[Federal Register: July 21, 2004 (Volume 69, Number 139)]
[Rules and Regulations]
[Page 43515-43516]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy04-3]
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DEPARTMENT OF STATE
22 CFR Part 41
[Public Notice: 4767]
RIN 1400-AB49
Documentation of Nonimmigrants Under the Immigration and
Nationality Act, as Amended--Elimination of Crew List Visas
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: This rule adopts as final the Department's interim final
regulations regarding the elimination of crew list visas.
DATES: The interim final rule became effective June 16, 2004. This rule
is adopted as a final rule as of July 21, 2004.
ADDRESSES: You may view this rule online at http://frwebgate.access.gpo.gov/cgi-bin/
leaving.cgi?from=leavingFR.html
&log=linklog&to=http: //http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ron Acker, Legislation and Regulations
Division, Visa Services, Department of State, Washington, DC 20520-
0106, (202) 663-1205 or e-mail ackerrl@state.gov.
SUPPLEMENTARY INFORMATION: On December 13, 2002, the Department
published a rule (67 FR 76711) proposing to eliminate crew list visas.
After review of comments to the proposed rule, on March 18, 2004, the
Department published an interim final rule which allowed a final
comment period until May 17, 2004, followed by a 30 day period for
further Department review of comments. The Department is now making
final the interim final rule.
DHS has authorized this regulation pursuant to the Memorandum of
Understanding Between the Secretaries of State and Homeland Security
Concerning Implementation of Section 428 of the Homeland Security Act
of 2002. The requirements of 22 CFR 41.42 are being removed in
coordination with the removal of similar requirements by DHS in its
corresponding regulations.
What Are the Statutory Authorities Pertaining to the Crew List Visa?
Authority for the issuance of a crew list visa is derived from
sections 101(a)(15)(D) and 221(f) of the Immigration and Nationality
Act, 8 U.S.C. 1101(a)(15)(D) and 1201(f), respectively. Section
101(a)(15)(D) exempts aliens serving in good faith as crewmen on board
a vessel (other than a fishing vessel having its home port or an
operating base in the United States, unless temporarily landing in
Guam), or aircraft from being deemed immigrants. Section 221(f),
permits an alien to enter the United States on the basis of a crew
manifest that has been visaed by a consular officer. However, the
latter section does not require a consular officer to visa a crew
manifest and it authorizes the officer to deny admission to any
individual alien whose name appears on a visaed crew manifest. Further,
according to the wording of section 221(f) the use of the visaed crew
list appears to have been intended principally as a temporary or
emergency measure to be used only until such time as it becomes
practicable to issue individual documents to each member of a vessel's
or aircraft's crew.
Why Has the Department Eliminated the Crew List Visa?
The Department has eliminated the crew list visa for security
reasons. Since the September 11, 2001 attacks, the Department has
reviewed its regulations to ensure that every effort is being made to
screen out undesirable aliens. By eliminating the crew list visa, the
Department will ensure that each crewmember entering the United States
is be required to complete the nonimmigrant visa application forms,
submit a valid passport and undergo an interview and background checks.
Additionally, the Enhanced Border Security and Visa Entry Reform Act of
2002 (Pub. L. 107-173) requires that all visas issued after October 26,
2004 have a biometric indicator. This means crew list visas would
necessarily be eliminated by that date.
Did the Department Solicit Comments to the Interim Final Rule?
The Department did solicit comments, and 18 were received. This is
in addition to the 82 comments received earlier to the proposed rule.
The text of most of the comments was identical. Other letters expressed
the same views. The substance of the comments was similar to comments
made previously to the proposed rule. A summary of the comments
received and the Department's responses follows.
Most of the commenters expressed disappointment that the United
States issued the interim final rule despite opposition from the
majority of commenters. They referred to the special circumstances of
seafarers, which often made it difficult for them to know an exact
itinerary in advance. The also mentioned the hardship for seafarers of
the waiting time to receive a U.S. visa. Most commenters referred to
proposed ILO Convention No. 185 and expressed the hope that the U.S.
would have encouraged widespread ratification of this convention by
providing more favorable treatment to holders of the seafarers identity
document proposed by this convention. Previous commenters have remarked
that the proposed ID could serve as a substitute for a passport and
that its security features would make crew list visas more secure, even
in the absence of consular interviews of all crew members, which is
typical when crew list visas are issued. While the Department
recognizes that a seafarer's ID containing biometrics could be useful,
it is likely to take years for such a document to be developed and
adopted widely. Further, one of the principal reasons for requiring
individual visas is the need, for security purposes, for a consular
officer to personally interview each applicant. Adoption of the new ID
card will not address the need for interviews.
Regarding difficulties for crewmen obtaining individual visas
caused by last-minute scheduling, the Department recognizes the
problem, but continues to believe that the security of the U.S. demands
individual crew visas despite the dislocations that the requirement may
cause initially. Nevertheless, the Department hopes that shipping
companies and unions will encourage their employees and members to
obtain visas where there is a reasonable possibility that a crewman may
be required to enter the U. S. at any time. The visa, once obtained,
and depending upon bilateral reciprocity for like documents held by
U.S. seamen, will generally be valid for up to five years. Therefore,
once individual crew visas are obtained and used generally by seamen
working for companies that ship to the U.S., there should be reasonable
certainty that most of the crew will be able to enter the U.S. on short
notice.
[[Page 43516]]
How Did This Rule Amend the Department's Regulations?
This rule removed the Department's regulations at 22 CFR 41.42 that
establish the crew list visa. By doing so, all crewmembers seeking to
enter the United States in that capacity are required to apply for
individual crew visas.
Regulatory Findings
Administrative Procedure Act
The Department is publishing this rule as a final rule, after a 60-
day provision for post-promulgation public comments and review, based
on the ``good cause'' exceptions set forth at 5 U.S.C. 553(b)(3)(B) and
553(d)(3). It is dictated by the necessity to ensure that every effort
is being made to screen out undesirable aliens; additionally, the
Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L.
107-173) requires that all visas issued after October 26, 2004 have a
biometric indicator, which means crew list visas would necessarily be
eliminated by that date.
Regulatory Flexibility Act/Executive Order 13272: Small Business
These changes to the regulations are hereby certified as not
expected to have a significant effect on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C.
601-612.
The Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 804, for
purposes of congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete
with foreign based companies in domestic and import markets.
The Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Public Law 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires
agencies to prepare a statement before proposing any rule that may
result in an annual expenditure of $100 million or more by State,
local, or tribal governments, or by the private sector. This rule does
not result in any such expenditure nor will it significantly or
uniquely affect small governments.
Executive Order 13132: Federalism
The Department finds that this regulation will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or the distribution of power and
responsibilities among the various levels of government. Nor does the
rule have federalism implications warranting the application of
Executive Orders No. 12372 and No. 13132.
Executive Order 12866: Regulatory Review
The Department of State considers this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. The Department submitted the interim
rule to the Office of Management and Budget for its review and there is
no change in the final rule.
Executive Order 12988: Civil Justice Reform
The Department has reviewed the proposed regulations in light of
sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden.
The Paperwork Reduction Act of 1995
This rule does not impose information collection requirements under
the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
List of Subjects in 22 CFR Part 41
Aliens, Nonimmigrants, Passports, Visas.
In view of the foregoing, the interim final rule that amended 22
CFR Part 41 published on March 18, 2004 (69 FR 12797) is adopted as
final.
Dated: June 10, 2004.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 04-16468 Filed 7-20-04; 8:45 am]
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