[Federal Register Volume 62, Number 158 (Friday, August 15, 1997)]
[Proposed Rules]
[Pages 43676-43679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21708]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 252

[INS No. 1695-95]
RIN 1115-AD95


Inspection of Alien Crewmembers; 90-Day Modified Inspection 
Procedure

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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

SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service (Service) regulations by codifying the Service's longstanding 
practice of authorizing, on a discretionary basis, multiple landing 
privileges for certain maritime crewmembers actively serving on board a 
limited number of commercial maritime cruise ships and ferries making 
regular trips to and from the United States. This proposed rule would 
codify the Service's current procedure of granting, in appropriate 
cases, certain crewmembers' conditional landing permits. An alien 
crewmember who is

[[Page 43677]]

granted a conditional landing permits valid for multiple entries, not 
to exceed an aggregate of 29 days, for the 90-day period following the 
crewmember's in-person inspection. This procedure enables the Service 
to exercise its discretionary authority to forego subsequent in-person 
inspections of the crewmember during the 90-day period.

DATES: Written comments must be submitted on or before October 14, 
1997.

ADDRESSES: Please submit written comments, in triplicate, to the Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 5307, Washington, DC 20536. Please 
include INS number 1695-95 on your correspondence to ensure proper and 
timely handling. Comments are available for public inspection at the 
above address by calling 202-514-3048, to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:
Catherine M. Paler-Amaya, Assistant Chief Inspector, Immigration and 
Naturalization Service, 425 I Street, NW., Room 4064, Washington, DC 
20536, telephone number (202) 514-3019.

SUPPLEMENTARY INFORMATION:

Background

    For more than four decades, the Service has applied a modified 
inspection procedure with respect to certain alien crewmembers arriving 
in the United States on a limited number of commercial maritime ferries 
and cruise ships. Under this modified inspection procedure, the 
Service, after conducting a full-crew in-person inspection, may excuse 
an inspected alien crewmember from subsequent in-person inspections 
upon rearrival in the United States from a foreign port during the 90-
day period following the date of the alien's in-person inspection. 
Alien crewmembers who have not been inspected during a full-crew in-
person inspection must be inspected in person at the time they seek 
landing privileges, and may also be granted multiple entry conditional 
landing permits. An alien crewmember who is granted a conditional 
landing permit under this procedure may not remain in this country for 
an aggregate of more than 29 days during the 90-day period following 
his or her in-person inspection.
    The Service first employed this 90-day modified inspection 
procedure in connection with the inspection of alien crewmembers 
employed on ferries operating in the Great Lakes area. The procedure 
was subsequently expanded to include the inspection of alien crewmen 
employed on ferries and maritime cruise vessels docking at U.S. ports 
in the northeast and southeast and, ultimately, to cruise vessels 
operating in the Western Hemisphere and those landing at preclearance 
sites in the Caribbean. This discretionary modified inspection 
procedure applies solely to maritime ferries and cruise ships making 
regularly scheduled trips to and from the United States which have an 
established record of compliance with the immigration laws.

Legal Background

    Under section 252(a)(1) of the Immigration and Nationality Act (the 
Act), the Service is required to examine arriving alien crewmembers to 
determine their eligibility for admission as nonimmigrants under 
section 101(a)(15)(D) of the Act. An alien crewmember who the Service 
determines to be admissible may be granted a conditional landing permit 
to land temporarily pursuant to regulations prescribed by the Attorney 
General for ``the period of time (not to exceed 29 days) during which 
the vessel on which the alien arrived remains in port, provided the 
immigration officer is satisfied that the crewman intends to depart on 
the vessel or aircraft on which he arrived'' (See section 252(a)(1) of 
the Act). In enacting this section of the Act, Congress granted the 
Service considerable authority to determine the most appropriate 
procedure for conducting examinations of arriving alien crewmen. (See 
also current 8 CFR 252.1.) The recent amendments to the INA Section 235 
which were enacted as part of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009 
(1996) do not fundamentally alter the Service's authority in this area. 
Section 235(a)(3) now clearly requires the inspection of all alien 
crewmen seeking admission or readmission to or transit through the 
United States. The 90-day modified inspection procedure satisfies this 
mandate because it expressly contemplates an initial in-person 
inspection of each crewman following which the crewman may make 
multiple landings under specified conditions, at the discretion of the 
Service and for a limited period of time.

Policy Basis for the 90-Day Modified Inspection Procedure

    Based on its long experience inspecting maritime vessels, the 
Service has determined that, in appropriate cases, the 90-day modified 
inspection procedure is the most appropriate means of enforcing the 
immigration laws. In developing this longstanding policy, the Service 
has considered a variety of relevant factors, including its experience 
with maritime carriers at local Ports-of-Entry, the specific nature of 
the maritime activities involved, the frequency of a particular 
vessel's arrivals from a foreign port, the vessel's record of 
compliance with the immigration laws, the Service's local personnel 
requirements, and the needs of operators of maritime ferry and cruise 
ships and their passengers.
    In instituting this procedure, the Service has determined that, in 
instances involving, among other things, the regular hourly, daily, or 
weekly arrival of alien crewmembers on ferries and/or cruise ships 
known to have been in compliance with the immigration laws over 
extended periods of time, the costs, in terms of the Service's 
resources and, therefore, the Service's ability to enforce the Act, 
substantially exceed the marginal benefits to be gained in requiring 
the constant re-examination of such individuals. The Service believes 
that the modified inspection procedure provides the Service with ample 
control over the entry of such alien crewmembers while offering the 
Service the necessary flexibility to shift more effectively its limited 
personnel resources to other areas it deems more vital in carrying out 
its statutory responsibilities.
    It should be noted that invocation of the 90-day modified 
inspection is entirely discretionary; the Service is not required to 
grant a multiple entry conditional landing permit in all cases, or to 
forego an in-person inspection during the 90-day period even if it has 
issued such a permit. In all instances, the burden is on the arriving 
crewmember of establish eligibility for admission under section 
101(a)(15)(D) of the Act. Because each situation is unique, the Service 
cannot give any assurance that it will be able to provide the carrier 
with advance notice that it will require such an in-person inspection.

Regulatory Amendments

    As previously discussed, the 90-day modified inspection procedure 
is fully consistent with the current statutory and regulatory scheme. 
Accordingly, the Service is proposing to revise 8 CFR 252.1 (d), (e), 
and (f) to codify the longstanding Service practice of granting 
conditional landing permits to certain maritime crewmen, without 
further examination at the discretion of the Service, during the 
intervening time between 90-day full-crew inspections. Codifying this 
procedure in the form of a regulation is also necessary to ensure 
complete consistency with the specific terms of the Service's 
regulations. To this end, the Service is proposing to

[[Page 43678]]

amend 8 CFR 252.1(e) to provide specifically that, in cases involving 
the 90-day modified inspection procedure, the Service need not enter a 
notation on the alien crewman's Form I-95AB following each arrival from 
a foreign port. The proposed regulation would also require inspectors 
issuing conditional landing permits pursuant to the 90-day modified 
inspection procedure to add a specific notation to the alien crewman's 
Form I-95AB, at the time of the in-person inspection, stating that the 
conditional landing permit is valid for multiple, landings, not to 
exceed an aggregate of 29 days, during the 90-day period following the 
in-person inspection.

Limited Scope of the 90-Day Modified Inspection Procedure

    Despite the codification of this 90-day modified inspection 
procedure in the limited circumstances previously described, the 
Service believes that conducting an individual in-person examination 
prior to each entry is the preferable manner in which to discharge the 
responsibilities imposed on the Attorney General in sections 235 and 
252 of the Act, in most cases.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. This rule merely incorporates a practice of 
longstanding policy into the Code of Federal Regulations and ensures 
full consistency between the procedure and the specific language of the 
existing regulations.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulation proposed herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act. Clearance numbers for these 
collections are contained in 8 CFR 299.5, Display of control numbers.

List of Subjects in 8 CFR Part 252

    Administrative practice and procedure, Aliens, Crewmen, Vessels.

    Accordingly, part 252 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 252--LANDING OF ALIEN CREWMEN

    1. The authority citation for part 252 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1184, 1258, 1281, 1282; and 8 CFR part 
2.

    2. In Sec. 252.1, paragraphs (d), (e), and (f) are revised to read 
as follows:


Sec. 252.1  Examination of crewmen.

* * * * *
    (d) Authorization to land. The immigration officer in his or her 
discretion may grant an alien crewman authorization to land temporarily 
in the United States for:
    (1)(i) Shore leave purposes during the period of time the vessel or 
aircraft is in the port of arrival or other ports in the United States 
to which it proceeds directly without touching at a foreign port or 
place, not exceeding 29 consecutive days, if the immigration officer is 
satisfied that the crewman intends to depart on the vessel or aircraft 
on which he or she arrived or on another vessel or aircraft of the same 
transportation line, and the crewman's passport is surrendered for 
safekeeping to the master of the arriving vessel or aircraft, or
    (ii) In the case of an alien crewman serving in any capacity on 
board a ferry or commercial maritime cruise ship making regularly 
scheduled trips to and from the United States, shore leave purposes 
during the period of time that the crewman's assigned vessel is in the 
port of arrival or other ports in the United States to which the vessel 
proceeds directly, provided that the total amount of time for which the 
crewman has been granted authorization to land does not exceed 29 days 
in the aggregate during the 90-day period after the date on which the 
crewman has been examined in person by an immigration officer, or
    (2) The purpose of departing from the United States as a crewman on 
a vessel other than the one on which he or she arrived, or departing as 
a passenger by means of other transportation, within a period of 29 
days, if the immigration officer is satisfied that the crewman intends 
to depart in that manner, that definite arrangements for such departure 
have been made, and the immigration officer has consented to the pay 
off or discharge of the crewman from the vessel on which the crewman 
arrived. A crewman granted a conditional permit to land under section 
252(a)(1) of the Act and paragraph (d)(1)(i) of this section is 
required to depart with his or her vessel from its port of arrival and 
from each other port in the United States to which it thereafter 
proceeds coastwise without touching at a foreign port or place. 
However, he or she may rejoin his or her vessel at another port in the 
United States before it touches at a foreign port or place if he or she 
has advance written permission from the master or agent to do so. A 
crewman granted a conditional permit to land under section 252(a)(1) of 
the Act and paragraph (d)(1)(ii) of this section is required to depart 
with his or her vessel from its port of arrival and from each other 
port in the United States to which it thereafter proceeds coastwise 
without touching at a foreign port or place.
    (3) Upon finding an alien crewman entitled to land under paragraph 
(d)(1) of this section, the examining officer shall grant the alien 
``D-1'' nonimmigrant classification. Upon finding an alien crewman 
entitled to land under paragraph (d)(2) of this section, the examining 
officer shall grant the alien ``D-2'' nonimmigrant classification.
    (e) Conditional permits to land. Unless the crewman is in 
possession of Form I-184 and is landed under paragraph (d)(1)(i) of 
this section, the immigration officer shall give each alien 
nonimmigrant crewman permitted to land a copy of Form I-95AB, Alien 
Crewmen Landing Permit, presented by the crewman, and endorsed by the 
immigration officer to show the date and place of examination. The 
immigration officer shall also indicate on each Form I-95AB the type of 
conditional landing permit granted. In cases where the crewman is 
granted authorization to land under paragraph (d)(1)(ii) of this 
section, the inspector shall endorse the Form I-95AB with the following 
legend:


[[Page 43679]]


    Pursuant to 8 CFR 252.1(d)(1)(ii), this conditional landing 
permit is valid for multiple landings for an aggregate of no more 
than 29 days during the 90-day period following the date of your in-
person examination before an officer of the Immigration and 
Naturalization Service (Service). You must present yourself for 
another in-person examination before an officer of the Service upon 
expiration of this 90-day period. This landing authorization is 
conditional, and you may be required to present yourself for an in-
person examination before an officer of the Service at any time 
during the 90-day period for which this permit has been issued.

    (f) Change of status. An alien nonimmigrant crewman landed pursuant 
to the provisions of this part shall be ineligible for any extension of 
stay or for a change of nonimmigrant classification under 8 CFR part 
248. A crewman admitted under paragraph (d)(1) of this section may, if 
still maintaining status, apply for a conditional landing permit under 
paragraph (d)(2) of this section. The application shall not be approved 
unless an application on Form I-408, Application to Pay Off or 
Discharge Alien Crewman, filed pursuant to paragraph (h) of this 
section, has been approved authorizing the master or agent of the 
vessel on which the crewman arrived to pay off or discharge the crewman 
and unless evidence is presented by the master or agent of the vessel 
to which the crewman will be transferred that a specified position on 
that vessel has been authorized for him or her or that satisfactory 
arrangements have been completed for the repatriation of the alien 
crewman. If the application is approved, the crewman shall be given a 
new Form I-95AB endorsed to show landing authorized under paragraph 
(d)(2) of this section for the period necessary to accomplish his or 
her scheduled reshipment, which shall not exceed 29 days from the date 
of his or her landing, upon surrendering any conditional landing permit 
previously issued to him or her on Form I-95AB.
* * * * *
    Dated: July 17, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-21708 Filed 8-14-97; 8:45 am]
BILLING CODE 4410-10-M