[Federal Register Volume 76, Number 160 (Thursday, August 18, 2011)]
[Proposed Rules]
[Pages 51317-51324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21024]
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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: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to add to its regulations a
description of the procedures for requesting and processing waivers of
citizenship requirements on commercial fishing vessels. The Coast Guard
aims to improve its efforts to inform the commercial fishing industry
of this opportunity by publishing the application procedure policy into
the Code of Federal Regulations (CFR).
DATES: Comments and related material must either be submitted to our
online docket via http://www.regulations.gov on or before November 16,
2011 or reach the Docket Management Facility by that date. Comments
sent to the Office of Management and Budget (OMB) on the collection of
information must reach OMB on or before November 16, 2011.
ADDRESSES: You may submit comments identified by docket number USCG-
2010-0625 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
Collection of Information Comments: If you have comments on the
collection of information discussed in section V.D of this NPRM, you
must also send comments to the Office of Information and Regulatory
Affairs (OIRA), Office of Management and Budget. To ensure that your
comments to OIRA are received on time, the preferred methods are by e-
mail to [email protected] (include the docket number and
``Attention: Desk Officer for Coast Guard, DHS'' in the subject line of
the e-mail) or fax at 202-395-6566. An alternate, though slower, method
is by U.S. mail to the Office of Information and Regulatory Affairs,
Office of Management and Budget, 725 17th Street, NW., Washington, DC
20503, ATTN: Desk Officer, U.S. Coast Guard.
FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or e-mail Mr. David Belliveau, Office of Vessel Activities
(CG-5433), Coast Guard; telephone 202-372-1247, e-mail
[email protected]. If you have questions on viewing or
submitting material to the docket, call Ms. Renee V. Wright, Program
Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Public Meeting
II. Abbreviations
III. Background
IV. Discussion of Proposed Rule
V. Regulatory Analyses
A. Executive Order 12866 and Executive Order 13563
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. 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://www.regulations.gov and will include any
personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2010-0625), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that we can contact you if we have questions regarding your
submission.
To submit your comment online, go to http://www.regulations.gov and
type ``USCG-2010-0625'' in the ``Enter Keyword or ID'' box. If you
submit your comments by mail or hand 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 comments 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 and may change this proposed rule based on your
comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Enter Keyword or ID'' box, insert ``USCG-2010-0625''
and click ``Search.'' Click the ``Open Docket Folder'' in the
``Actions'' column. If you do not have access to the Internet, you may
view the docket online by visiting the Docket Management Facility in
Room W12-140 on the ground floor of the Department of Transportation
West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. We have an agreement with the Department of Transportation to
use the Docket Management Facility.
C. Privacy Act
Anyone can search the electronic form of 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 a Privacy Act notice
regarding our public dockets in the January 17, 2008, issue of the
Federal Register (73 FR 3316).
[[Page 51318]]
D. Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for one to the docket using one of the methods specified under
ADDRESSES. In your request, explain why you believe a public meeting
would be beneficial. If we determine that a public meeting would aid
this rulemaking, we will hold one at a time and place announced by a
later notice in the Federal Register.
II. Abbreviations
CFR Code of Federal Regulations.
COMDTINST Commandant Instruction.
DHS Department of Homeland Security.
DOL Department of Labor.
FR Federal Register.
INA Immigration and Nationality Act, as amended (8 U.S.C. 1101 et
seq.).
Sec. Section symbol.
U.S.C. United States Code.
III. Background
Under title 46 United States Code (U.S.C.) 8103(i)(1), each
unlicensed seaman on a fishing, fish processing, or fish tender vessel
that 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 (8 U.S.C. 1101 et seq.) (INA).
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 Immigration and Nationality Act (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, the
Coast Guard published a policy letter in June 2001 titled ``Procedures
for Waiver of Requirements for Citizenship Aboard Commercial Fishing
Vessels'' (2001 policy letter). This policy letter is available at
http://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. The Coast Guard intended the
letter to be the means of informing the fishing industry of the waiver
opportunity and the application procedure.
In past years, the Coast Guard received between 125 and 200 waiver
requests annually. In 2008, that volume slowed appreciably.\1\ Through
experience gained during the ten years since the publication of the
policy letter and feedback received from the Commercial Fishing
Industry Vessel Safety Advisory Committee, the Coast Guard believes
that not all fishing vessel owners, operators, and employers are aware
they can request a waiver from citizenship requirements. As a result,
these vessels often 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 proposed rule mirrors the
requirements that exist in the 2001 policy letter with the exception of
the mandatory dockside examination.
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\1\ In 2008, the Coast Guard received a total of six waiver
requests.
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Despite the benefits of the waiver option for owners, operators,
and employers, the Coast Guard is concerned that the continued practice
of granting requests for waivers under this program gives rise to
potential safety and emergency preparedness problems on fishing vessels
for U.S. citizen and alien crewmembers. It is incumbent on owners,
operators, and employers to ensure the vessel is in full compliance
with all safety, survival equipment, and systems requirements.
Therefore, in this proposed rule, the Coast Guard proposes to make
satisfactory completion of a dockside safety examination under the
Coast Guard's Commercial Fishing Industry Vessel Safety program a
condition for receiving a waiver from the citizenship requirements.
(For more information on this program, see http://www.fishsafe.info.)
Section 604 of the Coast Guard Authorization Act of 2010 (Pub. L. 111-
281) mandates dockside examinations for commercial fishing vessels
operating beyond 3 nautical miles from shore. For vessels operating
inside of 3 nautical miles from shore, examinations would remain
voluntary. Under these proposed rules, any commercial fishing vessel
requesting a waiver would be required to show satisfactory completion
of a dockside safety examination, regardless of its area of operation.
IV. Discussion of Proposed Rule
Through this rulemaking, the Coast Guard would 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 would formally incorporate the 2001 policy letter into the
CFR and would also require that any vessel citizenship waiver request
and approval be conditioned on the successful completion of a required
dockside exam.
In the proposed new subpart, the Coast Guard would explain that
owners, operators, and employers must send to the Coast Guard a written
citizenship waiver request, which would include the number of alien
seamen to be employed who are not lawfully admitted for permanent
residence but are otherwise authorized for employment in the United
States under the INA, along with certification that the vessel(s) would
comply with all other applicable citizenship requirements regarding the
Master or other officers in charge of deck or engineering watches on a
documented vessel. The owner, operator, or employer would also be
required to provide a U.S. Citizenship and Immigration Services (USCIS)
or other DHS-issued authorization for employment in the U.S. under the
INA for each alien seaman it intends to employ who is not lawfully
admitted for permanent residence, as well as information, as discussed
below, demonstrating that there are no qualified U.S. seamen available
for the position.
If, within 30 days of receipt of a request for a waiver, the Coast
Guard does not make a determination, or informs the employer that the
Coast Guard needs more time for review, the waiver request would be
provisionally approved for 90 days from the end of the original 30
days. If the Coast Guard grants a waiver, the term of the approval
would be for the same period as specified by the USCIS or other DHS-
issued authorization for employment in the U.S. under the INA.
Additionally, to help ensure the safe condition of the vessel, the
Coast Guard would require the employer to submit documentation of a
satisfactory dockside safety examination conducted by the Coast Guard.
The written request for a waiver must contain the following:
1. Vessel owner, operator, or employer's contact information. This
information is required to cross-
[[Page 51319]]
reference with the Marine Information for Safety and Law Enforcement
database to verify vessel ownership; to facilitate contact with the
owner, operator, or employer if any questions arise after reviewing the
request for a waiver package; and to mail a waiver letter back to the
owner, operator, or employer in an expeditious manner.
2. List of fishing vessels and information on those vessels that
the owner, operator, or employer wishes to exempt. The owner, operator,
or employer would be asked to provide, for each vessel that he/she
wants a waiver, the following: the fishing vessel's name, official
number, length (in feet), gross tonnage, and the types of fisheries the
vessel will fish. This information would be used to verify the
documentation of the vessel, to check the vessel's safety history, and
to ensure that the vessel belongs to the person who is making the
request for citizenship waiver.
3. A list of persons working on the vessel(s). The list would
include: The total number of crewmembers; the number of seamen who are
neither U.S. citizens nor lawful permanent residents; the name,
nationality, birth place, position to be held, and basis for employment
authorization in the U.S. under the INA of each seaman who is neither a
U.S. citizen nor a lawful permanent resident; and the number of alien
seamen who are neither U.S. citizens nor lawful permanent residents for
whom the waiver is being requested. This requested information would
allow the Coast Guard to ascertain what percentage of a vessel's crew
would be non-permanent resident aliens to ensure that non-U.S. citizens
would only be used as seamen and not Watch Officers or Masters, and to
ensure that the persons named on a waiver request would be non-
permanent resident aliens who are authorized for employment in the
United States under the INA.
4. Identification of the time period over which the 25 percent
limit would be exceeded: This information would include the start date
(MM/DD/YYYY) and expiration date (MM/DD/YYYY) of the requested waiver.
This information would be required to ensure the owner, operator, or
employer is asking for an exemption that falls within the period of the
named individuals' authorization for employment in the U.S. under the
INA.
5. Demonstration that the vessel(s) is/are in full compliance with
all applicable safety and other regulatory requirements set forth in 46
CFR part 28. In order to document compliance, the owner, operator, or
employer would be required to submit documentation that shows that: a
dockside safety examination was conducted; the examination was
successfully passed; the vessel(s) received a safety examination decal
(and include the serial number of the decal; the decal is displayed on
the vessel; and that the decal will not expire during the entire time
period of the requested waiver. Since commercial fishing vessels
operating within 3 nautical miles from shore are generally not required
to be examined, compliance with 46 CFR part 28 requirements would
usually be determined by a random boarding or by the vessel owner,
operator, or employer requesting a dockside safety examination. Thus
absent these rules, it is conceivable that a vessel could go to sea and
fish for months, or even years, without being checked for its
compliance with regulations. Through these examinations, we intend to
identify and correct safety issues, eliminate preventable hazards, and
minimize any problems that might exist prior to the Coast Guard
approving a request for a waiver. Satisfactory completion of a dockside
safety examination for all commercial fishing vessels requesting a
waiver under this proposed rule would ensure all applicable vessels
provide all emergency equipment and instruction for all crewmembers and
otherwise comply with applicable laws and regulations.
6. Owner, operator, or employer's statement certifying that the
vessel(s) would 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.
7. Documentation demonstrating satisfactory evidence of
authorization for employment as a seaman with the owner, operator, or
employer under the INA for aliens who are not lawful permanent
residents but are otherwise authorized for employment in the United
States under the INA; and that qualified seamen who are United States
citizens are not available.
The H-2B visa has proven to be the primary avenue for demonstrating
compliance with these statutory requirements. The 2001 policy letter
thus required a temporary labor certification from the Department of
Labor (DOL) for the position in question in addition to DHS
authorization for the alien's employment with the owner, operator, or
employer as an H-2B nonimmigrant. Together, the documents from DHS and
DOL demonstrate that these prerequisites are met. In this proposed
rulemaking, we plan on removing the requirement in the 2001 policy
letter that an alien authorized for employment with the owner,
operator, or employer as a seaman pursuant to admission as H-2B
nonimmigrant provide evidence of a DOL temporary labor certification;
the owner, operator, or employer need only provide evidence of the
alien's authorization from DHS to work with the employer as a crewman
in H-2B nonimmigrant status. The requirement to provide evidence of the
DOL temporary labor certification is being removed because USCIS
approval of an H-2B nonimmigrant visa petition is premised on DOL
certification that there are no qualified and available U.S. workers (a
term which includes U.S. citizens) to perform the respective temporary
services or labor as a seaman. See 8 CFR 214.2(h)(6)(iii)(A); 20 CFR
655.4 (defining ``United States Worker'' for H-2B purposes).
Additionally, we seek comment on alternative documentation that may
be submitted for our review and evaluation if an alien is not
authorized for employment with the owner, operator, or employer as an
H-2B nonimmigrant. H-2B nonimmigrant status is but one means by which a
non-permanent resident alien might be authorized for employment in the
U.S. under the INA. If an alien who is neither a lawful permanent
resident nor an H-2B nonimmigrant is authorized for employment, the
owner, operator, or employer must nevertheless establish that qualified
seamen who are citizens of the United States are not available in order
to qualify for a waiver. In this instance, the burden is upon the
requestor of the waiver to provide satisfactory evidence (1) Of
authorization for employment with the owner, operator, or employer as a
seaman under the INA, as required by 46 U.S.C. 8103(i)(1)(C), and (2)
that qualified U.S. citizen seamen are not available as required by 46
U.S.C. 8103(b)(3)(C). We seek comments on the type of documents that
could possibly be submitted to establish compliance with the statutory
requirements when an alien's authorization for employment in the U.S.
with the owner, operator, or employer is not derived from his or her
classification as an H-2B nonimmigrant.
VI. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below, we summarize our
analyses based on 13 of these statutes or executive orders.
A. Executive Order 12866 and Executive Order 13563
This proposed rule is not a significant regulatory action under
section 3(f) of
[[Page 51320]]
Executive Order 12866, Regulatory Planning and Review, as supplemented
by Executive Order 13563, and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. The
Office of Management and Budget has not reviewed it under that Order.
The following table 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 proposed rule.
Table 1--Summary of Costs and Benefits
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Category Estimate
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Costs
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Annual Cost to Apply for Waiver... $42,365.
Cost of Dockside Examination *.... $9,160.
Ten Year Monetized Costs.......... $330,812.
(rounded values, 7% discount rate)
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Benefits
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Qualitative Benefits.............. This proposed rule would provide
industry with greater visibility to
the waiver application procedures.
The inclusion of the dockside
examination would ensure that all
vessels granted waivers are in
compliance with existing safety
regulations.
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* The cost to apply for a waiver is an annual cost. The cost of the
dockside exam occurs every two years.
This proposed rule would create a regulatory burden for those
owners and operators of commercial fishing vessels electing to request
a waiver. From 2005 to 2009, there was an average of 91 requests for
waivers sent to the Coast Guard per year. Note that applications for
waivers have 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, Coast
Guard issued an average of 108 violations of 46 U.S.C. 8103, which
would include violations 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 of these violations were issued. Based on the continuing level
of violations of citizenship requirements for fishing vessels, the
average over 5 years of requests for waivers, rather than the low
number of recent requests, is more indicative of the future use of
waivers once their use is established in the regulations.
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
provides a wage of $34.01 for captains, mates, and pilots of water
vessels.\3\ We apply a load factor of 1.48 to this wage to account for
benefits, which makes the hourly wage for a captain, mate, or pilot
approximately $50.33.\4\ At a cost of $50.33 per hour to the civilian
sector, the cost is $465.55 per request for a waiver ($50.33 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 $42,377 ($50.33 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
proposed rule would require that all vessels requesting a waiver
undergo a dockside examination.
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\2\ Time estimates provided by Coast Guard Fishing Vessel Safety
Division subject matter experts.
\3\ http://www.bls.gov/oes/2009/may/oes535021.htm. This wage
information is from May 2009 and is the most recent figure from BLS.
\4\ The load factor is determined by dividing BLS total
compensation by BLS wages.
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As noted, the Coast Guard Authorization Act of 2010 added a
requirement for mandatory dockside safety examinations once every 2
years for vessels that operate beyond 3 nautical miles from the
shoreline. Some of the vessels requesting citizenship waivers may be
required to undergo the dockside examinations due to the Authorization
Act. Since this proposal would make the dockside safety examination a
requirement for obtaining a waiver, the total cost of these
examinations is attributable to this proposed rule.
According to Coast Guard Fishing Vessel Safety Division subject
matter experts, the dockside safety examination takes, on average, 2
hours to complete, which would represent an opportunity cost to the
vessel owner, operator, or employer equal to the time lost multiplied
by the wage for a captain, mate or pilot. This opportunity cost would
equal approximately $9,160 (2 hours x $50.33 x 91 examinations).
The dockside examination would serve as a check to ensure that the
vessel is in full compliance with all applicable safety and other
regulatory requirements set forth in 46 CFR part 28. Vessels may have
to take corrective actions as a result of the dockside examinations. As
the examinations focus on compliance with existing regulations, the
costs of any corrective actions would not be attributable to this
rulemaking, but instead is attributable to compliance with existing
regulations.
The total annual cost to industry associated with this proposal
would be approximately $51,537. This includes the $42,365 cost for
applying for a waiver per the 2001 policy letter and the $9,160
opportunity cost associated with the addition of the dockside
examination to the current request for a waiver process.
Reviewing a waiver application currently takes a Coast Guard
employee approximately 3 hours, on average. We assume a wage rate equal
to that of a GS-13 for the reviewer. Based on Commandant Instruction
(COMDTINST) 7310.1L, Coast Guard Reimbursable Standard Rates,
(available at http://uscg.mil/directives/ci/7000-7999/CI_7310_1L.PDF), the hourly wage for the reviewer would be $67 per hour. The
total annual projected cost to the Coast Guard to review applications
would be $18,291 (3 hours x $67 x 91 requests). The dockside
examination portion of this proposal would also create additional
government costs to perform the examinations. Civilian
[[Page 51321]]
examiners are usually GS-11 or GS-12 positions while Coast Guard
uniformed examiners are usually E-5 or E-6 grades, which, according to
COMDTINST 7310.1L, would lead to an average wage for examiners of
$49.\5\ According to Coast Guard subject matter experts, a dockside
examination, including travel time and administrative time, would take
an examiner 4 hours to complete. The total cost to the government from
this requirement would be $17,836 (4 hours per examination x $49 x 91
examinations). As with the costs to industry, government costs would
only be incurred if owners or operators opt to apply for a waiver.
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\5\ COMDTINST 7310.1L lists reimbursable rates for government
workers.
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By incorporating the current policy into regulation, the Coast
Guard would 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. Also, the inclusion
of the dockside examination would ensure that all vessels granted
waivers are in compliance with existing safety regulations that apply
to commercial fishing vessels.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
Based on 2007 data, we identified 79,058 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
(78,901) 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 proposal on the industry. Coast Guard records show that the
majority of vessels requesting waivers in the period from 2006-2009 are
between 50 and 70 feet in length. By comparing the $566 cost per vessel
of the proposal to the revenues for commercial fishing vessels in the
50-70 ft. size range, we estimate that only 3 percent of all commercial
fishing vessels would have a revenue impact greater than 3 percent from
this proposal. Table 2 shows the percent of vessels by revenue impact.
Table 2--Revenue Impacts of Proposed Rule
------------------------------------------------------------------------
Percent of
Revenue impact vessels
------------------------------------------------------------------------
0% < Impact <= 1%.......................................... 62
1% < Impact <= 3%.......................................... 35
3% < Impact <= 5%.......................................... 1
5% < Impact <= 10%......................................... 2
Above 10%.................................................. 0
------------------------------------------------------------------------
The primary purpose of this proposed rule is to codify existing
policy into regulation, although, there would be one new cost element
introduced. We estimate 91 of approximately 80,000 commercial fishing
vessels apply for a waiver annually, which is not a substantial number.
Furthermore, because the waiver process is voluntary, in that vessel
owners, operators, or employers would only apply for a waiver if the
benefits of doing so outweigh the costs, we can assume that if the
approximate $566 per vessel cost of this rulemaking 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 proposed rule would 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 would 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.
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 proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed 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 FOR FURTHER INFORMATION CONTACT section of
this proposed 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 proposed rule would 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 collections, 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.
Need for Information: The Coast Guard needs 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: The Coast Guard would 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 May 2008, is 5,103. The proposed rule would
not change that total.
Frequency of Response: 91 respondents, based on a five-year
average.
[[Page 51322]]
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 would take about 9.25 hours per response.
Estimate of Total Annual Burden: The existing OMB-approved total
annual burden, as adjusted in May 2008, is 5,917 hours. The annual
increase from the proposed rule would be approximately 842 hours to the
public, assuming 91 waiver requests are submitted per year.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we will submit a copy of this proposed rule to the Office of
Management and Budget (OMB) for its review of the collection of
information.
We ask for public comment on the proposed collection of information
to help us determine how useful the information is; whether it can help
us perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining the burden are; how we can
improve the quality, usefulness, and clarity of the information; and
how we can minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
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
proposed 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.
We have analyzed this proposed rule under that Order and have
determined that it does not have implications for federalism because
states may not regulate citizenship requirements onboard fishing, fish
processing, or fish tender vessels engaged in the fisheries in the
navigable waters of the United States or the exclusive economic zone.
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 proposed rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
G. Taking of Private Property
This proposed rule would 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 proposed 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 proposed 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 proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
M. Environment
We have analyzed this proposed 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 made a preliminary determination that this action is one of a
category of actions that do not individually or cumulatively have a
significant effect on the human environment. A preliminary
environmental analysis checklist supporting this determination is
available in the docket where indicated under the ``Public
Participation and Request for Comments'' section of this preamble. This
rule involves the qualifying of maritime personnel and the manning of
vessels and falls under Sec. 2.B.2, figure 2-1, paragraphs (c) and (d)
of the Instruction. We seek any comments or information that may lead
to the discovery of a significant environmental impact from this
proposed rule.
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 proposes
to amend 46 CFR Part 28 as follows:
PART 28--REQUIREMENTS FOR COMMERCIAL FISHING INDUSTRY VESSELS
1. The authority citation for part 28 is revised to read as
follows:
[[Page 51323]]
Authority: 46 U.S.C. 4502, 4505, 4506, 8103; Department of
Homeland Security Delegation No. 0170.1.
Subpart H--[Reserved]
2. Amend part 28 by reserving subpart H.
3. Amend part 28 by adding new subpart I 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.
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.).
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 (CG-5433), 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, operator, or employer's contact information--
(i) The vessel owner, operator, or employer's full name (last,
first, middle initial);
(ii) Address;
(iii) Work phone number;
(iv) Fax number (if applicable); and
(v) E-mail 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, operator, or employer must include--
(i) Fishing vessel name;
(ii) Fishing vessel official number;
(iii) Fishing vessel length (in feet);
(iv) Fishing vessel gross tonnage; and
(v) Type(s) of fishery(ies) in which the vessel is engaged;
(3) Information on persons who will work on the vessel(s). 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 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 vessel owner, operator, or employer submitting a request
for a waiver under paragraph (a) of this section is required to
demonstrate that the vessel(s) is/are in full compliance with all
applicable safety and other regulatory requirements set forth in 46 CFR
part 28. To that end, the owner, operator, or employer must submit
documentation that shows--
(1) A dockside safety examination was conducted;
(2) The examination was successfully passed and a safety decal was
issued and affixed to the vessel;
(3) The serial number of the decal issued; and
(4) The period of validity of the safety decal issued.
(d) 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.
(e) 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 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:
Documentation for H-2B nonimmigrants.
(1) U.S. Citizenship and Immigration Services (USCIS) Form I-797,
``Notice of Action: Approval Notice'' classifying the alien as an H-2B
nonimmigrant for purposes of employment with the owner, operator, or
employer submitting a request for a waiver under paragraph (a) of this
section; and
(2) USCIS Form I-94 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 nonimmigrant stay in H-2B
classification) for the dates covered by the proposed employment.
(f) Upon receipt of a request submitted under paragraph (a) of this
section and required information submitted in accordance with
paragraphs (b)-(e) of this section, the Coast Guard (CG-5433) 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 onboard 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 (CG-5433)
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 INA. The Coast Guard will issue a
letter of approval to the owner, operator, or employer for the
applicable vessel(s).
[[Page 51324]]
(2) The owner, operator or employer must have a copy of the waiver
approval letter available onboard the vessel as proof of waiver of the
citizenship requirement for unlicensed seamen for that vessel.
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: August 9, 2011.
James A. Watson,
Rear Admiral, U.S. Coast Guard, Director of Prevention Policy.
[FR Doc. 2011-21024 Filed 8-17-11; 8:45 am]
BILLING CODE 9110-04-P