Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 47729 

the expiration of the non-payment 

testing period, as described in 

§ 1.6050P–1(b)(2)(iv). 

* * * * * 

(v) Special rule for certain entities 

required to file in a year prior to 2008. 

In the case of an entity described in 

section 6050P(c)(1)(A) or (c)(2)(D) 

required to file an information return in 

a tax year prior to 2008 due to an 

identifiable event described in 

paragraph (b)(2)(i)(H) of this section, 

and who failed to so file, the date of 

discharge is the first event, if any, 

described in paragraphs (b)(2)(i)(A) 

through (G) of this section that occurs 

after 2007. 

* * * * * 

(h) * * * 

(1) In general. The rules in this 

section apply to discharges of 

indebtedness after December 21, 1996, 

except paragraphs (e)(1) and (e)(3) of 

this section, which apply to discharges 

of indebtedness after December 31, 

1994, except paragraph (e)(5) of this 

section, which applies to discharges of 

indebtedness occurring after December 

31, 2004, and except paragraphs 

(b)(2)(i)(H) and (b)(2)(v) of this section, 

which apply to discharges of 

indebtedness occurring after November 

10, 2008. 

* * * * * 

■ Par. 4. Section 1.6050P–1T is 

removed. 

Approved: August 28, 2009. 

Linda E. Stiff, 

Deputy Commissioner for Services and 

Enforcement. 

Michael F. Mundaca, 

Acting Assistant Secretary of the Treasury 

(Tax Policy). 

[FR Doc. E9–22354 Filed 9–16–09; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[USCG–2009–0782] 

RIN 1625–AA00 

Safety Zone, Chicago Harbor, Navy 

Pier Southeast, Chicago, IL 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the Navy Pier Southeast Safety Zone in 

Chicago Harbor from September 2, 2009, 

through September 26, 2009. This action 

is necessary and intended to ensure 

safety of life on the navigable waters 

immediately prior to, during, and 

immediately after fireworks events. This 

rule will establish restrictions upon and 

control movement of vessels in the 

specified area immediately prior to, 

during, and immediately after the 

fireworks events. During the 

enforcement period, no person or vessel 

may enter the safety zone without 

permission of the Captain of the Port 

Lake Michigan. 

DATES: The regulations in 33 CFR 

165.931 will be enforced during the 

times listed in the SUPPLEMENTARY

INFORMATION from September 2, 2009, to 

September 26, 2009. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this notice, call 

or e-mail BM1 Adam Kraft, Prevention 

Department, Coast Guard Sector Lake 

Michigan, Milwaukee, WI; telephone 

414–747–7154, e-mail 

Adam.D.Kraft@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the Safety Zone, 

Chicago Harbor, Navy Pier Southeast, 

Chicago, IL, as listed in 33 CFR 165.931, 

for the following events, dates, and 

times: 

(1) Navy Pier Wednesday Fireworks: 

On September 2, 2009, from 9:15 p.m. 

through 9:45 p.m.; on September 16, 

2009, from 9 p.m. through 9:30 p.m.; 

(2) Navy Pier Friday Fireworks: On 

September 18, 2009, from 8:45 p.m. 

through 9:20 p.m.; on September 25, 

2009, from 8:45 p.m. through 9:20 p.m.; 

(3) Navy Pier Saturday Fireworks: On 

September 5, 2009, from 10 p.m. 

through 10:40 p.m.; on September 19, 

2009, from 8:45 p.m. through 9:20 p.m.; 

on September 26, 2009, from 8:45 p.m. 

through 9:20 p.m.; and 

(4) Navy Pier Sunday Fireworks; On 

September 6, 2009, from 9:15 p.m. 

through 9:45 p.m. 

All vessels must obtain permission 

from the Captain of the Port or a 

designated representative to enter, move 

within, or exit the safety zone. Vessels 

and persons granted permission to enter 

the safety zone shall obey all lawful 

orders or directions of the Captain of the 

Port or the designated representative. 

While within a safety zone, all vessels 

shall operate at the minimum speed 

necessary to maintain a safe course. 

This notice is issued under authority 

of 33 CFR 165.931 Safety Zone, Chicago 

Harbor, Navy Pier Southeast, Chicago, 

IL. and 5 U.S.C. 552(a). In addition to 

this notice in the Federal Register, the 

Coast Guard will provide the maritime 

community with advance notification of 

these enforcement periods via broadcast 

Notice to Mariners or Local Notice to 

Mariners. The Captain of the Port will 

issue a Broadcast Notice to Mariners 

notifying the public when enforcement 

of the safety zone established by this 

section is suspended. If the Captain of 

the Port determines that the safety zone 

need not be enforced for the full 

duration stated in this notice, he or she 

may use a Broadcast Notice to Mariners 

to grant general permission to enter the 

safety zone. The Captain of the Port or 

the designated representative may be 

contacted via VHF–FM Channel 16. 

Dated: August 26, 2009. 

L. Barndt, 

Captain, U.S. Coast Guard, Captain of the 

Port Lake Michigan. 

[FR Doc. E9–22359 Filed 9–16–09; 8:45 am] 

BILLING CODE 4910–15–P 

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. 

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 nonresident 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 nonresident aliens. Specifically, this rule 

finalizes the amendments to Coast 

Guard regulations allowing the Coast 

Guard to issue MMCs to qualified nonresident 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 


cprice-sewell on DSK2BSOYB1PROD with RULES
47730 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 

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 

Mayte.Medina2@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 

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, § 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 employerconducted 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, 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 47731 

1When 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. 

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 nonresident 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 nonsubstantive 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. 

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 nonresident 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 


cprice-sewell on DSK2BSOYB1PROD with RULES
47732 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 

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 

§§ 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, § 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 § 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, nonsubstantive 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 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 47733 

2Since April 2007, NCLA has removed two 

vessels from U.S. service and re-flagged them for 

foreign service. 

‘‘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 nonresident 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. 

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 


cprice-sewell on DSK2BSOYB1PROD with RULES
47734 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 

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. 

■ 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 

■ 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. 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 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. 

§ 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. 

§ 12.40–3 [Reserved] 

§ 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 § 12.40–7 of this 

subpart. 

§ 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 employerconducted background check; 

(ii) A description of the employerconducted 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 

§ 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. 

§ 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 §§ 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 § 12.40–11 of this 

subpart. 

§ 12.40–11 Citizenship and identity. 

(a) In lieu of the requirements of 

§ 10.221 of this subchapter, a nonVerDate Nov<24>2008 13:59 Sep 16, 2009 Jkt 217001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\17SER1.SGM 17SER1

cprice-sewell on DSK2BSOYB1PROD with RULES
47736 Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 

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). 

§ 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 

§ 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 § 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 § 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 nonresident 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 § 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 § 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 

§ 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 § 10.221 of this 

subchapter, without any restrictions or 

limitations imposed by this subpart. 

§ 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 § 15.530 of this subchapter, to the 

satisfaction of the Coast Guard. 

PART 15—MANNING REQUIREMENTS 

■ 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. 

■ 3. Revise § 15.530 in subpart D to read 

as follows: 

§ 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 § 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 

§ 12.40–13(c) of this subchapter; 

(3) May not perform watchstanding, 

engine room duty watch, or vessel 

navigation functions, under § 12.40– 

13(b)(4) of this subchapter; and 

(4) May perform emergency-related 

duties only if, under § 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 § 12.40–13(a)(3) of this 

subchapter; 

(ii) The non-resident alien has 

completed familiarization and basic 

safety training, as required in § 15.1105 

of this part; 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations 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 

§ 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 § 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 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 501, 514, and 552 

[GSAR Amendment 2009–11; GSAR Case 

2008–G505 (Change 39); Docket 2008–0007; 

Sequence 20] 

RIN 3090–AI73 

General Services Acquisition 

Regulation; GSAR Case 2008–G505; 

Rewrite of GSAR Part 514, Sealed 

Bidding 

AGENCY: Office of Acquisition Policy, 

General Services Administration (GSA). 

ACTION: Final rule. 

SUMMARY: The General Services 

Administration (GSA) is amending the 

GSA Acquisition Regulation (GSAR) by 

revising the sections of GSAR Part 514 

that provide requirements for sealed 

bidding. This rule is a result of the GSA 

Manual (GSAM) Rewrite initiative 

undertaken by GSA to revise the GSAM 

to maintain consistency with the 

Federal Acquisition Regulation (FAR), 

and to implement streamlined and 

innovative acquisition procedures that 

contractors, bidders, and GSA 

contracting personnel can utilize when 

entering into and administering 

contractual relationships. The GSAM 

incorporates the GSAR as well as 

internal agency acquisition policy. 

DATES: October 19, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

Michael O. Jackson at (202) 208–4949. 

For information pertaining to the status 

or publication schedules, contact the 

Regulatory Secretariat (VPR), 1800 F 

Street, NW., Room 4041, Washington, 

DC 20405, (202) 501–4755. Please cite 

GSAR Case 2008–G505 (Change 39), in 

all correspondence. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The GSA is amending the GSAR to 

revise sections of GSAR Part 514 that 

provide requirements for sealed 

bidding. 

This final rule is a result of the GSA 

Acquisition Manual (GSAM) rewrite 

initiative undertaken by GSA to revise 

the GSAM to maintain consistency with 

the Federal Acquisition Regulation 

(FAR) and to implement streamlined 

and innovative acquisition procedures 

that contractors, bidders, and GSA 

contracting personnel can utilize when 

entering into and administering 

contractual relationships. The GSAM 

incorporates the GSAR as well as 

internal agency acquisition policy. 

The GSA will rewrite each part of the 

GSAR and GSAM, and as each GSAR 

part is rewritten, will publish it in the 

Federal Register. 

This rule covers the rewrite of GSAR 

Part 514. The specific changes are as 

follows: 

501.106 OMB Approval under the 

Paperwork Reduction Act. 

• Added OMB Control No. 3090–0162 

as a cross reference for 514.201–1. 

514.201–2 Part I—The Schedule. 

•Changed paragraph (a) from ‘‘When 

you’’ to ‘‘When using’’. Also in 

paragraph (a) changed ‘‘which’’ to 

‘‘that’’ and added all three FAR clauses 

for Prompt Payment (52.232–25, 

52.232–26, and 52.232–27). 

•Changed the word ‘‘offer’’ to ‘‘bid’’. 

•Changed paragraph (b) from ‘‘When 

you use’’ to ‘‘When using’’ to clarify the 

reference to ‘‘you’’ and added a 

reference to the Standard Form 1449 as 

an example that this form can also be 

used. 

514.201–6 Solicitation provisions. 

•Changed ‘‘When you’’ to ‘‘When 

considering’’ to delete the reference to 

the word ‘‘you’’. 

•Changed ‘‘All or None Offers’’ to 

‘‘All or None Bids’’. 

• Deleted the reference for Alternate I 

because the alternate is being proposed 

for deletion because it is not consistent 

with the intention of the basic clause. 

514.201–7 Contract clauses. 

• In the old paragraph (a) changed 

‘‘you’’ to ‘‘The contracting officer’’. 

• Deleted paragraph (b), Examination 

of Records. The clause does not provide 

basic audit rights that are in addition to 

the FAR clauses at 52.215–2, Audit and 

Records—Negotiation and 52.214–26, 

Audit and Records—Sealed Bidding. 

And as opposed to the GSA clause, the 

FAR clause is specific to sealed bids. 

Further, the GSA clause grants to the 

agency rights to audit subcontractors 

that are in excess of those granted by the 

FAR and the statute. 

514.202–4 Bid samples. 

•Renamed paragraphs (a) and (b) to be 

more consistent with the FAR. 

• Also in paragraphs (a) and (b) 

restructured the language to remove the 

word ‘‘you’’ and replaced with 

contracting officer. 

•Clarified the language to state who 

must take physical custody of bid 

samples. 

• Deleted paragraph (c) because it is 

redundant with FAR 14.202–4(d). 

514.202–5 Descriptive Literature. 

• Added a new GSAR section in order 

to address the requirements of FAR 

14.202–5(c). 

514.270–1 Definition. Deleted 

hyphenation in ‘‘separately-priced’’. 

514.270–2 Justification for use. 

• Inserted ‘‘the contracting officer 

should’’ in paragraph (b) and made last 

sentence of paragraph (3) a new number 

paragraph (4) and renumbered old 

paragraphs (4) and (5) to paragraphs (5) 

and (6), respectively. 

• Added ‘‘the contracting officer 

should’’ to replace the understood 

‘‘you’’ and deleted ‘‘Do’’ in paragraph 

(c). 

514.270–3 Evaluation factors for 

award. 

• Edited to avoid either using the 

passive voice or repeating ‘‘the 

contracting officer’’. 

514.270–4 Grouping line items for 

aggregate award. 

• In paragraph (a) the title ‘‘Type of 

contract’’ was changed to one that is 

more descriptive of the substance of the 

paragraph; type of contract refers to Part 

16 contract types. 


cprice-sewell on DSK2BSOYB1PROD with RULES