11287

Rules and Regulations Federal Register Vol. 69, No. 47

Wednesday, March 10, 2004

This section of the FEDERAL REGISTER DC 20536. To ensure proper handling, visitor is a businessperson from another contains regulatory documents having general please reference CIS No. 2266–03 on NAFTA party who seeks to engage in an applicability and legal effect, most of which your correspondence. Comments may occupation or profession with one of the are keyed to and codified in the Code of also be submitted electronically to the seven categories of business activities Federal Regulations, which is published under Department at [email protected]. When listed in Appendix 1603.A.1. The seven 50 titles pursuant to 44 U.S.C. 1510. submitting comments electronically, categories of business activities listed in The Code of Federal Regulations is sold by you must include CIS No. 2266–03 in Appendix 1603.A.1 represent a the Superintendent of Documents. Prices of the subject box so that the comments complete business cycle and include: (1) new books are listed in the first FEDERAL can be electronically routed to the Research and Design; (2) Growth, REGISTER issue of each week. appropriate office for review. Comments Manufacture and Production; (3) may be inspected at the above address Marketing; (4) Sales; (5) Distribution; (6) by calling (202) 514–3291 to arrange for After-Sales Service; and (7) General DEPARTMENT OF HOMELAND an appointment. Service. SECURITY FOR FURTHER INFORMATION CONTACT: Traders and investors are admitted to the United States under the E–1 and E– 8 CFR Part 214 Craig Howie, Staff Officer, Business and Trade Services Branch, Program and 2 nonimmigrant categories, respectively, [CIS No. 2266–03] Regulations Development, Bureau of under section 101(a)(15)(E) of the Act. A trader is an alien in the United States RIN 1615–AA96 Citizenship and Immigration Services, Department of Homeland Security, 425 admitted soley to carry on trade of a substantial nature principally between Eliminating the Numerical Cap on I Street, NW., ULLICO—3rd Floor, the United States and the country of the Mexican TN Nonimmigrants Washington, DC 20536, telephone (202) 514–3228. alien’s nationality. An investor is an AGENCY: Department of Homeland alien who has invested or is actively in SUPPLEMENTARY INFORMATION: Security. the process of investing a substantial ACTION: Interim rule with request for What Is the NAFTA? amount of capital in a bona fide comments. On December 17, 1992, The United enterprise in the United States. Intra-company transferees are States, Canada and Mexico signed the SUMMARY: admitted to the United States under the This rule removes the annual North American Free Trade Agreement numerical cap on the number of L–1 nonimmigrant classification (NAFTA). The NAFTA entered into (section 101(a)(15)(L) of the Act). An Mexican professional admissions under force on January 1, 1994, creating one of the North American Free Trade intra-company transferee is an alien the largest trade areas in the world. who, within 3 years preceding the time Agreement (NAFTA). This rule also Under the terms of the agreement, eliminates the associated requirement of of his or her application for admission NAFTA allows for the temporary entry into the United States, has been a petition for a Mexican-based NAFTA of qualified businesspersons from each professional and the corresponding employed abroad continuously for 1 of the parties to the agreement. Chapter year by a firm or corporation or other labor condition application. These 16 of the NAFTA is entitled A changes to the regulations are consistent legal entity or parent, branch, affiliate, Temporary Entry of Business Persons, or subsidiary, and who seeks to enter with the NAFTA’s requirement that the and in addition to reflecting the annual numerical cap and petition the United States temporarily to render preferential trading relationship his or her services to a branch of the provisions for Mexican professionals between the parties to the agreement, it sunset by January 1, 2004. Note that on same employer or as parent, affiliate, or reflects the member nations’ desire to subsidiary thereof in a capacity that is March 1, 2003, the Immigration and facilitate temporary entry on a Naturalization Service (Service) managerial, executive, or involves reciprocal basis. It also establishes specialized knowledge. transferred from the Department of procedures for temporary entry, Justice to the Department of Homeland Professionals under the NAFTA are addresses the need to ensure border admitted to the United States as Trade Security (the Department) pursuant to security and seeks to protect the the Homeland Security Act of 2002, NAFTA (TN) nonimmigrant aliens domestic labor force in the member under section 214(e) of the Act. Public Law 107–296. Accordingly, the nations. Service’s adjudication function Chapter 16 of the NAFTA and Annex What Is a TN Nonimmigrant Alien? transferred to the Bureau of Citizenship 1603 to Article 1603 of the NAFTA A TN nonimmigrant alien is a citizen and Immigration Services (BCIS) of the established four categories of of Canada or Mexico who seeks Department. businesspersons to be allowed admission to the United States, under DATES: Effective date. This interim rule temporary entry into the territory of the provisions of Section D of Annex is effective on January 1, 2004. another NAFTA party. The four 1603 of the NAFTA, to engage in Comment date. Written comments categories are: (1) Business visitors; (2) business activities at a professional level must be submitted on or before May 10, traders and investors; (3) intra-company as provided for in such annex. The 2004. transferees; and (4) professionals. NAFTA parties have agreed that 63 ADDRESSES: Please submit written Business visitors under the NAFTA occupations qualify as professions. comments to the Director, Regulations are admitted to the United States under These occupations are listed in the and Forms Services Division, the B–1 nonimmigrant classification Appendix 1603.D.1 to Annex 1603 to Department of Homeland Security, 425 (section 101(a)(15)(B) of the Immigration the NAFTA found in 8 CFR 214.6(c). I Street, NW., Room 4034, Washington, and Nationality Act (Act)). A business The list contains the only professions in

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which an alien can engage in and obtain and LCA requirement on citizens of 1, 2004, are as follows: This rule is admission to the United States as a TN Mexico for a temporary period. In this necessary to ensure that the Department nonimmigrant alien. case, the additional controls were put is in compliance with the requirements into place for 10 years. (These placed upon the signatory nations that What Changes Are Noted in This Rule? additional controls were not imposed on are parties to the NAFTA. As previously Appendix 1603.D.4 of the NAFTA, Canadian citizens.) Since the 10-year noted in this interim rule, the NAFTA reflected in section 214(e)(4) and (5) of period will end on January 1, 2004, the requires the lifting of the annual cap of the Act, establishes an annual numerical Department will fulfill its obligations 5,500 Mexican TN professionals no ceiling of 5,500 on Mexican TN under the NAFTA by eliminating these longer than 10 years after the date the admissions. In order to accurately requirements from its regulations. NAFTA became effective. Therefore, administer this cap, the Department has regardless of whether the Department required the filing of Form I–129, Will Extension Requests and Requests promulgates regulations, the annual cap Petition for Alien Worker. This rule for a Change of Employer Continue To of Mexican TN professionals will sunset eliminates the annual numerical cap for Require a Form I–129 Petition and on January 1, 2004. By eliminating the citizens of Mexico seeking a visa and LCA? cap and petition requirements now, the admission as a TN nonimmigrant. As is currently the case, requests for Executive Branch of the Federal Because this rule reflects the an extension of stay and requests to add Government will be in compliance with elimination of the numerical cap (as or change employers must be submitted this requirement made by the NAFTA. required by the provisions of the on Form I–129. However, no LCA will Adoption of this rule as an interim NAFTA), it will also eliminate the be required in order to obtain an rule acknowledges the importance of petition requirement, which has extension. It should be noted that the equal treatment for both the Canadian allowed the Department to manage the extension request made on Form I–129 and Mexican governments. In addition, numerical limit. One requirement is not a petition for status within the the provisions of this interim rule will associated with the filing of the Form I– meaning of section 214(c)(1) of the Act not have a negative affect on any 129 petition was the requirement of a and does not confer any of the appeal qualified Mexican citizen seeking TN certified labor condition application rights normally associated with a status, nor will it affect the qualified (LCA). Because the numerical cap is petition. Form I–129 is required to United States employer. The rule will eliminated, these associated obtain an extension of stay. The Form I– eliminate one portion of the requirements are also eliminated. 129 in the context of an application for administrative process by which a extension of stay is merely the vehicle qualified Mexican citizen may obtain What Is the Current Process Used by by which the Department collects the TN status. Mexican Citizens Seeking TN Status? information needed to make a Accordingly, the Department believes Currently, a citizen of Mexico seeking determination on the extension that advance public notice and to come to the U.S. as a TN application. Under 8 CFR 214.1(c)(5), comment of this regulation is nonimmigrant must have had submitted there is no appeal of a denial of an impracticable and contrary to the public to the Department, on his or her behalf, application for extension of stay. interest. Therefore, there is good cause a Form I–129, Petition for under 5 U.S.C. 553(b) and (d) for Nonimmigrant Worker. In order to Must a Mexican TN Applicant for dispensing with the requirements of properly file Form I–129 with the Admission Obtain a Visa? prior notice and to make this rule Department, an LCA must first be Yes. The consular office will make a effective on January 1, 2004. certified by the Department of Labor determination as to whether the alien is Regulatory Flexibility Act (DOL). Upon approval of the petition by eligible for the TN classification and the Department, the Mexican citizen issuance of visa. This determination I have reviewed this rule, in must then apply to the United States replaces the former role of the accordance with the Regulatory Department of State (DOS) for a visa. Department in adjudicating the Form I– Flexibility Act (5 U.S.C. 605(b)) and, by 129 petition. Because the NAFTA does approving it, I certify that this rule will How Will the Process Used by Mexican not change the requirement of a valid not have a significant economic impact Citizens Seeking TN Status Change? visa for a citizen of Mexico, this rule on a substantial number of small This rule eliminates the petition and retains the existing requirement of a entities. This rule affects only TN LCA requirement. Rather than make valid passport for Mexican TN’s. nonimmigrant individuals. These application to the DOL and the nonimmigrants are not considered small Department, a Mexican citizen wishing Request for Comments entities as that term is defined in 5 to come to the U.S. in TN classification The Department of Homeland U.S.C. 601(6). This rule also affects U.S. must apply directly to the DOS for a Security is seeking public comment employers of TN nonimmigrants, but visa. DOS will adjudicate the alien’s regarding this interim rule. In particular, does not create any new economic or eligibility for TN classification, and the Department is interested in procedural burdens for those entities. upon approval and issuance of a visa comments addressing the lifting of the Although some petitioning businesses the alien may apply for admission to the petition and labor certification may be considered small businesses, United States. While the Department requirements for Mexican citizens this rule merely simplifies applicable will no longer collect a fee associated desiring TN status in the United States. procedures and eliminates certain filing with the filing of Form I–129 since it is requirements that in all likelihood will Good Cause Exception no longer required, the DOS may collect have a positive impact. fees prescribed by their Secretary as The Department’s implementation of Unfunded Mandates Reform Act of consistent with the NAFTA. this rule as an interim rule, with provisions for post-promulgation public 1995 Why Are These Changes Being Made? comments, is based on the ‘‘good cause’’ This rule will not result in the At the time the NAFTA was exceptions found at 5 U.S.C. 553(b)(B) expenditure by State, local and tribal negotiated, the agreement imposed the and (d)(3). The reasons and necessity for governments, in the aggregate, or by the additional controls of the cap, petition, the promulgation of this rule on January private sector, of $100 million or more

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in any one-year, and it will not Paperwork Reduction Act activities at a professional level shall significantly or uniquely affect small Under the Paperwork Reduction Act make application for admission with a governments. Therefore, no actions were of 1995, Public Law 104–13, all Department officer at the United States deemed necessary under the provisions Departments are required to submit to Class A port-of-entry, at a United States of the Unfunded Mandates Reform Act the Office of Management and Budget airport handling international traffic, or of 1995. (OMB), for review and approval, any at a United States pre-clearance/pre- reporting or recordkeeping requirements flight station. Small Business Regulatory Enforcement (3) Documentation. Upon application inherent in a rule. This rule does not Fairness Act of 1996 for a visa at a United States consular impose any new reporting or office, or, in the case of a citizen of This rule is not a major rule as recordkeeping requirements under the Canada making application for defined by section 804 of the Small Paperwork Reduction Act. Business Regulatory Enforcement Act of admission at a port-of-entry, an 1996. This rule will not result in an List of Subjects in 8 CFR Part 214 applicant under this section shall present the following: annual effect on the economy of $100 Administrative practice and (i) Proof of citizenship. A Mexican million or more; a major increase in procedure, Aliens, Employment, citizen applying for admission as a TN costs or prices; or significant adverse Reporting and recordkeeping effects on competition, employment, nonimmigrant must establish such requirements. citizenship by presenting a valid investment, productivity, innovation, or ■ Accordingly, part 214 of chapter I of on the ability of United States-based passport. Canadian citizens, while not title 8 of the Code of Federal Regulations required to present a valid passport for companies to compete with foreign- is amended as follows: based companies in domestic and admission unless traveling from outside the Western hemisphere, must establish export markets. PART 214—NONIMMIGRANT CLASSES Canadian citizenship. Executive Order 12866 ■ 1. The authority citation for part 214 (ii) Documentation demonstrating This rule is considered by the continues to read as follows: engagement in business activities at a professional level and demonstrating Department of Homeland Security to be Authority: 8 U.S.C. 1101, 1102, 1103, 1182, professional qualifications. The a ‘‘significant regulatory action’’ under 1184, 1186a, 1187, 1221, 1281, 1282, 1301– Executive Order 12866, section 3(f), 1305 and 1372; sec. 643, Pub. L. 104–208, applicant must present documentation Regulatory Planning and Review. 110 Stat. 3009–708; section 141 of the sufficient to satisfy the consular officer Accordingly, this rule has been Compacts of Free Association with the (in the case of a Mexican citizen) or the submitted to the Office of Management Federated States of Micronesia and the Department officer (in the case of a Republic of the Marshall Islands, and with and Budget (OMB) for review. Canadian citizen) that the applicant is the Government of Palau, 48 U.S.C. 1901 seeking entry to the United States to In particular, the Department has note, and 1931 note, respectively; 8 CFR part engage in business activities for a assessed both the costs and benefits of 2. United States employer(s) or entity(ies) this rule as required by Executive Order ■ at a professional level, and that the 12866, section 1(b)(6) and has made a 2. Section 214.6 is amended by: ■ applicant meets the criteria to perform reasoned determination that the benefits a. Revising the section heading; ■ at such a professional level. This of this regulation justify its costs. b. Revising paragraph (d); ■ documentation may be in the form of a Briefly, that assessment is as follows. c. Revising paragraph (e); ■ d. Removing and reserving paragraph letter from the prospective employer(s) This rule eliminates the numerical cap in the United States or from the foreign on TN admissions and eliminates (f); ■ employer, and must be supported by certain filing requirements. This will e. Revising paragraph (h); ■ diplomas, degrees or membership in a eliminate the time and expense f. Revising paragraph (i); and ■ professional organization. Degrees associated with these forms, and will g. Removing paragraph (l). The revisions read as follows: received by the applicant from an also reduce the processing and waiting educational institution not located times associated with obtaining TN § 214.6 Citizens of Canada or Mexico within Canada, Mexico, or the United classification. seeking temporary entry under NAFTA to States must be accompanied by an engage in business activities at a Executive Order 13132 professional level. evaluation by a reliable credentials evaluation service which specializes in This rule will not have substantial * * * * * evaluating foreign educational direct effects on the States, on the (d) Classification of citizens of credentials. The documentation shall relationship between the National Canada or Mexico as TN professionals fully affirm: Government and the States, or on the under the NAFTA—(1) Citizens of (A) The Appendix 1603.D.1 distribution of power and Mexico. A citizen of Mexico who seeks profession of the applicant; responsibilities among the various temporary entry as a business person to (B) A description of the professional levels of government. Therefore, in engage in business activities at a activities, including a brief summary of accordance with section 6 of Executive professional level may be admitted to daily job duties, if appropriate, in which Order 13132, it is determined that this the United States in accordance with the applicant will engage in for the rule does not have sufficient federalism NAFTA upon presentation of a valid United States employer/entity; implications to warrant the preparation passport and valid TN nonimmigrant (C) The anticipated length of stay; of a federalism summary impact visa at a United States Class A port-of- (D The educational qualifications or statement. entry, at a United States airport appropriate credentials which handling international traffic, or at a Executive Order 12988 Civil Justice demonstrate that the Canadian or United States pre-clearance/pre-flight Reform Mexican citizen has professional level station. status; and This rule meets the applicable (2) Citizens of Canada. A citizen of (E) The arrangements for standards set forth in sections 3(a) and Canada seeking temporary entry as a remuneration for services to be 3(b)(2) of Executive Order 12988. business person to engage in business rendered.

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(e) Procedures for admission for a meets the requirements of paragraph (e) DEPARTMENT OF TRANSPORTATION citizen of Canada or Mexico—A citizen of this section. The fee prescribed under of Canada or Mexico who qualifies for 8 CFR 103.7(b)(1) shall be remitted by Federal Aviation Administration admission under this section shall be Canadian citizens upon admission to provided confirming documentation the United states pursuant to the terms 14 CFR Part 39 (Form I–94) and shall be admitted under and conditions of the NAFTA. Citizens [Docket No. 2004–NM–11–AD; Amendment the classification symbol TN for a of Mexico must present a valid passport 39–13508; AD 2004–05–13] period not to exceed one year. Form I– and nonimmigrant TN visa when RIN 2120–AA64 94 shall bear the legend ‘‘multiple applying for readmission, as outlined in entry’’. The fee prescribed under 8 CFR paragraph (d)(1) of this section. Airworthiness Directives; Bombardier 103.7(b)(1) shall be remitted by Model DHC–8–401 and –402 Airplanes Canadian Citizens upon admission to (i) Request for change or addition of the United States pursuant to the terms United States employers—(1) Filing at AGENCY: Federal Aviation and conditions of the NAFTA. Upon the service center. A citizen of Canada Administration, DOT. or Mexico admitted into the United remittance of the prescribed fee, the TN ACTION: Final rule; request for applicant for admission shall be States as a TN nonimmigrant who seeks comments. provided a Department-issued receipt to change or add a United States (Form G–211, Form G–711, or Form I– employer during the period of SUMMARY: This amendment adopts a 797). admission must have the new employer new airworthiness directive (AD) that is (f) Reserved. file a Form I–129 with appropriate applicable to certain Bombardier Model * * * * * supporting documentation, including a DHC–8–401 and –402 airplanes. This (h) Extension of stay—(1) Filing at the letter from the new employer describing action requires a records review to service center. The United States the services to be performed, the time determine the repair/modification status employer of a citizen of Canada or needed to render such services, and the of the airplane, and follow-on and Mexico in TN status or a United States terms of remuneration for services. corrective actions as necessary. This entity, in the case of a citizen of Canada Employment with a different or with an action is necessary to prevent cracks in or Mexico in TN status who has a additional employer is not authorized the lower fuselage skin due to fatigue foreign employer, may request an prior to Department approval of the damage in the vicinity of the Number 2 extension of stay by filing Form I–129 request. VHF antenna, which could result in with the prescribed fee noted at 8 CFR rapid decompression of the airplane. (2) Readmission at the border. 103.7(b)(1), with the Nebraska Service This action is intended to address the Nothing in paragraph (i)(1) of those Center. The beneficiary must be identified unsafe condition. physically present in the United States section precludes a citizen of Canada or DATES: Effective March 25, 2004. at the time of the filing of the extension Mexico from applying for readmission The incorporation by reference of of stay. If the alien is required to leave to the United States for the purpose of certain publications listed in the the United States for any reasons while presenting documentation from a regulations is approved by the Director the extension request is pending, the different or additional United States or of the Federal Register as of March 25, petitioner, in the case of a Mexican foreign employer. Such documentation 2004. citizen TN beneficiary, may request the shall meet the requirements prescribed Comments for inclusion in the Rules director to cable notification of approval in paragraph (d) of this section. The fee Docket must be received on or before to the consular office abroad where the prescribed under 8 CFR 103.7(b)(1) shall April 9, 2004. Mexican TN beneficiary will apply for be remitted by Canadian citizens upon ADDRESSES: Submit comments in a visa. In the case of a Canadian TN admission to the United States pursuant triplicate to the Federal Aviation beneficiary, the petitioner may request to the terms and conditions of the Administration (FAA), Transport the director to cable notification of NAFTA. Citizens of Mexico may present Airplane Directorate, ANM–114, approval of the application to the port- documentation from a different or Attention: Rules Docket No. 2004–NM– of-entry where the Canadian TN additional United States or foreign 11–AD, 1601 Lind Avenue, SW., beneficiary will apply for admission to employer to a consular officer as Renton, Washington 98055–4056. the United States. If approved, an evidence in support of a new Comments may be inspected at this extension of stay may be authorized for nonimmigrant TN visa application. location between 9 a.m. and 3 p.m., up to one year. There is no specific limit Monday through Friday, except Federal (3) No action shall be required on the on the total period of time an alien may holidays. Comments may be submitted remain in TN status. part of a citizen of Canada or Mexico in via fax to (425) 227–1232. Comments (2) Readmission at the border. TN status who is transferred to another may also be sent via the Internet using Nothing in paragraph (h)(1) of this location by the same United States the following address: 9-anm- section shall preclude a citizen of employer to perform the same services. [email protected]. Comments sent Canada or Mexico who has previously Such an acceptable transfer would be to via the Internet must contain ‘‘Docket been in the United States in TN status a branch or office of the employer. In a No. 2004–NM–11–AD’’ in the subject from applying for admission for a period case of a transfer to a separately line and need not be submitted in of time that extends beyond the date of incorporated subsidiary or affiliate, the triplicate. Comments sent via fax or the his or her original term of admission at requirements of paragraphs (i)(1) and Internet as attached electronic files must any United States port-of-entry. The (i)(2) of this section will apply. be formatted in Microsoft Word 97 or application for admission shall be Dated: March 3, 2004. 2000 or ASCII text. supported by a new letter from the The service information referenced in Tom Ridge, United States employer or the foreign this AD may be obtained from employer, in the case of a citizen of Secretary of Homeland Security. Bombardier, Inc., Bombardier Regional Canada who is providing prearranged [FR Doc. 04–5324 Filed 3–9–04; 8:45 am] Aircraft Division, 123 Garratt Boulevard, services to a United States entity, which BILLING CODE 4410–10–M Downsview, Ontario M3K 1Y5, Canada.

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