2011-13319. Safety Requirements and Manning Exemption Eligibility on Distant Water Tuna Fleet Vessels

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of availability.

SUMMARY:

The Coast Guard announces the availability of Office of Vessel Activities Policy Letter 11-05 regarding Distant Water Tuna Fleet vessels manning exemption eligibility and safety requirements. This final policy clarifies the requirements to allow a distant water tuna fleet vessel to engage foreign citizens under a temporary manning exemption.

DATES:

This policy will become effective on July 1, 2011.

ADDRESSES:

This notice and the policy are available in the docket and can be viewed by going to http://www.regulations.gov,, inserting USCG-2011-1146 in the “Keyword” box, and then clicking “Search.” This material is also 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. This policy is also available at http://www.fishsafe.info/​CG-543 Policy Letter 11-05.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this notice, call or e-mail Jack A. Kemerer, Fishing Vessel Safety Division (CG-5433), U.S. Coast Guard; telephone [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

Background and Purpose

The Coast Guard Maritime Transportation Act (CGMTA) of 2006 (section 421) authorized U.S.-documented purse seine vessels fishing for highly migratory species (under a license issued pursuant to the 1987 South Pacific Tuna Treaty [SPTT]) to use foreign licensed personnel, except for the master, to meet manning requirements. That authorization was for a 48-month period and ended on July 11, 2010. Section 904 of the 2010 Coast Guard Authorization Act (CGAA, signed into law (Pub. L. 111-281) on October 15, 2010) reauthorized the use of foreign officers, excluding the master, on U.S.-documented purse seine vessels in the Distant Water Tuna Fleet. The CGAA reauthorization added a safety examination requirement such that a vessel's owner/operator may not employ a foreign national to meet a manning requirement unless it first successfully completes an annual dockside safety examination by an individual authorized to enforce part B of subtitle II of title 46, United States Code. Additionally, the 2010 CGAA also amended Title 46 United States Code Section 4502 by establishing requirements for an individual in charge of a vessel to keep a record of equipment maintenance, and required instruction and drills, and for a vessel to be issued a certificate of compliance upon successfully completing a dockside safety examination. The reauthorization retained the restriction that a foreign officer engaged to fill a position must hold a valid license or certificate issued in accordance with STCW 95 standards and by an authority recognized by the Coast Guard. Also, the manning exemption is only applicable to vessels operating in and out of America Samoa. The manning exemption reauthorization is set to expire December 31, 2012.

Discussion of Summary of Comments Received and Changes

The Coast Guard published a Notice of Availability and Request for Comments on a draft policy; Safety Requirements and Manning Exemption Eligibility on Distant Water Tuna Fleet Vessels in the Federal Register on January 20, 2011 Docket Number [USCG-2010-1146]. We received comments from eight individuals in response to the draft Safety Requirements and Manning Exemption Eligibility on Distant Water Tuna Fleet Vessels policy.^[1] A general summary of the comments received and the United States Coast Guard's responses to those comments are presented below.

One commenter supported eliminating the manning exemption permanently while seven commenters suggested they support the manning exemption, at least to some extent.

Four commenters suggested the timely notice requirement for engaging foreign officers is too burdensome or impracticable. The Coast Guard agrees in some cases that a timely advance notice of a vacancy may be impracticable. The Coast Guard has revised its final policy guidance under 6.(a)(v) to include the wording “to the extent practicable.” However, since licensed positions often have contracts associated with them, it is reasonable for an owner/operator to have an idea when a position may become vacant and to advertise appropriately. The Coast Guard considered timely notice further and reduced the position vacancy announcement from 60 days to 30 days for a position becoming available.

Five commenters suggested qualified U.S.-licensed mariners are hard to find, while one commenter suggested the exemption was meant only for vessels working from American Samoa, and temporary so owners could train U.S. citizens to fill officer vacancies. The Coast Guard agrees that the temporary exemption is a recognition of the difficulty DWTF vessel owners/operators have historically dealt with when seeking to find qualified U.S.-licensed mariners, but notes that the temporary exemption represents an additional opportunity for DWTF vessel owners/operators to develop capacity and skills of United States mariners to fill licensed positions on those vessels.

Two commenters supported at least annual port calls in American Samoa while two commenters did not support requiring port calls in American Samoa. The Coast Guard maintains that at least one annual port call in American Samoa shall occur if foreign licensed mariners are sought and utilized on a United States flagged DWTF vessel, as the manning exemption is only applicable to vessels operating in and out of America Samoa.

One commenter supported adding Taiwan to the list of acceptable countries listed in the International Maritime Organizations (IMO's) so called “White List.” This comment is outside of the scope of the policy announced in this policy letter, as the United States cannot on its own revise the IMO “White List”.

One commenter offered alternative proposals to demonstrate non-availability of U.S. Officers. The Coast Guard, on a case-by-case basis, may consider alternative approaches in demonstrating non-availability if the approach demonstrates that the vessel owner/operator satisfies the requirements of the law.

One commenter suggested the policy cannot be classified as an interpretive rule because the policy imposes additional duties and requirements. The Coast Guard disagrees; any additional duties and requirements may be traced to the statutory exemption. For instance, the law requires that there be non-availability of United States licensed workers; this policy describes the means by which a DWTF vessel owner/operator may demonstrate such non-availability, namely by recounting the good faith efforts made to locate and hire United States licensed mariners. However, in response to this comment, the Coast Guard reduced some of the information requested in the draft policy, including wages, benefits, and Department of Labor worker codes.

The final policy lists an additional item under Guidance 6 a.(vii) not listed in the draft policy that requires the owner/operator to make a written agreement with each seaman employed on the vessel, on a voyage from a port in the United States. This existing legal requirement can be found in Title 46 United States Code § 10601 (Fishing Agreements), and was added to the policy to aid in compliance.

This notice is issued under the authority of 5 U.S.C. 552(a).

Dated: May 20, 2011.

Kevin S. Cook,

Rear Admiral, U.S. Coast Guard, Director of Prevention Policy.

Footnotes

1.  Although the comment period on the notice was set to close on February 22, 2011, the Coast Guard was able to consider all comments submitted to the docket prior to March 1, 2011.