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e-CFR data is current as of September 18, 2020

Title 46Chapter ISubchapter CPart 28 → Subpart I


Title 46: Shipping
PART 28—REQUIREMENTS FOR COMMERCIAL FISHING INDUSTRY VESSELS


Subpart I—Citizenship Waiver Procedures


Contents
§28.1100   General.
§28.1105   Request for a waiver.
§28.1110   Waiver approval.
§28.1115   Waiver request and approval records.

Source: USCG-2010-0625, 79 FR 8869, Feb. 14, 2014, unless otherwise noted.

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§28.1100   General.

(a) As set forth in 46 U.S.C. 8103, a citizenship requirement, other than a requirement that applies to the master of a documented vessel, on commercial fishing vessels may be waived for unlicensed seamen when qualified seamen who are citizens of the United States are not available. Under the provisions of this subpart, the Coast Guard approves or denies requests for a waiver of the citizenship requirement from owners, operators, or employers seeking to exceed the 25 percent limit applicable to unlicensed seamen aboard fishing industry vessels who are non-permanent resident aliens authorized for employment in the United States under the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.).

(b) This subpart does not apply to a fishing vessel fishing exclusively for highly migratory species (as that term is defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)).

(c) The regulations in this subpart have preemptive effect over State or local regulation within the same field.

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§28.1105   Request for a waiver.

(a) Vessel owners, operators, or employers who desire a waiver of citizenship requirements from the Coast Guard must submit a written request to the Commandant (CG-CVC), United States Coast Guard Headquarters, Stop 7501, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7501.

(b) The written request required under paragraph (a) of this section must contain—

(1) The vessel owner's, operator's, or employer's contact information—

(i) Full name (last, first, middle initial);

(ii) Address;

(iii) Work phone number;

(iv) Fax number (if applicable); and

(v) Email address (if applicable);

(2) Information on fishing vessel(s) for which the owner, operator, or employer requests a citizenship waiver. For each listed vessel, the owner's, operator's, or employer's must include—

(i) Fishing vessel name;

(ii) Fishing vessel official number;

(iii) Fishing vessel length (in feet);

(iv) Fishing vessel gross tonnage; and

(v) Each type of fishery in which the vessel is engaged;

(3) Information on persons who will work on the vessel. For each listed vessel, the owner, operator, or employer must include—

(i) The total number of unlicensed crew normally employed;

(ii) The name, nationality, birth place, position to be held, and basis for employment authorization in the United States of each alien who is not lawfully admitted for permanent residence but is otherwise authorized for employment in the United States under the Immigration and Nationality Act (INA); and

(iii) The number of alien seamen who are not lawfully admitted for permanent residence but are otherwise authorized for employment in the United States under the INA for which the waiver is requested; and

(4) The time period over which the 25 percent limit will be exceeded—

(i) Start date (MM/DD/YYYY); and

(ii) Expiration date (MM/DD/YYYY).

(c) The owner, operator, or employer submitting a request for a waiver under paragraph (a) of this section must include a statement certifying that the vessel(s) will operate in compliance with all other applicable citizenship requirements regarding the master or other officers in charge of deck or engineering watches on U.S.-documented vessels.

(d) The owner, operator, or employer submitting a request for a waiver under paragraph (a) of this section must provide evidence that aliens who are not lawfully admitted for permanent residence are authorized for employment with the owner, operator, or employer under the INA and evidence that qualified seamen who are U.S. citizens are not available for employment. The following documentation for H2B non-immigrants is satisfactory evidence both of authorization for employment with the owner, operator, or employer under the INA and that qualified seamen who are U.S. citizens are not available:

(1) U.S. Citizenship and Immigration Services (USCIS) Form I-797, “Notice of Action: Approval Notice” classifying the alien as an H2B non-immigrant for purposes of employment with the owner, operator, or employer submitting a request for a waiver under paragraph (a) of this section.

(2) USCIS Form I-94, “Arrival/Departure Record” indicating that the alien has been lawfully admitted to the United States (or has been lawfully granted a change of nonimmigrant status or extension of non-immigrant stay in H2B classification) for the dates covered by the proposed employment.

(e) Upon receipt of a request submitted under paragraph (a) of this section and required information submitted in accordance with paragraphs (b) through (d) of this section, the Coast Guard will evaluate the information and may investigate further, as necessary, to determine the validity of the information provided.

[USCG-2010-0625, 79 FR 8869, Feb. 14, 2014, as amended by USCG-2016-0498, 82 FR 35089, July 28, 2017]

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§28.1110   Waiver approval.

(a)(1) If, within 30 days of receipt of a properly submitted request for a waiver, the Coast Guard does not make a determination whether to approve the request or does not advise the owner, operator, or employer that additional time is needed for consideration, the request will be considered provisionally approved for 90 days from the end of that 30-day period.

(2) If the Coast Guard does not make a determination whether to approve a properly submitted request for a waiver in writing within 30 days of receipt, the owner, operator, or employer must have a copy of the request and supporting documentation available on board the vessel as proof of submission of a request for waiver of the citizenship requirement for unlicensed seamen for that vessel.

(b)(1) If the Coast Guard determines, based on the waiver request, supporting documentation, and any other relevant information, that no qualified U.S. citizen seamen are available, the Coast Guard will grant the waiver to exceed the 25-percent limit for employment of non-permanent resident alien seaman for the period of employment authorized for each alien under the Immigration and Nationality Act (INA). The Coast Guard will issue a letter of approval to the owner, operator, or employer for the applicable vessel(s).

(2) The owner, operator, or employer must have a copy of the waiver approval letter available on board the vessel as proof of waiver of the citizenship requirement for unlicensed seamen for that vessel.

[USCG-2010-0625, 79 FR 8869, Feb. 14, 2014]

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§28.1115   Waiver request and approval records.

The Coast Guard will maintain a record of citizenship waiver requests and approvals. Approvals will be documented for the applicable vessel(s) in the Coast Guard's vessel information database.

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