[Federal Register Volume 78, Number 223 (Tuesday, November 19, 2013)]
[Rules and Regulations]
[Pages 69292-69296]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27569]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 141

[Docket No. USCG-2013-0916]
RIN 1625-AC09


TWIC Not Evidence of Resident Alien Status

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard issues this final rule to remove from its 
regulations

[[Page 69293]]

on Outer Continental Shelf (OCS) activities a reference to the 
Transportation Worker Identification Credential (TWIC) and a related 
TWIC definition and recordkeeping reference because they are 
inconsistent with a requirement in the Outer Continental Shelf Lands 
Act. These regulations deal with the employment of personnel on the OCS 
to U.S. citizens or resident aliens. The TWIC reference incorrectly 
provides that a TWIC alone may be accepted by an employer as sufficient 
evidence of the TWIC holder's status as a U.S. resident alien, as that 
term is defined. This rule clarifies the regulations.

DATES: This final rule is effective November 19, 2013.

ADDRESSES: Documents mentioned in this preamble as being available in 
the docket are part of docket USCG-2013-0916 and are available for 
inspection or copying at the Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. You may also find 
this docket on the Internet by going to http://www.regulations.gov, 
inserting USCG-2013-0916 in the ``Search'' box, and then clicking 
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
email or call Mr. Quentin Kent, Office of Commercial Vessel Compliance, 
Foreign and Offshore Vessel Division (CG-CVC-2), Coast Guard; email 
Quentin.C.Kent@uscg.mil, telephone 202-372-2292. If you have questions 
on viewing the docket, call Ms. Barbara Hairston, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose
III. Regulatory History
IV. Discussion of the Final Rule
V. 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

APA Administrative Procedure Act
FR Federal Register
I-9 Form I-9, Employment Eligibility Verification
INA Immigration and Nationality Act of 1952
NPRM Notice of proposed rulemaking
OCS Outer Continental Shelf
OCSLA Outer Continental Shelf Lands Act
TWIC Transportation Worker Identification Credential
U.S.C. United States Code

II. Basis and Purpose

    The Coast Guard is amending its regulations in 33 CFR part 141, 
which govern the restrictions on the employment of personnel on units 
engaged in Outer Continental Shelf (OCS) activities, by removing an 
incorrect reference to the Transportation Worker Identification 
Credential (TWIC). The reference in 33 CFR 141.30(d) incorrectly 
provides that, for purposes of 33 CFR part 141, a TWIC alone may be 
accepted by an employer as sufficient evidence of the TWIC holder's 
status a U.S. resident alien,\1\ as that term is defined in 33 CFR 
141.10.
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    \1\ U.S. resident alien is defined in 33 CFR 141.10 as an alien 
lawfully admitted for permanent residence, as defined in 8 U.S.C. 
1101(a)(20). See 49 CFR 1570.3. The term in synonymous with ``legal 
permanent resident'' as it appears in TSA regulations.
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    The regulations in 33 CFR part 141 are authorized by the Outer 
Continental Shelf Lands Act (OCSLA) (43 U.S.C. 1301, et. al.), which 
mandates that the Secretary of the Department in which the Coast Guard 
operates shall issue regulations which, in part, require the employment 
of U.S. citizens or resident aliens on any vessel, rig, platform, or 
other vehicle or structure engaged in OCS activities, unless certain 
exceptions apply. 43 U.S.C. 1356.
    Subsequent to the implementation of the regulations in 33 CFR part 
141, the Coast Guard published a final rule entitled, ``Consolidation 
of Merchant Mariner Qualification Credentials'' on March 16, 2009, that 
went into effect on April 15, 2009. 74 FR 11196. In that rulemaking 
several provisions of 33 CFR part 141 were amended. In particular, the 
Coast Guard added paragraph (d) to 33 CFR 141.30, authorizing an 
employer to accept a TWIC alone as sufficient evidence of the TWIC 
holder's status as a U.S. resident alien. However, the preamble to this 
rulemaking did not provide a reason for adding paragraph (d) to 33 CFR 
141.30. Paragraph (d) is incorrect because a TWIC may be issued to both 
U.S. resident aliens and non-resident aliens \2\ and thus, it cannot 
serve as sufficient evidence that the person is a U.S. resident alien, 
as required by law. Therefore, for purposes of 33 CFR part 141, a TWIC 
alone cannot be accepted by an employer as sufficient evidence of the 
holder's status as a U.S. resident alien.
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    \2\ See Transportation Security Administration regulations, 49 
CFR 1572.105.
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    Since OCSLA mandates that employers must employ only U.S. citizens 
or resident aliens on units engaged in OCS activities, any employer who 
hires a non-resident alien who has presented only a TWIC as proof of 
status as a U.S. resident alien, would not be in compliance with the 
OCSLA requirement. Additionally, authorizing a TWIC to be used in this 
manner is contrary to, and inconsistent with the definition for a U.S. 
``resident alien'' found in Sec.  141.10 where the term is defined as 
``an alien lawfully admitted to the United States for permanent 
residence in accordance with section 101(a)(20) of the Immigration and 
Nationality Act (INA) of 1952, as amended, 8 U.S.C. 1101(a)(20).''
    To correct this inconsistency, the Coast Guard is removing 33 CFR 
141.30(d) from its regulations and clarifies that only the provisions 
in 33 CFR 141.30(a) through (c) are acceptable for showing evidence of 
a person's status as a U.S. resident alien.
    The Coast Guard is also removing a related TWIC definition in Sec.  
141.10 and a related TWIC recordkeeping reference in Sec.  141.35(d).

III. Regulatory History

    The Administrative Procedure Act (APA) requires the Coast Guard to 
provide public notice and seek public comment on substantive 
regulations. 5 U.S.C. 553. The APA, however, excludes certain types of 
regulations and permits exceptions for other types of regulations from 
this public notice and comment requirement. Under the APA ``good 
cause'' exception, an agency may dispense with the requirement for 
notice and comment if the agency finds that following APA requirements 
would be ``impracticable, unnecessary, or contrary to the public 
interest.'' 5 U.S.C. 553(b)(B). The Coast Guard finds that notice and 
comment for this rulemaking is unnecessary because we are merely 
removing a provision that we mistakenly inserted into 33 CFR part 141 
in a 2009 rulemaking and that is inconsistent with the governing 
statute (see discussion in section II. Basis and Purpose). Public 
notice of this change is unnecessary because such comments cannot 
affect, influence, or inform any Coast Guard action in implementing the 
removal of this provision because the Coast Guard cannot maintain a 
regulation that is inconsistent with its statutory authority.

[[Page 69294]]

    Moreover, the Coast Guard finds that good cause exists to implement 
this rule immediately upon publication in the Federal Register. See 5 
U.S.C. 553(d)(3). The Coast Guard finds it necessary to implement this 
rule immediately because the Coast Guard cannot keep a regulation in 
place even if the public showed support for it since it is inconsistent 
with its statutory authority. We also find it in the public interest to 
implement this rule immediately to ensure that employers know as soon 
as possible that they must verify a potential employees' immigration 
status by means other than a TWIC.

IV. Discussion of the Final Rule

    Section 141.10 contains the definitions that apply to part 141. A 
TWIC is defined as ``an identification credential issued by the 
Transportation Security Administration according to 49 CFR part 1572.'' 
We are removing this definition for the reasons explained in Part III.
    Section 141.30 contains the regulation which lists the documents an 
employer can accept as evidence of a person's status as a U.S. resident 
alien. We are removing Section 141.30(d) for the reasons explained in 
Part III.
    Section 141.35 states which records must be kept by employers as 
proof of eligibility for employment on the OCS. Section 141.35(a)(1) 
requires that an employer maintain a copy of a TWIC if that is the 
method of identification used by the employee to assert eligibility to 
work on the OCS. Since a TWIC is not a valid form of identification for 
purposes of part 141 as explained in Part III, we are removing 
``Transportation Worker Identification Credential'' from Sec.  
141.35(a)(1). All other recordkeeping requirements will remain 
unchanged.
    In addition, we will make a non-substantive change to Sec.  
141.30(c). The word ``the'' preceding the word ``Naturalization'' is 
removed as it is grammatically incorrect since only the word ``a'' 
should precede the word ``Naturalization.''

V. Regulatory Analyses

    We developed this final 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 is not 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. The Office of 
Management and Budget (OMB) has not reviewed it under that Order. 
Nonetheless, we developed an analysis of the costs and benefits of this 
final rule to ascertain its probable impacts on industry.
    Currently, part 141 permits an individual to present a valid TWIC 
as evidence of U.S. resident alien status for the purposes of 
employment on units engaged in OCS activities. The TWIC is unsuitable 
as evidence of U.S. resident alien status because the TWIC may be 
obtained by non-resident aliens.
    Employers, therefore, cannot accept the TWIC as sufficient evidence 
that the potential employee is a U.S. resident alien. This final rule 
will remove the TWIC as proof of U.S. resident alien status for 
employment on units engaged in OCS activities, creating consistency 
with other requirements in part 141 that state that each employer 
engaged in OCS activities must employ only U.S. citizens or resident 
aliens, with limited exceptions.
    The Coast Guard does not expect this final rule to burden industry 
with new costs. In addition to having no evidence that any employers 
have attempted to accept the TWIC alone to determine the immigration 
status of employees since the TWIC was added to the list in 2009, 
employers in the United States are required by the INA to use the Form 
I-9,\3\ Employment Eligibility Verification (I-9) process. The I-9 
process includes an attestation from the new hire on whether he or she 
is a U.S. citizen or national, lawful permanent resident, or alien 
authorized to work in the United States. Employers must verify the 
identity and employment authorization of every individual hired for 
employment in the United States. (8 CFR 274a.2) The TWIC card alone 
would be insufficient evidence to prove one's identity and employment 
authorization under the I-9 process.
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    \3\ Form I-9, Employment Eligibility Verification, OMB No. 1615-
0047, http://www.uscis.gov/files/form/i-9.pdf
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    Because part 141 does not exempt employers from completing the Form 
I-9, the population directly affected by the final rule (i.e., 
employers and potential employees) will not incur any additional costs 
as a result of the final rule.
    The benefits of this final rule include harmonization with the INA 
and clarification of the requirements to demonstrate U.S. resident 
alien status for the purpose of employment on units engaged in 
activities on the OCS. The inclusion of the TWIC to the list of 
documents acceptable to prove U.S. resident alien status in Sec.  
141.30 contradicts the intent of OCSLA. Removal of the reference to 
TWIC from the list will ensure employers and employees understand which 
documents can be accepted as proof of U.S. resident alien status.

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 less than 50,000. 
The revisions in this rule do not require publication of an NPRM and, 
therefore, is exempt from the requirements of the Regulatory 
Flexibility Act. Although this rule is exempt, we have reviewed it for 
its potential economic impact on small entities. There is no cost to 
businesses, not-for-profit organizations, or government jurisdictions 
as a result of this rule, since other federal requirements would 
preclude the use of the TWIC as sole evidence of U.S. resident alien 
status. 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.

[[Page 69295]]

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 will 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options for 
compliance, please consult Mr. Quentin Kent, at 
Quentin.C.Kent@uscg.mil. The Coast Guard will not retaliate against 
small entities that question or complain about this rule or any policy 
or action of the Coast Guard.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.
    It is well settled that States may not regulate in categories 
reserved for regulation by the Coast Guard. In 43 U.S.C. 1356, Congress 
specifically granted to the Secretary of the Department in which the 
Coast Guard is operating, the authority to issue regulations, which, in 
part, require the employment of U.S. citizens or resident aliens on any 
vessel, rig, platform, or other vehicle or structure engaged in OCS 
activities, unless certain exceptions apply. As this rule updates 
existing OCS personnel regulations, it falls within the scope of 
authority Congress granted exclusively to the Secretary of Homeland 
Security and States may not regulate within this category.

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 does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

J. Indian Tribal Governments

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

K. Energy Effects

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

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, paragraph 34(a), (c) and (d) of the Instruction. This rule 
involves regulations that are editorial or procedural, regulations 
concerning the licensing of maritime personnel and regulations 
concerning manning and documentation of vessels. An environmental 
analysis checklist and a categorical exclusion determination are 
available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 141

    Citizenship and naturalization, Continental shelf, Employment, 
Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 141 as follows:

PART 141--PERSONNEL

0
1. The authority citation for part 141 continues to read as follows:

    Authority: 43 U.S.C. 1356; 46 U.S.C. 70105; 49 CFR 1.46(z).

    Subpart A--Restrictions on Employment 

[[Page 69296]]

Sec.  141.10  [Amended]

0
2. In Sec.  141.10, remove the definition for ``Transportation Worker 
Identification Credential or TWIC''.


Sec.  141.30  [Amended]

0
3. In Sec.  141.30:
0
a. In paragraph (c), after the words ``issued by'', remove the word 
``the''; and
0
b. Remove paragraph (d).


Sec.  141.35  [Amended]

0
4. In Sec.  141.35(a)(1), after the words ``mariner's document'', 
remove the punctuation and words ``, Transportation Worker 
Identification Credential,''.

    Dated: November 8, 2013.
J.C. Burton,
Captain, U.S. Coast Guard, Director of Inspections & Compliance.
[FR Doc. 2013-27569 Filed 11-18-13; 8:45 am]
BILLING CODE 9110-04-P