Waiver of Citizenship Requirements for Crewmembers on Commercial Fishing Vessels, 8864-8870 [2014-03302]

Agencies

• Coast Guard
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 79, Number 31 (Friday, February 14, 2014)]
[Rules and Regulations]
[Pages 8864-8870]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03302]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 28

[Docket No. USCG-2010-0625]
RIN 1625-AB50


Waiver of Citizenship Requirements for Crewmembers on Commercial 
Fishing Vessels

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard amends its regulations to include a 
description of the procedures for requesting and processing waivers of 
citizenship requirements on commercial fishing vessels. We seek to 
improve our efforts to inform the commercial fishing industry of this 
opportunity by codifying the application procedure policy into the Code 
of Federal Regulations.

DATES: This final rule is effective March 17, 2014, except for 
Sec. Sec.  28.1105 and 28.1110 which contain collection of information 
requirements that have not yet been approved by the Office of 
Management and Budget (OMB). The Coast Guard will publish a document in 
the Federal Register announcing the effective date of those sections/
paragraphs.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2010-0625 and are available for inspection or 
copying at the Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. You may also find this 
docket on the Internet by going to https://www.regulations.gov, 
inserting USCG-2010-0625 in the ``Keyword'' box, and then clicking 
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. David Belliveau, Office of Commercial Vessel 
Compliance, Fishing Vessel Safety Division (CG-CVC-3), Coast Guard; 
telephone 202-372-1247, email David.J.Belliveau@uscg.mil. If you have 
questions on viewing the docket, call Cheryl Collins, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
    A. Foreign Workers
    B. Availability of Seamen
    C. Unnecessary Burden of Dockside Inspection on Employers
    D. Exception to Foreign Crew Rule of the Magnuson-Stevens Act
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

BLS Bureau of Labor Statistics
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
INA Immigration and Nationality Act, as amended (8 U.S.C. 1101 et 
seq.)
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget

[[Page 8865]]

Sec.  Section symbol
U.S.C. United States Code

II. Regulatory History

    On August 18, 2011, we published a notice of proposed rulemaking 
(NPRM) titled ``Waiver of Citizenship Requirements for Crewmembers on 
Commercial Fishing Vessels'' in the Federal Register (76 FR 51317). We 
received four comments on the proposed rule. No public meeting was 
requested and none was held.

III. Basis and Purpose

    The legal basis for the rule is the Coast Guard's authority to 
provide relief from the citizenship requirements on fishing vessels. 
Title 46 United States Code (U.S.C.) 8103(b)(3)(C) authorizes the 
Secretary of the Department of Homeland Security to waive these 
citizenship requirements. The Secretary has delegated this authority to 
the Coast Guard.
    Through this final rule, we amend 46 CFR part 28, Requirements for 
Commercial Fishing Industry Vessels, by adding a new subpart to 
specifically address the citizenship waiver program. This subpart will 
formally incorporate our policy, which has been in place since 2001, 
into the CFR.

IV. Background

    Under 46 U.S.C. 8103(i)(1), each unlicensed seaman on a fishing, 
fish processing, or fish tender vessel who is engaged in the fisheries 
in the navigable waters of the United States or the exclusive economic 
zone must be--
    1. A citizen of the United States;
    2. An alien lawfully admitted to the United States for permanent 
residence; or
    3. Any other alien allowed to be employed under the Immigration and 
Nationality Act (INA) (8 U.S.C. 1101 et seq.).
    Furthermore, 46 U.S.C. 8103(i)(2) states that no more than 25 
percent of the unlicensed seamen on these vessels may be non-permanent 
resident aliens authorized for employment in the United States under 
the INA, category 3 above.
    Relief from these citizenship and permanent resident status 
requirements is provided in 46 U.S.C. 8103(b)(3)(C). If the Secretary 
of Homeland Security determines, after an investigation, that qualified 
seamen who are citizens of the United States are not available, the 
Secretary may waive these citizenship requirements.
    Congress did not specify a procedure for requesting the waiver 
allowed under section 8103(b)(3). To fill the need for a procedure, we 
published a policy letter in June 2001 titled ``Procedures for Waiver 
of Requirements for Citizenship Aboard Commercial Fishing Vessels'' (G-
MOC Policy Letter 01-02). This policy letter is available at https://homeport.uscg.mil/mycg/portal/ep/programView.do?channelId=-17679&programId=12861. This policy letter explains the steps involved 
in the request for a waiver process. We intended the letter to be the 
means of informing the fishing industry of the waiver opportunity and 
the application procedure.
    In past years, we received between 125 and 200 waiver requests 
annually. In 2008, that volume slowed appreciably.\1\ Through 
experience gained during the 10 years since the publication of the 2001 
policy letter and feedback received from the Commercial Fishing Safety 
Advisory Committee, we believe that not all fishing vessel owners, 
operators, and employers are aware they can request a waiver from 
citizenship requirements. As a result, these vessels either sail short-
handed, creating potential safety issues, or choose to exceed the 25 
percent limit for non-permanent resident aliens authorized for 
employment in the United States under the INA without an approved 
waiver. This rule mirrors the requirements that exist in the 2001 
policy letter.
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    \1\ In 2008, the Coast Guard received a total of 6 waiver 
requests.
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    In the NPRM, we proposed a requirement for a mandatory dockside 
examination that was not required in the 2001 policy letter. That 
requirement has been removed from this final rule. See section V.C. of 
this preamble for a discussion of this change to the final rule. 
However, it is still incumbent on owners, operators, and employers to 
ensure the vessel is in full compliance with all safety, survival 
equipment, and systems requirements.

V. Discussion of Comments and Changes

    We received four written comments on the NPRM to the docket. These 
comments are available for viewing in the public docket for this 
rulemaking, where indicated under ADDRESSES.
    Below, we summarize these comments and our responses to them. Each 
of the four comments raised different issues, so each comment summary 
provides a response directly to the comment submitted.

A. Foreign Workers

    The first commenter does not favor allowing waivers for foreign 
workers, but suggests instead that fishing boat captains improve their 
searches for American workers. The commenter also stresses that the 
Coast Guard should not remove a 2001 policy that requires resident 
alien workers to present an H2B visa. The commenter also states that 
foreign workers should be required to speak English as a safety 
measure.
    The purpose of this regulation is to codify procedures for 
requesting a waiver already allowed by law under 46 U.S.C. 8103(b)(3). 
This regulation is not an immigration, labor, or national security 
regulation per se, and intends no other purpose than what has been 
stated. However, these rules maintain the 2001 policy in regard to H2B 
visas. The remaining comments raise issues that fall outside of the 
scope of this rulemaking.

B. Availability of Seamen

    Despite the improvement to safety and efficiency that fully-staffed 
fishing vessels would provide, the second commenter is not convinced 
that this regulation would achieve its intended purpose. The commenter 
reasons that the pool of potential workers is limited because it is 
composed of those seamen who are already employed by other vessels.
    This regulation allows a waiver so that non-resident aliens can be 
employed as unlicensed seamen aboard U.S. flag fishing vessels beyond 
the 25 percent limitation. Historically, companies and individual 
vessels that apply for citizenship waivers represent a very small cross 
section of the commercial fishing industry. Furthermore, requests 
usually coincide with seasonal manning requirements (e.g., shrimp 
fishery in the Gulf of Mexico, menhaden fishery in the Gulf of Mexico 
and mid-Atlantic). In essence, waivers are only requested to fulfill a 
temporary need. Additionally, the Coast Guard does not have evidence to 
support the assertion that the population of seamen from which 
candidates are selected comprises ``seamen who are already employed, 
but whose employer is going out of business or no longer needs their 
services,'' since they are non-resident aliens. Therefore, the Coast 
Guard does not agree with the comment and no change to the rule was 
made.

C. Unnecessary Burden of Dockside Inspection on Employers

    The third commenter supports the proposed rule as a means to inform 
commercial fishing vessel employers about the waiver requirements. 
However, the commenter states that the dockside safety examination is 
an unnecessary burden to employers and

[[Page 8866]]

redundant, given that the Coast Guard already requires and enforces 
compliance of safety measures. The commenter claims that the dockside 
safety inspections unnecessarily target fishing vessels employing 
foreign workers.
    We agree, in part, so the requirement for completion of the 
dockside examination has been removed in the final rule. We do not 
intend to target nor impose an additional burden on employers in the 
commercial fishing industry. However, commercial fishermen, vessel 
owners, and operators should be aware that the Coast Guard and Maritime 
Transportation Act of 2012 (Pub. L. 112-213) amended 46 U.S.C. 4502(f) 
to require a dockside safety examination at least once every 5 years 
for vessels operating beyond 3 nautical miles from the baseline from 
which the territorial sea of the United States is measured or beyond 3 
nautical miles from the coastline of the Great Lakes. For the fishing 
vessels that operate inside 3 nautical miles from shore, the dockside 
examination remains voluntary. However, the Coast Guard does recommend 
that those vessels operating inside 3 nautical miles complete the 
dockside examination for the safety of the vessel and crew.

D. Exception to Foreign Crew Rule of the Magnuson-Stevens Act

    The last commenter suggests that this rule does not mention, but 
should, the exception to the foreign crew rule of 46 U.S.C. 8103(i)(1) 
contained in the Magnuson-Stevens Act for U.S. flag fishing vessels 
fishing for highly migratory species on the high seas. Furthermore, the 
commenter states the long time periods provided for the Coast Guard to 
act under this rule are not conducive to the commercial fishing 
business, where crew replacements must be made within hours, or at most 
days, due to death, injury, or sickness.
    We agree that the citizenship requirements in 46 U.S.C. 8103(i)(1) 
and (2) do not apply to fishing vessels fishing exclusively for highly 
migratory species (as that term is defined in the Magnuson-Stevens 
Fisheries Conservation and Management Act (16 U.S.C. 1802)). Title 46 
U.S.C. 8103(i)(3) provides the exception to the citizenship 
requirements for these vessels. This exception is now included in the 
regulatory text. Additionally, companies and/or individual vessel 
owners that apply for these citizenship waivers do not do so to provide 
for urgent manning needs caused by death, injury, or sickness, but 
rather have traditionally used the process for filling the anticipated, 
temporary manning requirements that coincide with seasonal needs (e.g., 
shrimp fishery in the Gulf of Mexico, menhaden fishery in the Gulf of 
Mexico and mid-Atlantic).

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below, we summarize our 
analyses based on 14 of these statutes or executive orders.

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility.
    This final rule has not been designated a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, as supplemented by Executive Order 13563, 
Improving Regulation and Regulatory Review, and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. Accordingly, the final rule has not been reviewed by the 
Office of Management and Budget (OMB).
    Based on comments received, we have adjusted our policy to remove 
the dockside examination requirement when applying for a waiver. This 
will reduce the cost burden from that presented in the NPRM. No 
comments were received during the comment period addressing the 
regulatory assessment and thus no other changes to the rule were made.
    The following table (Table 1) summarizes the costs and benefits of 
this rule. We estimated annual and 10-year costs of the rule and, based 
on data availability, we identified qualitative benefits of the rule.

                 Table 1--Summary of Costs and Benefits
------------------------------------------------------------------------
                Category                             Estimate
------------------------------------------------------------------------
                                  Costs
------------------------------------------------------------------------
Annual Cost to Apply for Waiver........  $42,505.
Ten Year Monetized Costs (rounded        $298,538.
 values, 7% discount rate).
------------------------------------------------------------------------
                                Benefits
------------------------------------------------------------------------
Qualitative Benefits...................  This rule will provide industry
                                          greater awareness and
                                          knowledge of the waiver
                                          application procedures.
------------------------------------------------------------------------

    This rule will create a regulatory burden for those owners and 
operators of commercial fishing vessels electing to request a waiver. 
From 2005 to 2009, the Coast Guard received an average of 91 requests 
for waivers per year. Applications for waivers declined from a high of 
203 in 2005 to 20 in 2009. The number of applications for waivers will 
vary from year to year based on many factors, such as national and 
regional economic conditions and management programs for specific 
fisheries. We use a 5-year average to reflect the range of conditions 
that may occur over the 10-year period of analysis. In addition, during 
the period of 2005 to 2009, the Coast Guard issued an average of 108 
reports of violations of 46 U.S.C. 8103. Some of these violations were 
related to the citizenship requirements for the crew of fishing vessels 
and the citizenship requirements for the master and officer in charge 
of deck or engineering watches. During 2009, 75 such reports of 
violations were issued. Due to the variability in waiver requests, the 
five year average number of requests is used to provide a more 
conservative estimate when calculating the burden.

[[Page 8867]]

    We estimate that it takes an owner or operator approximately 9.25 
hours \2\ to compile and submit the appropriate documentation to the 
Coast Guard per the 2001 policy letter. The Bureau of Labor Statistics 
(BLS) lists a wage of $33.89 for captains, mates, and pilots of water 
vessels.\3\ We apply a load factor of 1.49 to this wage to account for 
labor compensation and benefits, which makes the hourly wage for a 
captain, mate, or pilot approximately $50.50.\4\ At a cost of $50.50 
per hour to the civilian sector, the cost is $467 per request for a 
waiver ($50.50 per hour x 9.25 hours). The total annual burden would be 
approximately 842 labor hours (9.25 hours per request x 91 requests per 
year), for a cost to industry of $42,505 \5\ ($50.50 x 842 hours) to 
submit the request for a waiver. This cost is only borne if a vessel 
owner, operator, or employer chooses to seek relief of the citizenship 
requirement. The total annual cost to industry associated with this 
rule will be approximately $42,505 .\6\
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    \2\ Time estimates provided by Coast Guard Fishing Vessel Safety 
Division subject matter experts.
    \3\ https://www.bls.gov/oes/current/oes535021.htm. This wage 
information is from May 2010 and is the most recent figure from BLS.
    \4\ The load factor is determined by dividing BLS total 
compensation (series CMU2010000520000D) by BLS wages (series 
CMU2020000520000D). https://www.bls.gov/ncs/ect/data.htm.
    \5\ Values may not total due to rounding.
    \6\ Values may not total due to rounding.
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    Reviewing a waiver application currently takes a Coast Guard 
employee approximately 3 hours ,\7\ on average. We assume a wage rate 
equal to that of a GS-13 for the reviewer. Based on Commandant 
Instruction (COMDTINST) 7310.1M, Coast Guard Reimbursable Standard 
Rates, (available at https://uscg.mil/directives/ci/7000-7999/CI_7310_1M.PDF), the hourly wage for the reviewer is $77. The total annual 
projected cost to the Coast Guard to review applications is $21,021 (3 
hours x $77 x 91 requests). As with the costs to industry, government 
costs will only be incurred if owners, operators, or employers opt to 
apply for a waiver.
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    \7\ Time estimates provided by Coast Guard Fishing Vessel Safety 
Division subject matter experts.
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    Although we cannot quantify benefits for this rulemaking, we do 
expect some functional benefits. By incorporating the current policy 
into regulation, we will promote greater awareness of the policy and 
provide commercial fishermen with one location for all rules governing 
their operations. Greater visibility of the application procedures may 
help reduce the number of crew requirement violations related to 
citizenship requirements onboard commercial fishing vessels. 
Furthermore, waiver applications are voluntary, and will only be made 
if the owner/operator/employer sees a net benefit to doing so. As such, 
the collective burden described previously is expected to be more than 
offset by the increased labor pool.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will have a significant economic impact on 
a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of fewer than 50,000.
    Based on 2009 data, we identified 74,337 entities owning fishing 
vessels. Of these, a small number (13) were owned by government 
entities or non-profits, all of which exceed the threshold for being 
classified as a small entity. The remaining owners are classified as 
businesses. Based on available revenue data, approximately 99.8 percent 
(74,228) of the commercial fishing businesses fall below the Small 
Business Administration threshold for a small business based on their 
primary North American Industry Classification System designation.
    Based on historical data, we expect an average of 91 requests for a 
waiver per year. If we assume that all of these requests are from small 
commercial fishing businesses, we can assess the potential impacts of 
this rule on the industry. Our records show that the majority of 
vessels requesting waivers in the period from 2006-2009 were between 50 
and 70 feet in length. By comparing the $467 cost of the rule per 
vessel to the revenues for commercial fishing vessels in the 50 to 70 
feet size range, we estimate that 38 percent of the affected population 
will have a revenue impact greater than 1 percent, and only 3 percent 
of all commercial fishing vessels will have a revenue impact greater 
than 3 percent from this rule. Table 2 shows the percent of vessels by 
revenue impact.

                 Table 2--Revenue Impacts of Final Rule
------------------------------------------------------------------------
                                                             Percent of
                      Revenue impact                           vessels
------------------------------------------------------------------------
0% < Impact <= 1%.........................................            62
1% < Impact <= 3%.........................................            35
3% < Impact <= 5%.........................................             3
5% < Impact <= 10%........................................             0
Above 10%.................................................             0
------------------------------------------------------------------------

    The primary purpose of this rule is to codify existing policy into 
regulation. We estimate that only 91 of approximately 80,000 commercial 
fishing vessels apply for a waiver annually. Furthermore, because the 
waiver process is voluntary, we assume vessel owners, operators, or 
employers would apply for a waiver only if the benefits of doing so 
outweigh the costs. We can assume that if the approximate $467 per 
vessel cost of this rule is prohibitive, vessel owners would choose to 
not pursue a waiver. 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.

C. 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 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 consult with the Coast Guard personnel 
listed under the FOR FURTHER INFORMATION CONTACT section of this rule. 
The Coast Guard will not retaliate against small entities that question 
or complain about this rule or any policy or action of the Coast Guard.

D. Collection of Information

    This rule will call for a revision to an existing collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). This revision is explained below under Estimate Of Total Annual 
Burden. As defined in 5 CFR 1320.3(c), ``collection of information'' 
comprises reporting, recordkeeping, monitoring, posting, labeling, and 
other, similar actions. The title and description of the information 
collection, a description of those who must collect the information, 
and an estimate of the total annual burden follow. The estimate covers 
the time for reviewing instructions, searching existing sources of 
data, gathering and maintaining the data needed, and completing and 
reviewing the collection.
    Title: Commercial Fishing Industry Vessel Safety Regulations.
    OMB Control Number: 1625-0061.
    Summary Of The Collection Of Information: This information 
collection is intended to improve safety on board vessels in the 
commercial fishing industry. The requirements apply to those vessels 
and to seamen on them.

[[Page 8868]]

    Need For Information: We need to collect this information for all 
vessels requesting a waiver for relief of the citizenship requirements 
on a commercial fishing vessel.
    Proposed Use Of Information: We will use this information solely to 
determine whether or not a vessel should be granted relief of the 
citizenship requirements on a commercial fishing vessel.
    Description Of The Respondents: The respondents are vessel owners, 
operators, and employers of U.S. commercial fishing vessels who opt to 
seek relief of the citizenship requirements on a commercial fishing 
vessel.
    Number Of Respondents: The existing OMB-approved number of 
respondents, as adjusted in July 2011, is 4,808. The rule would not 
change that total.
    Frequency Of Response: 91 respondents per year, based on a 5-year 
average.
    Burden Of Response: Those vessels that voluntarily choose to 
request a waiver bear the burden of this collection. We estimate that a 
request for a waiver will take about 9.25 hours per response.
    Estimate Of Total Annual Burden: The existing OMB-approved total 
annual burden, as adjusted in July 2011, is 5,945 hours. The annual 
increase from the rule will be approximately 842 hours to the public, 
assuming 91 waiver requests are submitted per year. The total estimated 
annual burden is 6,787 hours.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we will submit a copy of this rule to OMB for its review of 
the collection of information.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the Coast 
Guard could enforce the collection of information requirements in this 
rule, OMB would need to approve the Coast Guard's request to collect 
this information.

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt state law or impose a substantial 
direct cost of compliance on them.
    Congress charged the Secretary of Homeland Security with the 
authority to administer and enforce immigration laws. See 8 U.S.C. 
1103(a)(1). With respect to this rulemaking, the Secretary delegated 
the authority to waive the citizenship requirements found in 46 U.S.C. 
8103 to the Commandant of the Coast Guard. It is well established that 
states do not have the authority to regulate immigration. Therefore, we 
have determined that this rule does not have implications for 
federalism under E.O. 13132.

F. Unfunded Mandates Reform Act

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

G. Taking of Private Property

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

H. Civil Justice Reform

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

I. Protection of Children

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

J. Indian Tribal Governments

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

K. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.

L. Technical Standards

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

M. Environment

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

List of Subjects in 46 CFR Part 28

    Alaska, Fire prevention, Fishing vessels, Marine safety, 
Occupational safety and health, Reporting and recordkeeping 
requirements, Seamen.

    For the reasons discussed in the preamble, the Coast Guard amends 
46 CFR part 28 as follows:

[[Page 8869]]

PART 28--REQUIREMENTS FOR COMMERCIAL FISHING INDUSTRY VESSELS

0
1. The authority citation for part 28 is revised to read as follows:

    Authority:  46 U.S.C. 3316, 4502, 4505, 4506, 6104, 8103, 10603; 
Department of Homeland Security Delegation No. 0170.1.

Subpart H--[Added and Reserved]

0
2. Add and reserve subpart H to part 28.

0
3. Add new subpart I to part 28 to read as follows:
Subpart I--Citizenship Waiver Procedures
Sec.
28.1100 General.
28.1105 Request for a waiver.
28.1110 Waiver approval.
28.1115 Waiver request and approval records.

Subpart I--Citizenship Waiver Procedures


Sec.  28.1100  General.

    (a) As set forth in 46 U.S.C. 8103, a citizenship requirement, 
other than a requirement that applies to the master of a documented 
vessel, on commercial fishing vessels may be waived for unlicensed 
seamen when qualified seamen who are citizens of the United States are 
not available. Under the provisions of this subpart, the Coast Guard 
approves or denies requests for a waiver of the citizenship requirement 
from owners, operators, or employers seeking to exceed the 25 percent 
limit applicable to unlicensed seamen aboard fishing industry vessels 
who are non-permanent resident aliens authorized for employment in the 
United States under the Immigration and Nationality Act (INA) (8 U.S.C. 
1101 et seq.).
    (b) This subpart does not apply to a fishing vessel fishing 
exclusively for highly migratory species (as that term is defined in 
section 3 of the Magnuson-Stevens Fishery Conservation and Management 
Act (16 U.S.C. 1802)).
    (c) The regulations in this subpart have preemptive effect over 
State or local regulation within the same field.


Sec.  28.1105  Request for a waiver.

    (a) Vessel owners, operators, or employers who desire a waiver of 
citizenship requirements from the Coast Guard must submit a written 
request to the Commandant, United States Coast Guard, 2100 Second St. 
SW., Stop 7581, Washington, DC 20593-7581.
    (b) The written request required under paragraph (a) of this 
section must contain--
    (1) The vessel owner's, operator's, or employer's contact 
information--
    (i) Full name (last, first, middle initial);
    (ii) Address;
    (iii) Work phone number;
    (iv) Fax number (if applicable); and
    (v) Email address (if applicable);
    (2) Information on fishing vessel(s) for which the owner, operator, 
or employer requests a citizenship waiver. For each listed vessel, the 
owner's, operator's, or employer's must include--
    (i) Fishing vessel name;
    (ii) Fishing vessel official number;
    (iii) Fishing vessel length (in feet);
    (iv) Fishing vessel gross tonnage; and
    (v) Each type of fishery in which the vessel is engaged;
    (3) Information on persons who will work on the vessel. For each 
listed vessel, the owner, operator, or employer must include--
    (i) The total number of unlicensed crew normally employed;
    (ii) The name, nationality, birth place, position to be held, and 
basis for employment authorization in the United States of each alien 
who is not lawfully admitted for permanent residence but is otherwise 
authorized for employment in the United States under the Immigration 
and Nationality Act (INA); and
    (iii) The number of alien seamen who are not lawfully admitted for 
permanent residence but are otherwise authorized for employment in the 
United States under the INA for which the waiver is requested; and
    (4) The time period over which the 25 percent limit will be 
exceeded--
    (i) Start date (MM/DD/YYYY); and
    (ii) Expiration date (MM/DD/YYYY).
    (c) The owner, operator, or employer submitting a request for a 
waiver under paragraph (a) of this section must include a statement 
certifying that the vessel(s) will operate in compliance with all other 
applicable citizenship requirements regarding the master or other 
officers in charge of deck or engineering watches on U.S.-documented 
vessels.
    (d) The owner, operator, or employer submitting a request for a 
waiver under paragraph (a) of this section must provide evidence that 
aliens who are not lawfully admitted for permanent residence are 
authorized for employment with the owner, operator, or employer under 
the INA and evidence that qualified seamen who are U.S. citizens are 
not available for employment. The following documentation for H2B non-
immigrants is satisfactory evidence both of authorization for 
employment with the owner, operator, or employer under the INA and that 
qualified seamen who are U.S. citizens are not available:
    (1) U.S. Citizenship and Immigration Services (USCIS) Form I-797, 
``Notice of Action: Approval Notice'' classifying the alien as an H2B 
non-immigrant for purposes of employment with the owner, operator, or 
employer submitting a request for a waiver under paragraph (a) of this 
section.
    (2) USCIS Form I-94, ``Arrival/Departure Record'' indicating that 
the alien has been lawfully admitted to the United States (or has been 
lawfully granted a change of nonimmigrant status or extension of non-
immigrant stay in H2B classification) for the dates covered by the 
proposed employment.
    (e) Upon receipt of a request submitted under paragraph (a) of this 
section and required information submitted in accordance with 
paragraphs (b) through (d) of this section, the Coast Guard will 
evaluate the information and may investigate further, as necessary, to 
determine the validity of the information provided.


Sec.  28.1110  Waiver approval.

    (a)(1) If, within 30 days of receipt of a properly submitted 
request for a waiver, the Coast Guard does not make a determination 
whether to approve the request or does not advise the owner, operator, 
or employer that additional time is needed for consideration, the 
request will be considered provisionally approved for 90 days from the 
end of that 30-day period.
    (2) If the Coast Guard does not make a determination whether to 
approve a properly submitted request for a waiver in writing within 30 
days of receipt, the owner, operator, or employer must have a copy of 
the request and supporting documentation available on board the vessel 
as proof of submission of a request for waiver of the citizenship 
requirement for unlicensed seamen for that vessel.
    (b)(1) If the Coast Guard determines, based on the waiver request, 
supporting documentation, and any other relevant information, that no 
qualified U.S. citizen seamen are available, the Coast Guard will grant 
the waiver to exceed the 25-percent limit for employment of non-
permanent resident alien seaman for the period of employment authorized 
for each alien under the Immigration and Nationality Act (INA). The 
Coast Guard will issue a letter of approval to the owner, operator, or 
employer for the applicable vessel(s).
    (2) The owner, operator, or employer must have a copy of the waiver 
approval letter available on board the vessel as proof of waiver of the 
citizenship requirement for unlicensed seamen for that vessel.

[[Page 8870]]

Sec.  28.1115  Waiver request and approval records.

    The Coast Guard will maintain a record of citizenship waiver 
requests and approvals. Approvals will be documented for the applicable 
vessel(s) in the Coast Guard's vessel information database.

    Dated: February 11, 2014.
J.C. Burton,
Captain, U. S. Coast Guard, Director of Inspections & Compliance.
[FR Doc. 2014-03302 Filed 2-13-14; 8:45 am]
BILLING CODE 9110-04-P