Federal Register, Volume 78 Issue 223 (Tuesday, November 19, 2013)

[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