
[Federal Register Volume 74, Number 80 (Tuesday, April 28, 2009)]
[Rules and Regulations]
[Pages 19135-19141]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9634]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 160

[Docket No. USCG-2007-28648]
RIN 1625-AB19


Crewmember Identification Documents

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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

SUMMARY: The Coast Guard requires each crewmember on a foreign 
commercial vessel en route to a U.S. port or place of destination or at 
a U.S. port or place, or on a U.S. commercial vessel coming from a 
foreign port or place of departure to a U.S. port or place of 
destination, to carry and present upon demand an acceptable 
identification when in U.S. navigable waters. The vessel operators are 
required to ensure that crewmembers comply with this requirement. This 
rule would implement a Maritime Transportation Security Act mandate and 
help ensure that the Coast Guard can authoritatively identify 
crewmembers on vessels in U.S. navigable waters.

DATES: This final rule is effective May 28, 2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2007-28648 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, 
selecting the Advanced Docket Search option on the right side of the 
screen, inserting USCG-2007-28648 in the Docket ID box, pressing Enter, 
and then clicking on the item in the Docket ID column.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Commander Kelly Post, Coast Guard, telephone 202-372-1405 and e-
mail address Kelly.M.Post@uscg.mil, or Lieutenant Commander Jonathan H. 
Maiorine, U.S. Coast Guard Office of Port and Facility Activities, 
telephone 202-372-1133 and e-mail address Jonathan.H.Maiorine@uscg.mil. 
If you have questions on viewing the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Background and Purpose
IV. Discussion of Comments and Changes
    A. Support for Proposed Rule
    B. Acceptance of Seafarer's Identification Document
    C. Transportation Worker Identification Credential not SID 
Compliant
    D. Interoperability of Identification Credentials
    E. Electronic Identification Document Readers
    F. Ratification of the ILO 185 Convention

[[Page 19136]]

    G. Availability of TWIC Hardware and Readers
    H. The Scope of Sanctions
    I. Seamen's Books
    J. Outer Continental Shelf Offshore Workers
    K. Travel Outside U.S. Territorial Sea
    L. Navigable Waters of the United States
    M. Change Based on MMC Final Rule Being Issued
    N. Clarification of Force Majeure Exception
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

CBP U.S. Customs and Border Protection
CFR Code of Federal Regulations
FR Federal Register
ILO International Labour Organization
INA Immigration and Nationality Act
MMC Merchant Mariner Credential
MMD Merchant Mariner Document
MODU Mobile Offshore Drilling Unit
MTSA Maritime Transportation Security Act
OCS Outer Continental Shelf
OMB Office of Management and Budget
PWSA Ports and Waterways Safety Act
SID Seafarer's Identification Document
TSA Transportation Security Administration
TWIC Transportation Worker Identification Credential
U.S.C. United States Code

II. Regulatory History

    On May 14, 2008, we published a notice of proposed rulemaking 
entitled ``Crewmember Identification Documents'' in the Federal 
Register (73 FR 27778). We received 8 letters containing 27 comments on 
the proposed rule. No public meeting was requested and none was held.

III. Background and Purpose

    In section 102 of the Maritime Transportation Security Act of 2002 
(MTSA), Public Law 107-295, 116 Stat. 2064, 2080-81 (November 25, 
2002), codified at 46 U.S.C. 70111, Congress directed the Secretary of 
the Department in which the Coast Guard is operating to require all 
crewmembers on vessels calling at U.S. ports to carry and present on 
demand any identification the Secretary decides is necessary. Section 
102 also directed the Secretary to develop forms and processes for the 
identification and verification of crewmembers. In section 103 of the 
MTSA, Congress indicated the objective of requiring crewmember 
identification is to be able to establish authoritatively, the identity 
of any seafarer aboard a vessel within U.S. jurisdiction, including 
U.S. territorial seas. 116 Stat. 2084, and 46 U.S.C. 70111, note.
    Congress directed the Secretary to consult with the Attorney 
General and Secretary of State when developing these crewmember 
identification requirements. 46 U.S.C. 70111. The Secretary of the 
Department of Homeland Security (DHS) delegated this rulemaking 
authority to the Commandant of the Coast Guard and directed the 
Commandant to develop these requirements in cooperation with U.S. 
Customs and Border Protection (CBP) and the Transportation Security 
Administration (TSA). Section 2 (97)(g) of DHS Delegation No. 0170.1, 
Delegation to the Commandant of the U.S. Coast Guard. A copy of this 
delegation is available in the docket. Accordingly, the Coast Guard 
collaborated with CBP and TSA and consulted with the Attorney General 
and Secretary of State in the development of this rule.
    On October 13, 2006, Congress revised 46 U.S.C. 70111 through 
section 110 of the Security and Accountability for Every Port Act of 
2006 (SAFE Port Act), Public Law 109-347 120 Stat. 1891, 1893 (October 
13, 2006) and established a deadline for these requirements to be in 
place not later than October 13, 2007. This rule fulfills Congress' 
mandate to require that crewmembers on vessels calling at U.S. ports or 
places of destination carry and present on demand identification the 
Secretary decides is necessary.
    In the preamble of the NPRM, we noted that if an effective rule 
were issued in the ``Consolidation of Merchant Mariner Qualification 
Credentials'' (RIN 1625-AB02) rulemaking before we issued this 
crewmember identification final rule, we would add the Merchant Mariner 
Credential (MMC) to the list of acceptable identification documents in 
33 CFR 160.310. See May 14, 2008, 73 FR 27780. On March 16, 2009, a 
final rule from the MMC rulemaking was published (74 FR 11196), so we 
have added the MMC as an acceptable identification in this final rule. 
The MMC rule is effective April 15, 2009.

IV. Discussion of Comments and Changes

    We received 27 comments regarding the proposed rule. The following 
is a summary of the comments received, and the changes made to the 
regulatory text since our proposed rule was published.

A. Support for Proposed Rule

    Six commenters made statements that were generally supportive of 
the proposed rule and Coast Guard's efforts to positively identify 
crewmembers aboard commercial vessels in U.S. waters. In addition, one 
of these comments included appreciation that the NPRM did not propose 
to create an undue burden on mariners and that an acceptable 
identification, along with the appropriate entrance documents (such as 
a visa and passport), will facilitate shore-leave for mariners.
    The Coast Guard agrees. Our objectives in drafting these 
regulations are to implement statutory requirements in 46 U.S.C. 70111, 
and to do so in a way consistent with the DHS goal of enhancing 
security while minimizing the burden upon the maritime industry to the 
maximum extent possible. We agree that possession of an acceptable 
identification will enable authoritative identification of crewmembers 
while in U.S. waters. We remind mariners that compliance with the 
requirements in this rule, however, does not relieve vessel crewmembers 
and operators of any requirements under the Immigration and Nationality 
Act (INA) or INA implementing regulations. We have made no changes from 
the proposed rule based on these comments.

B. Acceptance of Seafarer's Identification Document

    One commenter stated that listing the Seafarer's Identification 
Document (SID) as an acceptable form of identification appears to 
create inconsistency in U.S. policy since the United States is not a 
signatory to the International Labour Organization Convention (ILO) 
number 185. Another commenter stated that if the SID permits the 
authoritative identification of a crewmember, then it should suffice 
for shore leave without a visa.
    The Coast Guard disagrees. The United States' position against 
ratification of the ILO 185 convention is primarily based on the 
convention's current requirement that all SID holders be granted entry 
without a visa. This does not mean, however, that the Coast Guard finds 
no value in or has no appreciation for international crewmember 
identification, issued by signatory governments, to assist us in

[[Page 19137]]

authoritatively identifying crewmembers while in U.S. waters. We have 
made no changes from the proposed rule based on these comments.

C. Transportation Worker Identification Credential not SID Compliant

    Three commenters also expressed concern that because the 
Transportation Worker Identification Credential (TWIC) is not SID 
compliant, U.S. mariners may be denied shore-leave while calling on 
foreign ports whose countries are signatory to the ILO 185 convention 
in response to foreign mariners with SIDs being denied shore leave 
while in the United States. In addition, one commenter stated the Coast 
Guard continues to refuse to take the necessary steps to facilitate 
shore-leave and this problem must be addressed or mariners will 
increasingly find themselves held prisoners on their vessel while in 
port.
    The commenters are correct regarding TWIC. It is not ILO 185 SID 
compliant. We expect that U.S. mariners, while calling on foreign ports 
of countries either signatory or non-signatory to ILO 185, will 
continue to be eligible for shore leave based on compliance with the 
host country's immigration laws, regulations, and policy as they 
pertain to seafarers. Under the ILO 185 convention, signatory countries 
agree to permit shore leave to SID-holding mariners without a visa, 
with some exceptions. Nowhere does the convention state that signatory 
countries should deny shore leave to mariners without a SID. The United 
States' position on shore leave for foreign mariners, with or without a 
SID, remains that it should be facilitated to the maximum extent 
possible while complying with the applicable requirements under our INA 
and INA implementing regulations. We have made no changes from the 
proposed rule based on these comments.

D. Interoperability of Identification Credentials

    Four commenters expressed concern that the proposed rule does not 
enhance interoperability between U.S. and international identification 
credentials for crewmembers and creates economic disadvantages and 
security risks by not mandating background checks for foreign 
crewmembers, similar to those required of U.S. mariners who must obtain 
a TWIC.
    This rule addresses acceptable forms of identification for 
crewmembers aboard vessels in U.S. waters. By our acceptance in this 
rule of the international SID, some degree of interoperability, as it 
pertains to acceptable forms of identification, is achieved. While the 
comment regarding background checks for foreign crewmembers is outside 
the scope of this rulemaking, which is focused on authoritatively 
identifying crewmembers, current requirements and programs are already 
in place to reduce the risk of a transportation security incident 
associated with foreign flag vessels and crew.

E. Electronic Identification Document Readers

    Also, regarding interoperability, two commenters expressed concern 
that electronic TWIC readers will not be able to read the SID and, 
while overseas, SID readers will not be able to read TWICs.
    Not all of the documents we define as acceptable identification in 
33 CFR 160.310 are machine readable, but we expect to be able to 
efficiently and effectively examine them onboard.

F. Ratification of the ILO 185 Convention

    Four commenters expressed support or desire for the United States 
to ratify the ILO 185 Convention and to remove U.S. visa requirements 
for crewmembers.
    The United States' position regarding ratification of the ILO 
Convention 185 or removal of U.S. visa requirements for crewmembers is 
beyond the scope of this rulemaking. This rule is not intended to 
address immigration or shore leave requirements.

G. Availability of TWIC Hardware and Readers

    One commenter stated it makes no sense to require American 
transportation and maritime workers to comply with TWIC when no 
hardware or readers exist to actually implement the program.
    While outside the scope of this rulemaking, the Coast Guard notes 
that pilot testing of TWIC readers is currently underway.

H. The Scope of Sanctions

    One commenter recommended that sanctions in Sec.  160.320 be 
applied only to operators and not to crewmembers, stating that ship 
masters hold the passports of crewmembers on board and proposed Sec.  
160.315 requires vessel operators to ensure that their crewmembers have 
acceptable identification when the vessel is in U.S. waters.
    The Coast Guard disagrees with the recommendation that sanctions 
should only be applied to vessel operators. Section 160.315 requires a 
crewmember subject to this rule not only to ``carry and present on 
demand an acceptable identification'', but also provides that ``a 
crewmember may secure his or her acceptable identification with the 
vessel's master, so long as the identification can be presented on 
demand.'' In discussing this section in the preamble of the NPRM, the 
Coast Guard stated that the practice of crewmembers on a vessel 
securing their acceptable identification with the master is consistent 
with the proposed rule if the identification is aboard and can be 
presented upon demand. 73 FR 27778, 27779, May 14, 2008. This rule is 
not intended to change existing practices of masters securing 
crewmember passports. If a crewmember was able to establish that he or 
she did provide his or her acceptable identification to the master with 
the understanding that it would be kept on board and made available 
upon demand, then the Coast Guard would take this into account when 
enforcing this regulation. We have made no changes from the proposed 
rule based on this comment.

I. Seamen's Books

    One commenter stated that because seamen's books issued by foreign 
governments under the Seafarers' Identity Document Convention, 1958 
(ILO-108) are travel documents that are accepted in place of passports, 
they should be included as an acceptable identification document for a 
crewmember. The commenter further stated that even though the United 
States has not ratified ILO-108, U.S. Customs and Border Protection 
(CBP) accepts ILO-108 seamen's books in place of passports. The 
commenter concludes, that while the Sec.  160.310 definition of 
passport would include ILO-108 seamen's books, it would be helpful to 
specifically include ILO-108 seamen's books in the list of acceptable 
identification.
    The Coast Guard disagrees with the recommendation that what the 
commenter refers to as ILO-108 seamen's books should be added to the 
list of acceptable identification. The Coast Guard also disagrees that 
such seamen's books meet the Sec.  160.310 definition of passport. CBP 
may accept a seaman's book, in conjunction with a visa, as a passport 
alternative for purposes of determining admissibility, but CBP does not 
accept the book as a SID.
    Our crewmember identification document rule lists a specific SID as 
an acceptable identification: one ``issued by or under the authority of 
the government of a country that has ratified the International Labour 
Organization Seafarers' Identity

[[Page 19138]]

Documents Convention (Revised), 2003 (ILO 185), meeting all the 
requirements of ILO 185.'' See 33 CFR 160.310. ILO-185 went into force 
on February 9, 2005, and, as its title indicates, revised ILO-108, 
Seafarers' Identity Documents Convention, 1958. The term ``seamen's 
books'' does not appear in ILO-108. And, like ILO-185, the 1958 
convention refers to the issuance of a seafarer's identity document, 
not a seaman's book.
    Under the 1958 Convention, a SID had to conform to the provisions 
of Article 4 of ILO-108, which include ``particulars concerning the 
bearer.'' The list of ILO-108 particulars, however, is not as extensive 
as those in ILO-185. As noted above, to be considered an acceptable 
identification, a SID must meet all the requirements of ILO 185. And 
while ILO-185 permits either ``a previous SID, or a seafarers' 
discharge book'' to be used as proof an applicant for a SID is a 
seafarer, neither convention uses the term ``seamen's book'' or 
``seafarers' discharge book'' to label the document issued by or under 
the authority of the government of a country that has ratified an ILO 
SID convention as the document that must be recognized by other nations 
that have ratified the convention.
    We have not found a valid formal definition of the term ``seamen's 
book.'' In addition, the term ``seaman's book'' is not used in either 
ILO-108 or ILO-185, and the somewhat similar term ``seafarers' 
discharge book'' is used in ILO-185, but for the limited purpose of 
providing proof that an applicant for an ILO-185 SID is a seafarer. 
Accordingly, we do not interpret either term as meeting the 33 CFR 
160.310 definition of passport. We have made no changes from the 
proposed rule based on this comment.

J. Outer Continental Shelf Offshore Workers

    One commenter questioned the need for additional identification 
documents for offshore workers located on the U.S. Outer Continental 
Shelf (OCS) in the Gulf of Mexico. Another commenter inferred that the 
Coast Guard does not consider a location on the OCS to be a ``foreign 
port or place,'' and asked for confirmation that this term, used in 33 
CFR 160.300(a)(2), refers to a port or place outside of U.S. 
jurisdiction. A third comment added that crewmembers of a Mobile 
Offshore Drilling Unit (MODU) on the OCS should not have to present 
anything other than what is currently applicable for transport to and 
from a MODU.
    The Coast Guard does not consider a location on the OCS to be a 
foreign port or place. See 43 U.S.C. 1333. Applicability provisions in 
33 CFR 160.300(a)(2) would not be triggered by a U.S.-flag vessel 
engaged in commercial service departing a place or MODU on the OCS 
because it would not be coming from a foreign port or place of 
departure. We have made no changes from the proposed rule based on this 
comment.

K. Travel Outside U.S. Territorial Sea

    One commenter made a related request for assurances that the rule 
would not apply to crewmembers of U.S.-flagged passenger vessels that 
travel outside the U.S. territorial sea, but do not enter a foreign 
port or place. This commenter provided examples of U.S.-flagged whale-
watching vessels or cruise-to-nowhere gaming vessels.
    As noted above, the requirements of this rule would apply to a 
U.S.-flag vessel if it is engaged in commercial service and is coming 
from a foreign port or place of departure. 33 CFR 160.300(a)(2). In the 
definition section, Sec.  160.310, the term ``port or place of 
departure'' is defined as ``any port or place in which a vessel is 
anchored or moored.'' If a U.S.-flagged vessel travels beyond the U.S. 
territorial sea but has not anchored or moored at a port or place in 
the waters of a foreign country, then it would not trigger the 
requirements of this rule because it would not be coming from a foreign 
port or place of departure when it returns to U.S. waters. We have made 
no changes from the proposed rule based on this comment.

L. Navigable Waters of the United States

    One comment recommended that the Coast Guard more clearly define 
the scope of the term ``navigable waters of the United States'' in the 
final rule by including either a 3- or 12-mile-wide territorial sea as 
measured from the baseline, and not rely on reference to 33 CFR 
2.36(a), which contains an additional reference.
    In Sec.  160.310 of the proposed rule, the Coast Guard defined the 
term ``navigable waters of the United States'' to mean ``the same as 
this term is defined in 33 CFR 2.36(a).'' That definition in Sec.  
2.36(a) identifies navigable waters as including U.S. territorial seas, 
U.S. internal waters subject to tidal influence, and certain U.S. 
internal waters not subject to tidal influence. In 33 CFR part 2, the 
Coast Guard provides a separate definition of ``territorial sea.'' 
Under this Sec.  2.22 definition, the width of the territorial sea may 
be 3- or 12-nautical miles depending on the statute or regulation being 
enforced.
    This crewmember identification document rule is issued under MTSA 
authority found at 46 U.S.C. 70111, as well as 33 U.S.C. 1223 and 1231 
from the Ports and Waterways Safety Act (PWSA), Public Law 92-340 (July 
10, 1972). Under both of these authorities, the territorial sea is 12 
nautical miles wide. Under Sec.  2.22(a)(1)(v), we interpret the 
territorial sea for regulations issued under MTSA, which was enacted 
after the Presidential Proclamation 5928 of December 27, 1988, to be 12 
nautical miles wide. Also, the Coast Guard has already established that 
it interprets the territorial sea to be 12-nautical-miles wide for the 
PWSA. 33 CFR 2.22(a)(1)(i). In response to this comment, the Coast 
Guard has revised its definition in Sec.  160.310 to read:

    Navigable waters of the United States means the same as this 
term is defined in 33 CFR 2.36(a). This includes a 12-nautical-mile 
wide U.S. territorial sea as measured from the baseline, U.S. 
internal waters subject to tidal influence, and certain U.S. 
internal waters not subject to tidal influence.

    This is one of only three changes from the regulatory text in the 
proposed rule.

M. Change Based on MMC Final Rule Being Issued

    As noted above, on March 16, 2009, a final MMC rule was published 
(74 FR 11196). In our NPRM, we stated that if an effective rule were 
issued in the ``Consolidation of Merchant Mariner Qualification 
Credentials'' rulemaking before we issued this crewmember 
identification final rule, we would add the MMC to the list of 
acceptable identification documents. May 14, 2008, 73 FR 27780. Because 
this condition has been met we have added the MMC to 33 CFR 160.310, 
which defines acceptable identification for purposes of this 
rulemaking.

N. Clarification of Force Majeure Exception

    In Sec.  160.305 of the NPRM, we stated that requirements of this 
rule would not be ``enforced against crewmembers and operators on a 
vessel bound for a U.S. port or place of destination under a claim of 
force majeure.'' It is clearer, however, to state that the requirements 
of this rule do not apply in those circumstances. Accordingly, 
consistent with our NPRM preamble description of this section dealing 
with forces beyond the ship master's control, we have revised Sec.  
160.305 to clarify that 33 CFR part 160, subpart D requirements will 
not apply to crewmembers and operators on a vessel bound for a U.S. 
port or place of destination under force majeure.

[[Page 19139]]

V. Regulatory Analyses

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

A. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    Public comments on the NPRM are summarized in Part IV of this 
preamble. We received no public comments that would alter our 
assessment of impacts in the NPRM. We have adopted the assessment in 
the NPRM as final. See the ``Regulatory Evaluation'' section of the 
NPRM for more details.
    We expect that most crewmembers, U.S. and foreign, already possess 
an acceptable identification. Acceptable identifications in this rule 
are consistent with current identifications accepted by the Coast Guard 
and CBP to identify crewmembers. In addition, we expect that 
crewmembers carry their identification with them and that vessel 
operators examine the identification because carriers are required 
under 19 CFR 4.7b(d) and 4.64(d) to view these documents when preparing 
crew manifests, and because vessel operators are required to record the 
document number on the notice of arrival under 33 CFR 
160.206(a)(4)(iv).
    We provide estimates of burden and costs associated with this rule 
in the ``Collection of Information'' section of this rule.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    Although the rule requires vessel operators to ensure that all 
crewmembers on the vessel have acceptable identification, we expect 
that vessel operators already look for an identification document from 
each crewmember in order to record the document number on the notice of 
arrival. Otherwise, the burdens proposed by this rule fall on 
crewmembers and not on small entities as defined in the Regulatory 
Flexibility Act. Therefore, the Coast Guard certifies under 5 U.S.C. 
605(b) that this final rule will not have a significant economic impact 
on a substantial number of small entities.

C. Assistance for Small Entities

    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). 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 calls for a new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 
CFR 1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions.
    We received no public comment that would alter our assessment of 
the respondents and burden in the NPRM. We have adopted the assessment 
in the NPRM as final. See the ``Regulatory Evaluation'' section of the 
NPRM for more details. A summary of our respondent and burden estimates 
follow.
    Title: Crewmember Identification Documents.
    OMB Control Number: 1625-0113.
    Summary of the Collection of Information: This collection of 
information comprises the recordkeeping necessary to possess, present 
on demand, and ensure compliance with requirements for identification 
of crewmembers on foreign and U.S. vessels in navigable waters of the 
United States.
    Need for Information: In the MTSA, Congress directed the Secretary 
of the Department in which the Coast Guard is operating to require all 
crewmembers on vessels calling at U.S. ports to carry and present on 
demand any identification the Secretary decides is necessary. The 
acceptable identification required by this rule will allow the Coast 
Guard to authoritatively identify crewmembers on vessels within U.S. 
waters.
    Use of Information: The information collected would be used to 
authoritatively identify crewmembers on vessels within U.S. waters.
    Description of the Respondents: The respondents include all 
crewmembers on a foreign vessel in the navigable waters of the United 
States en route to a U.S. port or place of destination or at a U.S. 
port or place, and all crewmembers on a U.S. commercial vessel in the 
navigable waters of the United States coming from a foreign port or 
place of departure to a U.S. port or place of destination. The 
respondents also include the operators of those foreign and U.S. 
vessels.
    Number of Respondents: We estimate the number of respondents is 
838,084 persons, comprising crewmembers and vessel operators. This 
figure is based on Coast Guard records of the number of affected 
vessels that enter U.S. ports, Coast Guard estimates of the number of 
crewmembers on vessels, and estimates of the frequency of crew 
rotation. Using Coast Guard Notice of Arrival data, we estimate 
10,649,843 responses per year from all crewmembers and operators. This 
estimate varies somewhat by year.
    Frequency of Response: We estimate, on average, a typical 
crewmember would respond 13 times per year. Vessel operators would 
respond each time a vessel submits a notice of arrival.
    Burden of Response: Coast Guard records indicate the burden imposed 
on the respondents is negligible. From our records, we expect nearly 
all crewmembers already possess and carry an acceptable identification. 
We also expect vessel operators already check crewmembers' 
identifications since the type and number must be reported on the 
Notice of Arrival.
    Estimate of Total Annual Burden: We estimate there would be no more 
than 320,851 potential annual responses involving a document other than 
acceptable identification. Based on an average of 13 visits per 
crewmember per year, this amounts to about 24,681 crewmembers that use 
some other form of identification. We estimate the cost burden of 
response for these crewmembers to be $2,714,910, using $97 as the cost 
of obtaining an acceptable ID, and $13 as the opportunity cost of time.
    As required by 44 U.S.C. 3507(d), we submitted a copy of the 
proposed rule to the Office of Management and Budget (OMB) for its 
review of the collection of information. On November 20, 2008, OMB 
approved the collection for a 3-year period, until November 30, 2011.

[[Page 19140]]

The OMB Control Number for this collection is 1625-0113.
    You are not required to respond to a collection of information 
unless it displays a currently valid OMB control number. This 
publication of OMB's control number in the Federal Register will 
constitute display of that number, see 5 CFR 1320.3(f)(3), as required 
under 44 U.S.C. 3506(c)(1)(B).

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 rule under 
that Order and have determined that it does not have implications for 
federalism.

F. Unfunded Mandates Reform Act

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

G. Taking of Private Property

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

H. Civil Justice Reform

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

I. Protection of Children

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

J. Indian Tribal Governments

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

K. Energy Effects

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

L. Technical Standards

    The National Technology Transfer and Advancement Act (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 
Directive 0023.1 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 which do not individually or 
cumulatively have a significant effect on the human environment. 
Therefore, this rule is categorically excluded, under section 2.B.2. 
Figure 2-1, paragraph 34(d) of the Instruction, and neither an 
environmental assessment nor an environmental impact statement is 
required. This rule involves crewmember identification documents and 
falls within the documentation portion of this categorical exclusion. 
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 160

    Administrative practice and procedure, Harbors, Hazardous materials 
transportation, Identification, Marine safety, Navigation (water), 
Reporting and recordkeeping requirements, Seamen, Vessels, Waterways.


0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 160 as follows:

PART 160--PORTS AND WATERWAYS SAFETY--GENERAL

0
1. The authority citation for part 160 continues to read as follows:

    Authority:  33 U.S.C. 1223, 1231; 46 U.S.C. Chapter 701; 
Department of Homeland Security Delegation No. 0170.1. Subpart C is 
also issued under the authority of 33 U.S.C. 1225 and 46 U.S.C. 
3715.


0
2. Add subpart D, consisting of Sec. Sec.  160.300 through 160.320, to 
read as follows:

Subpart D--Crewmember Identification

Sec.
160.300 Applicability.
160.305 Exceptions.
160.310 Definitions.
160.315 Crewmember identification requirement.
160.320 Sanctions and vessel control.


Sec.  160.300  Applicability.

    (a) This subpart applies to crewmembers on the following vessels in 
the navigable waters of the United States en route to a U.S. port or 
place of destination or at a U.S. port or place:
    (1) A foreign vessel engaged in commercial service, and
    (2) A U.S. vessel engaged in commercial service and coming from a 
foreign port or place of departure.
    (b) This subpart also applies to the operators of the vessels 
listed in paragraph (a) of this section.


Sec.  160.305  Exceptions.

    Requirements in this subpart do not apply to crewmembers and 
operators on a vessel bound for a U.S. port or place of destination 
under force majeure.


Sec.  160.310  Definitions.

    As used in this subpart, and only for purposes of this supbpart--
    Acceptable identification means a:
    (1) Passport;

[[Page 19141]]

    (2) U.S. Permanent Resident Card;
    (3) U.S. merchant mariner document;
    (4) U.S. merchant mariner credential;
    (5) Transportation Worker Identification Credential (TWIC) issued 
by the Transportation Security Administration under 49 CFR part 1572; 
or
    (6) Seafarer's Identification Document (SID) issued by or under the 
authority of the government of a country that has ratified the 
International Labour Organization Seafarers' Identity Documents 
Convention (Revised), 2003 (ILO 185), meeting all the requirements of 
ILO 185.
    Commercial service means any type of trade or business involving 
the transportation of goods or individuals, except service performed by 
a combatant vessel.
    Crewmember means all persons carried onboard a vessel to provide: 
navigation services; maintenance of the vessel, its machinery, or 
systems; arrangements essential for propulsion or safe navigation; or 
services for other persons onboard.
    Foreign vessel means a vessel of foreign registry or operated under 
the authority of a country except the United States.
    Navigable waters of the United States means the same as this term 
is defined in 33 CFR 2.36(a). This includes a 12-nautical-mile wide 
U.S. territorial sea as measured from the baseline, U.S. internal 
waters subject to tidal influence, and certain U.S. internal waters not 
subject to tidal influence.
    Operator means any person including, but not limited to, an owner, 
a charterer, or another contractor who conducts, or is responsible for, 
the operation of a vessel.
    Passport means any travel document issued by competent authority 
showing the bearer's origin, identity, and nationality if any, which is 
valid for the admission of the bearer into a foreign country.
    Port or place of departure means any port or place in which a 
vessel is anchored or moored.
    Port or place of destination means any port or place in which a 
vessel is bound to anchor or moor.


Sec.  160.315  Crewmember identification requirement.

    (a) A crewmember subject to this subpart must carry and present on 
demand an acceptable identification. An operator subject to this 
subpart must ensure that every crewmember on the vessel has an 
acceptable identification in his or her possession when the vessel is 
in the navigable waters of the United States. For purposes of this 
section, a crewmember may secure his or her acceptable identification 
with the vessel's master, so long as the identification can be 
presented on demand.
    (b) Compliance with the requirements in this section does not 
relieve vessel crewmembers and operators of any requirements under the 
Immigration and Nationality Act (INA) or INA implementing regulations. 
Likewise, compliance with INA requirements does not relieve vessel 
crewmembers and operators of the requirements in this section.


Sec.  160.320  Sanctions and vessel control.

    Failure to comply with this subpart will subject the crewmember and 
operator to a civil penalty under 46 U.S.C. 70119 and the vessel to 
control under 33 U.S.C. 1223(b).

    Dated: April 22, 2009.
Howard L. Hime,
Acting Director of Commercial Regulations and Standards, U.S. Coast 
Guard.
[FR Doc. E9-9634 Filed 4-27-09; 8:45 am]
BILLING CODE 4910-15-P


