[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Rules and Regulations]
[Pages 47729-47737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22355]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Parts 12 and 15

[USCG-2007-27761]
RIN 1625-AB16


Large Passenger Vessel Crew Requirements

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: This rule finalizes, with minor non-substantive changes, the 
amendments to Coast Guard regulations on merchant mariner documentation 
which were published as an interim rule with request for comments on 
April 24, 2007. These amendments implement section 3509 of the John 
Warner National Defense Authorization Act for Fiscal Year 2007 (Warner 
Act), which allows for the issuance of merchant mariner's documents 
(MMDs), (which have since been consolidated by the Coast Guard into 
merchant mariner credentials (MMCs)), to certain non-resident aliens 
for service in the steward's departments of U.S. flag large passenger 
vessels endorsed for coastwise trade. Prior to publication of the 
interim rule, the regulations prohibited the Coast Guard from issuing 
MMDs, which are required for service on large passenger vessels, to 
non-resident aliens. Specifically, this rule finalizes the amendments 
to Coast Guard regulations allowing the Coast Guard to issue MMCs to 
qualified non-resident aliens who are authorized to be employed in the 
United States, the amendments setting the requirements these aliens 
must meet in order to qualify for MMCs, and the requirements

[[Page 47730]]

for the large passenger vessels that may choose to hire these aliens. 
This rule only applies to large passenger vessels, as defined under the 
Warner Act.

DATES: This final rule is effective on October 19, 2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2007-27761 and are available for inspection or 
copying at the Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. You may also find this 
docket on the Internet by going to http://www.regulations.gov, 
inserting USCG-2007-27761 in the ''Keyword'' box, and then clicking 
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Mayte Medina, Coast Guard; telephone 202-372-1406, e-
mail <a href="/cdn-cgi/l/email-protection#a5e8c4dcd1c08be8c0c1cccbc497e5d0d6c6c28bc8ccc9"><span class="__cf_email__" data-cfemail="b3fed2cac7d69dfed6d7daddd281f3c6c0d0d49ddedadf">[email protected]</span></a>. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Background
IV. Discussion of Final Rule
V. Discussion of Comments and Changes
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    i. Affected Population
    ii. Industry Profile
    iii. Direct Impacts
    iv. Indirect Impacts
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

DHS Department of Homeland Security
FR Federal Register
GRT Gross register tons
ILO 147 International Labor Organization's Merchant Shipping 
(Minimum Standards) Convention of 1976
INA Immigration and Nationality Act
MMC Merchant Mariner Credential
NAICS North American Industry Classification System
NCLA Norwegian Cruise Line America
NMC National Maritime Center
NSEERS National Security Entry-Exit Registration System
SBA Small Business Administration
SIU Seafarers International Union
SUP Sailors' Union of the Pacific
TWIC Transportation Worker Identification Credential
U.S.C. United States Code
US-VISIT United States Visitor and Immigrant Status Indicator 
Technology Program

II. Regulatory History

    On April 24, 2007, we published an interim rule with request for 
comments entitled ``Large Passenger Vessel Crew Requirements'' in the 
Federal Register (72 FR 20278). We received 14 letters commenting on 
the proposed rule. No public meeting was requested and none was held.
    On March 16, 2009, we published a final rule entitled 
``Consolidation of Merchant Mariner Credentials (MMCs)'' in the Federal 
Register (74 FR 11196). That final rule reorganized the regulations 
found in title 46, chapter I, subchapter B, and also consolidated the 
number of credentials issued to mariners by the Coast Guard. Changes 
made in that final rule have been included in this document, and are 
highlighted below in section V. ``Discussion of Comments and Changes.''

III. Background

    The discussion of the background that follows largely repeats the 
discussion of the background and purpose set forth in the interim rule.
    Prior to October 17, 2006, Sec.  8103 of title 46 United States 
Code generally required that unlicensed seamen on documented vessels be 
of the following status: (a) Citizens of the United States; (b) lawful 
permanent residents; or (c) foreign nationals enrolled in the United 
States Merchant Marine Academy. Additionally, no more than 25 percent 
of such unlicensed seamen could be lawful permanent residents.
    On October 17, 2006, Congress enacted the John Warner National 
Defense Authorization Act for Fiscal Year 2007 (Warner Act), Public Law 
109-364, sec. 3509, 120 Stat. 2518. Section 3509 of the Warner Act (46 
U.S.C. 8103(k)) amends 46 U.S.C. 8103 to permit large passenger vessels 
to also employ aliens who are not lawful permanent residents of the 
United States but who are authorized to work in the United States. The 
statute maintains a cap so that no more than 25 percent of the 
unlicensed seamen on any large passenger vessel may be aliens, whether 
admitted to the United States as lawful permanent residents or 
otherwise allowed to be employed in the United States. ``Large 
passenger vessel'' is defined under the Warner Act to mean ``a vessel 
of more than 70,000 gross tons, as measured under section 14302 of this 
title, with capacity for at least 2,000 passengers and documented with 
a coastwise endorsement under chapter 121 of this title.''
    The Warner Act also contains the following qualifications and 
restrictions on non-resident aliens serving as unlicensed seamen on 
large passenger vessels:
    1. Non-resident aliens may not perform watchstanding, engine room 
duty watch, or vessel navigation functions;
    2. Non-resident aliens must be authorized for employment in the 
United States under the Immigration and Nationality Act of 1952, as 
amended (8 U.S.C. 1101 et seq.) (INA), including an alien crewman 
described in section 101(a)(15)(D)(i) of the INA (8 U.S.C. 
1101(a)(15)(D)(i));
    3. Non-resident aliens must have been employed for a period of at 
least one year on a passenger vessel, including a foreign flag 
passenger vessel, under the same common ownership or control as the 
U.S. flag vessel they will be working on, as certified by the owner or 
managing operator of such vessel;
    4. Non-resident aliens must have no record of material disciplinary 
actions during such employment, as verified in writing by the owner or 
managing operator of such vessel;
    5. Non-resident aliens must have successfully completed a United 
States Government security check of the relevant domestic and 
international databases, as appropriate, or any other national 
security-related information or database (which is required for an MMC 
or Transportation Worker Identification Credential (TWIC));
    6. Non-resident aliens must have successfully undergone an 
employer-conducted background check for which the owner or managing 
operator provides a signed report that describes the background checks 
undertaken. The background check must consist of a search of all 
information that is reasonably and legally available to the owner or 
managing operator in the seaman's country of citizenship and any other 
country in which the seaman receives employment referrals or resides. 
The report must be kept on the vessel and available for inspection, and 
the information derived from the background check must be made 
available upon request;
    7. Non-resident aliens may not be citizens or temporary or 
permanent residents of a country designated by the United States as a 
sponsor of terrorism,

[[Page 47731]]

or any other country that the Secretary of Homeland Security, in 
consultation with the Secretary of State and the heads of other 
appropriate United States agencies, determines to be a security threat 
to the United States; and
    8. Non-resident aliens may only serve for an aggregate period of 36 
months of actual service on all authorized U.S. flag large passenger 
vessels combined. Once this 36-month limitation has been reached, the 
MMD (now called an MMC) becomes invalid and the individual's employer 
must return it to the Coast Guard, and the individual is no longer 
authorized to be in service in a position requiring an MMD (now called 
an MMC) on any U.S. flag large passenger vessel.
    Under current law, all individuals serving in the steward's 
department on passenger vessels of 100 gross register tons (GRT) or 
more must hold an MMC. 46 U.S.C. 8701. The only exception is for 
entertainment personnel employed for a period of 30 days or less per 
year, who are exempt from the MMC requirement.
    Prior to publication of the interim rule on April 24, 2007, Coast 
Guard regulations governing the issuance of MMDs (now called MMCs) 
prohibited the issuance of MMDs (now called MMCs) to non-resident 
aliens (see 46 CFR Part 12). The Coast Guard, through the interim rule, 
amended its regulations to authorize the issuance of MMDs (now called 
MMCs) to non-resident aliens authorized to work in the United States 
who meet the criteria of the Warner Act and the requirements set forth 
in the rule.

IV. Discussion of Final Rule

    This rule finalizes, with minor non-substantive changes, the 
amendments set forth in the interim rule. A full discussion of the 
provision of this rule may be found in the ``Discussion of the Interim 
Rule'' section of the interim rule. 72 FR 20278, at 20280.

V. Discussion of Comments and Changes

    We received a total of 14 letters commenting on the proposed rule. 
One of the comments, discussing marine radio broadcast services, was 
apparently submitted to the docket in error.
    Of the 13 relevant commenters, four essentially argue that 
foreigners should not be permitted to work on U.S. flag vessels. Three 
commenters argue that foreigners should be permitted to work on U.S. 
flag large passenger vessels, and also that the Jones Act should be 
repealed. Two commenters argue that foreigners should be allowed to 
work on U.S. flag large passenger vessels because foreign hotel staff 
on large passenger vessels provide a better level of customer service 
than U.S. hotel staff.
    While the Coast Guard appreciates the countering viewpoints 
expressed in these comments, none of them discuss the rulemaking. 
Rather, they discuss issues regarding the appropriateness, fairness and 
justification for the legislation underlying the rulemaking, i.e. 
section 3509 of the Warner Act. That legislation was enacted by 
Congress and signed by the President into law. This rulemaking is 
merely the implementation of that law, and, as such, the viewpoints 
expressed in these comments are beyond the scope of the rulemaking.
    The remaining four commenters discuss, at least in part, the 
specifics of the rulemaking. Three of these four commenters--from 
Seafarers International Union (SIU), Transportation Institute, and 
Norwegian Cruise Line America (NCLA)--support the rulemaking without 
change.
    NCLA owns/operates the only vessels subject to this rulemaking, 
making NCLA the only vessel owner/operator to which this final rule 
applies.\1\ Their comments indicate that the regulations as issued in 
the interim rule strike an appropriate balance between flexibility for 
the vessel owner/operator and safeguards to preserve U.S. interests. 
NCLA urges that the regulations should be adopted without change in 
this final rule. We agree with NCLA.
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    \1\ When the interim rule was issued on April 24, 2007, NCLA 
operated three U.S. flag large passenger vessels in coastwise trade 
in the Hawaiian Islands. Since that time, they have removed two of 
those vessels in coastwise trade in the Hawaiian Islands.
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    One comment, from the Sailors' Union of the Pacific (SUP), opposes 
the rulemaking on five grounds: negative consequences to sealift 
manpower; undermining U.S. maritime security; creating a de facto 
second register under the U.S. flag; unfair competition; and lack of 
transparency. We made no changes to the rule based on these comments, 
which are discussed below.
    SUP suggests that this rule will weaken defense readiness by 
reducing the pool of qualified U.S. mariners necessary to commercially 
operate military sealift ships, and that it takes away valuable entry-
level positions for unlicensed U.S. mariners. Conversely, SIU (one of 
the other commenters) argues that if the cruise ships impacted by this 
regulation are re-flagged foreign due to the economic pressures 
associated with the high turnover of U.S. hotel staff on these vessels, 
even more U.S. jobs will be lost. Instead of 75 percent of the crew on 
these vessels being U.S. citizens, none of the crew will be a U.S. 
citizen if the vessels are re-flagged foreign.
    While the Coast Guard appreciates both of these divergent maritime 
labor viewpoints, they relate to the statute underlying this 
rulemaking, i.e. section 3509 of the Warner Act, and, as noted above, 
are beyond the scope of this rulemaking.
    SUP next suggests that this rulemaking undermines U.S. maritime 
security because the security standards imposed on non-resident aliens 
are ``far beneath'' the standards imposed on U.S. mariners. SUP 
suggests that the aliens who would be allowed to work aboard U.S. large 
passenger vessels under this rule are exempt from the TWIC 
requirements, and that the ``real weakness in the rule's security 
standards is that it depends on unreliable or non-existent information 
from foreign sources.''
    First, it must be clarified that the non-resident aliens who gain 
employment aboard U.S. large passenger vessels in accordance with this 
rule are required to obtain TWIC cards, just like any other 
credentialed U.S. mariner. Section 12.40-5(a) of the interim rule 
specified that unless otherwise expressly stated, non-resident alien 
applicants for MMDs (now called MMCs) are subject to all applicable 
requirements contained in 46 CFR Subchapter B. The final TWIC rule 
added new sections 10.113, 12.01-11 and 15.415 to 46 CFR Subchapter B. 
73 FR 3492. These sections collectively require all credentialed 
mariners to hold a valid TWIC by April 15, 2009, to be employed or 
engaged on any U.S. flag vessel.
    Furthermore, the TWIC final rule amended 49 CFR 1572.105 to allow a 
TWIC to be issued to an alien in a lawful nonimmigrant status who has 
restricted authorization to work in the United States with a C-1/D 
crewman visa. 49 CFR 1572.105(a)(7)(ii). The C-1/D crewman visa is the 
most common type of visa that non-resident alien crewmembers have, and 
it is explicitly referenced in both the statute and the rule as 
acceptable for issuance of an MMD (now called MMC). To the extent that 
a non-resident alien crewmember may have something other than a C-1/D 
visa, there are numerous other lawful immigration statuses listed in 49 
CFR 1572.105 allowing for issuance of a TWIC.
    Regarding the SUP argument that the non-resident aliens will be 
subject to lesser security vetting requirements than U.S. mariners, 
non-resident aliens are subject to not only a government background 
check at the time of application (including the full security threat 
assessment done by the

[[Page 47732]]

Transportation Security Administration when the individual applies for 
a TWIC), but are also subject to an employer-conducted background 
check, which must be updated every year that the non-resident alien 
holds a credential, to search for any changes since the last background 
check. They are also subject to any immigration background checks 
required to obtain their lawful immigration status or visa. This is the 
highest level of security vetting possible within the constraints of 
section 3509 of the Warner Act, the statute underlying this rulemaking.
    Any concerns with respect to the quality of the employer-conducted 
background check are addressed in Sec. Sec.  12.40-7(a)(2) and (a)(3) 
of the rule. Section 12.40-7(a)(2)(ii) requires a review of the 
available court and police records in the applicant's country of 
citizenship, and in any other country in which the applicant has 
resided or received employment referrals for the past 20 years. This is 
an extensive requirement, and it may include not only criminal arrest 
and conviction information, but also relevant civil court information 
such as bankruptcies and lawsuits.
    Furthermore, Sec.  12.40-7(a)(3) states that the employer-conducted 
background check must be conducted ``to the satisfaction of the Coast 
Guard'' for a credential to be issued. This gives the Coast Guard broad 
discretion to accept or reject employer-conducted background checks. In 
fact, NCLA utilizes a company, at significant expense to NCLA, which 
specializes in foreign criminal background checks. This company has 
agents who physically search available court and police records at each 
local foreign jurisdiction where each non-resident alien applicant has 
resided, received employment referrals, or claimed citizenship. They 
produce a professionally styled, comprehensive report on each non-
resident alien applicant. This is the type of background check that the 
Coast Guard expects under Sec.  12.40-7(a)(3). Anything less could be 
rejected with no credential being issued to the applicant.
    SUP next suggests that this rulemaking creates a de facto second 
register under the U.S. flag by allowing the employment of foreign 
mariners on U.S. vessels who may be paid less and employed under lower 
standards than U.S. mariners. SUP states, correctly, that neither the 
statute nor the rule requires non-resident alien mariners to be 
employed under the same collective bargaining agreement as presently 
applies to U.S. mariners on the same vessels.
    The Coast Guard has no authority to require any vessel owner/
operator to employ mariners under a collective bargaining agreement. As 
long as the vessel owner/operator complies with the provisions of the 
International Labor Organization's Merchant Shipping (Minimum 
Standards) Convention of 1976 (ILO 147), as required in section 
15.530(b) of the rule, they are under no obligation to provide the same 
compensation to non-resident aliens as they do to U.S. mariners on 
these vessels. This issue is discussed in more detail below in the 
``Regulatory Planning and Review'' section, under ``Direct Impacts.''
    Significantly, compliance with ILO 147 entails compliance with the 
scope of all the Conventions listed in the Appendix of ILO 147, 
specifically including social security, medical exams, and 
repatriation. Moreover, nothing in this rule relieves any vessel owner/
operator from compliance with all applicable provisions of 46 U.S.C. 
Part G, Chapters 101-115, Merchant Seamen Protection and Relief.
    SUP next suggests that this rule creates unfair competition by 
enabling NCLA to compete for crews under different rules than other 
U.S. flag companies, interfering in the operation of commercial 
maritime labor markets. Again, this argument relates to the statute 
underlying the rule, i.e., section 3509 of the Warner Act, which 
provides that up to 25 percent of the unlicensed seamen on large 
passenger vessels can be qualified non-resident aliens (limited to 
hotel staff). This issue is beyond the scope of this rulemaking.
    Finally, SUP suggests that both section 3509 of the Warner Act and 
the rule itself lack transparency. SUP states that the law was ``buried 
in the massive 2007 defense authorization bill,'' and that the Coast 
Guard has bypassed the notice of proposed rulemaking phase of public 
comment and gone right to an interim rule, thus further limiting 
discussion of the rule.
    The comment concerning the legislative procedure that led to the 
creation of the Warner Act is beyond the scope of this rulemaking. In 
the interim rule, published April 24, 2007, the Coast Guard explained 
that, under the Administrative Procedure Act, it had good cause to 
issue an effective rule without first providing notice and an 
opportunity for comment (see 72 FR 20281). Even with the good cause, 
however, we requested public comment on the interim rule. For this 
reason, we disagree with the assertion that this rule ``lacks 
transparency.''
    In preparing this final rule, the Coast Guard made three minor, 
non-substantive changes, from the interim rule, in the regulatory text. 
Two of the changes occur in 46 CFR 12.40-7 ``Employer Requirements,'' 
and the third occurs in 12.40-13 ``Restrictions.'' In section 12.40-7, 
first we capitalized the term ``Transportation Worker Identification 
Credential,'' to correctly identify it. Second, we reorganized 
paragraph (d) to more clearly identify when an employer must return a 
mariner's TWIC and/or MMD (now called MMC) to the government (either 
TSA or Coast Guard, as appropriate). Our third change is found in 
section 12.40-13, where we spelled out the abbreviation ``STCW.'' None 
of these edits change the substance of the Interim Rule.
    Since publication of the interim rule, the Coast Guard published a 
final rule titled ``Consolidation of Merchant Mariner Qualification 
Credentials'' (74 FR 11196; USCG-2006-24371). That final rule 
consolidated all previously issued Coast Guard credentials (including 
the MMD) into one new credential, called a merchant mariner credential 
(MMC). It also reorganized 46 CFR chapter I, subchapter B. Changes made 
by that final rule have been incorporated into this final rule. These 
include: changing the term ``merchant mariner's document'' to 
``merchant mariner credential'' in every place that it appeared; 
updating cross references (where the sections referenced in the interim 
rule were moved as part of the reorganization); moving the definitions 
from subpart 12.40 to the definition section covering all of subchapter 
B (46 CFR 10.107); and revising the subpart's title.

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below, we summarize our 
analyses based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    Public comments on the interim rule are summarized in Part V of 
this publication. We received no public comments that would alter our 
assessment of impacts in the interim rule. We have adopted the 
assessment in the interim rule as final. See the

[[Page 47733]]

``Regulatory Evaluation'' section of the interim rule for more details. 
A summary of the assessment follows.
    The Coast Guard issues this rule as mandated by Congress through 
the Warner Act. See the ``Background'' section for more information 
about this legislation.
    The rule creates an exemption to allow qualified non-resident 
aliens to obtain MMCs for employment as unlicensed seamen in the 
steward's departments of large passenger vessels, as entertainment and 
service personnel, including wait staff, hotel housekeeping staff, and 
food handlers. Prior to issuance of the interim rule, only U.S. 
citizens, lawful permanent residents, and foreign nationals enrolled at 
the U.S. Merchant Marine Academy could obtain MMDs (now MMCs) as 
unlicensed seamen (and no more than 25 percent of these unlicensed 
seamen may be lawful permanent residents). This rule will permit non-
resident aliens to also obtain MMCs for employment as rated seamen on 
large passenger vessels, except no more than 25 percent of the rated 
seamen on a large passenger vessel can be aliens (whether non-resident, 
non-permanent resident aliens or lawful permanent residents). The rule 
further requires that the non-resident aliens may only be employed in 
the steward's department of a large passenger vessel.
    Although the Warner Act and this rule allow large passenger vessels 
to hire non-resident aliens, neither the Act nor this rule mandates 
that they do so. Accordingly, there are no mandatory costs to large 
passenger vessels resulting from this rule. Rather, a company will only 
choose to avail itself of the exemption if the benefits to the company 
from the hiring of non-resident aliens are greater than the costs.
    Based on Coast Guard Marine Inspection, Safety, and Law Enforcement 
system (MISLE) data, we determined there is only one large passenger 
vessel currently in service that meets the qualifications of this rule. 
Norwegian Cruise Line America (NCLA) operates the vessel in coastwise 
service in the Hawaiian Islands.\2\ NCLA is the only company directly 
regulated by this rulemaking.
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    \2\ Since April 2007, NCLA has removed two vessels from U.S. 
service and re-flagged them for foreign service.
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    We expect most of the direct costs of the rule will be borne by 
NCLA. The rule will require NCLA to perform an employer-conducted 
background check and submit additional required merchant mariner 
application information to the Coast Guard on the employee's behalf. 
However, NCLA participation in this alternative compliance method is 
voluntary, and NCLA will only participate if the net benefits of doing 
so are positive. We estimate the benefit to NCLA from participating in 
this rule to be the cost savings made through reduced turnover and 
decreased startup training costs, since the non-resident aliens hired 
under this program will have experience aboard foreign-flag vessels.
    This reduction in labor cost is the cost savings or net benefit for 
NCLA to participate in the alternative MMC citizenship compliance 
method of this rule. See the ``Regulatory Evaluation'' section of the 
interim rule for additional details.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000. 
RFA analysis is not required when a rule is exempt from notice and 
comment rulemaking under 5 U.S.C. 553(b). As discussed in the interim 
rule, the Coast Guard determined that this regulatory action is exempt 
from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). 
Therefore, an RFA analysis is not required for this rule. The Coast 
Guard, nonetheless, expects that this rule will not have a significant 
economic impact on a substantial number of small entities.
    Based on Coast Guard MISLE data, we have determined that there is 
only one company (NCLA) is affected by this rule. We researched the 
company size and revenue data and found that this company is not 
considered a small entity by the Small Business Administration's size 
standards.
    In the interim rule, we certified under 5 U.S.C. 605(b) that the 
interim rule would not have a significant economic impact on a 
substantial number of small entities. We have found no additional data 
or information that would change our findings in the interim rule. We 
have adopted the certification in the interim for this final rule. See 
the ``Small Entity'' section of the interim rule for additional detail.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this final rule does not have a significant economic impact on a 
substantial number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. The Coast Guard 
will not retaliate against small entities that question or complain 
about this rule or any policy or action of the Coast Guard. Small 
businesses may send comments on the actions of Federal Employees who 
enforce, or otherwise determine compliance with, Federal regulations to 
the Small Business and Agriculture Regulatory Enforcement Ombudsman and 
the Regional Small Business Regulatory Fairness Boards. The Ombudsman 
evaluates these actions annually and rates each agency's responsiveness 
to small business. If you wish to comment on actions by employees of 
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520). Under OMB 
regulations implementing the PRA, ``Controlling Paperwork Burdens on 
the Public'' (5 CFR 1320), collection of information means the 
obtaining, soliciting, or requiring the disclosure to an agency of 
information by or for an agency by means of identical questions posed 
to, or identical reporting, recordkeeping, or disclosure requirements 
imposed on, ten or more persons. ``Ten or more persons'' refers to the 
number of respondents to whom a collection of information is addressed 
by the agency within any 12-month period and does not include employees 
of the respondent acting within the scope of their employment, 
contractors engaged by a respondent for the purpose of complying with 
the collection of information, or current employees of the Federal 
government. Collections of information affecting ten or more 
respondents within any 12-month period require OMB review and approval.
    This rule will require employers to submit employee information to 
the Coast Guard before the Coast Guard will issue an MMC for their 
employees. However, we expect only one company will be affected by this 
requirement each year, as there is only one company (NCLA) in a 
position to take advantage of these regulations. NCLA has been 
submitting information under the

[[Page 47734]]

interim rule since April 2007. We have no data or information to 
suggest that there will be additional companies affected by the rule. 
As such, the number of respondents is less than the threshold of ten 
respondents per 12-month period for collection of information 
requirements under the PRA.

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them.
    It is well settled that States may not regulate in categories 
reserved for regulation by the Coast Guard. It is also well settled 
now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, 
and 8101 (design, construction, alteration, repair, maintenance, 
operation, equipping, personnel qualification, and manning of vessels), 
as well as the reporting of casualties and any other category in which 
Congress intended the Coast Guard to be the sole source of a vessel's 
obligations, are within the field foreclosed from regulation by the 
States. (See the decision of the Supreme Court in the consolidated 
cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 
120 S.Ct. 1135 (March 6, 2000).) This final rule deals with personnel 
qualifications and the manning requirements on large passenger vessels. 
Because the States may not regulate within these categories, preemption 
under Executive Order 13132 is not an issue.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

G. Taking of Private Property

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

H. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination With Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.

K. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(c) of the Instruction. This paragraph 
excludes regulatory actions concerning the training, qualifying, 
licensing, and disciplining of maritime personnel from further 
environmental documentation, and this final rule concerns the licensing 
of maritime personnel. An environmental analysis checklist and a 
categorical exclusion determination are available in the docket where 
indicated under ADDRESSES.

List of Subjects

46 CFR Part 12

    Penalties, Reporting and recordkeeping requirements, Schools, 
Seamen.

46 CFR Part 15

    Reporting and recordkeeping requirements, Seamen, Vessels.


0
For the reasons discussed in the preamble, the Coast Guard amends 46 
CFR parts 12 and 15 by adopting as final the interim rule published 
April 24, 2007 (72 FR 20278), with the following changes:

PART 12--CERTIFICATION OF SEAMEN

0
1. Revise Subpart 12.40 to read as follows:

Subpart 12.40---Non-resident Alien Unlicensed Members of the 
Steward's Department on U.S. Flag Large Passenger Vessels

Sec.
12.40-1 Purpose of rules.
12.40-3 [Reserved].
12.40-5 General application requirements.
12.40-7 Employer requirements.
12.40-9 Basis for denial.
12.40-11 Citizenship and identity.
12.40-13 Restrictions.
12.40-15 Alternative means of compliance.


[[Page 47735]]


    Authority:  31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301, 
7302, 7503, 7505, 7701 and 8103; Department of Homeland Security 
Delegation No. 0170.1.


Sec.  12.40-1  Purpose of rules.

    The rules in this subpart implement 46 U.S.C. 8103(k) by 
establishing requirements for the issuance of merchant mariner 
credentials, valid only for service in the steward's department of U.S. 
flag large passenger vessels, to non-resident aliens.


Sec.  12.40-3  [Reserved]


Sec.  12.40-5  General application requirements.

    (a) Unless otherwise expressly specified in this subpart, non-
resident alien applicants for Coast Guard-issued merchant mariner 
credentials are subject to all applicable requirements contained in 
this subchapter.
    (b) No application from a non-resident alien for a merchant mariner 
credential issued pursuant to this subpart will be accepted unless the 
applicant's employer satisfies all of the requirements of Sec.  12.40-7 
of this subpart.


Sec.  12.40-7  Employer requirements.

    (a) The employer must submit the following to the Coast Guard, as a 
part of the applicant's merchant mariner credential application, on 
behalf of the applicant:
    (1) A signed report that contains all material disciplinary actions 
related to the applicant, such as, but not limited to, violence or 
assault, theft, drug and alcohol policy violations, and sexual 
harassment, along with an explanation of the criteria used by the 
employer to determine the materiality of those actions;
    (2) A signed report regarding an employer-conducted background 
check. The report must contain:
    (i) A statement that the applicant has successfully undergone an 
employer-conducted background check;
    (ii) A description of the employer-conducted background check, 
including all databases and records searched. The background check 
must, at a minimum, show that the employer has reviewed all information 
reasonably and legally available to the owner or managing operator, 
including the review of available court and police records in the 
applicant's country of citizenship, and any other country in which the 
applicant has received employment referrals, or resided, for the past 
20 years prior to the date of application; and
    (iii) All information derived from the employer-conducted 
background check.
    (3) The employer-conducted background check must be conducted to 
the satisfaction of the Coast Guard for a merchant mariner credential 
to be issued to the applicant.
    (b) If a merchant mariner credential is issued to the applicant, 
the report and information required in paragraph (a)(2) of this section 
must be securely kept by the employer on the U.S. flag large passenger 
vessel, or U.S. flag large passenger vessels, on which the applicant is 
employed. The report and information must remain on the last U.S. flag 
large passenger vessel on which the applicant was employed until such 
time as the merchant mariner credential is returned to the Coast Guard 
in accordance with paragraph (d) of this section.
    (c) If a merchant mariner credential or a Transportation Worker 
Identification Credential (TWIC) is issued to the applicant, each 
merchant mariner credential and TWIC must be securely kept by the 
employer on the U.S. flag large passenger vessel on which the applicant 
is employed. The employer must maintain a detailed record of the 
seaman's total service on all authorized U.S. flag large passenger 
vessels, and must make that information available to the Coast Guard 
upon request, to demonstrate that the limitations of Sec.  12.40-13(c) 
of this subpart have not been exceeded.
    (d) In the event that the seaman's merchant mariner credential and/
or TWIC expires, the seaman's visa status terminates, the seaman serves 
onboard the U.S. flag large passenger vessel(s) for 36 months in the 
aggregate as a nonimmigrant crewman, the employer terminates employment 
of the seaman or if the seaman otherwise ceases working with the 
employer, the employer must return the merchant mariner credential to 
the Coast Guard and the TWIC to the Transportation Security 
Administration within 10 days of the event.
    (e) In addition to the initial material disciplinary actions report 
and the initial employer-conducted background check specified in 
paragraph (a) of this section, the employer must:
    (1) Submit an annual material disciplinary actions report to update 
whether there have been any material disciplinary actions related to 
the applicant since the last material disciplinary actions report was 
submitted to the Coast Guard.
    (i) The annual material disciplinary actions report must be 
submitted to the satisfaction of the Coast Guard in accordance with the 
same criteria set forth in paragraph (a)(1) of this section, except 
that the period of time examined for the material disciplinary actions 
report need only extend back to the date of the last material 
disciplinary actions report; and
    (ii) The annual material disciplinary actions report must be 
submitted to the Coast Guard on or before the anniversary of the 
issuance date of the merchant mariner credential.
    (2) Conduct a background check each year that the merchant 
mariner's document is valid to search for any changes that might have 
occurred since the last employer-conducted background check was 
performed:
    (i) The annual background check must be conducted to the 
satisfaction of the Coast Guard in accordance with the same criteria 
set forth in paragraph (a)(2) of this section, except that the period 
of time examined during the annual background check need only extend 
back to the date of the last background check; and
    (ii) All information derived from the annual background check must 
be submitted to the Coast Guard on or before the anniversary of the 
issuance date of the merchant mariner credential.
    (f) The employer is subject to the civil penalty provisions 
specified in 46 U.S.C. 8103(f) for any violation of this section.


Sec.  12.40-9  Basis for denial.

    In addition to the requirements for a merchant mariner credential 
established elsewhere in this subchapter, and the basis for denial 
established in Sec. Sec.  10.209, 10.211, and 10.213 of this 
subchapter, an applicant for a merchant mariner credential issued 
pursuant to this subpart must:
    (a) Have been employed, for a period of at least one year, on a 
foreign flag passenger vessel(s) that is/are under the same common 
ownership or control as the U.S. flag large passenger vessel(s) on 
which the applicant will be employed upon issuance of a merchant 
mariner credential under this subpart.
    (b) Have no record of material disciplinary actions during the 
employment required under paragraph (a) of this section, as verified in 
writing by the owner or managing operator of the U.S. flag large 
passenger vessel(s), on which the applicant will be employed.
    (c) Have successfully completed an employer-conducted background 
check, to the satisfaction of both the employer and the Coast Guard.
    (d) Meet the citizenship and identity requirements of Sec.  12.40-
11 of this subpart.


Sec.  12.40-11  Citizenship and identity.

    (a) In lieu of the requirements of Sec.  10.221 of this subchapter, 
a non-

[[Page 47736]]

resident alien may apply for a Coast Guard-issued merchant mariner 
credential, endorsed and valid only for service in the steward's 
department of a U.S. flag large passenger vessel as defined in this 
subpart, if he or she is authorized for employment under the 
immigration laws of the United States, including an alien crewman 
described in section 101(a)(15)(D)(i) of that Act.
    (b) To meet the citizenship and identity requirements of this 
subpart, an applicant must present an unexpired passport issued by the 
government of the country of which the applicant is a citizen or 
subject; and either a valid U.S. C-1 or D visa or other valid evidence 
of employment authorization in the United States deemed acceptable by 
the Coast Guard.
    (c) Any non-resident alien applying for a merchant mariner 
credential under this subpart may not be a citizen of, or a temporary 
or permanent resident of, a country designated by the Department of 
State as a ``State Sponsor of Terrorism'' pursuant to section 6(j) of 
the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or 
section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).


Sec.  12.40-13  Restrictions.

    (a) A merchant mariner credential issued to a non-resident alien 
under this subpart authorizes service only in the steward's department 
of the U.S. flag large passenger vessel(s), that is/are under the same 
common ownership and control as the foreign flag passenger vessel(s), 
on which the non-resident alien served to meet the requirements of 
Sec.  12.40-9(a) of this subpart:
    (1) The merchant mariner credential will be endorsed for service in 
the steward's department in accordance with Sec.  12.25-10 of this 
part;
    (2) The merchant mariner credential may also be endorsed for 
service as a food handler if the applicant meets the requirements of 
Sec.  12.25-20 of this part; and
    (3) No other rating or endorsement is authorized, except 
lifeboatman, in which case all applicable requirements of this 
subchapter and the International Convention on Standards of Training, 
Certification and Watchkeeping for Seafarers, 1978, as amended (STCW 
Convention), and the Seafarers' Training, Certification and 
Watchkeeping Code (STCW Code), must be met.
    (b) The following restrictions must be printed on the merchant 
mariner credential, or listed in an accompanying Coast Guard letter, or 
both:
    (1) The name and official number of all U.S. flag vessels on which 
the non-resident alien may serve. Service is not authorized on any 
other U.S. flag vessel;
    (2) Upon issuance, the merchant mariner credential must remain in 
the custody of the employer at all times;
    (3) Upon termination of employment, the merchant mariner credential 
must be returned to the Coast Guard within 10 days in accordance with 
Sec.  12.40-7 of this subpart;
    (4) A non-resident alien issued a merchant mariner credential under 
this subpart may not perform watchstanding, engine room duty watch, or 
vessel navigation functions; and
    (5) A non-resident alien issued a merchant mariner credential under 
this subpart may perform emergency-related duties provided:
    (i) The emergency-related duties do not require any other rating or 
endorsement, except lifeboatman as specified in paragraph (a)(3) of 
this section;
    (ii) The non-resident alien has completed familiarization and basic 
safety training as required in Sec.  15.1105 of this subchapter;
    (iii) That if the non-resident alien serves as a lifeboatman, he or 
she must have the necessary lifeboatman's endorsement; and
    (iv) The non-resident alien has completed the training for 
crewmembers on passenger ships performing duties involving safety or 
care for passengers, as required in subpart 12.35 of this part.
    (c) A non-resident alien may only serve for an aggregate period of 
36 months actual service on all authorized U.S. flag large passenger 
vessels combined under the provisions of this subpart:
    (1) Once this 36-month limitation is reached, the merchant mariner 
credential becomes invalid and must be returned to the Coast Guard 
under Sec.  12.40-7(d) of this subpart, and the non-resident alien is 
no longer authorized to serve in a position requiring a merchant 
mariner credential on any U.S. flag large passenger vessel; and
    (2) An individual who successfully adjusts his or her immigration 
status to that of an alien lawfully admitted for permanent residence to 
the United States or who becomes a United States citizen may apply for 
a merchant mariner credential, subject to the requirements of Sec.  
10.221 of this subchapter, without any restrictions or limitations 
imposed by this subpart.


Sec.  12.40-15  Alternative means of compliance.

    (a) The owner or managing operator of a U.S. flag large passenger 
vessel, or U.S. flag large passenger vessels, seeking to employ non-
resident aliens issued merchant mariner credential under this subpart 
may submit a plan to the Coast Guard, which, if approved, will serve as 
an alternative means of complying with the requirements of this 
subpart.
    (b) The plan must address all of the elements contained in this 
subpart, as well as the related elements contained in Sec.  15.530 of 
this subchapter, to the satisfaction of the Coast Guard.

PART 15--MANNING REQUIREMENTS

0
2. The authority citation for part 15 is revised to read as follows:

    Authority:  46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104, 
8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904, 
8905(b), 8906, 9102, and 8103; and Department of Homeland Security 
Delegation No. 0170.1.


0
3. Revise Sec.  15.530 in subpart D to read as follows:


Sec.  15.530  Large passenger vessels.

    (a) The owner or operator of a U.S. flag large passenger vessel 
must ensure that any non-resident alien holding a Coast Guard-issued 
merchant mariner credential described in subpart 12.40 of this 
subchapter is provided the rights, protections, and benefits of the 
International Labor Organization's Merchant Shipping (Minimum 
Standards) Convention of 1976.
    (b) On U.S. flag large passenger vessels, non-resident aliens 
holding a Coast Guard-issued merchant mariner credential described in 
subpart 12.40 of this subchapter:
    (1) May only be employed in the steward's department on the 
vessel(s) specified on the merchant mariner credential or accompanying 
Coast Guard letter under Sec.  12.40-13(b)(1) of this subchapter;
    (2) May only be employed for an aggregate period of 36 months 
actual service on all authorized U.S. flag large passenger vessels 
combined, under Sec.  12.40-13(c) of this subchapter;
    (3) May not perform watchstanding, engine room duty watch, or 
vessel navigation functions, under Sec.  12.40-13(b)(4) of this 
subchapter; and
    (4) May perform emergency-related duties only if, under Sec.  
12.40-13(b)(5) of this subchapter:
    (i) The emergency-related duties do not require any other rating or 
endorsement, except lifeboatman as specified in Sec.  12.40-13(a)(3) of 
this subchapter;
    (ii) The non-resident alien has completed familiarization and basic 
safety training, as required in Sec.  15.1105 of this part;

[[Page 47737]]

    (iii) That if the non-resident alien serves as a lifeboatman, he or 
she must have the necessary lifeboatman's endorsement; and
    (iv) The non-resident alien has completed the training for 
crewmembers on passenger ships performing duties involving safety or 
care for passengers, as required in subpart 12.35 of this subchapter.
    (c) No more than 25 percent of the total number of ratings on a 
U.S. flag large passenger vessel may be aliens, whether admitted to the 
United States for permanent residence or authorized for employment in 
the United States as non-resident aliens.
    (d) The owner or operator of a U.S. flag large passenger vessel 
employing non-resident aliens holding Coast Guard-issued merchant 
mariner credentials described in subpart 12.40 of this subchapter must:
    (1) Retain custody of all non-resident alien merchant mariner 
credentials for the duration of employment, under Sec.  12.40-13(b)(2) 
of this subchapter; and
    (2) Return all non-resident alien merchant mariner credentials to 
the Coast Guard upon termination of employment, under Sec.  12.40-
13(b)(3) of this subchapter.
    (e) The owner or operator of a U.S. flag large passenger vessel 
employing non-resident aliens holding Coast Guard-issued merchant 
mariner credentials described in subpart 12.40 of this subchapter is 
subject to the civil penalty provisions specified in 46 U.S.C. 8103(f), 
for any violation of this section.

    Dated: September 10, 2009.
Jeffrey G. Lantz,
Director of Commercial Regulations & Standards CG-52.
[FR Doc. E9-22355 Filed 9-16-09; 8:45 am]
BILLING CODE 4910-15-P


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