2013-27569. TWIC Not Evidence of Resident Alien Status

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard issues this final rule to remove from its regulations 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 [e-mail], telephone [phone]. If you have questions on viewing the docket, call Ms. Barbara Hairston, Program Manager, Docket Operations, telephone [phone].

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.

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.

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 § 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 § 141.10 and a related TWIC recordkeeping reference in § 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.

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 § 141.35(a)(1). All other recordkeeping requirements will remain unchanged.

In addition, we will make a non-substantive change to § 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.

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 § 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.

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 [e-mail]. 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

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

§ 141.10

[Amended]

2. In § 141.10, remove the definition for “Transportation Worker Identification Credential or TWIC”.

§ 141.30

[Amended]

3. In § 141.30:

a. In paragraph (c), after the words “issued by”, remove the word “the”; and

b. Remove paragraph (d).

§ 141.35

[Amended]

4. In § 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.

Footnotes

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.

2.  See Transportation Security Administration regulations, 49 CFR 1572.105.

3.  Form I-9, Employment Eligibility Verification, OMB No. 1615-0047, http://www.uscis.gov/​files/​form/​i-9.pdf