vessels be
of the following status: (a) Citizens of the United States; (b) lawful
permanent residents; or (c) foreign nationals enrolled in the United
States Merchant Marine Academy. Additionally, no more than 25 percent
of such unlicensed seamen could be lawful permanent residents.
On October 17, 2006, Congress enacted the John Warner National
Defense Authorization Act for Fiscal Year 2007 (Warner Act), Public Law
109-364, sec. 3509, 120 Stat. 2518. Section 3509 of the Warner Act (46
U.S.C. 8103(k)) amends 46 U.S.C. 8103 to permit large passenger vessels
to also employ aliens who are not lawful permanent residents of the
United States but who are authorized to work in the United States. The
statute maintains a cap so that no more than 25 percent of the
unlicensed seamen on any large passenger vessel may be aliens, whether
admitted to the United States as lawful permanent residents or
otherwise allowed to be employed in the United States. ``Large
passenger vessel'' is defined under the Warner Act to mean ``a vessel
of more than 70,000 gross tons, as measured under section 14302 of this
title, with capacity for at least 2,000 passengers and documented with
a coastwise endorsement under chapter 121 of this title.''
The Warner Act also contains the following qualifications and
restrictions on non-resident aliens serving as unlicensed seamen on
large passenger vessels:
1. Non-resident aliens may not perform watchstanding, engine room
duty watch, or vessel navigation functions;
2. Non-resident aliens must be authorized for employment in the
United States under the Immigration and Nationality Act of 1952, as
amended (8 U.S.C. 1101 et seq.) (INA), including an alien crewman
described in section 101(a)(15)(D)(i) of the INA (8 U.S.C.
1101(a)(15)(D)(i));
3. Non-resident aliens must have been employed for a period of at
least one year on a passenger vessel, including a foreign flag
passenger vessel, under the same common ownership or control as the
U.S. flag vessel they will be working on, as certified by the owner or
managing operator of such vessel;
4. Non-resident aliens must have no record of material disciplinary
actions during such employment, as verified in writing by the owner or
managing operator of such vessel;
5. Non-resident aliens must have successfully completed a United
States Government security check of the relevant domestic and
international databases, as appropriate, or any other national
security-related information or database (which is required for an MMC
or Transportation Worker Identification Credential (TWIC));
6. Non-resident aliens must have successfully undergone an
employer-conducted background check for which the owner or managing
operator provides a signed report that describes the background checks
undertaken. The background check must consist of a search of all
information that is reasonably and legally available to the owner or
managing operator in the seaman's country of citizenship and any other
country in which the seaman receives employment referrals or resides.
The report must be kept on the vessel and available for inspection, and
the information derived from the background check must be made
available upon request;
7. Non-resident aliens may not be citizens or temporary or
permanent residents of a country designated by the United States as a
sponsor of terrorism,
[[Page 47731]]
or any other country that the Secretary of Homeland Security, in
consultation with the Secretary of State and the heads of other
appropriate United States agencies, determines to be a security threat
to the United States; and
8. Non-resident aliens may only serve for an aggregate period of 36
months of actual service on all authorized U.S. flag large passenger
vessels combined. Once this 36-month limitation has been reached, the
MMD (now called an MMC) becomes invalid and the individual's employer
must return it to the Coast Guard, and the individual is no longer
authorized to be in service in a position requiring an MMD (now called
an MMC) on any U.S. flag large passenger vessel.
Under current law, all individuals serving in the steward's
department on passenger vessels of 100 gross register tons (GRT) or
more must hold an MMC. 46 U.S.C. 8701. The only exception is for
entertainment personnel employed for a period of 30 days or less per
year, who are exempt from the MMC requirement.
Prior to publication of the interim rule on April 24, 2007, Coast
Guard regulations governing the issuance of MMDs (now called MMCs)
prohibited the issuance of MMDs (now called MMCs) to non-resident
aliens (see 46 CFR Part 12). The Coast Guard, through the interim rule,
amended its regulations to authorize the issuance of MMDs (now called
MMCs) to non-resident aliens authorized to work in the United States
who meet the criteria of the Warner Act and the requirements set forth
in the rule.
IV. Discussion of Final Rule
This rule finalizes, with minor non-substantive changes, the
amendments set forth in the interim rule. A full discussion of the
provision of this rule may be found in the ``Discussion of the Interim
Rule'' section of the interim rule. 72 FR 20278, at 20280.
V. Discussion of Comments and Changes
We received a total of 14 letters commenting on the proposed rule.
One of the comments, discussing marine radio broadcast services, was
apparently submitted to the docket in error.
Of the 13 relevant commenters, four essentially argue that
foreigners should not be permitted to work on U.S. flag vessels. Three
commenters argue that foreigners should be permitted to work on U.S.
flag large passenger vessels, and also that the Jones Act should be
repealed. Two commenters argue that foreigners should be allowed to
work on U.S. flag large passenger vessels because foreign hotel staff
on large passenger vessels provide a better level of customer service
than U.S. hotel staff.
While the Coast Guard appreciates the countering viewpoints
expressed in these comments, none of them discuss the rulemaking.
Rather, they discuss issues regarding the appropriateness, fairness and
justification for the legislation underlying the rulemaking, i.e.
section 3509 of the Warner Act. That legislation was enacted by
Congress and signed by the President into law. This rulemaking is
merely the implementation of that law, and, as such, the viewpoints
expressed in these comments are beyond the scope of the rulemaking.
The remaining four commenters discuss, at least in part, the
specifics of the rulemaking. Three of these four commenters--from
Seafarers International Union (SIU), Transportation Institute, and
Norwegian Cruise Line America (NCLA)--support the rulemaking without
change.
NCLA owns/operates the only vessels subject to this rulemaking,
making NCLA the only vessel owner/operator to which this final rule
applies.\1\ Their comments indicate that the regulations as issued in
the interim rule strike an appropriate balance between flexibility for
the vessel owner/operator and safeguards to preserve U.S. interests.
NCLA urges that the regulations should be adopted without change in
this final rule. We agree with NCLA.
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\1\ When the interim rule was issued on April 24, 2007, NCLA
operated three U.S. flag large passenger vessels in coastwise trade
in the Hawaiian Islands. Since that time, they have removed two of
those vessels in coastwise trade in the Hawaiian Islands.
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One comment, from the Sailors' Union of the Pacific (SUP), opposes
the rulemaking on five grounds: negative consequences to sealift
manpower; undermining U.S. maritime security; creating a de facto
second register under the U.S. flag; unfair competition; and lack of
transparency. We made no changes to the rule based on these comments,
which are discussed below.
SUP suggests that this rule will weaken defense readiness by
reducing the pool of qualified U.S. mariners necessary to commercially
operate military sealift ships, and that it takes away valuable entry-
level positions for unlicensed U.S. mariners. Conversely, SIU (one of
the other commenters) argues that if the cruise ships impacted by this
regulation are re-flagged foreign due to the economic pressures
associated with the high turnover of U.S. hotel staff on these vessels,
even more U.S. jobs will be lost. Instead of 75 percent of the crew on
these vessels being U.S. citizens, none of the crew will be a U.S.
citizen if the vessels are re-flagged foreign.
While the Coast Guard appreciates both of these divergent maritime
labor viewpoints, they relate to the statute underlying this
rulemaking, i.e. section 3509 of the Warner Act, and, as noted above,
are beyond the scope of this rulemaking.
SUP next suggests that this rulemaking undermines U.S. maritime
security because the security standards imposed on non-resident aliens
are ``far beneath'' the standards imposed on U.S. mariners. SUP
suggests that the aliens who would be allowed to work aboard U.S. large
passenger vessels under this rule are exempt from the TWIC
requirements, and that the ``real weakness in the rule's security
standards is that it depends on unreliable or non-existent information
from foreign sources.''
First, it must be clarified that the non-resident aliens who gain
employment aboard U.S. large passenger vessels in accordance with this
rule are required to obtain TWIC cards, just like any other
credentialed U.S. mariner. Section 12.40-5(a) of the interim rule
specified that unless otherwise expressly stated, non-resident alien
applicants for MMDs (now called MMCs) are subject to all applicable
requirements contained in 46 CFR Subchapter B. The final TWIC rule
added new sections 10.113, 12.01-11 and 15.415 to 46 CFR Subchapter B.
73 FR 3492. These sections collectively require all credentialed
mariners to hold a valid TWIC by April 15, 2009, to be employed or
engaged on any U.S. flag vessel.
Furthermore, the TWIC final rule amended 49 CFR 1572.105 to allow a
TWIC to be issued to an alien in a lawful nonimmigrant status who has
restricted authorization to work in the United States with a C-1/D
crewman visa. 49 CFR 1572.105(a)(7)(ii). The C-1/D crewman visa is the
most common type of visa that non-resident alien crewmembers have, and
it is explicitly referenced in both the statute and the rule as
acceptable for issuance of an MMD (now called MMC). To the extent that
a non-resident alien crewmember may have something other than a C-1/D
visa, there are numerous other lawful immigration statuses listed in 49
CFR 1572.105 allowing for issuance of a TWIC.
Regarding the SUP argument that the non-resident aliens will be
subject to lesser security vetting requirements than U.S. mariners,
non-resident aliens are subject to not only a government background
check at the time of application (including the full security threat
assessment done by the
[[Page 47732]]
Transportation Security Administration when the individual applies for
a TWIC), but are also subject to an employer-conducted background
check, which must be updated every year that the non-resident alien
holds a credential, to search for any changes since the last background
check. They are also subject to any immigration background checks
required to obtain their lawful immigration status or visa. This is the
highest level of security vetting possible within the constraints of
section 3509 of the Warner Act, the statute underlying this rulemaking.
Any concerns with respect to the quality of the employer-conducted
background check are addressed in Sec. Sec. 12.40-7(a)(2) and (a)(3)
of the rule. Section 12.40-7(a)(2)(ii) requires a review of the
available court and police records in the applicant's country of
citizenship, and in any other country in which the applicant has
resided or received employment referrals for the past 20 years. This is
an extensive requirement, and it may include not only criminal arrest
and conviction information, but also relevant civil court information
such as bankruptcies and lawsuits.
Furthermore, Sec. 12.40-7(a)(3) states that the employer-conducted
background check must be conducted ``to the satisfaction of the Coast
Guard'' for a credential to be issued. This gives the Coast Guard broad
discretion to accept or reject employer-conducted background checks. In
fact, NCLA utilizes a company, at significant expense to NCLA, which
specializes in foreign criminal background checks. This company has
agents who physically search available court and police records at each
local foreign jurisdiction where each non-resident alien applicant has
resided, received employment referrals, or claimed citizenship. They
produce a professionally styled, comprehensive report on each non-
resident alien applicant. This is the type of background check that the
Coast Guard expects under Sec. 12.40-7(a)(3). Anything less could be
rejected with no credential being issued to the applicant.
SUP next suggests that this rulemaking creates a de facto second
register under the U.S. flag by allowing the employment of foreign
mariners on U.S. vessels who may be paid less and employed under lower
standards than U.S. mariners. SUP states, correctly, that neither the
statute nor the rule requires non-resident alien mariners to be
employed under the same collective bargaining agreement as presently
applies to U.S. mariners on the same vessels.
The Coast Guard has no authority to require any vessel owner/
operator to employ mariners under a collective bargaining agreement. As
long as the vessel owner/operator complies with the provisions of the
International Labor Organization's Merchant Shipping (Minimum
Standards) Convention of 1976 (ILO 147), as required in section
15.530(b) of the rule, they are under no obligation to provide the same
compensation to non-resident aliens as they do to U.S. mariners on
these vessels. This issue is discussed in more detail below in the
``Regulatory Planning and Review'' section, under ``Direct Impacts.''
Significantly, compliance with ILO 147 entails compliance with the
scope of all the Conventions listed in the Appendix of ILO 147,
specifically including social security, medical exams, and
repatriation. Moreover, nothing in this rule relieves any vessel owner/
operator from compliance with all applicable provisions of 46 U.S.C.
Part G, Chapters 101-115, Merchant Seamen Protection and Relief.
SUP next suggests that this rule creates unfair competition by
enabling NCLA to compete for crews under different rules than other
U.S. flag companies, interfering in the operation of commercial
maritime labor markets. Again, this argument relates to the statute
underlying the rule, i.e., section 3509 of the Warner Act, which
provides that up to 25 percent of the unlicensed seamen on large
passenger vessels can be qualified non-resident aliens (limited to
hotel staff). This issue is beyond the scope of this rulemaking.
Finally, SUP suggests that both section 3509 of the Warner Act and
the rule itself lack transparency. SUP states that the law was ``buried
in the massive 2007 defense authorization bill,'' and that the Coast
Guard has bypassed the notice of proposed rulemaking phase of public
comment and gone right to an interim rule, thus further limiting
discussion of the rule.
The comment concerning the legislative procedure that led to the
creation of the Warner Act is beyond the scope of this rulemaking. In
the interim rule, published April 24, 2007, the Coast Guard explained
that, under the Administrative Procedure Act, it had good cause to
issue an effective rule without first providing notice and an
opportunity for comment (see 72 FR 20281). Even with the good cause,
however, we requested public comment on the interim rule. For this
reason, we disagree with the assertion that this rule ``lacks
transparency.''
In preparing this final rule, the Coast Guard made three minor,
non-substantive changes, from the interim rule, in the regulatory text.
Two of the changes occur in 46 CFR 12.40-7 ``Employer Requirements,''
and the third occurs in 12.40-13 ``Restrictions.'' In section 12.40-7,
first we capitalized the term ``Transportation Worker Identification
Credential,'' to correctly identify it. Second, we reorganized
paragraph (d) to more clearly identify when an employer must return a
mariner's TWIC and/or MMD (now called MMC) to the government (either
TSA or Coast Guard, as appropriate). Our third change is found in
section 12.40-13, where we spelled out the abbreviation ``STCW.'' None
of these edits change the substance of the Interim Rule.
Since publication of the interim rule, the Coast Guard published a
final rule titled ``Consolidation of Merchant Mariner Qualification
Credentials'' (74 FR 11196; USCG-2006-24371). That final rule
consolidated all previously issued Coast Guard credentials (including
the MMD) into one new credential, called a merchant mariner credential
(MMC). It also reorganized 46 CFR chapter I, subchapter B. Changes made
by that final rule have been incorporated into this final rule. These
include: changing the term ``merchant mariner's document'' to
``merchant mariner credential'' in every place that it appeared;
updating cross references (where the sections referenced in the interim
rule were moved as part of the reorganization); moving the definitions
from subpart 12.40 to the definition section covering all of subchapter
B (46 CFR 10.107); and revising the subpart's title.
VI. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below, we summarize our
analyses based on 13 of these statutes or executive orders.
A. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
Public comments on the interim rule are summarized in Part V of
this publication. We received no public comments that would alter our
assessment of impacts in the interim rule. We have adopted the
assessment in the interim rule as final. See the
[[Page 47733]]
``Regulatory Evaluation'' section of the interim rule for more details.
A summary of the assessment follows.
The Coast Guard issues this rule as mandated by Congress through
the Warner Act. See the ``Background'' section for more information
about this legislation.
The rule creates an exemption to allow qualified non-resident
aliens to obtain MMCs for employment as unlicensed seamen in the
steward's departments of large passenger vessels, as entertainment and
service personnel, including wait staff, hotel housekeeping staff, and
food handlers. Prior to issuance of the interim rule, only U.S.
citizens, lawful permanent residents, and foreign nationals enrolled at
the U.S. Merchant Marine Academy could obtain MMDs (now MMCs) as
unlicensed seamen (and no more than 25 percent of these unlicensed
seamen may be lawful permanent residents). This rule will permit non-
resident aliens to also obtain MMCs for employment as rated seamen on
large passenger vessels, except no more than 25 percent of the rated
seamen on a large passenger vessel can be aliens (whether non-resident,
non-permanent resident aliens or lawful permanent residents). The rule
further requires that the non-resident aliens may only be employed in
the steward's department of a large passenger vessel.
Although the Warner Act and this rule allow large passenger vessels
to hire non-resident aliens, neither the Act nor this rule mandates
that they do so. Accordingly, there are no mandatory costs to large
passenger vessels resulting from this rule. Rather, a company will only
choose to avail itself of the exemption if the benefits to the company
from the hiring of non-resident aliens are greater than the costs.
Based on Coast Guard Marine Inspection, Safety, and Law Enforcement
system (MISLE) data, we determined there is only one large passenger
vessel currently in service that meets the qualifications of this rule.
Norwegian Cruise Line America (NCLA) operates the vessel in coastwise
service in the Hawaiian Islands.\2\ NCLA is the only company directly
regulated by this rulemaking.
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\2\ Since April 2007, NCLA has removed two vessels from U.S.
service and re-flagged them for foreign service.
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We expect most of the direct costs of the rule will be borne by
NCLA. The rule will require NCLA to perform an employer-conducted
background check and submit additional required merchant mariner
application information to the Coast Guard on the employee's behalf.
However, NCLA participation in this alternative compliance method is
voluntary, and NCLA will only participate if the net benefits of doing
so are positive. We estimate the benefit to NCLA from participating in
this rule to be the cost savings made through reduced turnover and
decreased startup training costs, since the non-resident aliens hired
under this program will have experience aboard foreign-flag vessels.
This reduction in labor cost is the cost savings or net benefit for
NCLA to participate in the alternative MMC citizenship compliance
method of this rule. See the ``Regulatory Evaluation'' section of the
interim rule for additional details.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
RFA analysis is not required when a rule is exempt from notice and
comment rulemaking under 5 U.S.C. 553(b). As discussed in the interim
rule, the Coast Guard determined that this regulatory action is exempt
from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B).
Therefore, an RFA analysis is not required for this rule. The Coast
Guard, nonetheless, expects that this rule will not have a significant
economic impact on a substantial number of small entities.
Based on Coast Guard MISLE data, we have determined that there is
only one company (NCLA) is affected by this rule. We researched the
company size and revenue data and found that this company is not
considered a small entity by the Small Business Administration's size
standards.
In the interim rule, we certified under 5 U.S.C. 605(b) that the
interim rule would not have a significant economic impact on a
substantial number of small entities. We have found no additional data
or information that would change our findings in the interim rule. We
have adopted the certification in the interim for this final rule. See
the ``Small Entity'' section of the interim rule for additional detail.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this final rule does not have a significant economic impact on a
substantial number of small entities.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
will not retaliate against small entities that question or complain
about this rule or any policy or action of the Coast Guard. Small
businesses may send comments on the actions of Federal Employees who
enforce, or otherwise determine compliance with, Federal regulations to
the Small Business and Agriculture Regulatory Enforcement Ombudsman and
the Regional Small Business Regulatory Fairness Boards. The Ombudsman
evaluates these actions annually and rates each agency's responsiveness
to small business. If you wish to comment on actions by employees of
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
D. Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520). Under OMB
regulations implementing the PRA, ``Controlling Paperwork Burdens on
the Public'' (5 CFR 1320), collection of information means the
obtaining, soliciting, or requiring the disclosure to an agency of
information by or for an agency by means of identical questions posed
to, or identical reporting, recordkeeping, or disclosure requirements
imposed on, ten or more persons. ``Ten or more persons'' refers to the
number of respondents to whom a collection of information is addressed
by the agency within any 12-month period and does not include employees
of the respondent acting within the scope of their employment,
contractors engaged by a respondent for the purpose of complying with
the collection of information, or current employees of the Federal
government. Collections of information affecting ten or more
respondents within any 12-month period require OMB review and approval.
This rule will require employers to submit employee information to
the Coast Guard before the Coast Guard will issue an MMC for their
employees. However, we expect only one company will be affected by this
requirement each year, as there is only one company (NCLA) in a
position to take advantage of these regulations. NCLA has been
submitting information under the
[[Page 47734]]
interim rule since April 2007. We have no data or information to
suggest that there will be additional companies affected by the rule.
As such, the number of respondents is less than the threshold of ten
respondents per 12-month period for collection of information
requirements under the PRA.
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them.
It is well settled that States may not regulate in categories
reserved for regulation by the Coast Guard. It is also well settled
now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101,
and 8101 (design, construction, alteration, repair, maintenance,
operation, equipping, personnel qualification, and manning of vessels),
as well as the reporting of casualties and any other category in which
Congress intended the Coast Guard to be the sole source of a vessel's
obligations, are within the field foreclosed from regulation by the
States. (See the decision of the Supreme Court in the consolidated
cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89,
120 S.Ct. 1135 (March 6, 2000).) This final rule deals with personnel
qualifications and the manning requirements on large passenger vessels.
Because the States may not regulate within these categories, preemption
under Executive Order 13132 is not an issue.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
G. Taking of Private Property
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
H. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
J. Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination With Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
K. Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
M. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined
that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. This rule is categorically excluded under section 2.B.2,
figure 2-1, paragraph (34)(c) of the Instruction. This paragraph
excludes regulatory actions concerning the training, qualifying,
licensing, and disciplining of maritime personnel from further
environmental documentation, and this final rule concerns the licensing
of maritime personnel. An environmental analysis checklist and a
categorical exclusion determination are available in the docket where
indicated under ADDRESSES.
List of Subjects
46 CFR Part 12
Penalties, Reporting and recordkeeping requirements, Schools,
Seamen.
46 CFR Part 15
Reporting and recordkeeping requirements, Seamen, Vessels.
0
For the reasons discussed in the preamble, the Coast Guard amends 46
CFR parts 12 and 15 by adopting as final the interim rule published
April 24, 2007 (72 FR 20278), with the following changes:
PART 12--CERTIFICATION OF SEAMEN
0
1. Revise Subpart 12.40 to read as follows:
Subpart 12.40---Non-resident Alien Unlicensed Members of the
Steward's Department on U.S. Flag Large Passenger Vessels
Sec.
12.40-1 Purpose of rules.
12.40-3 [Reserved].
12.40-5 General application requirements.
12.40-7 Employer requirements.
12.40-9 Basis for denial.
12.40-11 Citizenship and identity.
12.40-13 Restrictions.
12.40-15 Alternative means of compliance.
[[Page 47735]]
Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301,
7302, 7503, 7505, 7701 and 8103; Department of Homeland Security
Delegation No. 0170.1.
Sec. 12.40-1 Purpose of rules.
The rules in this subpart implement 46 U.S.C. 8103(k) by
establishing requirements for the issuance of merchant mariner
credentials, valid only for service in the steward's department of U.S.
flag large passenger vessels, to non-resident aliens.
Sec. 12.40-3 [Reserved]
Sec. 12.40-5 General application requirements.
(a) Unless otherwise expressly specified in this subpart, non-
resident alien applicants for Coast Guard-issued merchant mariner
credentials are subject to all applicable requirements contained in
this subchapter.
(b) No application from a non-resident alien for a merchant mariner
credential issued pursuant to this subpart will be accepted unless the
applicant's employer satisfies all of the requirements of Sec. 12.40-7
of this subpart.
Sec. 12.40-7 Employer requirements.
(a) The employer must submit the following to the Coast Guard, as a
part of the applicant's merchant mariner credential application, on
behalf of the applicant:
(1) A signed report that contains all material disciplinary actions
related to the applicant, such as, but not limited to, violence or
assault, theft, drug and alcohol policy violations, and sexual
harassment, along with an explanation of the criteria used by the
employer to determine the materiality of those actions;
(2) A signed report regarding an employer-conducted background
check. The report must contain:
(i) A statement that the applicant has successfully undergone an
employer-conducted background check;
(ii) A description of the employer-conducted background check,
including all databases and records searched. The background check
must, at a minimum, show that the employer has reviewed all information
reasonably and legally available to the owner or managing operator,
including the review of available court and police records in the
applicant's country of citizenship, and any other country in which the
applicant has received employment referrals, or resided, for the past
20 years prior to the date of application; and
(iii) All information derived from the employer-conducted
background check.
(3) The employer-conducted background check must be conducted to
the satisfaction of the Coast Guard for a merchant mariner credential
to be issued to the applicant.
(b) If a merchant mariner credential is issued to the applicant,
the report and information required in paragraph (a)(2) of this section
must be securely kept by the employer on the U.S. flag large passenger
vessel, or U.S. flag large passenger vessels, on which the applicant is
employed. The report and information must remain on the last U.S. flag
large passenger vessel on which the applicant was employed until such
time as the merchant mariner credential is returned to the Coast Guard
in accordance with paragraph (d) of this section.
(c) If a merchant mariner credential or a Transportation Worker
Identification Credential (TWIC) is issued to the applicant, each
merchant mariner credential and TWIC must be securely kept by the
employer on the U.S. flag large passenger vessel on which the applicant
is employed. The employer must maintain a detailed record of the
seaman's total service on all authorized U.S. flag large passenger
vessels, and must make that information available to the Coast Guard
upon request, to demonstrate that the limitations of Sec. 12.40-13(c)
of this subpart have not been exceeded.
(d) In the event that the seaman's merchant mariner credential and/
or TWIC expires, the seaman's visa status terminates, the seaman serves
onboard the U.S. flag large passenger vessel(s) for 36 months in the
aggregate as a nonimmigrant crewman, the employer terminates employment
of the seaman or if the seaman otherwise ceases working with the
employer, the employer must return the merchant mariner credential to
the Coast Guard and the TWIC to the Transportation Security
Administration within 10 days of the event.
(e) In addition to the initial material disciplinary actions report
and the initial employer-conducted background check specified in
paragraph (a) of this section, the employer must:
(1) Submit an annual material disciplinary actions report to update
whether there have been any material disciplinary actions related to
the applicant since the last material disciplinary actions report was
submitted to the Coast Guard.
(i) The annual material disciplinary actions report must be
submitted to the satisfaction of the Coast Guard in accordance with the
same criteria set forth in paragraph (a)(1) of this section, except
that the period of time examined for the material disciplinary actions
report need only extend back to the date of the last material
disciplinary actions report; and
(ii) The annual material disciplinary actions report must be
submitted to the Coast Guard on or before the anniversary of the
issuance date of the merchant mariner credential.
(2) Conduct a background check each year that the merchant
mariner's document is valid to search for any changes that might have
occurred since the last employer-conducted background check was
performed:
(i) The annual background check must be conducted to the
satisfaction of the Coast Guard in accordance with the same criteria
set forth in paragraph (a)(2) of this section, except that the period
of time examined during the annual background check need only extend
back to the date of the last background check; and
(ii) All information derived from the annual background check must
be submitted to the Coast Guard on or before the anniversary of the
issuance date of the merchant mariner credential.
(f) The employer is subject to the civil penalty provisions
specified in 46 U.S.C. 8103(f) for any violation of this section.
Sec. 12.40-9 Basis for denial.
In addition to the requirements for a merchant mariner credential
established elsewhere in this subchapter, and the basis for denial
established in Sec. Sec. 10.209, 10.211, and 10.213 of this
subchapter, an applicant for a merchant mariner credential issued
pursuant to this subpart must:
(a) Have been employed, for a period of at least one year, on a
foreign flag passenger vessel(s) that is/are under the same common
ownership or control as the U.S. flag large passenger vessel(s) on
which the applicant will be employed upon issuance of a merchant
mariner credential under this subpart.
(b) Have no record of material disciplinary actions during the
employment required under paragraph (a) of this section, as verified in
writing by the owner or managing operator of the U.S. flag large
passenger vessel(s), on which the applicant will be employed.
(c) Have successfully completed an employer-conducted background
check, to the satisfaction of both the employer and the Coast Guard.
(d) Meet the citizenship and identity requirements of Sec. 12.40-
11 of this subpart.
Sec. 12.40-11 Citizenship and identity.
(a) In lieu of the requirements of Sec. 10.221 of this subchapter,
a non-
[[Page 47736]]
resident alien may apply for a Coast Guard-issued merchant mariner
credential, endorsed and valid only for service in the steward's
department of a U.S. flag large passenger vessel as defined in this
subpart, if he or she is authorized for employment under the
immigration laws of the United States, including an alien crewman
described in section 101(a)(15)(D)(i) of that Act.
(b) To meet the citizenship and identity requirements of this
subpart, an applicant must present an unexpired passport issued by the
government of the country of which the applicant is a citizen or
subject; and either a valid U.S. C-1 or D visa or other valid evidence
of employment authorization in the United States deemed acceptable by
the Coast Guard.
(c) Any non-resident alien applying for a merchant mariner
credential under this subpart may not be a citizen of, or a temporary
or permanent resident of, a country designated by the Department of
State as a ``State Sponsor of Terrorism'' pursuant to section 6(j) of
the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or
section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).
Sec. 12.40-13 Restrictions.
(a) A merchant mariner credential issued to a non-resident alien
under this subpart authorizes service only in the steward's department
of the U.S. flag large passenger vessel(s), that is/are under the same
common ownership and control as the foreign flag passenger vessel(s),
on which the non-resident alien served to meet the requirements of
Sec. 12.40-9(a) of this subpart:
(1) The merchant mariner credential will be endorsed for service in
the steward's department in accordance with Sec. 12.25-10 of this
part;
(2) The merchant mariner credential may also be endorsed for
service as a food handler if the applicant meets the requirements of
Sec. 12.25-20 of this part; and
(3) No other rating or endorsement is authorized, except
lifeboatman, in which case all applicable requirements of this
subchapter and the International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978, as amended (STCW
Convention), and the Seafarers' Training, Certification and
Watchkeeping Code (STCW Code), must be met.
(b) The following restrictions must be printed on the merchant
mariner credential, or listed in an accompanying Coast Guard letter, or
both:
(1) The name and official number of all U.S. flag vessels on which
the non-resident alien may serve. Service is not authorized on any
other U.S. flag vessel;
(2) Upon issuance, the merchant mariner credential must remain in
the custody of the employer at all times;
(3) Upon termination of employment, the merchant mariner credential
must be returned to the Coast Guard within 10 days in accordance with
Sec. 12.40-7 of this subpart;
(4) A non-resident alien issued a merchant mariner credential under
this subpart may not perform watchstanding, engine room duty watch, or
vessel navigation functions; and
(5) A non-resident alien issued a merchant mariner credential under
this subpart may perform emergency-related duties provided:
(i) The emergency-related duties do not require any other rating or
endorsement, except lifeboatman as specified in paragraph (a)(3) of
this section;
(ii) The non-resident alien has completed familiarization and basic
safety training as required in Sec. 15.1105 of this subchapter;
(iii) That if the non-resident alien serves as a lifeboatman, he or
she must have the necessary lifeboatman's endorsement; and
(iv) The non-resident alien has completed the training for
crewmembers on passenger ships performing duties involving safety or
care for passengers, as required in subpart 12.35 of this part.
(c) A non-resident alien may only serve for an aggregate period of
36 months actual service on all authorized U.S. flag large passenger
vessels combined under the provisions of this subpart:
(1) Once this 36-month limitation is reached, the merchant mariner
credential becomes invalid and must be returned to the Coast Guard
under Sec. 12.40-7(d) of this subpart, and the non-resident alien is
no longer authorized to serve in a position requiring a merchant
mariner credential on any U.S. flag large passenger vessel; and
(2) An individual who successfully adjusts his or her immigration
status to that of an alien lawfully admitted for permanent residence to
the United States or who becomes a United States citizen may apply for
a merchant mariner credential, subject to the requirements of Sec.
10.221 of this subchapter, without any restrictions or limitations
imposed by this subpart.
Sec. 12.40-15 Alternative means of compliance.
(a) The owner or managing operator of a U.S. flag large passenger
vessel, or U.S. flag large passenger vessels, seeking to employ non-
resident aliens issued merchant mariner credential under this subpart
may submit a plan to the Coast Guard, which, if approved, will serve as
an alternative means of complying with the requirements of this
subpart.
(b) The plan must address all of the elements contained in this
subpart, as well as the related elements contained in Sec. 15.530 of
this subchapter, to the satisfaction of the Coast Guard.
PART 15--MANNING REQUIREMENTS
0
2. The authority citation for part 15 is revised to read as follows:
Authority: 46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104,
8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904,
8905(b), 8906, 9102, and 8103; and Department of Homeland Security
Delegation No. 0170.1.
0
3. Revise Sec. 15.530 in subpart D to read as follows:
Sec. 15.530 Large passenger vessels.
(a) The owner or operator of a U.S. flag large passenger vessel
must ensure that any non-resident alien holding a Coast Guard-issued
merchant mariner credential described in subpart 12.40 of this
subchapter is provided the rights, protections, and benefits of the
International Labor Organization's Merchant Shipping (Minimum
Standards) Convention of 1976.
(b) On U.S. flag large passenger vessels, non-resident aliens
holding a Coast Guard-issued merchant mariner credential described in
subpart 12.40 of this subchapter:
(1) May only be employed in the steward's department on the
vessel(s) specified on the merchant mariner credential or accompanying
Coast Guard letter under Sec. 12.40-13(b)(1) of this subchapter;
(2) May only be employed for an aggregate period of 36 months
actual service on all authorized U.S. flag large passenger vessels
combined, under Sec. 12.40-13(c) of this subchapter;
(3) May not perform watchstanding, engine room duty watch, or
vessel navigation functions, under Sec. 12.40-13(b)(4) of this
subchapter; and
(4) May perform emergency-related duties only if, under Sec.
12.40-13(b)(5) of this subchapter:
(i) The emergency-related duties do not require any other rating or
endorsement, except lifeboatman as specified in Sec. 12.40-13(a)(3) of
this subchapter;
(ii) The non-resident alien has completed familiarization and basic
safety training, as required in Sec. 15.1105 of this part;
[[Page 47737]]
(iii) That if the non-resident alien serves as a lifeboatman, he or
she must have the necessary lifeboatman's endorsement; and
(iv) The non-resident alien has completed the training for
crewmembers on passenger ships performing duties involving safety or
care for passengers, as required in subpart 12.35 of this subchapter.
(c) No more than 25 percent of the total number of ratings on a
U.S. flag large passenger vessel may be aliens, whether admitted to the
United States for permanent residence or authorized for employment in
the United States as non-resident aliens.
(d) The owner or operator of a U.S. flag large passenger vessel
employing non-resident aliens holding Coast Guard-issued merchant
mariner credentials described in subpart 12.40 of this subchapter must:
(1) Retain custody of all non-resident alien merchant mariner
credentials for the duration of employment, under Sec. 12.40-13(b)(2)
of this subchapter; and
(2) Return all non-resident alien merchant mariner credentials to
the Coast Guard upon termination of employment, under Sec. 12.40-
13(b)(3) of this subchapter.
(e) The owner or operator of a U.S. flag large passenger vessel
employing non-resident aliens holding Coast Guard-issued merchant
mariner credentials described in subpart 12.40 of this subchapter is
subject to the civil penalty provisions specified in 46 U.S.C. 8103(f),
for any violation of this section.
Dated: September 10, 2009.
Jeffrey G. Lantz,
Director of Commercial Regulations & Standards CG-52.
[FR Doc. E9-22355 Filed 9-16-09; 8:45 am]
BILLING CODE 4910-15-P