Large Passenger Vessel Crew Requirements, 20278-20286 [E7-7696]

Download as PDF 20278 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations * Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground modified Flooding source(s) Location of referenced elevation Ottauquechee River ................... Approximately 0.94 mile upstream of Taftsville Dam ................. +657 +815 Second Branch White River ...... Approximately 1,840 feet upstream of confluence of Curtis Hollow Brook. Approximately 1.24 miles upstream of State Route 14 .............. Approximately 0.86 mile downstream of Stove Hill Road .......... Approximately 0.79 mile downstream of State Routes 12 and 107/River Street. Approximately 3.56 miles downstream of Liberty Hill Road ....... +527 +531 Communities affected White River ................................ +525 Town of Bridgewater, Town of Pomfret. Town of Bethel, Town of Royalton. Town of Bethel, Town of Stockbridge. +754 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES Town of Bethel Maps available for inspection Town of Bridgewater Maps available for inspection Town of Cavendish Maps available for inspection Town of Hartland Maps available for inspection Town of Plymouth Maps available for inspection Town of Pomfret Maps available for inspection Town of Reading Maps available for inspection Town of Royalton Maps available for inspection Town of Springfield Maps available for inspection Town of Stockbridge Maps available for inspection Town of Weathersfield Maps available for inspection Town of Windsor Maps available for inspection at the Bethel Town Office, 134 South Main Street, Bethel, Vermont. at the Bridgewater Town Office, 7335 U.S. Route 4, Bridgewater, Vermont. at the Cavendish Town Office, 37 High Street, Cavendish, Vermont. at the Town of Hartland Clerk’s Office, Damon Hall, 1 Quechee Road, Hartland, Vermont. at the Plymouth Town Office, 68 Town Office Road, Plymouth, Vermont. at the Pomfret Town Office, 5188 Pomfret Road, North Pomfret, Vermont. at the Reading Town Office, Robinson Hall, 799 Vermont Route 106, Reading, Vermont. at the Royalton Town Office, 23 Alexander Place, Suite 1, South Royalton, Vermont. at the Springfield Town Office, 96 Main Street, Springfield, Vermont. at the Town of Stockbridge Clerk’s Office, 1722 Vermont Route 100, Stockbridge, Vermont. at the Town of Weathersfield, Martin Memorial Hall, 5259 Route 5, Ascutney, Vermont. at the Windsor Town Office, 29 Union Street, Windsor, Vermont. (Catalog of Federal Domestic Assistance No. 83.100, ‘‘Flood Insurance.’’) Dated: April 10, 2007. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. 07–1978 Filed 4–23–07; 8:45 am] ycherry on PROD1PC64 with RULES BILLING CODE 9110–12–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Parts 12 and 15 [USCG–2007–27761] RIN 1625–AB16 Large Passenger Vessel Crew Requirements Coast Guard, DHS. Interim rule with request for comments. AGENCY: ACTION: VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 SUMMARY: The Coast Guard is amending its regulations on merchant mariner documentation to 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 documents (MMDs) to certain nonresident aliens for service in the stewards departments of U.S.-flag large passenger vessels endorsed for coastwise trade. Coast Guard regulations currently prohibit the Coast Guard from issuing MMDs, which are required for service on large passenger vessels, to non-immigrant aliens. This interim rule E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations ycherry on PROD1PC64 with RULES amends Coast Guard regulations to allow the Coast Guard to issue MMDs to qualified non-resident aliens who are authorized to be employed in the United States. This rule also sets the requirements that these aliens must meet in order to qualify for MMDs, and the requirements for the large passenger vessels that may choose to hire these aliens. This interim rule only applies to large passenger vessels, as defined under the Warner Act. DATES: This interim rule is effective April 24, 2007. Comments and related material must reach the Docket Management Facility on or before July 23, 2007. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG–2007–27761 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods: (1) Web Site: http://dms.dot.gov. (2) Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590–0001. (3) Fax: 202–493–2251. (4) Delivery: Room PL–401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202–366– 9329. (5) Federal eRulemaking Portal: http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call LCDR Derek D’Orazio, Coast Guard, telephone 202–372–1405. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–493–0402. SUPPLEMENTARY INFORMATION: Table of Contents The SUPPLEMENTARY INFORMATION section of this interim final rule sets forth the basis, purpose and particulars of this rulemaking action and is organized as follows: I. Public Participation and Request for Comments II. Background and Purpose III. Discussion of the Interim Rule IV. Regulatory Requirements A. Administrative Procedure Act B. Regulatory Evaluation i. Affected Population ii. Industry Profile iii. Direct Impacts iv. Indirect Impacts C. Small Entities D. Assistance for Small Entities E. Collection of Information F. Federalism G. Unfunded Mandates Reform Act VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 H. Taking of Private Property I. Civil Justice Reform Act J. Protection of Children K. Indian Tribal Governments L. Energy Effects M. Technical Standards N. Environment List of Subjects I. Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://dms.dot.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT’s ‘‘Privacy Act’’ paragraph below. Submitting comments: If you submit a comment, please include your name and address, identify the docket number for this rulemaking (USCG–2007–27761), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 81⁄2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them. Viewing comments and documents: To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://dms.dot.gov at any time, click on ‘‘Simple Search,’’ enter the last five digits of the docket number for this rulemaking, and click on ‘‘Search.’’ You may also visit the Docket Management Facility in room PL–401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Privacy Act: Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation’s Privacy Act Statement PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 20279 in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov. Public Meeting: We do not currently plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register. II. Background and Purpose Title 46 U.S.C. 8103 generally requires that unlicensed seamen on documented vessels must 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. No more than 25 percent of such unlicensed seamen may 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 non-resident aliens who are authorized to work in the United States. The statute maintains a cap so that no more than twenty-five percent of the unlicensed seamen on any large passenger vessel are aliens, whether admitted to the United States as lawful permanent residents or otherwise allowed to be employed in the United States as nonresident aliens. ‘‘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 aliens employable 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 § 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 E:\FR\FM\24APR1.SGM 24APR1 ycherry on PROD1PC64 with RULES 20280 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations 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 a MMD or Transportation Worker Identification Credential (TWIC)); 6. Non-resident aliens must have successfully undergone an employer 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 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 merchant mariner’s document becomes invalid and the individual’s employer must return it to the Coast Guard, and the individual is no longer authorized service in a position requiring a merchant mariner’s document 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 a merchant mariner’s document (MMD). 46 U.S.C. 8701. The only exception is for entertainment personnel employed for a period of 30 days or less per year, VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 who are exempt from the MMD requirement. Coast Guard regulations governing the issuance of MMDs currently prohibit the issuance of MMDs to non-resident aliens. See 46 CFR part 12. The Coast Guard, through this interim rule, is amending its regulations to authorize the issuance of MMDs 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 this rule. III. Discussion of Interim Rule To implement 46 U.S.C. 8103(k), the Coast Guard is revising its regulations within 46 CFR subchapter B. This interim rule will add a new 46 CFR subpart 12.40. Companies that wish to hire non-resident aliens must meet the requirements specified in new § 12.40– 7, subject to the civil penalty provisions specified in 46 U.S.C. 8103(f) for any violation of the section. The new subpart adds definitions for ‘‘large passenger vessel,’’ ‘‘non-resident alien,’’ and ‘‘steward’s department.’’ It also contains citizenship and identity requirements for non-resident aliens employed as unlicensed seamen by large passenger vessels, in lieu of the requirements of 46 CFR 12.02–10, 12.02–12, and 12.02–14. In addition to those citizenship and identity requirements, this rule establishes the requirement that non-resident alien applicants satisfy the requirements of the Warner Act (discussed above), and stipulates how mariners, and the companies that employee them, must satisfy those requirements. The company must submit the additional required merchant mariner application information to the Coast Guard on the employee’s behalf. Title 46 U.S.C. 8103(k)(3)(A) states that 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. The Coast Guard interprets this to mean that non-resident aliens may not be citizens or residents of a country designated by the United States as a sponsor of terrorism under 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). Under new section 12.40–11(c), the Coast Guard will not issue MMDs to non-resident aliens that are citizens or residents (temporary or permanent) of countries listed on the Department of State’s ‘‘State Sponsors of Terrorism’’ list. The list, as of the date of publication of this rule, may be found at http:// www.state.gov/s/ct/c14151.htm. PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 The Warner Act also allows the Secretary of Homeland Security, upon consultation with the Secretary of State and the heads of other appropriate United States agencies, to determine that other countries present a security threat to the United States for purpose of determining eligibility for employment of non-resident aliens. DHS has initiated this consultation and may add more countries or lists of countries in the future as a result of these consultations. The interim rule also adds 46 CFR 15.530, which provides company responsibilities associated with employment of non-resident aliens on their vessels relative to the International Labor Organization’s Merchant Shipping (Minimum Standards) Convention of 1976. Title 46 CFR 15.530 also requires that no more than 25 percent of the unlicensed seamen on a large passenger vessel be aliens, whether admitted to the United States for permanent residence or otherwise employable in the United States as nonresident aliens. This limitation is also mandated by 46 U.S.C. 8103(k)(2). Only three U.S.-flag vessels currently fall within the definition of ‘‘large passenger vessel’’ under 48 U.S.C. 8103(k), each of which are owned by the same cruise line.1 Because the statute limits the non-resident aliens who are eligible for employment on large passenger vessels to aliens who have otherwise been employed by that cruise line for one year, and such aliens cannot compose more than 25% of the number of unlicensed seamen on such vessels, the Coast Guard believes that approximately 600 to 800 non-resident aliens could be transferred to employment on one of the three large passenger vessels within the first year of the rule taking effect. The Coast Guard notes that, although the Warner Act refers to section 101(a)(15)(d) of the INA (which defines aliens authorized for crew visas), it does not waive any provision or requirement of the INA pertaining to visas or employment eligibility for non-resident aliens. In addition, we note that all affected aliens must comply with any required identification, tracking and reporting programs, including DHS’s United States Visitor and Immigrant Status Indicator Technology Program (US–VISIT) and the National Security Entry-Exit Registration System (NSEERS). The Coast Guard is promulgating this interim rule under its 1 The Coast Guard notes, however, that on April 11, 2007, the cruise line announced that it would be reflagging one of these three vessels to a foreign flag in the near future; ultimately reducing the number of eligible vessels to two. E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations The Coast Guard has determined that good cause exists to implement this rule as an interim rule under the Administrative Procedure Act, 5 U.S.C. 553(b). The Coast Guard, under this interim rule, is implementing a Congressional directive that does not provide Coast Guard with discretion in the issuance of MMDs to non-resident aliens as a class. Further, as discussed above, this rule will only directly regulate one party at this time—the owner of the three vessels that fall within the statutory definition of ‘‘large passenger vessels.’’ The Coast Guard has consulted with that carrier during the development of this interim rule. In addition, under the current statutory restrictions, only aliens already employed by this company can be transferred to employment on one of the three eligible passenger vessels. Given the limited regulatory impact of this rule, we do not believe there will be significant public interest in this interim rule. Accordingly, the Coast Guard has determined that delaying implementation of this rule to allow public comment prior to implementation would be impracticable and unnecessary. 5 U.S.C. 553(b). For reasons stated above, the Coast Guard also finds that good cause exists under 5 U.S.C. 553(d)(3) for making this rule effective less than 30 days after publication in the Federal Register. The Coast Guard, however, values public input to the regulatory process, and for this reason we are inviting posteffective-date comments on this interim rule. We may change this rule as a result of the comments we receive. departments of large passenger vessels, as entertainment and service personnel, including wait staff, hotel housekeeping staff, and food handlers. Currently, only U.S. citizens, lawful permanent residents, and foreign nationals enrolled at the U.S. Merchant Mariner Academy can obtain MMDs 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 MMDs for employment as unlicensed seamen on large passenger vessels, except no more than 25 percent of the unlicensed seamen on a large passenger vessel can be aliens (whether nonresident aliens or lawful permanent residents). The rule further requires that the non-resident aliens may only be employed in the steward’s department of the large passenger vessel. Although the Warner Act, and this interim rule, allow large passenger vessels to hire non-immigrant aliens, neither the Act nor this rule mandate that they do so. Accordingly, there are no mandatory costs to large passenger vessels resulting from this interim 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. The following is an assessment of the affected population, an industry profile, and an evaluation of the direct and indirect impacts of the rule. The only company affected by this rulemaking, discussed below, provided us with aggregated business data to protect proprietary and confidential business information and details of their business operations. The industry estimates discussed herein are preliminary and may not reflect the actual impacts after industry implements the alternative compliance method. B. Regulatory Evaluation i. Affected Population Executive Order 12866 requires agencies to assess the costs and benefits of significant regulatory actions as defined in Section 3(f). At this time, we expect this interim rule will not be an economically significant action under Section 3(f)(1) of the Order (i.e., an annual effect of $100 million or more on the economy). The Coast Guard is promulgating this rulemaking as mandated by Congress through the Warner Act, see ‘‘Background and Purpose’’ section for more information about this legislation. The rule creates an exemption to allow qualified non-resident aliens to obtain MMDs for employment as unlicensed seamen in the steward’s Vessel Owners authority to issue MMDs, and only to that extent. IV. Regulatory Requirements ycherry on PROD1PC64 with RULES A. Administrative Procedure Act VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 The rule will affect owners of large passenger vessels more than 70,000 gross tons, with a capacity of at least 2,000 passengers, and documented with a coastwise endorsement (e.g. U.S.-flag vessel). Vessel owners will be able to hire non-resident aliens to comprise up to 25 percent of the unlicensed seamen onboard their vessels, but only in the steward’s department. The rule allows vessel owners to hire only those nonresident aliens that have been employed, for a period of not less than one year, on a passenger vessel, including a foreign flag passenger vessel, under the same common ownership, control or managing PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 20281 ownership as the U.S.-flag vessel on which they will be working, see the ‘‘Discussion of Interim Rule’’ section for more detail on the conditions and restrictions for hiring non-resident aliens. Based on Coast Guard data, we determined there are three large passenger vessels currently in service that meet the qualifications of this rule. Norwegian Cruise Line America (NCLA) operates these vessels in coastwise service in the Hawaiian Islands. NCLA is a brand of the Miami-based Norwegian Cruise Line Corporation (NCL), which itself is a subsidiary of Star Cruises Limited of Hong Kong. NCLA announced on April 11, 2007, that it would be removing one of the three vessels from U.S. flag service and re-flagging for foreign service. At this time, we have no information to suggest that additional companies will enter into coastwise service with large passenger vessels, and we do not expect NCLA to expand its coastwise fleet of large passenger vessels because of this rule. This is due to the costs associated with flagging and operating vessels of this nature in the United States. Unlicensed Mariners The rule affects unlicensed mariners working on or applying for work on these vessels. This rule allows vessel owners to employ non-resident aliens on their vessels, capped at 25 percent of the overall total of unlicensed seamen per vessel. This rule also indirectly affects unions that maintain the collective bargaining agreements for these mariners in terms of changes in membership. Based on information from NCLA, the Coast Guard anticipates that we will issue MMDs to approximately 600 to 800 non-resident aliens within the first year of the rule. By the end of the second year of the rule, the Coast Guard estimates that we will issue an additional 900 to 1,200 MMDs to support non-resident alien crew shift change and reserve. After this two-year implementation period, NCLA intends to maintain an average annual full compliment of 1,500 to 2,000 onboard, shift, and reserve non-resident alien crewmembers under this rule. Government Resources The rule will also affect Coast Guard and potentially other government resources used to process, review, and issue documentation to unlicensed mariners and non-resident aliens affected by this rule. We estimate that certain Coast Guard Regional Examination Centers (RECs) in the Hawaiian Islands and West Coast may E:\FR\FM\24APR1.SGM 24APR1 20282 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations ycherry on PROD1PC64 with RULES incur increased processing burden to accommodate industry participation in this rulemaking, especially in the first two years as mentioned below. We anticipate that the requirements of this rule and the ultimate issuance of MMDs to non-resident aliens will involve additional processing exceeding the current processing for U.S. residents to ensure that background checks and applications meet security requirements. The additional Coast Guard burden at the RECs will be proportional to the number of applications submitted by vessel owners on behalf of non-resident aliens. At this time, however, we anticipate that this rule will not substantially change the annual total number of MMD applications received or the total number of MMDs issued by the Coast Guard. Based on correspondence between NCLA and the Coast Guard, NCLA stated that this rule would stabilize the crew situation onboard the three vessels and reduce turnover rates. NCLA claims that the potential workforce stability that results from this rule will eventually reduce the number of MMD applications that the Coast Guard processes for NCLA crews. ii. Industry Profile Based on industry information, the number of overall Hawaii cruise ship passengers grew from 240,800 in 2004 to about 398,000 in 2005. In 2006, approximately 408,500 cruise passengers visited Hawaii onboard 56 cruise ships, including NCLA’s three U.S.-flag vessels. Capacity has also increased over the past several years and passenger costs have decreased. Competition from cruises with foreign crews have pushed prices down, in particular those offering 15-day cruises from the West Coast. Based on industry information, in general the cruise industry has historically consisted of foreign flag vessels, as opposed to U.S.-flag vessels, employing mariners from a variety of foreign countries in lower wage scales and for longer hours than U.S. mariners. NCLA must operate their U.S.-flag fleet with mostly U.S. citizens and residents, driving labor costs higher for NCLA than for cruise lines operating foreign flag vessels with foreign mariners. Based on industry information, the cost structure for operating the affected U.S.-flag vessels will be higher than operating foreign flag vessels due to the high labor costs associated with hiring and maintaining U.S. crews. NCLA claims that high crew costs and increased industry capacity directly contribute to the decrease in the profitability of their U.S.-flag fleet. VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 According to NCLA, the annual turnover rate for U.S. unlicensed mariners working as hospitality staff on these vessels has been as high as 200 percent suggesting the undesirability by U.S. unlicensed mariners to work in hospitality positions and under the five months on and one month off crew shift conditions on the domestic vessels. NCLA has recently reported that the current turnover rate for the U.S. unlicensed mariners has fallen to 110 percent. NCLA has stated that the high turnover rate and the associated costs of maintaining an all U.S. crew is the only reason why they are participating in the alternative compliance method. As turnover occurs for the U.S. crew, we expect NCLA to employ the full contingent of non-resident aliens allowed by this rule. iii. Direct Impacts We expect most of the direct costs of the rule will be borne by NCLA. The rule will require companies 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 since the non-resident alien hired under this program will have experience aboard foreign flag vessels. We have not estimated the overall effectiveness of this rule in reducing turnover rates or labor costs for NCLA. NCLA provided preliminary information that suggests they could reduce turnover rates by about 25 to 35 percent annually resulting in a potential reduction in labor costs by approximately $5 to $10 million annually; however, these are preliminary estimates and NCLA cannot estimate the actual reduction in turnover rates and labor costs until they implement the alternative compliance program. Being that NCLA is the only company directly regulated by this rulemaking and these estimates are based on proprietary and confidential business information, the Coast Guard and DHS cannot substantiate these estimates. This reduction in labor cost is the estimated cost savings or net benefit for NCLA to participate in the alternative MMD citizenship compliance method of this rule. PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 Indirect Impacts We reviewed potential indirect impacts of this rule on labor conditions and prevailing wages for U.S. unlicensed mariners and non-resident aliens employed under the rule. We do not have information to suggest that NCLA will replace U.S. mariners currently employed in the steward’s department on these vessels with nonresident aliens. In addition, NCLA must still employ U.S. residents for at least 75 percent of the total unlicensed seamen onboard their U.S.-flag vessels. Given the high turnover rate among the U.S. crew, we expect NCLA will still face challenges recruiting and maintaining their required U.S. resident hospitality staff onboard these vessels. The Act does not mandate nor does the rule require that owners and operators bear responsibilities associated with conditions of employment and shipboard living arrangements for non-resident aliens on their vessels. The United States is signatory to the International Labor Organization’s Merchant Shipping (Minimum Standards) Convention of 1976 (ILO 147), which establishes shipboard conditions of employment and shipboard living arrangements. Since the United States is signatory to this Convention, participating owners and operators must comply with the requirements of the convention in their employment of all mariners onboard. The Act does not mandate that participating owners and operators pay the non-resident aliens the same prevailing wages as the U.S. crew. However, United States’ responsibilities under the International Labor Organization’s Merchant Shipping (Minimum Standards) Convention of 1976 (including the Conventions in the Annex), require that seamen can negotiate compensation and that seamen have the right to enter into collective bargaining agreements. Based on industry information, the sole affected owner (NCLA) has entered into a collective bargaining agreement with the current U.S. crew and intends on employing non-resident aliens under the same agreement. This rule does not require participating owners to extend current labor agreements to non-resident aliens employed under this program. The collective bargaining agreement between the affected owner and the union will determine non-resident alien employment compensation and pay. We are interested in the potential impacts from this rule on industry and mariners, and we request public comment on these potential impacts. If you think that this rulemaking would E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations ycherry on PROD1PC64 with RULES have a significant economic impact, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why, how, and to what degree you think this rule would have an economic impact on you. C. Small Entities The Regulatory Flexibility Act (‘‘RFA’’; 5 U.S.C. 601–612, as amended) requires agencies to consider whether regulatory actions would have a significant economic impact on a substantial number of small entities. RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). The Coast Guard determined that this rule 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 interim rule will not have a significant economic impact on a substantial number of small entities. This interim rule will affect owners and operators of, and unlicensed seamen working on or applying for work on, large passenger vessels of more than 70,000 gross tons, with a capacity of at least 2,000 passengers, and documented with a coastwise endorsement. This rulemaking will also indirectly affect unions for unlicensed mariners. We have determined that individual mariners and the unions affected by this rule are not small entities under the definition of a small entity in the RFA. We also determined that the unions are not directly regulated by the rule. Owners and operators affected by this rule will most likely be classified under one of the following North American Industry Classification System (NAICS) 6-digit codes for water transportation: 483114—Coastal and Great Lakes Passenger Transportation or 483112— Deep Sea Passenger Transportation. According to the Small Business Administration’s size standards, a U.S. company classified under these NAICS codes and employing less than 500 employees is considered a small entity. Based on Coast Guard data, we have determined that there is only one company affected by this rule. We researched company size and revenue data using proprietary and public business databases and found that this company employs more than 500 employees and is not considered a small entity by the Small Business Administration’s size standards. In addition, we found that this company was a subsidiary of a large foreignowned corporation. See the ‘‘Regulatory Evaluation’’ section for more VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 information about the effected vessel owner. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it. D. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this interim rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Derek D’Orazio at 202–372–1405. 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. E. Collection of Information Under the Paperwork Reduction Act (44 U.S.C. 3501–3520), the Office of Management and Budget (OMB) reviews agency collection of information requirements. As part of its review, OMB evaluates the practical utility of the information in light of the burden imposed by its collection. Collection of information requirements include reporting, recordkeeping, notification, and other similar requirements. This interim rule will require employers to submit employee information to the Coast Guard before the Coast Guard will issue an MMD for their employees. However, we expect only one company will be affected by this requirement each year, as there is only one company in a position to take advantage of these regulations. As such, this rule contains no new collection of information under the Paperwork Reduction Act. F. 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. PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 20283 States may not regulate in categories reserved for regulation by the Coast Guard. 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 United States v. Locke and Intertanko v. Locke, 529 U.S. 89 (March 6, 2000). This interim 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. G. 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 discuss the effects of this rule elsewhere in this preamble. H. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. I. 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. J. 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. K. 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 E:\FR\FM\24APR1.SGM 24APR1 20284 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations 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. L. 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 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. ycherry on PROD1PC64 with RULES M. 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. N. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321– 4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2– 1, paragraph (34)(c), of the Instruction, from further environmental documentation. This paragraph excludes regulatory actions concerning the training, qualifying, licensing, and disciplining of maritime personnel from VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 further environmental documentation, and this interim rule concerns the licensing of maritime personnel. An ‘‘Environmental Analysis Check List’’ and a ‘‘Categorical Exclusion Determination’’ are available in the docket where indicated under the ‘‘Public Participation and Request for Comments’’ section of this preamble. Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review. List of Subjects 46 CFR Part 12 Penalties, Reporting and recordkeeping requirements, Schools, Seamen. 46 CFR Part 15 Reporting and recordkeeping requirements, Seamen, Vessels. I Accordingly, 46 CFR Chapter I is amended as follows: PART 12—CERTIFICATION OF SEAMEN 1. Add new Subpart 12.40 to read as follows: I Subpart 12.40—Non-resident Alien Unlicensed Members of the Steward’s Department on U.S.-Flag Large Passenger Vessels Sec. 12.40–1 12.40–3 12.40–5 12.40–7 12.40–9 12.40–11 12.40–13 12.40–15 Purpose of rules. Definitions. General application requirements. Employer requirements. Basis for denial. Citizenship and identity. Restrictions. Alternative means of compliance. Purpose of rules. The rules in this subpart implement 46 U.S.C. 8103(k) by establishing requirements for the issuance of merchant mariner’s documents, valid only for service in the steward’s department of U.S.-flag large passenger vessels, to non-resident aliens. § 12.40–3 Definitions. As used in this subpart: Large passenger vessel means a vessel of more than 70,000 gross tons, as measured under 46 U.S.C. 14302 and documented under the laws of the United States, with capacity for at least 2,000 passengers and a coastwise endorsement under 46 U.S.C. chapter 121. PO 00000 § 12.40–5 General application requirements. (a) Unless otherwise expressly specified in this subpart, non-resident alien applicants for Coast Guard-issued merchant mariner’s documents are subject to all applicable requirements contained in this subchapter. (b) No application from a non-resident alien for a merchant mariner’s document issued pursuant to this subpart will be accepted unless the applicant’s employer satisfies all of the requirements of § 12.40–7. § 12.40–7 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 Non-resident alien means an individual who is not a citizen or alien lawfully admitted to the United States for permanent residence, but who is employable in the United States under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), including an alien crewman described in section 101(a)(15)(D)(i) of that Act who meets the requirements of 46 U.S.C. 8103(k)(3)(A). Steward’s department means the department that includes entertainment personnel and all service personnel, including wait staff, housekeeping staff, and galley workers, as defined in the vessel security plan approved by the Secretary under 46 U.S.C. 70103(c). These personnel may also be referred to as members of the hotel department on a large passenger vessel. Frm 00064 Fmt 4700 Sfmt 4700 Employer requirements. (a) The employer must submit the following to the Coast Guard, as a part of the applicant’s merchant mariner’s document 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 E:\FR\FM\24APR1.SGM 24APR1 ycherry on PROD1PC64 with RULES Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations 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’s document to be issued to the applicant. (b) If a merchant mariner’s document 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’s document is returned to the Coast Guard in accordance with paragraph (d) of this section. (c) If a merchant mariner’s document or a transportation worker identification credential (TWIC) is issued to the applicant, each merchant mariner’s document 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) have not been exceeded. (d) In the event that the seaman’s merchant mariner’s document 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’s document to the Coast Guard and/or 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. VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 (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’s document. (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’s document. (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’s document established elsewhere in this subchapter, and the basis for denial established in § 12.02–4 of this part, an applicant for a merchant mariner’s document issued pursuant to this subpart must: (a) Have been employed, for a period of at least one year, on a foreign-flag passenger vessel, or foreign flag passenger vessels, that are under the same common ownership or control as the U.S.-flag large passenger vessel, or U.S.-flag large passenger vessels, on which the applicant will be employed upon issuance of a merchant mariner’s document 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, or U.S.-flag large passenger vessels, on which the applicant will be employed. PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 20285 (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. § 12.40–11 Citizenship and identity. (a) In lieu of the requirements of §§ 12.02–10, 12.02–12 and 12.02–14 of this part, a non-resident alien may apply for a Coast Guard-issued merchant mariner’s document, 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 employable in the United States under the Immigration and Nationality Act (8 U.S.C. 1101, et seq.), 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/D Crewman Visa or other valid U.S. visa or authority deemed acceptable by the Coast Guard. (c) Any non-resident alien applying for a merchant mariner’s document 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’s document 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): (1) The merchant mariner’s document will be endorsed for service in the steward’s department in accordance with § 12.25–10 of this part; (2) The merchant mariner’s document 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 STCW Convention and STCW Code must be met. E:\FR\FM\24APR1.SGM 24APR1 ycherry on PROD1PC64 with RULES 20286 Federal Register / Vol. 72, No. 78 / Tuesday April 24, 2007 / Rules and Regulations (b) The following restrictions must be printed on the merchant mariner’s document, 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’s document must remain in the custody of the employer at all times; (3) Upon termination of employment, the merchant mariner’s document must be returned to the Coast Guard within 10-days in accordance with § 12.40–7; (4) A non-resident alien issued a merchant mariner’s document 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’s document under this subpart may perform emergencyrelated 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’s document becomes invalid and must be returned to the Coast Guard under § 12.40–7(d), and the non-resident alien is no longer authorized serve in a position requiring a merchant mariner’s document on any U.S.-flag large passenger vessel; and (2) An individual who successfully adjusts his or her immigration status to become either a alien lawfully admitted for permanent residence to the United States or citizen of the United States may apply for a merchant mariner’s document, subject to the requirements of §§ 12.02–10, 12.02–12 and 12.02–14 of this part, without any restrictions or limitations imposed by this subpart. VerDate Aug<31>2005 17:55 Apr 23, 2007 Jkt 211001 § 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’s documents 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 3. The authority citation for part 15 is revised to read as follows: I 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. 4. Add new § 15.530 to subpart D to read as follows: I § 15.530 Large passenger vessels. (a) The definition of terms used in this section is the same as § 12.40–3 of this subchapter. (b) 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’s document 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. (c) On U.S.-flag large passenger vessels, non-resident aliens holding a Coast-Guard issued merchant mariner’s document 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’s document 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: PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 (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; (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. (d) No more than 25 percent of the total number of unlicensed seamen on a U.S.-flag large passenger vessel may be aliens, whether admitted to the United States for permanent residence or otherwise allowed to be employed in the United States as non-resident aliens. (e) The owner or operator of a U.S.flag large passenger vessel employing non-resident aliens holding Coast Guard-issued merchant mariner’s documents described in subpart 12.40 of this subchapter must: (1) Retain custody of all non-resident alien merchant mariner’s documents for the duration of employment, under § 12.40–13(b)(2) of this subchapter; and (2) Return all non-resident alien merchant mariner’s documents to the Coast Guard upon termination of employment, under § 12.40–13(b)(3) of this subchapter. (f) The owner or operator of a U.S.flag large passenger vessel employing non-resident aliens holding Coast Guard-issued merchant mariner’s documents 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: April 18, 2007. Thad W. Allen, Admiral, U.S. Coast Guard, Commandant. [FR Doc. E7–7696 Filed 4–23–07; 8:45 am] BILLING CODE 4910–15–P E:\FR\FM\24APR1.SGM 24APR1

Agencies

[Federal Register Volume 72, Number 78 (Tuesday, April 24, 2007)]
[Rules and Regulations]
[Pages 20278-20286]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7696]


-----------------------------------------------------------------------

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: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is amending its regulations on merchant 
mariner documentation to 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 documents (MMDs) to 
certain non-resident aliens for service in the stewards departments of 
U.S.-flag large passenger vessels endorsed for coastwise trade. Coast 
Guard regulations currently prohibit the Coast Guard from issuing MMDs, 
which are required for service on large passenger vessels, to non-
immigrant aliens. This interim rule

[[Page 20279]]

amends Coast Guard regulations to allow the Coast Guard to issue MMDs 
to qualified non-resident aliens who are authorized to be employed in 
the United States. This rule also sets the requirements that these 
aliens must meet in order to qualify for MMDs, and the requirements for 
the large passenger vessels that may choose to hire these aliens. This 
interim rule only applies to large passenger vessels, as defined under 
the Warner Act.

DATES: This interim rule is effective April 24, 2007. Comments and 
related material must reach the Docket Management Facility on or before 
July 23, 2007.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2007-27761 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Web Site: http://dms.dot.gov.
    (2) Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
    (3) Fax: 202-493-2251.
    (4) Delivery: Room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (5) Federal eRulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call LCDR Derek D'Orazio, Coast Guard, telephone 202-372-1405. If you 
have questions on viewing or submitting material to the docket, call 
Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-
0402.

SUPPLEMENTARY INFORMATION:

Table of Contents

    The SUPPLEMENTARY INFORMATION section of this interim final rule 
sets forth the basis, purpose and particulars of this rulemaking 
action and is organized as follows:

I. Public Participation and Request for Comments
II. Background and Purpose
III. Discussion of the Interim Rule
IV. Regulatory Requirements
    A. Administrative Procedure Act
    B. Regulatory Evaluation
    i. Affected Population
    ii. Industry Profile
    iii. Direct Impacts
    iv. Indirect Impacts
    C. Small Entities
    D. Assistance for Small Entities
    E. Collection of Information
    F. Federalism
    G. Unfunded Mandates Reform Act
    H. Taking of Private Property
    I. Civil Justice Reform Act
    J. Protection of Children
    K. Indian Tribal Governments
    L. Energy Effects
    M. Technical Standards
    N. Environment
List of Subjects

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://dms.dot.gov and will include any personal 
information you have provided. We have an agreement with the Department 
of Transportation (DOT) to use the Docket Management Facility. Please 
see DOT's ``Privacy Act'' paragraph below.
    Submitting comments: If you submit a comment, please include your 
name and address, identify the docket number for this rulemaking (USCG-
2007-27761), indicate the specific section of this document to which 
each comment applies, and give the reason for each comment. You may 
submit your comments and material by electronic means, mail, fax, or 
delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this rule in 
view of them.
    Viewing comments and documents: To view comments, as well as 
documents mentioned in this preamble as being available in the docket, 
go to http://dms.dot.gov at any time, click on ``Simple Search,'' enter 
the last five digits of the docket number for this rulemaking, and 
click on ``Search.'' You may also visit the Docket Management Facility 
in room PL-401 on the Plaza level of the Nassif Building, 400 Seventh 
Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Privacy Act: Anyone can search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
Department of Transportation's Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477), or you may visit 
http://dms.dot.gov.
    Public Meeting: We do not currently plan to hold a public meeting. 
But you may submit a request for one to the Docket Management Facility 
at the address under ADDRESSES explaining why one would be beneficial. 
If we determine that one would aid this rulemaking, we will hold one at 
a time and place announced by a later notice in the Federal Register.

II. Background and Purpose

    Title 46 U.S.C. 8103 generally requires that unlicensed seamen on 
documented vessels must 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. No more than 25 
percent of such unlicensed seamen may 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 non-resident aliens who are authorized to work in the 
United States. The statute maintains a cap so that no more than twenty-
five percent of the unlicensed seamen on any large passenger vessel are 
aliens, whether admitted to the United States as lawful permanent 
residents or otherwise allowed to be employed in the United States as 
nonresident aliens. ``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 aliens employable 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 
Sec.  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

[[Page 20280]]

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 a MMD 
or Transportation Worker Identification Credential (TWIC));
    6. Non-resident aliens must have successfully undergone an employer 
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 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 
merchant mariner's document becomes invalid and the individual's 
employer must return it to the Coast Guard, and the individual is no 
longer authorized service in a position requiring a merchant mariner's 
document 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 a merchant mariner's document (MMD). 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 MMD requirement.
    Coast Guard regulations governing the issuance of MMDs currently 
prohibit the issuance of MMDs to non-resident aliens. See 46 CFR part 
12. The Coast Guard, through this interim rule, is amending its 
regulations to authorize the issuance of MMDs 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 this rule.

III. Discussion of Interim Rule

    To implement 46 U.S.C. 8103(k), the Coast Guard is revising its 
regulations within 46 CFR subchapter B. This interim rule will add a 
new 46 CFR subpart 12.40. Companies that wish to hire non-resident 
aliens must meet the requirements specified in new Sec.  12.40-7, 
subject to the civil penalty provisions specified in 46 U.S.C. 8103(f) 
for any violation of the section.
    The new subpart adds definitions for ``large passenger vessel,'' 
``non-resident alien,'' and ``steward's department.'' It also contains 
citizenship and identity requirements for non-resident aliens employed 
as unlicensed seamen by large passenger vessels, in lieu of the 
requirements of 46 CFR 12.02-10, 12.02-12, and 12.02-14. In addition to 
those citizenship and identity requirements, this rule establishes the 
requirement that non-resident alien applicants satisfy the requirements 
of the Warner Act (discussed above), and stipulates how mariners, and 
the companies that employee them, must satisfy those requirements. The 
company must submit the additional required merchant mariner 
application information to the Coast Guard on the employee's behalf.
    Title 46 U.S.C. 8103(k)(3)(A) states that 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. The Coast 
Guard interprets this to mean that non-resident aliens may not be 
citizens or residents of a country designated by the United States as a 
sponsor of terrorism under 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). Under new section 12.40-11(c), 
the Coast Guard will not issue MMDs to non-resident aliens that are 
citizens or residents (temporary or permanent) of countries listed on 
the Department of State's ``State Sponsors of Terrorism'' list. The 
list, as of the date of publication of this rule, may be found at 
http://www.state.gov/s/ct/c14151.htm.
    The Warner Act also allows the Secretary of Homeland Security, upon 
consultation with the Secretary of State and the heads of other 
appropriate United States agencies, to determine that other countries 
present a security threat to the United States for purpose of 
determining eligibility for employment of non-resident aliens. DHS has 
initiated this consultation and may add more countries or lists of 
countries in the future as a result of these consultations.
    The interim rule also adds 46 CFR 15.530, which provides company 
responsibilities associated with employment of non-resident aliens on 
their vessels relative to the International Labor Organization's 
Merchant Shipping (Minimum Standards) Convention of 1976. Title 46 CFR 
15.530 also requires that no more than 25 percent of the unlicensed 
seamen on a large passenger vessel be aliens, whether admitted to the 
United States for permanent residence or otherwise employable in the 
United States as non-resident aliens. This limitation is also mandated 
by 46 U.S.C. 8103(k)(2).
    Only three U.S.-flag vessels currently fall within the definition 
of ``large passenger vessel'' under 48 U.S.C. 8103(k), each of which 
are owned by the same cruise line.\1\ Because the statute limits the 
non-resident aliens who are eligible for employment on large passenger 
vessels to aliens who have otherwise been employed by that cruise line 
for one year, and such aliens cannot compose more than 25% of the 
number of unlicensed seamen on such vessels, the Coast Guard believes 
that approximately 600 to 800 non-resident aliens could be transferred 
to employment on one of the three large passenger vessels within the 
first year of the rule taking effect.
---------------------------------------------------------------------------

    \1\ The Coast Guard notes, however, that on April 11, 2007, the 
cruise line announced that it would be reflagging one of these three 
vessels to a foreign flag in the near future; ultimately reducing 
the number of eligible vessels to two.
---------------------------------------------------------------------------

    The Coast Guard notes that, although the Warner Act refers to 
section 101(a)(15)(d) of the INA (which defines aliens authorized for 
crew visas), it does not waive any provision or requirement of the INA 
pertaining to visas or employment eligibility for non-resident aliens. 
In addition, we note that all affected aliens must comply with any 
required identification, tracking and reporting programs, including 
DHS's United States Visitor and Immigrant Status Indicator Technology 
Program (US-VISIT) and the National Security Entry-Exit Registration 
System (NSEERS). The Coast Guard is promulgating this interim rule 
under its

[[Page 20281]]

authority to issue MMDs, and only to that extent.

IV. Regulatory Requirements

A. Administrative Procedure Act

    The Coast Guard has determined that good cause exists to implement 
this rule as an interim rule under the Administrative Procedure Act, 5 
U.S.C. 553(b). The Coast Guard, under this interim rule, is 
implementing a Congressional directive that does not provide Coast 
Guard with discretion in the issuance of MMDs to non-resident aliens as 
a class. Further, as discussed above, this rule will only directly 
regulate one party at this time--the owner of the three vessels that 
fall within the statutory definition of ``large passenger vessels.'' 
The Coast Guard has consulted with that carrier during the development 
of this interim rule. In addition, under the current statutory 
restrictions, only aliens already employed by this company can be 
transferred to employment on one of the three eligible passenger 
vessels. Given the limited regulatory impact of this rule, we do not 
believe there will be significant public interest in this interim rule.
    Accordingly, the Coast Guard has determined that delaying 
implementation of this rule to allow public comment prior to 
implementation would be impracticable and unnecessary. 5 U.S.C. 553(b). 
For reasons stated above, the Coast Guard also finds that good cause 
exists under 5 U.S.C. 553(d)(3) for making this rule effective less 
than 30 days after publication in the Federal Register.
    The Coast Guard, however, values public input to the regulatory 
process, and for this reason we are inviting post-effective-date 
comments on this interim rule. We may change this rule as a result of 
the comments we receive.

B. Regulatory Evaluation

    Executive Order 12866 requires agencies to assess the costs and 
benefits of significant regulatory actions as defined in Section 3(f). 
At this time, we expect this interim rule will not be an economically 
significant action under Section 3(f)(1) of the Order (i.e., an annual 
effect of $100 million or more on the economy).
    The Coast Guard is promulgating this rulemaking as mandated by 
Congress through the Warner Act, see ``Background and Purpose'' section 
for more information about this legislation.
    The rule creates an exemption to allow qualified non-resident 
aliens to obtain MMDs 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. Currently, only U.S. citizens, lawful permanent 
residents, and foreign nationals enrolled at the U.S. Merchant Mariner 
Academy can obtain MMDs 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 MMDs for 
employment as unlicensed seamen on large passenger vessels, except no 
more than 25 percent of the unlicensed seamen on a large passenger 
vessel can be aliens (whether non-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 the large passenger 
vessel.
    Although the Warner Act, and this interim rule, allow large 
passenger vessels to hire non-immigrant aliens, neither the Act nor 
this rule mandate that they do so. Accordingly, there are no mandatory 
costs to large passenger vessels resulting from this interim 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.
    The following is an assessment of the affected population, an 
industry profile, and an evaluation of the direct and indirect impacts 
of the rule. The only company affected by this rulemaking, discussed 
below, provided us with aggregated business data to protect proprietary 
and confidential business information and details of their business 
operations. The industry estimates discussed herein are preliminary and 
may not reflect the actual impacts after industry implements the 
alternative compliance method.
i. Affected Population
Vessel Owners
    The rule will affect owners of large passenger vessels more than 
70,000 gross tons, with a capacity of at least 2,000 passengers, and 
documented with a coastwise endorsement (e.g. U.S.-flag vessel). Vessel 
owners will be able to hire non-resident aliens to comprise up to 25 
percent of the unlicensed seamen onboard their vessels, but only in the 
steward's department. The rule allows vessel owners to hire only those 
non-resident aliens that have been employed, for a period of not less 
than one year, on a passenger vessel, including a foreign flag 
passenger vessel, under the same common ownership, control or managing 
ownership as the U.S.-flag vessel on which they will be working, see 
the ``Discussion of Interim Rule'' section for more detail on the 
conditions and restrictions for hiring non-resident aliens.
    Based on Coast Guard data, we determined there are three large 
passenger vessels currently in service that meet the qualifications of 
this rule. Norwegian Cruise Line America (NCLA) operates these vessels 
in coastwise service in the Hawaiian Islands. NCLA is a brand of the 
Miami-based Norwegian Cruise Line Corporation (NCL), which itself is a 
subsidiary of Star Cruises Limited of Hong Kong. NCLA announced on 
April 11, 2007, that it would be removing one of the three vessels from 
U.S. flag service and re-flagging for foreign service.
    At this time, we have no information to suggest that additional 
companies will enter into coastwise service with large passenger 
vessels, and we do not expect NCLA to expand its coastwise fleet of 
large passenger vessels because of this rule. This is due to the costs 
associated with flagging and operating vessels of this nature in the 
United States.
Unlicensed Mariners
    The rule affects unlicensed mariners working on or applying for 
work on these vessels. This rule allows vessel owners to employ non-
resident aliens on their vessels, capped at 25 percent of the overall 
total of unlicensed seamen per vessel. This rule also indirectly 
affects unions that maintain the collective bargaining agreements for 
these mariners in terms of changes in membership. Based on information 
from NCLA, the Coast Guard anticipates that we will issue MMDs to 
approximately 600 to 800 non-resident aliens within the first year of 
the rule. By the end of the second year of the rule, the Coast Guard 
estimates that we will issue an additional 900 to 1,200 MMDs to support 
non-resident alien crew shift change and reserve. After this two-year 
implementation period, NCLA intends to maintain an average annual full 
compliment of 1,500 to 2,000 onboard, shift, and reserve non-resident 
alien crewmembers under this rule.
Government Resources
    The rule will also affect Coast Guard and potentially other 
government resources used to process, review, and issue documentation 
to unlicensed mariners and non-resident aliens affected by this rule. 
We estimate that certain Coast Guard Regional Examination Centers 
(RECs) in the Hawaiian Islands and West Coast may

[[Page 20282]]

incur increased processing burden to accommodate industry participation 
in this rulemaking, especially in the first two years as mentioned 
below. We anticipate that the requirements of this rule and the 
ultimate issuance of MMDs to non-resident aliens will involve 
additional processing exceeding the current processing for U.S. 
residents to ensure that background checks and applications meet 
security requirements. The additional Coast Guard burden at the RECs 
will be proportional to the number of applications submitted by vessel 
owners on behalf of non-resident aliens.
    At this time, however, we anticipate that this rule will not 
substantially change the annual total number of MMD applications 
received or the total number of MMDs issued by the Coast Guard. Based 
on correspondence between NCLA and the Coast Guard, NCLA stated that 
this rule would stabilize the crew situation onboard the three vessels 
and reduce turnover rates. NCLA claims that the potential workforce 
stability that results from this rule will eventually reduce the number 
of MMD applications that the Coast Guard processes for NCLA crews.
ii. Industry Profile
    Based on industry information, the number of overall Hawaii cruise 
ship passengers grew from 240,800 in 2004 to about 398,000 in 2005. In 
2006, approximately 408,500 cruise passengers visited Hawaii onboard 56 
cruise ships, including NCLA's three U.S.-flag vessels. Capacity has 
also increased over the past several years and passenger costs have 
decreased. Competition from cruises with foreign crews have pushed 
prices down, in particular those offering 15-day cruises from the West 
Coast.
    Based on industry information, in general the cruise industry has 
historically consisted of foreign flag vessels, as opposed to U.S.-flag 
vessels, employing mariners from a variety of foreign countries in 
lower wage scales and for longer hours than U.S. mariners. NCLA must 
operate their U.S.-flag fleet with mostly U.S. citizens and residents, 
driving labor costs higher for NCLA than for cruise lines operating 
foreign flag vessels with foreign mariners.
    Based on industry information, the cost structure for operating the 
affected U.S.-flag vessels will be higher than operating foreign flag 
vessels due to the high labor costs associated with hiring and 
maintaining U.S. crews. NCLA claims that high crew costs and increased 
industry capacity directly contribute to the decrease in the 
profitability of their U.S.-flag fleet.
    According to NCLA, the annual turnover rate for U.S. unlicensed 
mariners working as hospitality staff on these vessels has been as high 
as 200 percent suggesting the undesirability by U.S. unlicensed 
mariners to work in hospitality positions and under the five months on 
and one month off crew shift conditions on the domestic vessels. NCLA 
has recently reported that the current turnover rate for the U.S. 
unlicensed mariners has fallen to 110 percent. NCLA has stated that the 
high turnover rate and the associated costs of maintaining an all U.S. 
crew is the only reason why they are participating in the alternative 
compliance method. As turnover occurs for the U.S. crew, we expect NCLA 
to employ the full contingent of non-resident aliens allowed by this 
rule.
iii. Direct Impacts
    We expect most of the direct costs of the rule will be borne by 
NCLA. The rule will require companies 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 since the non-resident alien hired under 
this program will have experience aboard foreign flag vessels.
    We have not estimated the overall effectiveness of this rule in 
reducing turnover rates or labor costs for NCLA. NCLA provided 
preliminary information that suggests they could reduce turnover rates 
by about 25 to 35 percent annually resulting in a potential reduction 
in labor costs by approximately $5 to $10 million annually; however, 
these are preliminary estimates and NCLA cannot estimate the actual 
reduction in turnover rates and labor costs until they implement the 
alternative compliance program. Being that NCLA is the only company 
directly regulated by this rulemaking and these estimates are based on 
proprietary and confidential business information, the Coast Guard and 
DHS cannot substantiate these estimates. This reduction in labor cost 
is the estimated cost savings or net benefit for NCLA to participate in 
the alternative MMD citizenship compliance method of this rule.
Indirect Impacts
    We reviewed potential indirect impacts of this rule on labor 
conditions and prevailing wages for U.S. unlicensed mariners and non-
resident aliens employed under the rule.
    We do not have information to suggest that NCLA will replace U.S. 
mariners currently employed in the steward's department on these 
vessels with non-resident aliens. In addition, NCLA must still employ 
U.S. residents for at least 75 percent of the total unlicensed seamen 
onboard their U.S.-flag vessels. Given the high turnover rate among the 
U.S. crew, we expect NCLA will still face challenges recruiting and 
maintaining their required U.S. resident hospitality staff onboard 
these vessels.
    The Act does not mandate nor does the rule require that owners and 
operators bear responsibilities associated with conditions of 
employment and shipboard living arrangements for non-resident aliens on 
their vessels. The United States is signatory to the International 
Labor Organization's Merchant Shipping (Minimum Standards) Convention 
of 1976 (ILO 147), which establishes shipboard conditions of employment 
and shipboard living arrangements. Since the United States is signatory 
to this Convention, participating owners and operators must comply with 
the requirements of the convention in their employment of all mariners 
onboard.
    The Act does not mandate that participating owners and operators 
pay the non-resident aliens the same prevailing wages as the U.S. crew. 
However, United States' responsibilities under the International Labor 
Organization's Merchant Shipping (Minimum Standards) Convention of 1976 
(including the Conventions in the Annex), require that seamen can 
negotiate compensation and that seamen have the right to enter into 
collective bargaining agreements. Based on industry information, the 
sole affected owner (NCLA) has entered into a collective bargaining 
agreement with the current U.S. crew and intends on employing non-
resident aliens under the same agreement. This rule does not require 
participating owners to extend current labor agreements to non-resident 
aliens employed under this program. The collective bargaining agreement 
between the affected owner and the union will determine non-resident 
alien employment compensation and pay.
    We are interested in the potential impacts from this rule on 
industry and mariners, and we request public comment on these potential 
impacts. If you think that this rulemaking would

[[Page 20283]]

have a significant economic impact, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why, how, and to what degree you think this rule would 
have an economic impact on you.

C. Small Entities

    The Regulatory Flexibility Act (``RFA''; 5 U.S.C. 601-612, as 
amended) requires agencies to consider whether regulatory actions would 
have a significant economic impact on a substantial number of small 
entities. RFA analysis is not required when a rule is exempt from 
notice and comment rulemaking under 5 U.S.C. 553(b). The Coast Guard 
determined that this rule 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 
interim rule will not have a significant economic impact on a 
substantial number of small entities.
    This interim rule will affect owners and operators of, and 
unlicensed seamen working on or applying for work on, large passenger 
vessels of more than 70,000 gross tons, with a capacity of at least 
2,000 passengers, and documented with a coastwise endorsement. This 
rulemaking will also indirectly affect unions for unlicensed mariners.
    We have determined that individual mariners and the unions affected 
by this rule are not small entities under the definition of a small 
entity in the RFA. We also determined that the unions are not directly 
regulated by the rule.
    Owners and operators affected by this rule will most likely be 
classified under one of the following North American Industry 
Classification System (NAICS) 6-digit codes for water transportation: 
483114--Coastal and Great Lakes Passenger Transportation or 483112--
Deep Sea Passenger Transportation. According to the Small Business 
Administration's size standards, a U.S. company classified under these 
NAICS codes and employing less than 500 employees is considered a small 
entity.
    Based on Coast Guard data, we have determined that there is only 
one company affected by this rule. We researched company size and 
revenue data using proprietary and public business databases and found 
that this company employs more than 500 employees and is not considered 
a small entity by the Small Business Administration's size standards. 
In addition, we found that this company was a subsidiary of a large 
foreign-owned corporation. See the ``Regulatory Evaluation'' section 
for more information about the effected vessel owner.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this rule will not have a significant economic impact on a substantial 
number of small entities. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this rule will have a significant economic impact on it, 
please submit a comment to the Docket Management Facility at the 
address under ADDRESSES. In your comment, explain why you think it 
qualifies and how and to what degree this rule would economically 
affect it.

D. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this interim rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact LCDR Derek D'Orazio at 202-372-
1405. 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.

E. Collection of Information

    Under the Paperwork Reduction Act (44 U.S.C. 3501-3520), the Office 
of Management and Budget (OMB) reviews agency collection of information 
requirements. As part of its review, OMB evaluates the practical 
utility of the information in light of the burden imposed by its 
collection. Collection of information requirements include reporting, 
recordkeeping, notification, and other similar requirements. This 
interim rule will require employers to submit employee information to 
the Coast Guard before the Coast Guard will issue an MMD for their 
employees. However, we expect only one company will be affected by this 
requirement each year, as there is only one company in a position to 
take advantage of these regulations. As such, this rule contains no new 
collection of information under the Paperwork Reduction Act.

F. 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.
    States may not regulate in categories reserved for regulation by 
the Coast Guard. 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 United States v. Locke and Intertanko v. Locke, 529 U.S. 89 
(March 6, 2000). This interim 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.

G. 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 
discuss the effects of this rule elsewhere in this preamble.

H. Taking of Private Property

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

I. 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.

J. 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.

K. 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

[[Page 20284]]

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.

L. 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 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.

M. 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.

N. Environment

    We have analyzed this rule under Commandant Instruction M16475.lD 
and Department of Homeland Security Management Directive 5100.1, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a 
preliminary determination that there are no factors in this case that 
would limit the use of a categorical exclusion under section 2.B.2 of 
the Instruction. Therefore, we believe that this rule should be 
categorically excluded, under figure 2-1, paragraph (34)(c), of the 
Instruction, from further environmental documentation. This paragraph 
excludes regulatory actions concerning the training, qualifying, 
licensing, and disciplining of maritime personnel from further 
environmental documentation, and this interim rule concerns the 
licensing of maritime personnel. An ``Environmental Analysis Check 
List'' and a ``Categorical Exclusion Determination'' are available in 
the docket where indicated under the ``Public Participation and Request 
for Comments'' section of this preamble. Comments on this section will 
be considered before we make the final decision on whether this rule 
should be categorically excluded from further environmental review.

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
Accordingly, 46 CFR Chapter I is amended as follows:

PART 12--CERTIFICATION OF SEAMEN

0
1. Add new 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 Definitions.
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.

    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's 
documents, valid only for service in the steward's department of U.S.-
flag large passenger vessels, to non-resident aliens.


Sec.  12.40-3  Definitions.

    As used in this subpart:
    Large passenger vessel means a vessel of more than 70,000 gross 
tons, as measured under 46 U.S.C. 14302 and documented under the laws 
of the United States, with capacity for at least 2,000 passengers and a 
coastwise endorsement under 46 U.S.C. chapter 121.
    Non-resident alien means an individual who is not a citizen or 
alien lawfully admitted to the United States for permanent residence, 
but who is employable in the United States under the Immigration and 
Nationality Act (8 U.S.C. 1101 et seq.), including an alien crewman 
described in section 101(a)(15)(D)(i) of that Act who meets the 
requirements of 46 U.S.C. 8103(k)(3)(A).
    Steward's department means the department that includes 
entertainment personnel and all service personnel, including wait 
staff, housekeeping staff, and galley workers, as defined in the vessel 
security plan approved by the Secretary under 46 U.S.C. 70103(c). These 
personnel may also be referred to as members of the hotel department on 
a large passenger vessel.


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's 
documents are subject to all applicable requirements contained in this 
subchapter.
    (b) No application from a non-resident alien for a merchant 
mariner's document issued pursuant to this subpart will be accepted 
unless the applicant's employer satisfies all of the requirements of 
Sec.  12.40-7.


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's document 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

[[Page 20285]]

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's document 
to be issued to the applicant.
    (b) If a merchant mariner's document 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's document is returned to the Coast Guard 
in accordance with paragraph (d) of this section.
    (c) If a merchant mariner's document or a transportation worker 
identification credential (TWIC) is issued to the applicant, each 
merchant mariner's document 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) 
have not been exceeded.
    (d) In the event that the seaman's merchant mariner's document 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's document to 
the Coast Guard and/or 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's document.
    (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's document.
    (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's document 
established elsewhere in this subchapter, and the basis for denial 
established in Sec.  12.02-4 of this part, an applicant for a merchant 
mariner's document issued pursuant to this subpart must:
    (a) Have been employed, for a period of at least one year, on a 
foreign-flag passenger vessel, or foreign flag passenger vessels, that 
are under the same common ownership or control as the U.S.-flag large 
passenger vessel, or U.S.-flag large passenger vessels, on which the 
applicant will be employed upon issuance of a merchant mariner's 
document 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, or U.S.-flag large passenger vessels, 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.


Sec.  12.40-11  Citizenship and identity.

    (a) In lieu of the requirements of Sec. Sec.  12.02-10, 12.02-12 
and 12.02-14 of this part, a non-resident alien may apply for a Coast 
Guard-issued merchant mariner's document, 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 employable in the 
United States under the Immigration and Nationality Act (8 U.S.C. 1101, 
et seq.), 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/D Crewman Visa or other valid U.S. 
visa or authority deemed acceptable by the Coast Guard.
    (c) Any non-resident alien applying for a merchant mariner's 
document 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's document 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):
    (1) The merchant mariner's document will be endorsed for service in 
the steward's department in accordance with Sec.  12.25-10 of this 
part;
    (2) The merchant mariner's document 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 STCW Convention and STCW Code must be met.

[[Page 20286]]

    (b) The following restrictions must be printed on the merchant 
mariner's document, 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's document must remain in 
the custody of the employer at all times;
    (3) Upon termination of employment, the merchant mariner's document 
must be returned to the Coast Guard within 10-days in accordance with 
Sec.  12.40-7;
    (4) A non-resident alien issued a merchant mariner's document 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's document 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's document becomes invalid and must be returned to the Coast 
Guard under Sec.  12.40-7(d), and the non-resident alien is no longer 
authorized serve in a position requiring a merchant mariner's document 
on any U.S.-flag large passenger vessel; and
    (2) An individual who successfully adjusts his or her immigration 
status to become either a alien lawfully admitted for permanent 
residence to the United States or citizen of the United States may 
apply for a merchant mariner's document, subject to the requirements of 
Sec. Sec.  12.02-10, 12.02-12 and 12.02-14 of this part, 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's documents 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
3. 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
4. Add new Sec.  15.530 to subpart D to read as follows:


Sec.  15.530  Large passenger vessels.

    (a) The definition of terms used in this section is the same as 
Sec.  12.40-3 of this subchapter.
    (b) 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's document 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.
    (c) On U.S.-flag large passenger vessels, non-resident aliens 
holding a Coast-Guard issued merchant mariner's document 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's document 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;
    (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.
    (d) No more than 25 percent of the total number of unlicensed 
seamen on a U.S.-flag large passenger vessel may be aliens, whether 
admitted to the United States for permanent residence or otherwise 
allowed to be employed in the United States as non-resident aliens.
    (e) The owner or operator of a U.S.-flag large passenger vessel 
employing non-resident aliens holding Coast Guard-issued merchant 
mariner's documents described in subpart 12.40 of this subchapter must:
    (1) Retain custody of all non-resident alien merchant mariner's 
documents for the duration of employment, under Sec.  12.40-13(b)(2) of 
this subchapter; and
    (2) Return all non-resident alien merchant mariner's documents to 
the Coast Guard upon termination of employment, under Sec.  12.40-
13(b)(3) of this subchapter.
    (f) The owner or operator of a U.S.-flag large passenger vessel 
employing non-resident aliens holding Coast Guard-issued merchant 
mariner's documents 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: April 18, 2007.
Thad W. Allen,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. E7-7696 Filed 4-23-07; 8:45 am]
BILLING CODE 4910-15-P