[Federal Register: April 28, 2009 (Volume 74, Number 80)]
[Rules and Regulations]
[Page 19135-19141]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ap09-9]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 160
[Docket No. USCG-2007-28648]
RIN 1625-AB19
Crewmember Identification Documents
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard requires each crewmember on a foreign
commercial vessel en route to a U.S. port or place of destination or at
a U.S. port or place, or on a U.S. commercial vessel coming from a
foreign port or place of departure to a U.S. port or place of
destination, to carry and present upon demand an acceptable
identification when in U.S. navigable waters. The vessel operators are
required to ensure that crewmembers comply with this requirement. This
rule would implement a Maritime Transportation Security Act mandate and
help ensure that the Coast Guard can authoritatively identify
crewmembers on vessels in U.S. navigable waters.
DATES: This final rule is effective May 28, 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-2007-28648 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,
selecting the Advanced Docket Search option on the right side of the
screen, inserting USCG-2007-28648 in the Docket ID box, pressing Enter,
and then clicking on the item in the Docket ID column.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Commander Kelly Post, Coast Guard, telephone 202-372-1405 and e-
mail address Kelly.M.Post@uscg.mil, or Lieutenant Commander Jonathan H.
Maiorine, U.S. Coast Guard Office of Port and Facility Activities,
telephone 202-372-1133 and e-mail address Jonathan.H.Maiorine@uscg.mil.
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 and Purpose
IV. Discussion of Comments and Changes
A. Support for Proposed Rule
B. Acceptance of Seafarer's Identification Document
C. Transportation Worker Identification Credential not SID
Compliant
D. Interoperability of Identification Credentials
E. Electronic Identification Document Readers
F. Ratification of the ILO 185 Convention
[[Page 19136]]
G. Availability of TWIC Hardware and Readers
H. The Scope of Sanctions
I. Seamen's Books
J. Outer Continental Shelf Offshore Workers
K. Travel Outside U.S. Territorial Sea
L. Navigable Waters of the United States
M. Change Based on MMC Final Rule Being Issued
N. Clarification of Force Majeure Exception
V. Regulatory Analyses
A. Regulatory Planning and Review
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
CBP U.S. Customs and Border Protection
CFR Code of Federal Regulations
FR Federal Register
ILO International Labour Organization
INA Immigration and Nationality Act
MMC Merchant Mariner Credential
MMD Merchant Mariner Document
MODU Mobile Offshore Drilling Unit
MTSA Maritime Transportation Security Act
OCS Outer Continental Shelf
OMB Office of Management and Budget
PWSA Ports and Waterways Safety Act
SID Seafarer's Identification Document
TSA Transportation Security Administration
TWIC Transportation Worker Identification Credential
U.S.C. United States Code
II. Regulatory History
On May 14, 2008, we published a notice of proposed rulemaking
entitled ``Crewmember Identification Documents'' in the Federal
Register (73 FR 27778). We received 8 letters containing 27 comments on
the proposed rule. No public meeting was requested and none was held.
III. Background and Purpose
In section 102 of the Maritime Transportation Security Act of 2002
(MTSA), Public Law 107-295, 116 Stat. 2064, 2080-81 (November 25,
2002), codified at 46 U.S.C. 70111, Congress directed the Secretary of
the Department in which the Coast Guard is operating to require all
crewmembers on vessels calling at U.S. ports to carry and present on
demand any identification the Secretary decides is necessary. Section
102 also directed the Secretary to develop forms and processes for the
identification and verification of crewmembers. In section 103 of the
MTSA, Congress indicated the objective of requiring crewmember
identification is to be able to establish authoritatively, the identity
of any seafarer aboard a vessel within U.S. jurisdiction, including
U.S. territorial seas. 116 Stat. 2084, and 46 U.S.C. 70111, note.
Congress directed the Secretary to consult with the Attorney
General and Secretary of State when developing these crewmember
identification requirements. 46 U.S.C. 70111. The Secretary of the
Department of Homeland Security (DHS) delegated this rulemaking
authority to the Commandant of the Coast Guard and directed the
Commandant to develop these requirements in cooperation with U.S.
Customs and Border Protection (CBP) and the Transportation Security
Administration (TSA). Section 2 (97)(g) of DHS Delegation No. 0170.1,
Delegation to the Commandant of the U.S. Coast Guard. A copy of this
delegation is available in the docket. Accordingly, the Coast Guard
collaborated with CBP and TSA and consulted with the Attorney General
and Secretary of State in the development of this rule.
On October 13, 2006, Congress revised 46 U.S.C. 70111 through
section 110 of the Security and Accountability for Every Port Act of
2006 (SAFE Port Act), Public Law 109-347 120 Stat. 1891, 1893 (October
13, 2006) and established a deadline for these requirements to be in
place not later than October 13, 2007. This rule fulfills Congress'
mandate to require that crewmembers on vessels calling at U.S. ports or
places of destination carry and present on demand identification the
Secretary decides is necessary.
In the preamble of the NPRM, we noted that if an effective rule
were issued in the ``Consolidation of Merchant Mariner Qualification
Credentials'' (RIN 1625-AB02) rulemaking before we issued this
crewmember identification final rule, we would add the Merchant Mariner
Credential (MMC) to the list of acceptable identification documents in
33 CFR 160.310. See May 14, 2008, 73 FR 27780. On March 16, 2009, a
final rule from the MMC rulemaking was published (74 FR 11196), so we
have added the MMC as an acceptable identification in this final rule.
The MMC rule is effective April 15, 2009.
IV. Discussion of Comments and Changes
We received 27 comments regarding the proposed rule. The following
is a summary of the comments received, and the changes made to the
regulatory text since our proposed rule was published.
A. Support for Proposed Rule
Six commenters made statements that were generally supportive of
the proposed rule and Coast Guard's efforts to positively identify
crewmembers aboard commercial vessels in U.S. waters. In addition, one
of these comments included appreciation that the NPRM did not propose
to create an undue burden on mariners and that an acceptable
identification, along with the appropriate entrance documents (such as
a visa and passport), will facilitate shore-leave for mariners.
The Coast Guard agrees. Our objectives in drafting these
regulations are to implement statutory requirements in 46 U.S.C. 70111,
and to do so in a way consistent with the DHS goal of enhancing
security while minimizing the burden upon the maritime industry to the
maximum extent possible. We agree that possession of an acceptable
identification will enable authoritative identification of crewmembers
while in U.S. waters. We remind mariners that compliance with the
requirements in this rule, however, does not relieve vessel crewmembers
and operators of any requirements under the Immigration and Nationality
Act (INA) or INA implementing regulations. We have made no changes from
the proposed rule based on these comments.
B. Acceptance of Seafarer's Identification Document
One commenter stated that listing the Seafarer's Identification
Document (SID) as an acceptable form of identification appears to
create inconsistency in U.S. policy since the United States is not a
signatory to the International Labour Organization Convention (ILO)
number 185. Another commenter stated that if the SID permits the
authoritative identification of a crewmember, then it should suffice
for shore leave without a visa.
The Coast Guard disagrees. The United States' position against
ratification of the ILO 185 convention is primarily based on the
convention's current requirement that all SID holders be granted entry
without a visa. This does not mean, however, that the Coast Guard finds
no value in or has no appreciation for international crewmember
identification, issued by signatory governments, to assist us in
[[Page 19137]]
authoritatively identifying crewmembers while in U.S. waters. We have
made no changes from the proposed rule based on these comments.
C. Transportation Worker Identification Credential not SID Compliant
Three commenters also expressed concern that because the
Transportation Worker Identification Credential (TWIC) is not SID
compliant, U.S. mariners may be denied shore-leave while calling on
foreign ports whose countries are signatory to the ILO 185 convention
in response to foreign mariners with SIDs being denied shore leave
while in the United States. In addition, one commenter stated the Coast
Guard continues to refuse to take the necessary steps to facilitate
shore-leave and this problem must be addressed or mariners will
increasingly find themselves held prisoners on their vessel while in
port.
The commenters are correct regarding TWIC. It is not ILO 185 SID
compliant. We expect that U.S. mariners, while calling on foreign ports
of countries either signatory or non-signatory to ILO 185, will
continue to be eligible for shore leave based on compliance with the
host country's immigration laws, regulations, and policy as they
pertain to seafarers. Under the ILO 185 convention, signatory countries
agree to permit shore leave to SID-holding mariners without a visa,
with some exceptions. Nowhere does the convention state that signatory
countries should deny shore leave to mariners without a SID. The United
States' position on shore leave for foreign mariners, with or without a
SID, remains that it should be facilitated to the maximum extent
possible while complying with the applicable requirements under our INA
and INA implementing regulations. We have made no changes from the
proposed rule based on these comments.
D. Interoperability of Identification Credentials
Four commenters expressed concern that the proposed rule does not
enhance interoperability between U.S. and international identification
credentials for crewmembers and creates economic disadvantages and
security risks by not mandating background checks for foreign
crewmembers, similar to those required of U.S. mariners who must obtain
a TWIC.
This rule addresses acceptable forms of identification for
crewmembers aboard vessels in U.S. waters. By our acceptance in this
rule of the international SID, some degree of interoperability, as it
pertains to acceptable forms of identification, is achieved. While the
comment regarding background checks for foreign crewmembers is outside
the scope of this rulemaking, which is focused on authoritatively
identifying crewmembers, current requirements and programs are already
in place to reduce the risk of a transportation security incident
associated with foreign flag vessels and crew.
E. Electronic Identification Document Readers
Also, regarding interoperability, two commenters expressed concern
that electronic TWIC readers will not be able to read the SID and,
while overseas, SID readers will not be able to read TWICs.
Not all of the documents we define as acceptable identification in
33 CFR 160.310 are machine readable, but we expect to be able to
efficiently and effectively examine them onboard.
F. Ratification of the ILO 185 Convention
Four commenters expressed support or desire for the United States
to ratify the ILO 185 Convention and to remove U.S. visa requirements
for crewmembers.
The United States' position regarding ratification of the ILO
Convention 185 or removal of U.S. visa requirements for crewmembers is
beyond the scope of this rulemaking. This rule is not intended to
address immigration or shore leave requirements.
G. Availability of TWIC Hardware and Readers
One commenter stated it makes no sense to require American
transportation and maritime workers to comply with TWIC when no
hardware or readers exist to actually implement the program.
While outside the scope of this rulemaking, the Coast Guard notes
that pilot testing of TWIC readers is currently underway.
H. The Scope of Sanctions
One commenter recommended that sanctions in Sec. 160.320 be
applied only to operators and not to crewmembers, stating that ship
masters hold the passports of crewmembers on board and proposed Sec.
160.315 requires vessel operators to ensure that their crewmembers have
acceptable identification when the vessel is in U.S. waters.
The Coast Guard disagrees with the recommendation that sanctions
should only be applied to vessel operators. Section 160.315 requires a
crewmember subject to this rule not only to ``carry and present on
demand an acceptable identification'', but also provides that ``a
crewmember may secure his or her acceptable identification with the
vessel's master, so long as the identification can be presented on
demand.'' In discussing this section in the preamble of the NPRM, the
Coast Guard stated that the practice of crewmembers on a vessel
securing their acceptable identification with the master is consistent
with the proposed rule if the identification is aboard and can be
presented upon demand. 73 FR 27778, 27779, May 14, 2008. This rule is
not intended to change existing practices of masters securing
crewmember passports. If a crewmember was able to establish that he or
she did provide his or her acceptable identification to the master with
the understanding that it would be kept on board and made available
upon demand, then the Coast Guard would take this into account when
enforcing this regulation. We have made no changes from the proposed
rule based on this comment.
I. Seamen's Books
One commenter stated that because seamen's books issued by foreign
governments under the Seafarers' Identity Document Convention, 1958
(ILO-108) are travel documents that are accepted in place of passports,
they should be included as an acceptable identification document for a
crewmember. The commenter further stated that even though the United
States has not ratified ILO-108, U.S. Customs and Border Protection
(CBP) accepts ILO-108 seamen's books in place of passports. The
commenter concludes, that while the Sec. 160.310 definition of
passport would include ILO-108 seamen's books, it would be helpful to
specifically include ILO-108 seamen's books in the list of acceptable
identification.
The Coast Guard disagrees with the recommendation that what the
commenter refers to as ILO-108 seamen's books should be added to the
list of acceptable identification. The Coast Guard also disagrees that
such seamen's books meet the Sec. 160.310 definition of passport. CBP
may accept a seaman's book, in conjunction with a visa, as a passport
alternative for purposes of determining admissibility, but CBP does not
accept the book as a SID.
Our crewmember identification document rule lists a specific SID as
an acceptable identification: one ``issued by or under the authority of
the government of a country that has ratified the International Labour
Organization Seafarers' Identity
[[Page 19138]]
Documents Convention (Revised), 2003 (ILO 185), meeting all the
requirements of ILO 185.'' See 33 CFR 160.310. ILO-185 went into force
on February 9, 2005, and, as its title indicates, revised ILO-108,
Seafarers' Identity Documents Convention, 1958. The term ``seamen's
books'' does not appear in ILO-108. And, like ILO-185, the 1958
convention refers to the issuance of a seafarer's identity document,
not a seaman's book.
Under the 1958 Convention, a SID had to conform to the provisions
of Article 4 of ILO-108, which include ``particulars concerning the
bearer.'' The list of ILO-108 particulars, however, is not as extensive
as those in ILO-185. As noted above, to be considered an acceptable
identification, a SID must meet all the requirements of ILO 185. And
while ILO-185 permits either ``a previous SID, or a seafarers'
discharge book'' to be used as proof an applicant for a SID is a
seafarer, neither convention uses the term ``seamen's book'' or
``seafarers' discharge book'' to label the document issued by or under
the authority of the government of a country that has ratified an ILO
SID convention as the document that must be recognized by other nations
that have ratified the convention.
We have not found a valid formal definition of the term ``seamen's
book.'' In addition, the term ``seaman's book'' is not used in either
ILO-108 or ILO-185, and the somewhat similar term ``seafarers'
discharge book'' is used in ILO-185, but for the limited purpose of
providing proof that an applicant for an ILO-185 SID is a seafarer.
Accordingly, we do not interpret either term as meeting the 33 CFR
160.310 definition of passport. We have made no changes from the
proposed rule based on this comment.
J. Outer Continental Shelf Offshore Workers
One commenter questioned the need for additional identification
documents for offshore workers located on the U.S. Outer Continental
Shelf (OCS) in the Gulf of Mexico. Another commenter inferred that the
Coast Guard does not consider a location on the OCS to be a ``foreign
port or place,'' and asked for confirmation that this term, used in 33
CFR 160.300(a)(2), refers to a port or place outside of U.S.
jurisdiction. A third comment added that crewmembers of a Mobile
Offshore Drilling Unit (MODU) on the OCS should not have to present
anything other than what is currently applicable for transport to and
from a MODU.
The Coast Guard does not consider a location on the OCS to be a
foreign port or place. See 43 U.S.C. 1333. Applicability provisions in
33 CFR 160.300(a)(2) would not be triggered by a U.S.-flag vessel
engaged in commercial service departing a place or MODU on the OCS
because it would not be coming from a foreign port or place of
departure. We have made no changes from the proposed rule based on this
comment.
K. Travel Outside U.S. Territorial Sea
One commenter made a related request for assurances that the rule
would not apply to crewmembers of U.S.-flagged passenger vessels that
travel outside the U.S. territorial sea, but do not enter a foreign
port or place. This commenter provided examples of U.S.-flagged whale-
watching vessels or cruise-to-nowhere gaming vessels.
As noted above, the requirements of this rule would apply to a
U.S.-flag vessel if it is engaged in commercial service and is coming
from a foreign port or place of departure. 33 CFR 160.300(a)(2). In the
definition section, Sec. 160.310, the term ``port or place of
departure'' is defined as ``any port or place in which a vessel is
anchored or moored.'' If a U.S.-flagged vessel travels beyond the U.S.
territorial sea but has not anchored or moored at a port or place in
the waters of a foreign country, then it would not trigger the
requirements of this rule because it would not be coming from a foreign
port or place of departure when it returns to U.S. waters. We have made
no changes from the proposed rule based on this comment.
L. Navigable Waters of the United States
One comment recommended that the Coast Guard more clearly define
the scope of the term ``navigable waters of the United States'' in the
final rule by including either a 3- or 12-mile-wide territorial sea as
measured from the baseline, and not rely on reference to 33 CFR
2.36(a), which contains an additional reference.
In Sec. 160.310 of the proposed rule, the Coast Guard defined the
term ``navigable waters of the United States'' to mean ``the same as
this term is defined in 33 CFR 2.36(a).'' That definition in Sec.
2.36(a) identifies navigable waters as including U.S. territorial seas,
U.S. internal waters subject to tidal influence, and certain U.S.
internal waters not subject to tidal influence. In 33 CFR part 2, the
Coast Guard provides a separate definition of ``territorial sea.''
Under this Sec. 2.22 definition, the width of the territorial sea may
be 3- or 12-nautical miles depending on the statute or regulation being
enforced.
This crewmember identification document rule is issued under MTSA
authority found at 46 U.S.C. 70111, as well as 33 U.S.C. 1223 and 1231
from the Ports and Waterways Safety Act (PWSA), Public Law 92-340 (July
10, 1972). Under both of these authorities, the territorial sea is 12
nautical miles wide. Under Sec. 2.22(a)(1)(v), we interpret the
territorial sea for regulations issued under MTSA, which was enacted
after the Presidential Proclamation 5928 of December 27, 1988, to be 12
nautical miles wide. Also, the Coast Guard has already established that
it interprets the territorial sea to be 12-nautical-miles wide for the
PWSA. 33 CFR 2.22(a)(1)(i). In response to this comment, the Coast
Guard has revised its definition in Sec. 160.310 to read:
Navigable waters of the United States means the same as this
term is defined in 33 CFR 2.36(a). This includes a 12-nautical-mile
wide U.S. territorial sea as measured from the baseline, U.S.
internal waters subject to tidal influence, and certain U.S.
internal waters not subject to tidal influence.
This is one of only three changes from the regulatory text in the
proposed rule.
M. Change Based on MMC Final Rule Being Issued
As noted above, on March 16, 2009, a final MMC rule was published
(74 FR 11196). In our NPRM, we stated that if an effective rule were
issued in the ``Consolidation of Merchant Mariner Qualification
Credentials'' rulemaking before we issued this crewmember
identification final rule, we would add the MMC to the list of
acceptable identification documents. May 14, 2008, 73 FR 27780. Because
this condition has been met we have added the MMC to 33 CFR 160.310,
which defines acceptable identification for purposes of this
rulemaking.
N. Clarification of Force Majeure Exception
In Sec. 160.305 of the NPRM, we stated that requirements of this
rule would not be ``enforced against crewmembers and operators on a
vessel bound for a U.S. port or place of destination under a claim of
force majeure.'' It is clearer, however, to state that the requirements
of this rule do not apply in those circumstances. Accordingly,
consistent with our NPRM preamble description of this section dealing
with forces beyond the ship master's control, we have revised Sec.
160.305 to clarify that 33 CFR part 160, subpart D requirements will
not apply to crewmembers and operators on a vessel bound for a U.S.
port or place of destination under force majeure.
[[Page 19139]]
V. 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 NPRM are summarized in Part IV of this
preamble. We received no public comments that would alter our
assessment of impacts in the NPRM. We have adopted the assessment in
the NPRM as final. See the ``Regulatory Evaluation'' section of the
NPRM for more details.
We expect that most crewmembers, U.S. and foreign, already possess
an acceptable identification. Acceptable identifications in this rule
are consistent with current identifications accepted by the Coast Guard
and CBP to identify crewmembers. In addition, we expect that
crewmembers carry their identification with them and that vessel
operators examine the identification because carriers are required
under 19 CFR 4.7b(d) and 4.64(d) to view these documents when preparing
crew manifests, and because vessel operators are required to record the
document number on the notice of arrival under 33 CFR
160.206(a)(4)(iv).
We provide estimates of burden and costs associated with this rule
in the ``Collection of Information'' section of this rule.
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.
Although the rule requires vessel operators to ensure that all
crewmembers on the vessel have acceptable identification, we expect
that vessel operators already look for an identification document from
each crewmember in order to record the document number on the notice of
arrival. Otherwise, the burdens proposed by this rule fall on
crewmembers and not on small entities as defined in the Regulatory
Flexibility Act. Therefore, the Coast Guard certifies under 5 U.S.C.
605(b) that this final rule will not have a significant economic impact
on a substantial number of small entities.
C. Assistance for Small Entities
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). 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.
D. Collection of Information
This rule calls for a new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5
CFR 1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions.
We received no public comment that would alter our assessment of
the respondents and burden in the NPRM. We have adopted the assessment
in the NPRM as final. See the ``Regulatory Evaluation'' section of the
NPRM for more details. A summary of our respondent and burden estimates
follow.
Title: Crewmember Identification Documents.
OMB Control Number: 1625-0113.
Summary of the Collection of Information: This collection of
information comprises the recordkeeping necessary to possess, present
on demand, and ensure compliance with requirements for identification
of crewmembers on foreign and U.S. vessels in navigable waters of the
United States.
Need for Information: In the MTSA, Congress directed the Secretary
of the Department in which the Coast Guard is operating to require all
crewmembers on vessels calling at U.S. ports to carry and present on
demand any identification the Secretary decides is necessary. The
acceptable identification required by this rule will allow the Coast
Guard to authoritatively identify crewmembers on vessels within U.S.
waters.
Use of Information: The information collected would be used to
authoritatively identify crewmembers on vessels within U.S. waters.
Description of the Respondents: The respondents include all
crewmembers on a foreign vessel in the navigable waters of the United
States en route to a U.S. port or place of destination or at a U.S.
port or place, and all crewmembers on a U.S. commercial vessel in the
navigable waters of the United States coming from a foreign port or
place of departure to a U.S. port or place of destination. The
respondents also include the operators of those foreign and U.S.
vessels.
Number of Respondents: We estimate the number of respondents is
838,084 persons, comprising crewmembers and vessel operators. This
figure is based on Coast Guard records of the number of affected
vessels that enter U.S. ports, Coast Guard estimates of the number of
crewmembers on vessels, and estimates of the frequency of crew
rotation. Using Coast Guard Notice of Arrival data, we estimate
10,649,843 responses per year from all crewmembers and operators. This
estimate varies somewhat by year.
Frequency of Response: We estimate, on average, a typical
crewmember would respond 13 times per year. Vessel operators would
respond each time a vessel submits a notice of arrival.
Burden of Response: Coast Guard records indicate the burden imposed
on the respondents is negligible. From our records, we expect nearly
all crewmembers already possess and carry an acceptable identification.
We also expect vessel operators already check crewmembers'
identifications since the type and number must be reported on the
Notice of Arrival.
Estimate of Total Annual Burden: We estimate there would be no more
than 320,851 potential annual responses involving a document other than
acceptable identification. Based on an average of 13 visits per
crewmember per year, this amounts to about 24,681 crewmembers that use
some other form of identification. We estimate the cost burden of
response for these crewmembers to be $2,714,910, using $97 as the cost
of obtaining an acceptable ID, and $13 as the opportunity cost of time.
As required by 44 U.S.C. 3507(d), we submitted a copy of the
proposed rule to the Office of Management and Budget (OMB) for its
review of the collection of information. On November 20, 2008, OMB
approved the collection for a 3-year period, until November 30, 2011.
[[Page 19140]]
The OMB Control Number for this collection is 1625-0113.
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number. This
publication of OMB's control number in the Federal Register will
constitute display of that number, see 5 CFR 1320.3(f)(3), as required
under 44 U.S.C. 3506(c)(1)(B).
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. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
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 effect 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 (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
Directive 0023.1 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 concluded that this action
is one of a category of actions which do not individually or
cumulatively have a significant effect on the human environment.
Therefore, this rule is categorically excluded, under section 2.B.2.
Figure 2-1, paragraph 34(d) of the Instruction, and neither an
environmental assessment nor an environmental impact statement is
required. This rule involves crewmember identification documents and
falls within the documentation portion of this categorical exclusion.
An environmental analysis checklist and a categorical exclusion
determination are available in the docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 160
Administrative practice and procedure, Harbors, Hazardous materials
transportation, Identification, Marine safety, Navigation (water),
Reporting and recordkeeping requirements, Seamen, Vessels, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 160 as follows:
PART 160--PORTS AND WATERWAYS SAFETY--GENERAL
0
1. The authority citation for part 160 continues to read as follows:
Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. Chapter 701;
Department of Homeland Security Delegation No. 0170.1. Subpart C is
also issued under the authority of 33 U.S.C. 1225 and 46 U.S.C.
3715.
0
2. Add subpart D, consisting of Sec. Sec. 160.300 through 160.320, to
read as follows:
Subpart D--Crewmember Identification
Sec.
160.300 Applicability.
160.305 Exceptions.
160.310 Definitions.
160.315 Crewmember identification requirement.
160.320 Sanctions and vessel control.
Sec. 160.300 Applicability.
(a) This subpart applies to crewmembers on the following vessels in
the navigable waters of the United States en route to a U.S. port or
place of destination or at a U.S. port or place:
(1) A foreign vessel engaged in commercial service, and
(2) A U.S. vessel engaged in commercial service and coming from a
foreign port or place of departure.
(b) This subpart also applies to the operators of the vessels
listed in paragraph (a) of this section.
Sec. 160.305 Exceptions.
Requirements in this subpart do not apply to crewmembers and
operators on a vessel bound for a U.S. port or place of destination
under force majeure.
Sec. 160.310 Definitions.
As used in this subpart, and only for purposes of this supbpart--
Acceptable identification means a:
(1) Passport;
[[Page 19141]]
(2) U.S. Permanent Resident Card;
(3) U.S. merchant mariner document;
(4) U.S. merchant mariner credential;
(5) Transportation Worker Identification Credential (TWIC) issued
by the Transportation Security Administration under 49 CFR part 1572;
or
(6) Seafarer's Identification Document (SID) issued by or under the
authority of the government of a country that has ratified the
International Labour Organization Seafarers' Identity Documents
Convention (Revised), 2003 (ILO 185), meeting all the requirements of
ILO 185.
Commercial service means any type of trade or business involving
the transportation of goods or individuals, except service performed by
a combatant vessel.
Crewmember means all persons carried onboard a vessel to provide:
navigation services; maintenance of the vessel, its machinery, or
systems; arrangements essential for propulsion or safe navigation; or
services for other persons onboard.
Foreign vessel means a vessel of foreign registry or operated under
the authority of a country except the United States.
Navigable waters of the United States means the same as this term
is defined in 33 CFR 2.36(a). This includes a 12-nautical-mile wide
U.S. territorial sea as measured from the baseline, U.S. internal
waters subject to tidal influence, and certain U.S. internal waters not
subject to tidal influence.
Operator means any person including, but not limited to, an owner,
a charterer, or another contractor who conducts, or is responsible for,
the operation of a vessel.
Passport means any travel document issued by competent authority
showing the bearer's origin, identity, and nationality if any, which is
valid for the admission of the bearer into a foreign country.
Port or place of departure means any port or place in which a
vessel is anchored or moored.
Port or place of destination means any port or place in which a
vessel is bound to anchor or moor.
Sec. 160.315 Crewmember identification requirement.
(a) A crewmember subject to this subpart must carry and present on
demand an acceptable identification. An operator subject to this
subpart must ensure that every crewmember on the vessel has an
acceptable identification in his or her possession when the vessel is
in the navigable waters of the United States. For purposes of this
section, a crewmember may secure his or her acceptable identification
with the vessel's master, so long as the identification can be
presented on demand.
(b) Compliance with the requirements in this section does not
relieve vessel crewmembers and operators of any requirements under the
Immigration and Nationality Act (INA) or INA implementing regulations.
Likewise, compliance with INA requirements does not relieve vessel
crewmembers and operators of the requirements in this section.
Sec. 160.320 Sanctions and vessel control.
Failure to comply with this subpart will subject the crewmember and
operator to a civil penalty under 46 U.S.C. 70119 and the vessel to
control under 33 U.S.C. 1223(b).
Dated: April 22, 2009.
Howard L. Hime,
Acting Director of Commercial Regulations and Standards, U.S. Coast
Guard.
[FR Doc. E9-9634 Filed 4-27-09; 8:45 am]
BILLING CODE 4910-15-P