[Federal Register Volume 69, Number 53 (Thursday, March 18, 2004)]
[Rules and Regulations]
[Pages 12797-12799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6121]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 4654]
RIN 1400-AB49


Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended--Elimination of Crew List Visas

AGENCY: Department of State.

ACTION: Interim final rule.

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SUMMARY: This rule makes final on an interim basis the Department's 
proposed regulations regarding the elimination of crew list visas.

EFFECTIVE DATE: This rule takes effect on June 16, 2004.
    Comment Date: Comments on the interim final rule must be received 
by May 17, 2004. The remaining 30 days until implementation will 
provide the Department time to evaluate and review public comments 
received and determine if any additional steps, including a possible 
extension of an additional 90 days, needs to be taken to ameliorate 
effects on the shipping industry.

ADDRESSES: Comments may be sent by regular mail to CA/VO/L/R, L-603, 
SA-1, 2401 E Street, NW., U.S. Department of State, Washington, DC 
20520-0106; or by e-mail to [email protected]. You may view this rule 
online at 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 [email protected].

SUPPLEMENTARY INFORMATION: On December 13, 2002, the Department 
published a rule (67 FR 76711) proposing to eliminate crew list visas. 
The Department is now making final on an interim basis that proposed 
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 Is the Department Eliminating the Crew List Visa?

    The Department is eliminating the crew list visa for security 
reasons. Since the September 11, 2001 attacks, the Department made a 
review of 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 
will 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 in the Proposed Rule?

    The Department did solicit comments, and 82 were received. The text 
of about half the comments was identical. Most of the other letters 
expressed the same views, and some had additional comments. A summary 
of the comments received and the Department's responses follows.
    While most of the commentaries requested that the crew list visa be 
maintained, others asked instead for a long phase-in period of up to a 
year in order to allow crewmembers time to get individual visas. While 
the Department agrees that there should be a phase-in period, because 
the principal purpose of eliminating the crew list visa is to enhance 
security, the Department does not agree that it should wait an entire 
year before requiring individual visas of crewmen. Therefore, the 
Department will make the rule effective ninety days after publication. 
The Department believes this will be sufficient time for most crewmen 
who wish to obtain visas to do so. This is especially true in light of 
the additional procedures the Department will be undertaking to 
expedite the issuance of individual visas as mentioned later in this 
discussion.
    Several commenters requested that before determining whether to 
make the proposed rule final, the Department wait at least until the 
International Labor Organization (ILO) makes a decision on a proposal 
it has under consideration for a seafarer's ID document that would 
include biometrics. Most of these commenters felt that the proposed ID 
could serve as a substitute for a passport and that due to 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.
    Almost all of the commenters expressed concern about the difficulty 
of crewmen obtaining individual visas. It was stated that cargo 
shipping is generally routed at the last minute. Thus crewmembers 
frequently don't know in advance that they will travel to the United 
States. Further, schedules are

[[Page 12798]]

often shifted at the last minute, all of which make it difficult for 
crewmen to apply for individual visas. The Department acknowledges that 
there may be some situations initially when rerouting and other 
circumstances may cause an individual or individuals not to have visas. 
However, the Department 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.
    Many commenters have expressed concerns that crewmembers will incur 
additional expenses. This issue was addressed in the proposed rule. In 
general, in terms of the actual cost of a visa, per crewman, the cost 
of an individual visa will be no more than it is, per crewman, on a 
crew list visa, and in most cases over a period of years will average 
out to be less. For crew list visas, each crewman already pays an 
individual processing, i.e., machine-readable visa (MRV) fee of 
$100.00. Although reciprocity fees are waived for individuals on a crew 
list visa and are not for individual visas, that cost should be more 
than offset in most cases by the fact that the crewman will be 
receiving (depending upon reciprocity for each individual's country of 
nationality) a multiple entry, long term visa instead of the one entry, 
6 month crew list visa.
    Some shipping companies have expressed concerns that there will be 
costly delays at port while crewmembers await the necessary processing 
and clearances to obtain a visa. The Department recognizes that such 
delays indeed could be costly, but in light of September 11, believes 
it is in the national interest to ensure that all aliens, including 
crewmembers, are properly screened before entering the United States. 
Therefore, the Department is making and will continue to make every 
effort to ensure that applications made for crew visas will be 
processed expeditiously. The Department recognizes that crewmembers may 
not be able to file an application for a visa in their home country. 
Thus, crewmembers will be able to apply at any U.S. Embassy or 
Consulate that issues visas. The Department will remind all visa-
issuing offices of already existing regulations that they must accept 
applications from all persons physically present in a consular 
district, regardless of place of residence. The Department will also 
emphasize to visa issuing offices the need to process expeditiously 
applications for individual crew visas. The Department understands that 
some consular posts may see a significant increase in crew visas and, 
is prepared, if necessary, to increase staff to handle the additional 
workload. The Department has already added an additional officer 
position at the Embassy in Manila, which handles the largest volume of 
applications from crewmembers.

How Does This Rule Amend the Department's Regulations?

    This rule removes 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 will be required to apply for 
individual crew visas.

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule as an interim final rule, 
with a 60-day provision for post-promulgation public comments, 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, Pub. L. 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), 
Pub. L. 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. Therefore, the Department has submitted 
the rule to the Office of Management and Budget for its review.

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.

The Treasury and General Government Appropriations Act of 1999--
Assessment of Federal Regulations and Policies on Families

    In light of the nature of these regulations and section 654 of the

[[Page 12799]]

Treasury and General Government Appropriations Act of 1999, Pub. L. 
105-277, 112 Stat. 2681 (1998), the Department has assessed the impact 
of these proposed regulations on family well being in accordance with 
section 654(c) of that Act. This rule is intended to promote child and 
family safety by helping prevent child abduction and trafficking.

List of Subjects in 22 CFR Part 41

    Aliens, Nonimmigrants, Passports, Visas.

0
In view of the foregoing, 22 CFR Part 41 is amended as follows:

PART 41--[AMENDED]

0
1. The authority citation for Part 41 continues to read:

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 
through 2681-801.


Sec.  41.42  [Removed and Reserved]

    Remove and reserve Sec.  41.42.

    Dated: March 2, 2004.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 04-6121 Filed 3-17-04; 8:45 am]
BILLING CODE 4710-06-P