[Federal Register Volume 76, Number 159 (Wednesday, August 17, 2011)]
[Rules and Regulations]
[Pages 50898-50904]
[FR Doc No: 2011-20841]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2010-0621; FRL-8882-7]

Metconazole; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes tolerances for residues of
metconazole in or on the bushberry subgroup 13-07B and the tuberous and
corm vegetable subgroup 1C. The Interregional Research Project No. 4
(IR-4) requested these tolerances under the Federal Food, Drug, and
Cosmetic Act (FFDCA).

DATES: This regulation is effective August 17, 2011. Objections and
requests for hearings must be received on or before October 17, 2011,
and must be filed in accordance with the instructions provided in 40
CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2010-0621. All documents in the
docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is
not publicly available, e.g., Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket
Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket Facility telephone number is (703)
305-5805.

FOR FURTHER INFORMATION CONTACT: Andrew Ertman, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
Potentially affected entities may include, but are not limited to those
engaged in the following activities:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
    This listing is not intended to be exhaustive, but rather to
provide a guide for readers regarding entities likely to be affected by
this action. Other types of entities not listed in this unit could also
be affected. The North American Industrial Classification System
(NAICS) codes have been provided to assist you and others in
determining whether this action might apply to certain entities. If you
have any questions regarding the applicability of this action to a
particular entity, consult the person listed under FOR FURTHER
INFORMATION CONTACT.

B. How can I Get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's
tolerance regulations at 40 CFR part 180 through the Government
Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the
harmonized test guidelines referenced in this document electronically,
please go http://www.epa.gov/ocspp and select ``Test Methods and
Guidelines.''

C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an
objection to any aspect of this regulation and may also request a
hearing on those objections. You must file your objection or request a
hearing on this regulation in accordance with the instructions provided
in 40 CFR part 178. To ensure proper receipt by EPA, you must identify
docket ID number EPA-HQ-OPP-2010-0621 in the subject line on the first
page of your submission. All objections and requests for a hearing must
be in writing, and must be received by the Hearing Clerk on or before
October 17, 2011. Addresses for mail and hand delivery of objections
and hearing requests are provided in 40 CFR 178.25(b).
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing that does not contain any CBI for inclusion in the public
docket. Information not marked confidential pursuant to 40 CFR part 2
may be disclosed publicly by EPA without prior notice. Submit a copy of
your non-CBI objection or hearing request, identified by docket ID
number EPA-HQ-OPP-2010-0621, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is<PHONE_NUMBER>.

II. Summary of Petitioned-For Tolerance

    In the Federal Register of September 8, 2010 (75 FR 54629) (FRL-
8843-3), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21
U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP
0E7743) by Interregional Research Project Number 4 (IR-4) Project
Headquarters, Rutgers, The State University of New Jersey, 500 College
Road East, Suite 201 W, Princeton, NJ 08450. The petition requested
that 40 CFR 180.617 be amended by establishing tolerances for residues
of the fungicide metconazole, 5-[(4-chlorophenyl)-methyl]-2,2-dimethyl-
1-(1 H -1,2,4-triazol-1-ylmethyl) cyclopentanol), measured as the sum
of cis- and trans isomers, in or on bushberry subgroup 13-07B at 0.35
parts per million (ppm); and tuberous and corm vegetable subgroup 1C at
0.02 ppm. That notice referenced a summary of the petition prepared by
Valent, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the
notice of filing.
    Based upon review of the data supporting the petition, EPA has
modified the levels at which tolerances are being established for the
tuberous and corm vegetables subgroup 1C and the bushberry subgroup 13-
07B. Additionally, the commodity definition for the tuberous and corm
vegetables subgroup 1C is being corrected. The reasons for these
changes are explained in Unit IV.C.

III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a
tolerance (the legal limit for a pesticide chemical residue in or on a
food) only if EPA determines that the tolerance is ``safe.'' Section
408(b)(2)(A)(ii) of FFDCA defines ``safe'' to mean that ``there is a
reasonable certainty that no harm will result from aggregate exposure
to the pesticide chemical residue, including all anticipated dietary
exposures and all other exposures for which there is reliable
information.'' This includes exposure through drinking water and in
residential settings, but does not include occupational exposure.
Section 408(b)(2)(C) of FFDCA requires EPA to give special
consideration to exposure of infants and children to the pesticide
chemical residue in establishing a tolerance and to ``ensure that there
is a reasonable certainty that no harm will result to infants and
children from aggregate exposure to the pesticide chemical residue. * *
*''
    Consistent with section 408(b)(2)(D) of FFDCA, and the factors
specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the
available scientific data and other relevant information in support of
this action. EPA has sufficient data to assess the hazards of and to
make a determination on aggregate exposure for metconazole including
exposure resulting from the tolerances established by this action.
EPA's assessment of exposures and risks associated with metconazole
follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its
validity, completeness, and reliability as well as the relationship of
the results of the studies to human risk. EPA has also considered
available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers, including infants and
children.
    Acute oral and dermal toxicities to metconazole are moderate, while
acute inhalation toxicity is low. Metconazole is a moderate eye
irritant and a mild skin irritant. It is not a skin sensitizer. The
liver is the primary target organ in the mouse, rat and dog following
oral exposure to metconazole via subchronic or chronic exposure
durations. Developmental studies in rats and

rabbits show some evidence of developmental effects, but only at dose
levels that are maternally toxic. Metconazole did not demonstrate the
potential for neurotoxicity in the four species (mouse, rat, dog and
rabbit) tested. Metconazole is considered non-genotoxic and liver
tumors seen in a chronic mouse study appear to have been formed via a
mitogenic mode of action and therefore, metconazole is classified as
``not likely to be carcinogenic to humans'' at levels that do not cause
mitogenesis. There was no evidence of immunotoxicity at dose levels
that produced systemic toxicity. No immunotoxic effects are evident for
metconazole at dose levels as high as 52 milligrams/kilogram/day (mg/
kg/day) in rats, which is 12 times higher than the chronic dietary
point of departure (4.3 mg/kg/day). Metconazole did not demonstrate
neurotoxicity in the subchronic neurotoxicity study or the other
submitted studies including acute, subchronic and chronic studies in
several species, developmental toxicity studies in the rat and rabbit
and a 2-generation reproduction study in the rat. No effects were noted
on brain weights and no clinical signs possibly related to
neurotoxicity were noted up to and including the high doses in all
studies.
    Specific information on the studies received and the nature of the
adverse effects caused by metconazole as well as the no-observed-
adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-
level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2010-0621 on pages
44-50 of the document titled ``Metconazole: Human Health Risk
Assessment for Proposed Uses on Tuberous and Corm Vegetables Subgroup
1C and Bushberry Subgroup 13-07B.''

B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA
identifies toxicological points of departure (POD) and levels of
concern (LOC) to use in evaluating the risk posed by human exposure to
the pesticide. For hazards that have a threshold below which there is
no appreciable risk, the toxicological POD is used as the basis for
derivation of reference values for risk assessment. PODs are developed
based on a careful analysis of the doses in each toxicological study to
determine the dose at which no adverse effects are observed (the NOAEL)
and the lowest dose at which adverse effects of concern are identified
(the LOAEL). Uncertainty/safety factors are used in conjunction with
the POD to calculate a safe exposure level--generally referred to as a
population-adjusted dose (PAD) or a reference dose (RfD)--and a safe
margin of exposure (MOE). For non-threshold risks, the Agency assumes
that any amount of exposure will lead to some degree of risk. Thus, the
Agency estimates risk in terms of the probability of an occurrence of
the adverse effect expected in a lifetime. For more information on the
general principles EPA uses in risk characterization and a complete
description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.
    A summary of the toxicological endpoints for metconazole used for
human risk assessment is shown in Table 1 of this unit.

  Table 1--Summary of Toxicological Doses and Endpoints for Metconazole for Use in Human Health Risk Assessment
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                                        Point of departure and
          Exposure/scenario               uncertainty/safety    RfD, PAD, LOC for  risk  Study and toxicological
                                               factors                 assessment                effects
----------------------------------------------------------------------------------------------------------------
Acute Dietary (General Population,     An appropriate dose/endpoint attributable to a single dose was not
 including Infants and Children).       observed in the available oral toxicity studies reviewed.
----------------------------------------------------------------------------------------------------------------
Acute dietary (Females 13-49 years of  NOAEL = 12 mg/kg/day...  Acute RfD = 0.12 mg/kg/  Developmental toxicity
 age).                                 UFA = 10x..............   day.                     in rats: LOAEL = 30 mg/
                                       UFH = 10x..............  aPAD = 0.12 mg/kg/day..   kg/day based on
                                       FQPA SF = 1x...........                            increases in skeletal
                                                                                variations.
Chronic dietary (All populations)....  NOAEL = 4.3 mg/kg/day..  Chronic RfD = 0.04 mg/   Chronic oral toxicity
                                       UFA = 10x..............   kg/day.                  study in rats: LOAEL =
                                       UFH = 10x..............  cPAD = 0.04 mg/kg/day..   13.1 mg/kg/day based
                                       FQPA SF = 1x...........                            on increased liver
                                                                                Males (M) weights and
                                                                                associated
                                                                                hepatocellular lipid
                                                                                vacuolation (M) and
                                                                                centrilobular
                                                                                hypertrophy (M).
                                                                                Similar effects were
                                                                                observed in Females
                                                                                (F) at 54 mg/kg/day,
                                                                                plus increased spleen
                                                                                weight.
Incidental oral short-term (1 to 30    NOAEL = 9.1 mg/kg/day..  LOC for MOE = 100......  28-Day oral toxicity
 days).                                UFA = 10x..............                            study in rats: LOAEL =
                                       UFH = 10x..............                            90.5 mg/kg/day based
                                       FQPA SF = 1x...........                            on decreased body
                                                                                weight (M), increased
                                                                                liver and kidney
                                                                                weight and
                                                                                hepatocellular
                                                                                hypertrophy and
                                                                                vacuolation (M/F).
Incidental oral intermediate-term (1   NOAEL= 6.4 mg/kg/day...  LOC for MOE = 100......  90-Day oral toxicity
 to 6 months).                         UFA = 10x..............                            study in rats: LOAEL =
                                       UFH = 10x..............                            19.2 mg/kg/day based
                                       FQPA SF = 1x...........                            on increased spleen wt
                                                                                (F) and hepatic
                                                                                vacuolation (M).
Inhalation short-term (1 to 30 days).  NOAEL= 9.1 mg/kg/day...  LOC for MOE = 100......  28-Day oral toxicity
                                       UFA = 10x..............                            study in rats: LOAEL =
                                       UFH = 10x..............                            90.5 mg/kg/day based
                                       FQPA SF = 1x...........                            on decreased body
                                                                                weight (M), increased
                                                                                liver and kidney
                                                                                weight and
                                                                                hepatocellular
                                                                                hypertrophy and
                                                                                vacuolation (M/F).

Inhalation (1 to 6 months)...........  NOAEL= 6.4 mg/kg/day...  LOC for MOE = 100......  90-Day oral toxicity
                                       UFA = 10x..............                            study in rats: LOAEL =
                                       UFH = 10x..............                            19.2 mg/kg/day based
                                       FQPA SF = 1x...........                            on increased spleen wt
                                                                                (F) and hepatic
                                                                                vacuolation (M).
----------------------------------------------------------------------------------------------------------------
Cancer (Oral, dermal, inhalation)....  Classification: ``Not likely to be Carcinogenic to Humans.''
----------------------------------------------------------------------------------------------------------------
UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members
  of the human population (intraspecies). FQPA SF = Food Quality Protection Act Safety Factor. PAD = population
  adjusted dose (a = actue, c = chronic). RfD = reference dose. MOE = margin of exposure. LOC = level of
  concern.

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary
exposure to metconazole, EPA considered exposure under the petitioned-
for tolerances as well as all existing metconazole tolerances in 40 CFR
180.617. EPA assessed dietary exposures from metconazole in food as
follows:
    i. Acute exposure. Quantitative acute dietary exposure and risk
assessments are performed for a food-use pesticide, if a toxicological
study has indicated the possibility of an effect of concern occurring
as a result of a 1-day or single exposure.
    No such effects were identified in the toxicological studies for
metconazole for the general U.S. population including infants and
children; therefore, a quantitative acute dietary exposure assessment
is unnecessary for these population subgroups. However, such effects
were identified for metconazole for females 13-49 years of age. In
estimating acute dietary exposure, EPA used food consumption
information from the United States Department of Agriculture (USDA)
1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by
Individuals (CSFII). As to residue levels in food, EPA assumed that
metconazole residues are present in all registered and proposed food
commodities at tolerance levels and that 100% of the crops were
treated.
    ii. Chronic exposure. In conducting the chronic dietary exposure
assessment EPA used the food consumption data from the USDA 1994-1996
and 1998 CSFII. As to residue levels in food, EPA assumed that
metconazole residues are present in all registered and proposed food
commodities at tolerance levels and that 100% of the crops were
treated.
    iii. Cancer. Based on the data summarized in Unit III.A., EPA has
concluded that metconazole does not pose a cancer risk to humans.
Therefore, a dietary exposure assessment for the purpose of assessing
cancer risk is unnecessary.
    2. Dietary exposure from drinking water. The Agency used screening
level water exposure models in the dietary exposure analysis and risk
assessment for metconazole in drinking water. These simulation models
take into account data on the physical, chemical, and fate/transport
characteristics of metconazole. Further information regarding EPA
drinking water models used in pesticide exposure assessment can be
found at http://www.epa.gov/oppefed1/models/water/index.htm.
    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling
System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-
GROW) models the estimated drinking water concentrations (EDWCs) of
metconazole for acute exposures are estimated to be 45.48 parts per
billion (ppb) for surface water and 0.064 ppb for ground water. For
chronic exposures for non-cancer assessments they are estimated to be
38.16 ppb for surface water and 0.064 ppb for ground water.
    Modeled estimates of drinking water concentrations were directly
entered into the dietary exposure model. For acute dietary risk
assessment, the water concentration value of 45.48 ppb was used to
assess the contribution to drinking water.
    For chronic dietary risk assessment, the water concentration of
value 38.16 ppb was used to assess the contribution to drinking water.
    3. From non-dietary exposure. The term ``residential exposure'' is
used in this document to refer to non-occupational, non-dietary
exposure (e.g., for lawn and garden pest control, indoor pest control,
termiticides, and flea and tick control on pets). Metconazole is
currently registered for the following uses that could result in
residential exposures: Turf and ornamentals. EPA assessed residential
exposure using the following assumptions: Adults, adolescents, and
children may be exposed to metconazole from its currently registered
uses on turf and ornamentals. No dermal toxicity endpoints for short-
and intermediate-term durations were identified up to the limit dose.
Therefore, only residential handler and postapplication inhalation
exposures for adults, and residential post-application incidental oral
exposures for children have been assessed. For adults applying
metconazole to turf, short- and intermediate-term exposures were
assessed for mixer/loader/applicators with a low pressure handwand
sprayer. Post-application risks to children following the application
of metconazole to home lawns were calculated for short- and
intermediate-term incidental oral exposures. Further information
regarding EPA standard assumptions and generic inputs for residential
exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.
    4. Cumulative effects from substances with a common mechanism of
toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when
considering whether to establish, modify, or revoke a tolerance, the
Agency consider ``available information'' concerning the cumulative
effects of a particular pesticide's residues and ``other substances
that have a common mechanism of toxicity.''
    Metconazole is a member of the triazole-containing class of
pesticides. Although conazoles act similarly in plants (fungi) by
inhibiting ergosterol biosynthesis, there is not necessarily a
relationship between their pesticidal activity and their mechanism of
toxicity in mammals. Structural similarities do not constitute a common
mechanism of toxicity. Evidence is needed to establish that the
chemicals operate by the same, or essentially the same, sequence of
major biochemical events. In conazoles, however, a variable pattern of
toxicological responses is found. Some are hepatotoxic and
hepatocarcinogenic in mice. Some induce thyroid tumors in

rats. Some induce developmental, reproductive, and neurological effects
in rodents. Furthermore, the conazoles produce a diverse range of
biochemical events including altered cholesterol levels, stress
responses, and altered DNA methylation. It is not clearly understood
whether these biochemical events are directly connected to their
toxicological outcomes. Thus, there is currently no evidence to
indicate that conazoles share common mechanisms of toxicity and EPA is
not following a cumulative risk approach based on a common mechanism of
toxicity for the conazoles. For information regarding EPA's procedures
for cumulating effects from substances found to have a common mechanism
of toxicity, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.
    Metconazole is a triazole-derived pesticide. Triazole-derived
pesticides can form the common metabolite, 1,2,4-triazole and three
triazole conjugates (triazole alanine, triazole acetic acid, and
triazolylpyruvic acid). To support existing tolerances and to establish
new tolerances for triazole-derivative pesticides, including
metconazole, EPA conducted a human health risk assessment for exposure
to 1,2,4-triazole, triazole alanine, and triazole acetic acid resulting
from the use of all current and pending uses of any triazole-derived
fungicide. The risk assessment is a highly conservative, screening-
level evaluation in terms of hazards associated with common metabolites
(e.g., use of a maximum combination of uncertainty factors) and
potential dietary and non-dietary exposures (i.e., high end estimates
of both dietary and non-dietary exposures). In addition, the Agency
retained the additional 10X FQPA SF for the protection of infants and
children. The assessment included evaluations of risks for various
subgroups, including those comprised of infants and children. The
Agency's risk assessment can be found in the propiconazole
reregistration docket at http://www.regulations.gov, Docket
Identification Number EPA-HQ-OPP- 2005-0497 and an update to assess the
addition of the commodities included in this action may be found in
docket ID number EPA-HQ-OPP-2010-0621 in the document titled ``Common
Triazole Metabolites: Updated Aggregate Human Health Risk Assessment To
Address Tolerance Petitions for Metconazole.''

D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA
shall apply an additional tenfold (10X) margin of safety for infants
and children in the case of threshold effects to account for prenatal
and postnatal toxicity and the completeness of the database on toxicity
and exposure unless EPA determines based on reliable data that a
different margin of safety will be safe for infants and children. This
additional margin of safety is commonly referred to as the FQPA SF. In
applying this provision, EPA either retains the default value of 10X,
or uses a different additional safety factor when reliable data
available to EPA support the choice of a different factor.
    2. Prenatal and postnatal sensitivity. Acceptable developmental
toxicity studies are available in the rat and rabbit as well as a 2-
generation reproductive toxicity study in the rat. There is no evidence
of susceptibility following in utero exposure in the rabbit. In the rat
there is qualitative evidence of susceptibility, however the concern is
low since the developmental effects are characterized as variations
(not malformations), occur in the presence of maternal toxicity, the
NOAELs are well defined, and the dose/endpoint is used for acute
dietary risk assessment for the sensitive population. There is no
evidence of increased susceptibility in the offspring based on the
result of the 2-generation reproduction study.
    3. Conclusion. EPA has determined that reliable data show the
safety of infants and children would be adequately protected if the
FQPA SF were reduced to 1x. That decision is based on the following
findings:
    i. The toxicity database for metconazole is complete except for a
neurotoxicity study. Changes to 40 CFR 180.158 make the acute
neurotoxicity testing (OPPTS Guideline 870.6200) required for pesticide
registration. Although this study is not yet available for metconazole,
the available data do not show any evidence of neurotoxicity.
Metconazole did not demonstrate neurotoxicity in the subchronic
neurotoxicity study or the other submitted studies including acute,
subchronic and chronic studies in several species, developmental
toxicity studies in the rat and rabbit and a 2-generation reproduction
study in the rat. No effects were noted on brain weights and no
clinical signs possibly related to neurotoxicity were noted up to and
including the high doses in all studies. Therefore, EPA does not
believe that conducting the acute neurotoxicity study will result in an
endpoint lower than the ones used in risk assessment for metconazole.
Consequently, an additional database uncertainty factor does not need
to be applied.
    ii. There is no evidence of susceptibility following in utero
exposure in the rabbit. In the rat there is qualitative evidence of
susceptibility, however the concern is low since the developmental
effects are characterized as variations (not malformations), occur in
the presence of maternal toxicity, the NOAELs are well defined, and the
dose/endpoint is used for acute dietary risk assessment for the
sensitive population. There is no evidence of increased susceptibility
in the offspring based on the result of the 2-generation reproduction
study.
    iii. There are no residual uncertainties identified in the exposure
databases. The dietary food exposure assessments were performed based
on 100 percent crop treated and tolerance-level residues. EPA made
conservative (protective) assumptions in the ground and surface water
modeling used to assess exposure to metconazole in drinking water. EPA
used similarly conservative assumptions to assess postapplication
exposure of children as well as incidental oral exposure of toddlers.
These assessments will not underestimate the exposure and risks posed
by metconazole.

E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide
exposures are safe by comparing aggregate exposure estimates to the
aPAD and cPAD). For linear cancer risks, EPA calculates the lifetime
probability of acquiring cancer given the estimated aggregate exposure.
Short-, intermediate-, and chronic-term risks are evaluated by
comparing the estimated aggregate food, water, and residential exposure
to the appropriate PODs to ensure that an adequate MOE exists.
    1. Acute risk. Using the exposure assumptions discussed in this
unit for acute exposure, the acute dietary exposure from food and water
to metconazole will occupy 3.8% of the aPAD for females 13-49, the only
population subgroup of concern.
    2. Chronic risk. Using the exposure assumptions described in this
unit for chronic exposure, EPA has concluded that chronic exposure to
metconazole from food and water will utilize 12.6% of the cPAD for
children 1-2 years old, the population group receiving the greatest
exposure. Based on the explanation in Unit III.C.3., regarding
residential use patterns, chronic residential exposure to residues of
metconazole is not expected.
    3. Short- and intermediate-term risk. Short- and intermediate-term
aggregate exposure takes into account short- and

intermediate-term residential exposure plus chronic exposure to food
and water (considered to be a background exposure level).
    Metconazole is currently registered for uses that could result in
short- and intermediate-term residential exposure, and the Agency has
determined that it is appropriate to aggregate chronic exposure through
food and water with short- and intermediate-term residential exposures
to metconazole.
    Using the exposure assumptions described in this unit for short-
and intermediate-term exposures, EPA has concluded, that the short-and
intermediate-term aggregate MOEs from dietary exposure (food + drinking
water) and non-occupational/residential handler exposure (inhalation)
for adults are 1,700 for both.
    The short-and intermediate-term aggregate MOEs from dietary
exposure (food + drinking water) and non-occupational/residential post-
application exposure (incidental oral) for children 1-2 years old are
420 and 460, respectively. Because EPA's level of concern for
metconazole is a MOE of 100 or below, these MOEs are not of concern.
    4. Aggregate cancer risk for U.S. population. Based on the lack of
evidence of carcinogenicity in two adequate rodent carcinogenicity
studies, metconazole is not expected to pose a cancer risk to humans.
    5. Determination of safety. Based on these risk assessments, EPA
concludes that there is a reasonable certainty that no harm will result
to the general population or to infants and children from aggregate
exposure to metconazole residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

    An adequate gas chromatography method with nitrogen-phosphorus-
detection (GC/NPD) is available for data collection and enforcement of
tolerances for residues of metconazole parent isomers (cis- and trans-
metconazole) in plant commodities based on Valent Method RM-41C-1,
``Determination of cis and trans-Metconazole in Crops.'' An adequate
high performance liquid chromatography (HPLC) method is available for
data collection and enforcement of tolerances for residues of 1,2,4-
triazole (T), triazole alanine (TA), and triazole acetic acid (TAA).
The methods may be requested from: Chief, Analytical Chemistry Branch,
Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350;
telephone number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S.
tolerances with international standards whenever possible, consistent
with U.S. food safety standards and agricultural practices. EPA
considers the international maximum residue limits (MRLs) established
by the Codex Alimentarius Commission (Codex), as required by FFDCA
section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and
Agriculture Organization/World Health Organization food standards
program, and it is recognized as an international food safety
standards-setting organization in trade agreements to which the United
States is a party. EPA may establish a tolerance that is different from
a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain
the reasons for departing from the Codex level.
    The Codex has not established a MRL for metconazole on potato or
blueberry or the respective crop subgroups.

C. Revisions to Petitioned-For Tolerances

    IR-4 proposed establishing tolerances on the bushberry subgroup 13-
07B at 0.35 ppm and the tuberous and corm vegetable subgroup 1C at 0.02
ppm. Upon review, these levels are being revised to 0.40 ppm and 0.04
ppm, respectively. EPA used the tolerance spreadsheet in the Agency's
Guidance for Setting Pesticide Tolerances Based on Field Trial Data to
determine the appropriate tolerance level for bushberries. The
tolerance spreadsheet was not used to calculate the tolerance for
tuberous and corm vegetables because residues in potatoes were below
the LOQ (< 0.04 ppm). The proposed tolerance of 0.02 ppm for tuberous
and corm vegetables is too low. The tolerance should be established at
0.04 ppm, reflecting the combined LOQs of the metconazole enforcement
method of 0.02 ppm for each of the cis- and trans- isomers of
metconazole. Also, the correct commodity definition for tuberous and
corm vegetables subgroup 1C is ``Vegetable, tuberous and corm, subgroup
1C'' and is being changed accordingly. Finally, EPA has revised the
tolerance expression in paragraph (a)(1) to clarify:
    1. That, as provided in FFDCA section 408(a)(3), the tolerance
covers metabolites and degradates of metconazole not specifically
mentioned; and
    2. That compliance with the specified tolerance levels is to be
determined by measuring only the specific compounds mentioned in the
tolerance expression. Because the tolerance expressions in paragraphs
(a)(1) and (a)(2) are now identical, EPA is combining (a)(1) and (a)(2)
into a newly designated paragraph (a) and placing all the commodities
from these two paragraphs into a single table.

V. Conclusion

    Therefore, tolerances are established for residues of metconazole,
5-[(4-chlorophenyl)-methyl]-2,2-dimethyl-1-(1H-1,2,4-triazol-1-
ylmethyl)cyclopentanol, measured as the sum of cis- and trans- isomers,
in or on the bushberry subgroup 13-07B at 0.40 ppm, and vegetable,
tuberous and corm, subgroup 1C at 0.04 ppm.

VI. Statutory and Executive Order Reviews

    This final rule establishes tolerances under section 408(d) of
FFDCA in response to a petition submitted to the Agency. The Office of
Management and Budget (OMB) has exempted these types of actions from
review under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993). Because this final rule has been
exempted from review under Executive Order 12866, this final rule is
not subject to Executive Order 13211, entitled Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997). This final rule does not contain any
information collections subject to OMB approval under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any
special considerations under Executive Order 12898, entitled Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations (59 FR 7629, February 16, 1994).
    Since tolerances and exemptions that are established on the basis
of a petition under section 408(d) of FFDCA, such as the tolerance in
this final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) do not apply.
    This final rule directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of section 408(n)(4) of FFDCA. As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments,

on the relationship between the national government and the States or
tribal governments, or on the distribution of power and
responsibilities among the various levels of government or between the
Federal Government and Indian tribes. Thus, the Agency has determined
that Executive Order 13132, entitled Federalism (64 FR 43255, August
10, 1999) and Executive Order 13175, entitled Consultation and
Coordination with Indian Tribal Governments (65 FR 67249, November 9,
2000) do not apply to this final rule. In addition, this final rule
does not impose any enforceable duty or contain any unfunded mandate as
described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104-4).
    This action does not involve any technical standards that would
require Agency consideration of voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note).

VII. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report to each House of the Congress and to
the Comptroller General of the United States. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of this final rule in the Federal
Register. This final rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.

    Dated: August 9, 2011.
Lois Rossi,
Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. Section 180.617 is amended by revising paragraph (a) to read as
follows:

Sec.  180.617  Metconazole; tolerances for residues.

    (a) General. Tolerances are established for residues of
metconazole, including its metabolites and degradates, in or on the
commodities in the following table. Compliance with the tolerance
levels specified below is to be determined by measuring only
metconazole [5-[(4-chlorophenyl)methyl]-2,2-dimethyl-1-(1H-1,2,4-
triazol-1-ylmethyl)cyclopentanol] as the sum of its cis- and trans-
isomers in or on the following commodities:

------------------------------------------------------------------------
                                                              Parts per
                         Commodity                             million
------------------------------------------------------------------------
Almond, hulls..............................................         4.0
Banana \1\.................................................         0.1
Barley, grain..............................................         2.5
Barley, hay................................................         7.0
Barley, straw..............................................         7.0
Beet, sugar, dried pulp....................................         0.70
Beet, sugar, molasses......................................         0.08
Beet, sugar, roots.........................................         0.07
Bushberry subgroup 13-07B..................................         0.40
Canola seed................................................         0.04
Cattle, meat byproducts....................................         0.04
Corn, field, forage........................................         3.0
Corn, field, grain.........................................         0.02
Corn, field, stover........................................         4.5
Corn, pop, grain...........................................         0.02
Corn, pop, stover..........................................         4.5
Corn, sweet, forage........................................         3.0
Corn, sweet, kernel plus cob with husks removed............         0.01
Corn, sweet, stover........................................         4.5
Cotton, gin byproducts.....................................         8.0
Cotton, undelinted seed....................................         0.25
Egg........................................................         0.04
Fruit, stone, group 12.....................................         0.20
Goat, meat byproducts......................................         0.04
Grain, aspirated grain fractions...........................         7.0
Horse, meat byproducts.....................................         0.04
Nut, tree, group 14........................................         0.04
Oat, grain.................................................         1.0
Oat, hay...................................................        17
Oat, straw.................................................         6.0
Peanut.....................................................         0.04
Peanut, refined oil........................................         0.05
Pistachio..................................................         0.04
Rye, grain.................................................         0.25
Rye, straw.................................................        14
Sheep, meat byproducts.....................................         0.04
Soybean, forage............................................         3.0
Soybean, hay...............................................         6.0
Soybean, hulls.............................................         0.08
Soybean, seed..............................................         0.05
Vegetable, tuberous and corn, subgroup 1C..................         0.04
Wheat, grain...............................................         0.15
Wheat, hay.................................................        16
Wheat, milled byproducts...................................         0.20
Wheat, straw...............................................        18
------------------------------------------------------------------------
\1\ No U.S. registration as of August 30, 2006.

* * * * *
[FR Doc. 2011-20841 Filed 8-16-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: September 17, 2009 (Volume 74, Number 179)]
[Rules and Regulations]
[Page 47729-47737]
[DOCID:fr17se09-8]

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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Parts 12 and 15

[USCG-2007-27761]
RIN 1625-AB16

Large Passenger Vessel Crew Requirements

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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

SUMMARY: This rule finalizes, with minor non-substantive changes, the
amendments to Coast Guard regulations on merchant mariner documentation
which were published as an interim rule with request for comments on
April 24, 2007. These amendments implement section 3509 of the John
Warner National Defense Authorization Act for Fiscal Year 2007 (Warner
Act), which allows for the issuance of merchant mariner's documents
(MMDs), (which have since been consolidated by the Coast Guard into
merchant mariner credentials (MMCs)), to certain non-resident aliens
for service in the steward's departments of U.S. flag large passenger
vessels endorsed for coastwise trade. Prior to publication of the
interim rule, the regulations prohibited the Coast Guard from issuing
MMDs, which are required for service on large passenger vessels, to
non-resident aliens. Specifically, this rule finalizes the amendments
to Coast Guard regulations allowing the Coast Guard to issue MMCs to
qualified non-resident aliens who are authorized to be employed in the
United States, the amendments setting the requirements these aliens
must meet in order to qualify for MMCs, and the requirements

for the large passenger vessels that may choose to hire these aliens.
This rule only applies to large passenger vessels, as defined under the
Warner Act.

DATES: This final rule is effective on October 19, 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-2007-27761 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-2007-27761 in the ''Keyword'' box, and then clicking
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Mayte Medina, Coast Guard; telephone<PHONE_NUMBER>, e-
mail<EMAIL_ADDRESS>If you have questions on viewing the
docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Background
IV. Discussion of Final Rule
V. Discussion of Comments and Changes
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    i. Affected Population
    ii. Industry Profile
    iii. Direct Impacts
    iv. Indirect Impacts
    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

DHS Department of Homeland Security
FR Federal Register
GRT Gross register tons
ILO 147 International Labor Organization's Merchant Shipping
(Minimum Standards) Convention of 1976
INA Immigration and Nationality Act
MMC Merchant Mariner Credential
NAICS North American Industry Classification System
NCLA Norwegian Cruise Line America
NMC National Maritime Center
NSEERS National Security Entry-Exit Registration System
SBA Small Business Administration
SIU Seafarers International Union
SUP Sailors' Union of the Pacific
TWIC Transportation Worker Identification Credential
U.S.C. United States Code
US-VISIT United States Visitor and Immigrant Status Indicator
Technology Program

II. Regulatory History

    On April 24, 2007, we published an interim rule with request for
comments entitled ``Large Passenger Vessel Crew Requirements'' in the
Federal Register (72 FR 20278). We received 14 letters commenting on
the proposed rule. No public meeting was requested and none was held.
    On March 16, 2009, we published a final rule entitled
``Consolidation of Merchant Mariner Credentials (MMCs)'' in the Federal
Register (74 FR 11196). That final rule reorganized the regulations
found in title 46, chapter I, subchapter B, and also consolidated the
number of credentials issued to mariners by the Coast Guard. Changes
made in that final rule have been included in this document, and are
highlighted below in section V. ``Discussion of Comments and Changes.''

III. Background

    The discussion of the background that follows largely repeats the
discussion of the background and purpose set forth in the interim rule.
    Prior to October 17, 2006, Sec.  8103 of title 46 United States
Code generally required that unlicensed seamen on documented vessels be
of the following status: (a) Citizens of the United States; (b) lawful
permanent residents; or (c) foreign nationals enrolled in the United
States Merchant Marine Academy. Additionally, no more than 25 percent
of such unlicensed seamen could be lawful permanent residents.
    On October 17, 2006, Congress enacted the John Warner National
Defense Authorization Act for Fiscal Year 2007 (Warner Act), Public Law
109-364, sec. 3509, 120 Stat. 2518. Section 3509 of the Warner Act (46
U.S.C. 8103(k)) amends 46 U.S.C. 8103 to permit large passenger vessels
to also employ aliens who are not lawful permanent residents of the
United States but who are authorized to work in the United States. The
statute maintains a cap so that no more than 25 percent of the
unlicensed seamen on any large passenger vessel may be aliens, whether
admitted to the United States as lawful permanent residents or
otherwise allowed to be employed in the United States. ``Large
passenger vessel'' is defined under the Warner Act to mean ``a vessel
of more than 70,000 gross tons, as measured under section 14302 of this
title, with capacity for at least 2,000 passengers and documented with
a coastwise endorsement under chapter 121 of this title.''
    The Warner Act also contains the following qualifications and
restrictions on non-resident aliens serving as unlicensed seamen on
large passenger vessels:
    1. Non-resident aliens may not perform watchstanding, engine room
duty watch, or vessel navigation functions;
    2. Non-resident aliens must be authorized for employment in the
United States under the Immigration and Nationality Act of 1952, as
amended (8 U.S.C. 1101 et seq.) (INA), including an alien crewman
described in section 101(a)(15)(D)(i) of the INA (8 U.S.C.
1101(a)(15)(D)(i));
    3. Non-resident aliens must have been employed for a period of at
least one year on a passenger vessel, including a foreign flag
passenger vessel, under the same common ownership or control as the
U.S. flag vessel they will be working on, as certified by the owner or
managing operator of such vessel;
    4. Non-resident aliens must have no record of material disciplinary
actions during such employment, as verified in writing by the owner or
managing operator of such vessel;
    5. Non-resident aliens must have successfully completed a United
States Government security check of the relevant domestic and
international databases, as appropriate, or any other national
security-related information or database (which is required for an MMC
or Transportation Worker Identification Credential (TWIC));
    6. Non-resident aliens must have successfully undergone an
employer-conducted background check for which the owner or managing
operator provides a signed report that describes the background checks
undertaken. The background check must consist of a search of all
information that is reasonably and legally available to the owner or
managing operator in the seaman's country of citizenship and any other
country in which the seaman receives employment referrals or resides.
The report must be kept on the vessel and available for inspection, and
the information derived from the background check must be made
available upon request;
    7. Non-resident aliens may not be citizens or temporary or
permanent residents of a country designated by the United States as a
sponsor of terrorism,

or any other country that the Secretary of Homeland Security, in
consultation with the Secretary of State and the heads of other
appropriate United States agencies, determines to be a security threat
to the United States; and
    8. Non-resident aliens may only serve for an aggregate period of 36
months of actual service on all authorized U.S. flag large passenger
vessels combined. Once this 36-month limitation has been reached, the
MMD (now called an MMC) becomes invalid and the individual's employer
must return it to the Coast Guard, and the individual is no longer
authorized to be in service in a position requiring an MMD (now called
an MMC) on any U.S. flag large passenger vessel.
    Under current law, all individuals serving in the steward's
department on passenger vessels of 100 gross register tons (GRT) or
more must hold an MMC. 46 U.S.C. 8701. The only exception is for
entertainment personnel employed for a period of 30 days or less per
year, who are exempt from the MMC requirement.
    Prior to publication of the interim rule on April 24, 2007, Coast
Guard regulations governing the issuance of MMDs (now called MMCs)
prohibited the issuance of MMDs (now called MMCs) to non-resident
aliens (see 46 CFR Part 12). The Coast Guard, through the interim rule,
amended its regulations to authorize the issuance of MMDs (now called
MMCs) to non-resident aliens authorized to work in the United States
who meet the criteria of the Warner Act and the requirements set forth
in the rule.

IV. Discussion of Final Rule

    This rule finalizes, with minor non-substantive changes, the
amendments set forth in the interim rule. A full discussion of the
provision of this rule may be found in the ``Discussion of the Interim
Rule'' section of the interim rule. 72 FR 20278, at 20280.

V. Discussion of Comments and Changes

    We received a total of 14 letters commenting on the proposed rule.
One of the comments, discussing marine radio broadcast services, was
apparently submitted to the docket in error.
    Of the 13 relevant commenters, four essentially argue that
foreigners should not be permitted to work on U.S. flag vessels. Three
commenters argue that foreigners should be permitted to work on U.S.
flag large passenger vessels, and also that the Jones Act should be
repealed. Two commenters argue that foreigners should be allowed to
work on U.S. flag large passenger vessels because foreign hotel staff
on large passenger vessels provide a better level of customer service
than U.S. hotel staff.
    While the Coast Guard appreciates the countering viewpoints
expressed in these comments, none of them discuss the rulemaking.
Rather, they discuss issues regarding the appropriateness, fairness and
justification for the legislation underlying the rulemaking, i.e.
section 3509 of the Warner Act. That legislation was enacted by
Congress and signed by the President into law. This rulemaking is
merely the implementation of that law, and, as such, the viewpoints
expressed in these comments are beyond the scope of the rulemaking.
    The remaining four commenters discuss, at least in part, the
specifics of the rulemaking. Three of these four commenters--from
Seafarers International Union (SIU), Transportation Institute, and
Norwegian Cruise Line America (NCLA)--support the rulemaking without
change.
    NCLA owns/operates the only vessels subject to this rulemaking,
making NCLA the only vessel owner/operator to which this final rule
applies.\1\ Their comments indicate that the regulations as issued in
the interim rule strike an appropriate balance between flexibility for
the vessel owner/operator and safeguards to preserve U.S. interests.
NCLA urges that the regulations should be adopted without change in
this final rule. We agree with NCLA.
---------------------------------------------------------------------------

    \1\ When the interim rule was issued on April 24, 2007, NCLA
operated three U.S. flag large passenger vessels in coastwise trade
in the Hawaiian Islands. Since that time, they have removed two of
those vessels in coastwise trade in the Hawaiian Islands.
---------------------------------------------------------------------------

    One comment, from the Sailors' Union of the Pacific (SUP), opposes
the rulemaking on five grounds: negative consequences to sealift
manpower; undermining U.S. maritime security; creating a de facto
second register under the U.S. flag; unfair competition; and lack of
transparency. We made no changes to the rule based on these comments,
which are discussed below.
    SUP suggests that this rule will weaken defense readiness by
reducing the pool of qualified U.S. mariners necessary to commercially
operate military sealift ships, and that it takes away valuable entry-
level positions for unlicensed U.S. mariners. Conversely, SIU (one of
the other commenters) argues that if the cruise ships impacted by this
regulation are re-flagged foreign due to the economic pressures
associated with the high turnover of U.S. hotel staff on these vessels,
even more U.S. jobs will be lost. Instead of 75 percent of the crew on
these vessels being U.S. citizens, none of the crew will be a U.S.
citizen if the vessels are re-flagged foreign.
    While the Coast Guard appreciates both of these divergent maritime
labor viewpoints, they relate to the statute underlying this
rulemaking, i.e. section 3509 of the Warner Act, and, as noted above,
are beyond the scope of this rulemaking.
    SUP next suggests that this rulemaking undermines U.S. maritime
security because the security standards imposed on non-resident aliens
are ``far beneath'' the standards imposed on U.S. mariners. SUP
suggests that the aliens who would be allowed to work aboard U.S. large
passenger vessels under this rule are exempt from the TWIC
requirements, and that the ``real weakness in the rule's security
standards is that it depends on unreliable or non-existent information
from foreign sources.''
    First, it must be clarified that the non-resident aliens who gain
employment aboard U.S. large passenger vessels in accordance with this
rule are required to obtain TWIC cards, just like any other
credentialed U.S. mariner. Section 12.40-5(a) of the interim rule
specified that unless otherwise expressly stated, non-resident alien
applicants for MMDs (now called MMCs) are subject to all applicable
requirements contained in 46 CFR Subchapter B. The final TWIC rule
added new sections 10.113, 12.01-11 and 15.415 to 46 CFR Subchapter B.
73 FR 3492. These sections collectively require all credentialed
mariners to hold a valid TWIC by April 15, 2009, to be employed or
engaged on any U.S. flag vessel.
    Furthermore, the TWIC final rule amended 49 CFR 1572.105 to allow a
TWIC to be issued to an alien in a lawful nonimmigrant status who has
restricted authorization to work in the United States with a C-1/D
crewman visa. 49 CFR 1572.105(a)(7)(ii). The C-1/D crewman visa is the
most common type of visa that non-resident alien crewmembers have, and
it is explicitly referenced in both the statute and the rule as
acceptable for issuance of an MMD (now called MMC). To the extent that
a non-resident alien crewmember may have something other than a C-1/D
visa, there are numerous other lawful immigration statuses listed in 49
CFR 1572.105 allowing for issuance of a TWIC.
    Regarding the SUP argument that the non-resident aliens will be
subject to lesser security vetting requirements than U.S. mariners,
non-resident aliens are subject to not only a government background
check at the time of application (including the full security threat
assessment done by the

Transportation Security Administration when the individual applies for
a TWIC), but are also subject to an employer-conducted background
check, which must be updated every year that the non-resident alien
holds a credential, to search for any changes since the last background
check. They are also subject to any immigration background checks
required to obtain their lawful immigration status or visa. This is the
highest level of security vetting possible within the constraints of
section 3509 of the Warner Act, the statute underlying this rulemaking.
    Any concerns with respect to the quality of the employer-conducted
background check are addressed in Sec. Sec.  12.40-7(a)(2) and (a)(3)
of the rule. Section 12.40-7(a)(2)(ii) requires a review of the
available court and police records in the applicant's country of
citizenship, and in any other country in which the applicant has
resided or received employment referrals for the past 20 years. This is
an extensive requirement, and it may include not only criminal arrest
and conviction information, but also relevant civil court information
such as bankruptcies and lawsuits.
    Furthermore, Sec.  12.40-7(a)(3) states that the employer-conducted
background check must be conducted ``to the satisfaction of the Coast
Guard'' for a credential to be issued. This gives the Coast Guard broad
discretion to accept or reject employer-conducted background checks. In
fact, NCLA utilizes a company, at significant expense to NCLA, which
specializes in foreign criminal background checks. This company has
agents who physically search available court and police records at each
local foreign jurisdiction where each non-resident alien applicant has
resided, received employment referrals, or claimed citizenship. They
produce a professionally styled, comprehensive report on each non-
resident alien applicant. This is the type of background check that the
Coast Guard expects under Sec.  12.40-7(a)(3). Anything less could be
rejected with no credential being issued to the applicant.
    SUP next suggests that this rulemaking creates a de facto second
register under the U.S. flag by allowing the employment of foreign
mariners on U.S. vessels who may be paid less and employed under lower
standards than U.S. mariners. SUP states, correctly, that neither the
statute nor the rule requires non-resident alien mariners to be
employed under the same collective bargaining agreement as presently
applies to U.S. mariners on the same vessels.
    The Coast Guard has no authority to require any vessel owner/
operator to employ mariners under a collective bargaining agreement. As
long as the vessel owner/operator complies with the provisions of the
International Labor Organization's Merchant Shipping (Minimum
Standards) Convention of 1976 (ILO 147), as required in section
15.530(b) of the rule, they are under no obligation to provide the same
compensation to non-resident aliens as they do to U.S. mariners on
these vessels. This issue is discussed in more detail below in the
``Regulatory Planning and Review'' section, under ``Direct Impacts.''
    Significantly, compliance with ILO 147 entails compliance with the
scope of all the Conventions listed in the Appendix of ILO 147,
specifically including social security, medical exams, and
repatriation. Moreover, nothing in this rule relieves any vessel owner/
operator from compliance with all applicable provisions of 46 U.S.C.
Part G, Chapters 101-115, Merchant Seamen Protection and Relief.
    SUP next suggests that this rule creates unfair competition by
enabling NCLA to compete for crews under different rules than other
U.S. flag companies, interfering in the operation of commercial
maritime labor markets. Again, this argument relates to the statute
underlying the rule, i.e., section 3509 of the Warner Act, which
provides that up to 25 percent of the unlicensed seamen on large
passenger vessels can be qualified non-resident aliens (limited to
hotel staff). This issue is beyond the scope of this rulemaking.
    Finally, SUP suggests that both section 3509 of the Warner Act and
the rule itself lack transparency. SUP states that the law was ``buried
in the massive 2007 defense authorization bill,'' and that the Coast
Guard has bypassed the notice of proposed rulemaking phase of public
comment and gone right to an interim rule, thus further limiting
discussion of the rule.
    The comment concerning the legislative procedure that led to the
creation of the Warner Act is beyond the scope of this rulemaking. In
the interim rule, published April 24, 2007, the Coast Guard explained
that, under the Administrative Procedure Act, it had good cause to
issue an effective rule without first providing notice and an
opportunity for comment (see 72 FR 20281). Even with the good cause,
however, we requested public comment on the interim rule. For this
reason, we disagree with the assertion that this rule ``lacks
transparency.''
    In preparing this final rule, the Coast Guard made three minor,
non-substantive changes, from the interim rule, in the regulatory text.
Two of the changes occur in 46 CFR 12.40-7 ``Employer Requirements,''
and the third occurs in 12.40-13 ``Restrictions.'' In section 12.40-7,
first we capitalized the term ``Transportation Worker Identification
Credential,'' to correctly identify it. Second, we reorganized
paragraph (d) to more clearly identify when an employer must return a
mariner's TWIC and/or MMD (now called MMC) to the government (either
TSA or Coast Guard, as appropriate). Our third change is found in
section 12.40-13, where we spelled out the abbreviation ``STCW.'' None
of these edits change the substance of the Interim Rule.
    Since publication of the interim rule, the Coast Guard published a
final rule titled ``Consolidation of Merchant Mariner Qualification
Credentials'' (74 FR 11196; USCG-2006-24371). That final rule
consolidated all previously issued Coast Guard credentials (including
the MMD) into one new credential, called a merchant mariner credential
(MMC). It also reorganized 46 CFR chapter I, subchapter B. Changes made
by that final rule have been incorporated into this final rule. These
include: changing the term ``merchant mariner's document'' to
``merchant mariner credential'' in every place that it appeared;
updating cross references (where the sections referenced in the interim
rule were moved as part of the reorganization); moving the definitions
from subpart 12.40 to the definition section covering all of subchapter
B (46 CFR 10.107); and revising the subpart's title.

VI. 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 interim rule are summarized in Part V of
this publication. We received no public comments that would alter our
assessment of impacts in the interim rule. We have adopted the
assessment in the interim rule as final. See the

``Regulatory Evaluation'' section of the interim rule for more details.
A summary of the assessment follows.
    The Coast Guard issues this rule as mandated by Congress through
the Warner Act. See the ``Background'' section for more information
about this legislation.
    The rule creates an exemption to allow qualified non-resident
aliens to obtain MMCs for employment as unlicensed seamen in the
steward's departments of large passenger vessels, as entertainment and
service personnel, including wait staff, hotel housekeeping staff, and
food handlers. Prior to issuance of the interim rule, only U.S.
citizens, lawful permanent residents, and foreign nationals enrolled at
the U.S. Merchant Marine Academy could obtain MMDs (now MMCs) as
unlicensed seamen (and no more than 25 percent of these unlicensed
seamen may be lawful permanent residents). This rule will permit non-
resident aliens to also obtain MMCs for employment as rated seamen on
large passenger vessels, except no more than 25 percent of the rated
seamen on a large passenger vessel can be aliens (whether non-resident,
non-permanent resident aliens or lawful permanent residents). The rule
further requires that the non-resident aliens may only be employed in
the steward's department of a large passenger vessel.
    Although the Warner Act and this rule allow large passenger vessels
to hire non-resident aliens, neither the Act nor this rule mandates
that they do so. Accordingly, there are no mandatory costs to large
passenger vessels resulting from this rule. Rather, a company will only
choose to avail itself of the exemption if the benefits to the company
from the hiring of non-resident aliens are greater than the costs.
    Based on Coast Guard Marine Inspection, Safety, and Law Enforcement
system (MISLE) data, we determined there is only one large passenger
vessel currently in service that meets the qualifications of this rule.
Norwegian Cruise Line America (NCLA) operates the vessel in coastwise
service in the Hawaiian Islands.\2\ NCLA is the only company directly
regulated by this rulemaking.
---------------------------------------------------------------------------

    \2\ Since April 2007, NCLA has removed two vessels from U.S.
service and re-flagged them for foreign service.
---------------------------------------------------------------------------

    We expect most of the direct costs of the rule will be borne by
NCLA. The rule will require NCLA to perform an employer-conducted
background check and submit additional required merchant mariner
application information to the Coast Guard on the employee's behalf.
However, NCLA participation in this alternative compliance method is
voluntary, and NCLA will only participate if the net benefits of doing
so are positive. We estimate the benefit to NCLA from participating in
this rule to be the cost savings made through reduced turnover and
decreased startup training costs, since the non-resident aliens hired
under this program will have experience aboard foreign-flag vessels.
    This reduction in labor cost is the cost savings or net benefit for
NCLA to participate in the alternative MMC citizenship compliance
method of this rule. See the ``Regulatory Evaluation'' section of the
interim rule for additional details.

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.
RFA analysis is not required when a rule is exempt from notice and
comment rulemaking under 5 U.S.C. 553(b). As discussed in the interim
rule, the Coast Guard determined that this regulatory action is exempt
from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B).
Therefore, an RFA analysis is not required for this rule. The Coast
Guard, nonetheless, expects that this rule will not have a significant
economic impact on a substantial number of small entities.
    Based on Coast Guard MISLE data, we have determined that there is
only one company (NCLA) is affected by this rule. We researched the
company size and revenue data and found that this company is not
considered a small entity by the Small Business Administration's size
standards.
    In the interim rule, we certified under 5 U.S.C. 605(b) that the
interim rule would not have a significant economic impact on a
substantial number of small entities. We have found no additional data
or information that would change our findings in the interim rule. We
have adopted the certification in the interim for this final rule. See
the ``Small Entity'' section of the interim rule for additional detail.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this final rule does not have a significant economic impact on a
substantial number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. 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 (PRA) of 1995 (44 U.S.C. 3501-3520). Under OMB
regulations implementing the PRA, ``Controlling Paperwork Burdens on
the Public'' (5 CFR 1320), collection of information means the
obtaining, soliciting, or requiring the disclosure to an agency of
information by or for an agency by means of identical questions posed
to, or identical reporting, recordkeeping, or disclosure requirements
imposed on, ten or more persons. ``Ten or more persons'' refers to the
number of respondents to whom a collection of information is addressed
by the agency within any 12-month period and does not include employees
of the respondent acting within the scope of their employment,
contractors engaged by a respondent for the purpose of complying with
the collection of information, or current employees of the Federal
government. Collections of information affecting ten or more
respondents within any 12-month period require OMB review and approval.
    This rule will require employers to submit employee information to
the Coast Guard before the Coast Guard will issue an MMC for their
employees. However, we expect only one company will be affected by this
requirement each year, as there is only one company (NCLA) in a
position to take advantage of these regulations. NCLA has been
submitting information under the

interim rule since April 2007. We have no data or information to
suggest that there will be additional companies affected by the rule.
As such, the number of respondents is less than the threshold of ten
respondents per 12-month period for collection of information
requirements under the PRA.

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.
    It is well settled that States may not regulate in categories
reserved for regulation by the Coast Guard. It is also well settled
now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101,
and 8101 (design, construction, alteration, repair, maintenance,
operation, equipping, personnel qualification, and manning of vessels),
as well as the reporting of casualties and any other category in which
Congress intended the Coast Guard to be the sole source of a vessel's
obligations, are within the field foreclosed from regulation by the
States. (See the decision of the Supreme Court in the consolidated
cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89,
120 S.Ct. 1135 (March 6, 2000).) This final rule deals with personnel
qualifications and the manning requirements on large passenger vessels.
Because the States may not regulate within these categories, preemption
under Executive Order 13132 is not an issue.

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 affect 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 (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 determined
that this action is one of a category of actions which 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)(c) of the Instruction. This paragraph
excludes regulatory actions concerning the training, qualifying,
licensing, and disciplining of maritime personnel from further
environmental documentation, and this final rule concerns the licensing
of maritime personnel. An environmental analysis checklist and a
categorical exclusion determination are available in the docket where
indicated under ADDRESSES.

List of Subjects

46 CFR Part 12

    Penalties, Reporting and recordkeeping requirements, Schools,
Seamen.

46 CFR Part 15

    Reporting and recordkeeping requirements, Seamen, Vessels.

0
For the reasons discussed in the preamble, the Coast Guard amends 46
CFR parts 12 and 15 by adopting as final the interim rule published
April 24, 2007 (72 FR 20278), with the following changes:

PART 12--CERTIFICATION OF SEAMEN

0
1. Revise Subpart 12.40 to read as follows:

Subpart 12.40---Non-resident Alien Unlicensed Members of the
Steward's Department on U.S. Flag Large Passenger Vessels

Sec.
12.40-1 Purpose of rules.
12.40-3 [Reserved].
12.40-5 General application requirements.
12.40-7 Employer requirements.
12.40-9 Basis for denial.
12.40-11 Citizenship and identity.
12.40-13 Restrictions.
12.40-15 Alternative means of compliance.

    Authority:  31 U.S.C. 9701; 46 U.S.C. 2101, 2103, 2110, 7301,
7302, 7503, 7505, 7701 and 8103; Department of Homeland Security
Delegation No. 0170.1.

Sec.  12.40-1  Purpose of rules.

    The rules in this subpart implement 46 U.S.C. 8103(k) by
establishing requirements for the issuance of merchant mariner
credentials, valid only for service in the steward's department of U.S.
flag large passenger vessels, to non-resident aliens.

Sec.  12.40-3  [Reserved]

Sec.  12.40-5  General application requirements.

    (a) Unless otherwise expressly specified in this subpart, non-
resident alien applicants for Coast Guard-issued merchant mariner
credentials are subject to all applicable requirements contained in
this subchapter.
    (b) No application from a non-resident alien for a merchant mariner
credential issued pursuant to this subpart will be accepted unless the
applicant's employer satisfies all of the requirements of Sec.  12.40-7
of this subpart.

Sec.  12.40-7  Employer requirements.

    (a) The employer must submit the following to the Coast Guard, as a
part of the applicant's merchant mariner credential application, on
behalf of the applicant:
    (1) A signed report that contains all material disciplinary actions
related to the applicant, such as, but not limited to, violence or
assault, theft, drug and alcohol policy violations, and sexual
harassment, along with an explanation of the criteria used by the
employer to determine the materiality of those actions;
    (2) A signed report regarding an employer-conducted background
check. The report must contain:
    (i) A statement that the applicant has successfully undergone an
employer-conducted background check;
    (ii) A description of the employer-conducted background check,
including all databases and records searched. The background check
must, at a minimum, show that the employer has reviewed all information
reasonably and legally available to the owner or managing operator,
including the review of available court and police records in the
applicant's country of citizenship, and any other country in which the
applicant has received employment referrals, or resided, for the past
20 years prior to the date of application; and
    (iii) All information derived from the employer-conducted
background check.
    (3) The employer-conducted background check must be conducted to
the satisfaction of the Coast Guard for a merchant mariner credential
to be issued to the applicant.
    (b) If a merchant mariner credential is issued to the applicant,
the report and information required in paragraph (a)(2) of this section
must be securely kept by the employer on the U.S. flag large passenger
vessel, or U.S. flag large passenger vessels, on which the applicant is
employed. The report and information must remain on the last U.S. flag
large passenger vessel on which the applicant was employed until such
time as the merchant mariner credential is returned to the Coast Guard
in accordance with paragraph (d) of this section.
    (c) If a merchant mariner credential or a Transportation Worker
Identification Credential (TWIC) is issued to the applicant, each
merchant mariner credential and TWIC must be securely kept by the
employer on the U.S. flag large passenger vessel on which the applicant
is employed. The employer must maintain a detailed record of the
seaman's total service on all authorized U.S. flag large passenger
vessels, and must make that information available to the Coast Guard
upon request, to demonstrate that the limitations of Sec.  12.40-13(c)
of this subpart have not been exceeded.
    (d) In the event that the seaman's merchant mariner credential and/
or TWIC expires, the seaman's visa status terminates, the seaman serves
onboard the U.S. flag large passenger vessel(s) for 36 months in the
aggregate as a nonimmigrant crewman, the employer terminates employment
of the seaman or if the seaman otherwise ceases working with the
employer, the employer must return the merchant mariner credential to
the Coast Guard and the TWIC to the Transportation Security
Administration within 10 days of the event.
    (e) In addition to the initial material disciplinary actions report
and the initial employer-conducted background check specified in
paragraph (a) of this section, the employer must:
    (1) Submit an annual material disciplinary actions report to update
whether there have been any material disciplinary actions related to
the applicant since the last material disciplinary actions report was
submitted to the Coast Guard.
    (i) The annual material disciplinary actions report must be
submitted to the satisfaction of the Coast Guard in accordance with the
same criteria set forth in paragraph (a)(1) of this section, except
that the period of time examined for the material disciplinary actions
report need only extend back to the date of the last material
disciplinary actions report; and
    (ii) The annual material disciplinary actions report must be
submitted to the Coast Guard on or before the anniversary of the
issuance date of the merchant mariner credential.
    (2) Conduct a background check each year that the merchant
mariner's document is valid to search for any changes that might have
occurred since the last employer-conducted background check was
performed:
    (i) The annual background check must be conducted to the
satisfaction of the Coast Guard in accordance with the same criteria
set forth in paragraph (a)(2) of this section, except that the period
of time examined during the annual background check need only extend
back to the date of the last background check; and
    (ii) All information derived from the annual background check must
be submitted to the Coast Guard on or before the anniversary of the
issuance date of the merchant mariner credential.
    (f) The employer is subject to the civil penalty provisions
specified in 46 U.S.C. 8103(f) for any violation of this section.

Sec.  12.40-9  Basis for denial.

    In addition to the requirements for a merchant mariner credential
established elsewhere in this subchapter, and the basis for denial
established in Sec. Sec.  10.209, 10.211, and 10.213 of this
subchapter, an applicant for a merchant mariner credential issued
pursuant to this subpart must:
    (a) Have been employed, for a period of at least one year, on a
foreign flag passenger vessel(s) that is/are under the same common
ownership or control as the U.S. flag large passenger vessel(s) on
which the applicant will be employed upon issuance of a merchant
mariner credential under this subpart.
    (b) Have no record of material disciplinary actions during the
employment required under paragraph (a) of this section, as verified in
writing by the owner or managing operator of the U.S. flag large
passenger vessel(s), on which the applicant will be employed.
    (c) Have successfully completed an employer-conducted background
check, to the satisfaction of both the employer and the Coast Guard.
    (d) Meet the citizenship and identity requirements of Sec.  12.40-
11 of this subpart.

Sec.  12.40-11  Citizenship and identity.

    (a) In lieu of the requirements of Sec.  10.221 of this subchapter,
a non-

resident alien may apply for a Coast Guard-issued merchant mariner
credential, endorsed and valid only for service in the steward's
department of a U.S. flag large passenger vessel as defined in this
subpart, if he or she is authorized for employment under the
immigration laws of the United States, including an alien crewman
described in section 101(a)(15)(D)(i) of that Act.
    (b) To meet the citizenship and identity requirements of this
subpart, an applicant must present an unexpired passport issued by the
government of the country of which the applicant is a citizen or
subject; and either a valid U.S. C-1 or D visa or other valid evidence
of employment authorization in the United States deemed acceptable by
the Coast Guard.
    (c) Any non-resident alien applying for a merchant mariner
credential under this subpart may not be a citizen of, or a temporary
or permanent resident of, a country designated by the Department of
State as a ``State Sponsor of Terrorism'' pursuant to section 6(j) of
the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or
section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).

Sec.  12.40-13  Restrictions.

    (a) A merchant mariner credential issued to a non-resident alien
under this subpart authorizes service only in the steward's department
of the U.S. flag large passenger vessel(s), that is/are under the same
common ownership and control as the foreign flag passenger vessel(s),
on which the non-resident alien served to meet the requirements of
Sec.  12.40-9(a) of this subpart:
    (1) The merchant mariner credential will be endorsed for service in
the steward's department in accordance with Sec.  12.25-10 of this
part;
    (2) The merchant mariner credential may also be endorsed for
service as a food handler if the applicant meets the requirements of
Sec.  12.25-20 of this part; and
    (3) No other rating or endorsement is authorized, except
lifeboatman, in which case all applicable requirements of this
subchapter and the International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978, as amended (STCW
Convention), and the Seafarers' Training, Certification and
Watchkeeping Code (STCW Code), must be met.
    (b) The following restrictions must be printed on the merchant
mariner credential, or listed in an accompanying Coast Guard letter, or
both:
    (1) The name and official number of all U.S. flag vessels on which
the non-resident alien may serve. Service is not authorized on any
other U.S. flag vessel;
    (2) Upon issuance, the merchant mariner credential must remain in
the custody of the employer at all times;
    (3) Upon termination of employment, the merchant mariner credential
must be returned to the Coast Guard within 10 days in accordance with
Sec.  12.40-7 of this subpart;
    (4) A non-resident alien issued a merchant mariner credential under
this subpart may not perform watchstanding, engine room duty watch, or
vessel navigation functions; and
    (5) A non-resident alien issued a merchant mariner credential under
this subpart may perform emergency-related duties provided:
    (i) The emergency-related duties do not require any other rating or
endorsement, except lifeboatman as specified in paragraph (a)(3) of
this section;
    (ii) The non-resident alien has completed familiarization and basic
safety training as required in Sec.  15.1105 of this subchapter;
    (iii) That if the non-resident alien serves as a lifeboatman, he or
she must have the necessary lifeboatman's endorsement; and
    (iv) The non-resident alien has completed the training for
crewmembers on passenger ships performing duties involving safety or
care for passengers, as required in subpart 12.35 of this part.
    (c) A non-resident alien may only serve for an aggregate period of
36 months actual service on all authorized U.S. flag large passenger
vessels combined under the provisions of this subpart:
    (1) Once this 36-month limitation is reached, the merchant mariner
credential becomes invalid and must be returned to the Coast Guard
under Sec.  12.40-7(d) of this subpart, and the non-resident alien is
no longer authorized to serve in a position requiring a merchant
mariner credential on any U.S. flag large passenger vessel; and
    (2) An individual who successfully adjusts his or her immigration
status to that of an alien lawfully admitted for permanent residence to
the United States or who becomes a United States citizen may apply for
a merchant mariner credential, subject to the requirements of Sec.
10.221 of this subchapter, without any restrictions or limitations
imposed by this subpart.

Sec.  12.40-15  Alternative means of compliance.

    (a) The owner or managing operator of a U.S. flag large passenger
vessel, or U.S. flag large passenger vessels, seeking to employ non-
resident aliens issued merchant mariner credential under this subpart
may submit a plan to the Coast Guard, which, if approved, will serve as
an alternative means of complying with the requirements of this
subpart.
    (b) The plan must address all of the elements contained in this
subpart, as well as the related elements contained in Sec.  15.530 of
this subchapter, to the satisfaction of the Coast Guard.

PART 15--MANNING REQUIREMENTS

0
2. The authority citation for part 15 is revised to read as follows:

    Authority:  46 U.S.C. 2101, 2103, 3306, 3703, 8101, 8102, 8104,
8105, 8301, 8304, 8502, 8503, 8701, 8702, 8901, 8902, 8903, 8904,
8905(b), 8906, 9102, and 8103; and Department of Homeland Security
Delegation No. 0170.1.

0
3. Revise Sec.  15.530 in subpart D to read as follows:

Sec.  15.530  Large passenger vessels.

    (a) The owner or operator of a U.S. flag large passenger vessel
must ensure that any non-resident alien holding a Coast Guard-issued
merchant mariner credential described in subpart 12.40 of this
subchapter is provided the rights, protections, and benefits of the
International Labor Organization's Merchant Shipping (Minimum
Standards) Convention of 1976.
    (b) On U.S. flag large passenger vessels, non-resident aliens
holding a Coast Guard-issued merchant mariner credential described in
subpart 12.40 of this subchapter:
    (1) May only be employed in the steward's department on the
vessel(s) specified on the merchant mariner credential or accompanying
Coast Guard letter under Sec.  12.40-13(b)(1) of this subchapter;
    (2) May only be employed for an aggregate period of 36 months
actual service on all authorized U.S. flag large passenger vessels
combined, under Sec.  12.40-13(c) of this subchapter;
    (3) May not perform watchstanding, engine room duty watch, or
vessel navigation functions, under Sec.  12.40-13(b)(4) of this
subchapter; and
    (4) May perform emergency-related duties only if, under Sec.
12.40-13(b)(5) of this subchapter:
    (i) The emergency-related duties do not require any other rating or
endorsement, except lifeboatman as specified in Sec.  12.40-13(a)(3) of
this subchapter;
    (ii) The non-resident alien has completed familiarization and basic
safety training, as required in Sec.  15.1105 of this part;

    (iii) That if the non-resident alien serves as a lifeboatman, he or
she must have the necessary lifeboatman's endorsement; and
    (iv) The non-resident alien has completed the training for
crewmembers on passenger ships performing duties involving safety or
care for passengers, as required in subpart 12.35 of this subchapter.
    (c) No more than 25 percent of the total number of ratings on a
U.S. flag large passenger vessel may be aliens, whether admitted to the
United States for permanent residence or authorized for employment in
the United States as non-resident aliens.
    (d) The owner or operator of a U.S. flag large passenger vessel
employing non-resident aliens holding Coast Guard-issued merchant
mariner credentials described in subpart 12.40 of this subchapter must:
    (1) Retain custody of all non-resident alien merchant mariner
credentials for the duration of employment, under Sec.  12.40-13(b)(2)
of this subchapter; and
    (2) Return all non-resident alien merchant mariner credentials to
the Coast Guard upon termination of employment, under Sec.  12.40-
13(b)(3) of this subchapter.
    (e) The owner or operator of a U.S. flag large passenger vessel
employing non-resident aliens holding Coast Guard-issued merchant
mariner credentials described in subpart 12.40 of this subchapter is
subject to the civil penalty provisions specified in 46 U.S.C. 8103(f),
for any violation of this section.

    Dated: September 10, 2009.
Jeffrey G. Lantz,
Director of Commercial Regulations & Standards CG-52.
[FR Doc. E9-22355 Filed 9-16-09; 8:45 am]

BILLING CODE 4910-15-P