[Federal Register Volume 69, Number 139 (Wednesday, July 21, 2004)]
[Rules and Regulations]
[Pages 43515-43516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16468]


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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://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. 
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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