Inspection of Alien Crewmembers; 90-Day Modified Inspection Procedure

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.

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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