In this proposed rule, we have included a force majeure exception for vessels that had not planned to visit a U.S. port or place, but are forced to do so because of unforeseen factors such as severe weather conditions. Vessels engaged in innocent passage through U.S. navigable waters do not require an exception because they would not be en route to a U.S. port or place of destination and therefore would not be subject to this proposed rule. Likewise, public vessels not engaged in commercial service would not be subject to this proposed rule.

Under the requirements in new subpart D, each crewmember on a vessel to which this proposed rule would apply would be required to carry and present on demand an acceptable identification when the vessel is in the navigable waters of the United States. The term ``navigable waters of the United States'' is defined in 33 CFR 2.36(a).

The operator of the vessel would be responsible for ensuring crewmembers comply with this requirement. We understand that crewmembers commonly secure their identification and other important documents on the vessel, typically with the master, and we consider this practice consistent with the requirements of this proposed rule if the identification is aboard and can be presented upon demand.

Congress gave the Secretary discretion to determine what crewmember identification is necessary. In carrying out Congress's mandate, the Coast
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Guard considered the types of identification normally available and carried by crewmembers, recent developments such as the Transportation Worker Identification Credential (TWIC) final rule (72 FR 3492, January 25, 2007), and existing regulations for the landing of alien crewmen in 8 CFR part 252. This proposed rule aligns with current practices for verifying the identification of crewmembers on vessels calling at U.S. ports and meets our goal to improve maritime security while minimizing the burden placed on crewmembers and operators.

Compliance with the requirements of this proposed rule would not relieve vessel crewmembers and operators of any requirements under the Immigration and Nationality Act (INA) (66 Stat. 163, 8 U.S.C. 1101 et seq.), or INA implementing regulations. Likewise, compliance with existing INA requirements would not relieve vessel crewmembers and operators of their requirements under this proposed regulation.

We do not plan to institute a new enforcement program whereby Coast Guard personnel would routinely duplicate the efforts of CBP personnel, who already verify the identification of crewmembers on foreign and U.S. commercial vessels under existing regulations and policies. We would, however, rely on these proposed regulations to improve maritime domain awareness and control vessel and crewmember movement when warranted under our maritime security and law enforcement
responsibilities. After considering the characteristics of identification accepted by CBP, existing types of identification required by other Coast Guard and DHS regulations, and applicable international conventions, we determined the following identifications to be acceptable means to authoritatively identify crewmembers:

We chose the passport, U.S. Permanent Resident Card, MMD and TWIC, in addition to the SID, to authoritatively identify crewmembers because these documents have certain characteristics we have determined are necessary to ensure verifiable, uniform and reliable identification.

The SID is the international standard for the desired characteristics of a seafarer's identification. The current SID was developed by the International Labour Organization (ILO) (to find out more about ILO, visit http://www.ILO.org) and was adopted by that organization on June 19, 2003. ILO undertook updating the Seafarers' Identity Document Convention, 1958 (No. 108), partly at the International Maritime Organization's (IMO) request, as a means of improving global maritime security through tighter controls on crewmember identification (to find out more about IMO, visit http:// www.IMO.org). See IMO resolution titled, ``Enhancement of Security in Cooperation with the International Labour Organization'' which was adopted by the IMO Diplomatic Conference on Maritime Security as Resolution 8 on December 12, 2002.

Under Article 3 of the updated Seafarers' Identity Documents Convention (No. 185) (ILO 185), the SID must include the following characteristics:

While the characteristics of the passport, MMD, U.S. Permanent Resident Card and TWIC are not identical to the SID, they all share some of the same essential characteristics as the SID:

Furthermore, we have determined that, like the SID, the underlying government systems supporting the passport, MMD, U.S. Permanent Resident Card and TWIC are reliable, secure and promote ready verification. Our proposed approach is consistent with current practices of accepting for crewmember identification purposes documents that are not strictly seafarer documents, such as a passport reported on a notice of arrival.

Using the SID as a reference is also consistent with our longstanding practice of harmonizing, where appropriate, U.S. safety, security and environmental regulations with international standards. By doing so, we improve opportunities for U.S. industries in the global marketplace and reinforce the partnerships we enjoy with international and domestic industry and intergovernmental groups while working towards common goals.

With regard to the MMD, the Coast Guard has proposed in a separate rulemaking entitled ``Consolidation of Merchant Mariner Qualification Credentials'' (RIN 1625AB02) that over a 5year period, starting August 2008, it would replace the MMD with a Merchant Mariner Credential (MMC). 72 FR 3605, 3607, January 25, 2007. If an MMC effective rule is issued in that rulemaking before we issue an effective rule in this crewmember identification rulemaking, we propose to change the crewmember identification final rule by including the MMC in our 33 CFR 160.310 definition of ``acceptable identification.'' The MMC would be an addition to the list and would not be an immediate replacement of the MMD. We invite your comments on this proposed conditional inclusion of the MMC as an acceptable identification.

We expect that nearly all U.S. crewmembers on vessels impacted by this proposed rule possess an acceptable
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identification because, under 46 U.S.C. 8701, every crewmember on almost every seagoing vessel of at least 100 GRT must have an MMD. We expect that nearly all foreign crewmembers carry a passport because, under the INA and implementing DHS regulations in 8 CFR 252.1(d), a passport is required for shore leave.

In addition, under Coast Guard notice of arrival regulations, most operators subject to this proposed rule are already required to submit passport or mariner's document information for all crewmembers on the vessel. 33 CFR part 160, subpart C. Thus, we anticipate that very few mariners, U.S. or foreign, would be required to obtain a new identification to meet the requirements of this proposed rule.

This approach would not require the United States to ratify ILO 185 because we are not attaching shore leave to the SID we propose to accept for purposes of this rule. Instead, the SID would be one type of identification that would satisfy the requirements of 46 U.S.C. 70111 and new 33 CFR part 160, subpart D. The SID will not, by virtue of this rule, confer any shore leave or admission status on the holder. The U.S. Government continues to require a passport and visa for shore leave, unless the crewmember is exempt. 8 U.S.C. 1181, 1185, 8 CFR 212.1, 8 CFR part 252, 33 CFR parts 41 and 53.

To ensure vessel control options if a crewmember's identification is not acceptable or the identification is not presented on demand, we also propose to require the vessel operator to ensure that all crewmembers on the vessel have an acceptable identification by the time the vessel enters U.S. navigable waters. This would be enforceable under the authority of MTSA 2002, 46 U.S.C. Chapter 701, and the Ports and Waterways Safety Act (PWSA), 33 U.S.C. Chapter 25.

V. Regulatory Evaluation

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysis based on 13 of these statutes or executive orders. A. Executive Order 12866

This proposed rule is not a ``significant regulatory action'' under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and it 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.

We expect nearly every crewmember, U.S. and foreign, already possesses an acceptable identification. The characteristics of the acceptable identifications in this proposed rule are consistent with current identifications accepted by the Coast Guard and CBP to identify crewmembers. In addition, we expect that all 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 approval under 33 CFR 160.206.

B. Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601612), 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, notforprofit 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 proposed rule requires vessel operators to ensure that all crewmembers on the vessel have acceptable identification, we expect that vessel operators already look for an acceptable identification 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 that term in defined in the Regulatory Flexibility Act. 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. Collection of Information

This proposed rule would call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 35013520). 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: Crewmember Identification Documents.

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 proposed rule would allow the Coast Guard to authoritatively identify crewmembers on vessels within U.S. waters.

Proposed 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 U.S. 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 U.S. 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.

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
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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: According to our Notice of Arrival records for the 12 months between June 2006 and June 2007, 10,328,992 (97.0 percent) of responses were passport, U.S. Permanent Resident Card, or MMD numbers. This period predates TWIC cards and, at this time, few nations are issuing the SID. The figure includes U.S. crewmembers sailing on coastal voyages to whom this proposed rule would not apply and who might have presented some other form of
identification that would not be accepted under this proposed rule. Therefore, the percentage of crewmembers that already possess an acceptable identification under this proposed rule is likely higher than 97 percent. In the worst case, this would leave 320,851 (3.0 percent) responses reporting other identifications. Based on an average of 13 visits per crewmember per year, this translates to 24,681 crewmembers reporting an identification other than passports, U.S. Permanent Resident Cards, and MMDs. Therefore, in the worst case, the total cost burden of response is estimated to be $2,714,910, using $97 as the cost of obtaining an acceptable ID, and $13 as the opportunity cost.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted 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 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 we have published a currently valid control number from OMB for that collection in the Federal Register. Before the requirements for this collection of information become effective, we will publish notice in the Federal Register of OMB's decision to approve, modify, or disapprove the collection. If OMB approves the collection, our publication of that control number in the Federal Register or the CFR will constitute display of that number; see 5 CFR 1320.3(f)(3), as required under 44 U.S.C. 3506(c)(1)(B).

D. 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.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 15311538) 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Taking of Private Property

This proposed rule would 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.

G. 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.

H. 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.

I. 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. J. 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. 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.

K. 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.

L. Environment

We have analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 43214370f), and have made a preliminary determination this action is not likely to have a significant effect on the human environment. A preliminary ``Environmental Analysis Check List'' supporting this preliminary determination is available in the docket where indicated under the ``Public Participation and Request for
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Comments'' section of this preamble. 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 33 CFR Part 160

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

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 160 as follows:

PART 160PORTS AND WATERWAYS SAFETYGENERAL

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.

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

Sec. 160.310 Definitions.

As used in this subpart, and only for purposes of this subpart

Acceptable identification means a:
(1) Passport;
(2) U.S. Permanent Resident Card,
(3) U.S. merchant mariner's document;
(4) Transportation Worker Identification Credential issued by the Transportation Security Administration under 49 CFR part 1572; or (5) 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 on board 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 on board.

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).

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 24, 2008.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, Security and Stewardship.
[FR Doc. E810707 Filed 51308; 8:45 am]
BILLING CODE 491015P

FOR FURTHER INFORMATION CONTACT If you have questions on this proposed rule, contact either Lieutenant Commander Derek A. D'Orazio, U.S. Coast Guard Office of Operating and Environmental Standards, telephone 202 3721405 and email address derek.a.dorazio@uscg.mil, or Lieutenant Commander Jonathan H. Maiorine, U.S. Coast Guard Office of Port and Facility Activities, telephone 2023721133 and email address jonathan.h.maiorine@uscg.mil. If you have questions on viewing or submitting material to the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 2023669826.