Federal Register / Vol. 69, No. 197 / Wednesday, October 13, 2004 / Rules and Regulations 60939

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 214 

[CIS No. 2068–00] 

RIN 1615–AA38 

Adding Actuaries and Plant 

Pathologists to Appendix 1603.D.1 of 

the North American Free Trade 

Agreement

AGENCY: U.S. Citizenship and 

Immigration Services, DHS.

ACTION: Final rule.

SUMMARY: This final rule adopts without 

substantive change a proposed rule that 

was published in the Federal Register

by the former Immigration and 

Naturalization Service (Service). This 

final rule amends the Department of 

Homeland Security’s (Department’s) 

regulations by adding Actuaries and 

Plant Pathologists to Appendix 1603.D.1 

of the North American Free Trade 

Agreement (NAFTA) and by modifying 

the licensure requirements for Canadian 

citizens seeking admission to the United 

States as ‘‘trade NAFTA’’ (TN) 

nonimmigrant aliens. These 

amendments reflect the agreements 

made among the three parties to the 

NAFTA and will facilitate travel to and 

business in the United States. On March 

1, 2003, the Service transferred from the 

Department of Justice to the 

Department, pursuant to the Homeland 

Security Act of 2002 (Pub. L. 107–296). 

Accordingly, the Service’s adjudication 

function transferred to the U.S. 

Citizenship and Immigration Services 

(USCIS) of the Department.

DATES: This final rule is effective 

November 12, 2004.

FOR FURTHER INFORMATION CONTACT:

Craig Howie, Staff Officer, Business and 

Trade Services Branch, Program and 

Regulations Development, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 425 

I Street, NW., ULLICO Building, 3rd 

Floor, Washington, DC 20536, telephone 

(202) 514–3228.

SUPPLEMENTARY INFORMATION: 

What Is NAFTA? 

On December 17, 1992, the United 

States, Canada and Mexico signed 

NAFTA. NAFTA entered into force on 

January 1, 1994, creating one of the 

largest trading areas in the world. 

Besides trade, NAFTA allows for the 

temporary entry of qualified business 

persons from each of the parties to the 

agreement. NAFTA is comprised of 22 

chapters. Chapter 16 of NAFTA is 

entitled ‘‘Temporary Entry of Business 

Persons,’’ and in addition to reflecting 

the preferential trading relationship 

between the parties to the agreement, it 

reflects the member nations’ desire to 

facilitate temporary entry on a 

reciprocal basis. It also establishes 

procedures for temporary entry, 

addresses the need to ensure border 

security and seeks to protect the 

domestic labor force in the member 

nations. 

Who Is a TN Nonimmigrant Alien? 

A TN nonimmigrant alien is a citizen 

of Canada or Mexico who seeks 

admission to the United States, under 

the provisions of Section D of Annex 

1603 of NAFTA, to engage in business 

activities at a professional level as 

provided for in the Annex. NAFTA 

parties have agreed that 63 occupations 

qualify as professions. These 

occupations are listed in the Appendix 

1603.D.1 to Annex 1603 to the NAFTA 

found in 8 CFR 214.6(c). Canadian and 

Mexican citizens seeking to engage in 

occupations not included in Appendix 

1603.D.1 to Annex 1603 are not eligible 

for classification as TN nonimmigrants. 

What Changes Were Proposed in the 

Proposed Rule? 

In the proposed rule published on 

December 19, 2000 at 65 FR 79320, the 

former Service proposed to add the 

occupation of actuary to the list of 

professions in Appendix 1603.D.1. In 

addition, the rule proposed to include 

plant pathologist to the Appendix 

1603.D.1 as a footnote to the occupation 

of biologist. The former Service also 

proposed to change the licensure 

requirements for Canadian TN aliens 

applying for admission to the United 

States described at 8 CFR 

214.6(e)(3)(ii)(F). The rule further 

proposed to remove 8 CFR 214.6(l), 

which relates to the transition period for 

Canadian citizens who were admitted to 

the United States under the United 

States-Canada Free Trade Agreement 

that existed before the effective date of 

NAFTA. The former Service also 

proposed to change all references to the 

Northern Service Center to the Nebraska 

Service Center to reflect the center’s 

current name. Finally, the former 

Service proposed to remove the term 

‘‘diplomas, or certificates’’ from 8 CFR 

214.6(d)(2)(ii) and at 8 CFR 

214.6(e)(3)(ii) since these regulatory 

cites are inconsistent with the footnotes 

to the Appendix. 

Did the Former Service Receive Any 

Comments in Response to the Proposed 

Rule? 

Yes, the former Service received 12 

comments on the proposed rule. Seven 

of the comments dealt with the proposal 

that would add actuaries and plant 

pathologists to NAFTA and five 

comments related to the proposal to 

modify the licensure requirements for 

Canadian TN nonimmigrants. One of the 

comments addressing the proposed 

licensure requirements for Canadian TN 

nonimmigrants was actually a number 

of questions relating to the process that 

the former Service (now Department) 

uses to determine whether an alien has 

an appropriate license to practice in his 

or her occupation or profession. Since 

the questions posed in this comment 

letter do not directly relate to the 

proposed rule, this comment will not be 

discussed. 

None of the comments addressed the 

technical changes that the former 

Service noted in the proposed rule. 

These technical changes include the 

removal from the regulations of the 

discussion of the transition period for 

Canadian citizens who were admitted to 

the United States under the former 

United States-Canada Free Trade 

Agreement, changing references to the 

‘‘Northern Service Center’’ to ‘‘Nebraska 

Service Center,’’ and removal of the 

term ‘‘diplomas, or certificates’’ from 8 

CFR 214.6(d)(2)(ii) and 8 CFR 

214.6(e)(3)(ii) since these regulatory 

cites are inconsistent with the footnotes 

to the appendix. The Department 

published an interim final rule on 

March 10, 2004 (69 FR 11287) which 

implemented changes to the TN 

application process resulting from the 

sunset of some NAFTA requirements 

imposed on Mexican TN’s. The changes 

in that interim final rule resolved the 

technical issues referenced above, and 

this rule finalizes the technical changes 

noted in the proposed rule. 

What Were the Specific Comments That 

the Former Service Received Regarding 

the Proposed Change in the Licensure 

Requirements for Canadian TN’s?

The former Service received four 

comments on this proposal. The 

American Nursing Association (ANA) 

stated that it was not supportive of the 

provision modifying the licensure 

requirement because it would allow 

unqualified Canadian nurses into the 

United States. The ANA argued that the 

removal of the requirement that a 

Canadian nurse have a United States 

license would undermine a provision 

that was designed to protect the United 

States public from unqualified health 

care workers. 

Another commenter, a board member 

of the American Immigration Lawyers 

Association, argued that the proposal 

would create a distinction between the 

processing of Mexican and Canadian TN 

60940 Federal Register / Vol. 69, No. 197 / Wednesday, October 13, 2004 / Rules and Regulations 

nonimmigrant aliens. The commenter 

stated that the intended employer of a 

Mexican citizen is required to submit 

the alien’s license with Form I–129, 

Petition for Nonimmigrant Worker, 

before the Mexican TN can be admitted 

to the United States. In the case of 

Canadian TN’s, the license would never 

be presented to the Department. 

The National Council of State Boards 

of Nursing (Council) also commented on 

the final rule and stated that it was 

opposed to the provision removing the 

licensure requirement for Canadian 

nonimmigrants. The Council asserted 

that the provision would allow 

Canadian citizens easy access to the 

United States labor market to work in 

their chosen profession as TN 

nonimmigrant aliens. However, the 

Council also suggested that employers 

in the United States would not employ 

these aliens in their profession but in 

similar or related occupations at a 

substandard salary. Finally, the Council 

argued that, in the case of nursing, the 

proposal would result in many 

American citizens being treated by 

unlicensed health care professionals. 

The Commission on Graduates of 

Foreign Nursing Schools (CGFNS) also 

commented. CGFNS is an international 

authority on the education, registration, 

and licensure of nurses and foreign 

health care workers worldwide. CGFNS 

asserted that the implementation of the 

licensure proposal would result in the 

admission of Canadian healthcare 

workers to the United States without the 

appropriate license. CGFNS argued that 

these Canadian workers will not wait 

until they are licensed to seek 

employment and will begin to work in 

the United States healthcare system in 

any capacity they can find. Under the 

former Service’s proposal, licensure 

verification would become the 

responsibility of the employer, not the 

government. CGFNS also stated in its 

comment that the requirement that a 

Canadian TN present his or her license 

at the time of admission is consistent 

with the NAFTA. Finally, CGFNS 

represented that there is substantial 

evidence that some Canadian TN’s will 

have difficulty obtaining a United States 

nursing license and, as a result, the 

proposal will create a pool of 

unqualified health care workers who 

will be providing healthcare services to 

American consumers. 

Why Did the Former Service Propose 

To Change the Licensure Requirements 

for Canadian TN Nonimmigrants? 

To ensure that the former Service’s 

regulations implementing Chapter 16 

are in conformity with the obligations of 

the United States under the Agreement, 

the former Service proposed to remove 

8 CFR 214.6(e)(3)(ii)(F). This provision 

requires the presentation of a license by 

a Canadian citizen as an entry 

requirement under the NAFTA. 

What Is the Department’s Response to 

the Comments Received Regarding the 

Proposal To Change the Licensure 

Requirements for Canadian TN 

Nonimmigrants? 

The Department has reviewed the 

opinions expressed in the comments to 

the proposed rule. After careful 

consideration, the Department will 

adopt the proposal that removes the 

requirement that a Canadian TN must 

present a license at the time of 

application for admission to the United 

States. 

As one of the regulatory agencies 

responsible for the administration of the 

immigration laws of the United States, 

the Department has a responsibility to 

ensure that its regulations are in 

agreement with existing laws, treaties, 

and agreements. In this instance, the 

requirement that a Canadian TN 

nonimmigrant alien present a United 

States license at the time of application 

for admission to the United is 

inconsistent with the NAFTA. 

The Department disagrees with the 

CGFNS argument that requiring a stateissued license as a condition of 

admission is not in conflict with 

Chapter 16 of the NAFTA. As stated in 

the proposed rule, this regulatory 

change ensures that the Department’s 

obligations under Chapter 16 are in 

conformity with the obligations of the 

United States under the NAFTA 

agreement. 

The basic issue under consideration is 

whether a license is (1) an employment 

requirement, or (2) an entry plus 

employment requirement, for the 

Canadian professional desiring to work 

in the United States in TN status. Under 

the NAFTA, the requirements for entry 

as a professional are clearly spelled out 

and are noted in the list of educational 

credentials or alternative criteria found 

in Chapter 16. In select instances, a 

license is noted as an alternative 

document for entry, but not as a 

required primary document for entry. In 

no case is a license required by the 

prospective Canadian TN as the 

absolute primary documentary 

requirement for entry. For Canadian 

registered nurses, the primary group 

subject to comments made in response 

to the proposed rule, either a stateissued license or a Canadian provincial 

license is required as an entry 

document. Such documentation provide 

only for the entry of the prospective 

Canadian TN (provided that the 

individual is otherwise admissible).

The Department wishes to make clear 

that all Canadian TN nonimmigrants are 

subject to any individual state’s 

licensure requirements. Granted, and in 

particular in the case of Canadian 

registered nurses, any such state 

licensure will most likely take place 

after entry. But, as we note above, the 

state license is not a mandatory 

documentary requirement for entry. 

States continue to maintain the ability 

to impose licensure requirements on 

any individual intending to work in the 

state. 

The Department has taken special 

note of the comments that expressed 

concern that the change in the licensure 

requirement may have an adverse affect 

on the welfare of the United States. The 

Department is of the opinion that this 

rule will have no negative effect on the 

health and welfare of United States 

citizens. In those jurisdictions where a 

particular profession or occupation 

requires licensure, State or Federal law 

will continue to require the alien’s 

employer to ensure that the alien has 

the proper license before the alien 

commences employment. In this regard, 

a Canadian TN alien will be treated in 

the same fashion as a United States 

worker. While this final rule will ensure 

that the Department will not require a 

Canadian TN to present a license to be 

admitted to the United States, the alien 

still will have to have a license to work 

in the United States consistent with 

Chapter 12 of NAFTA. 

The change in the licensure 

requirement for Canadian TN 

nonimmigrant aliens does not result in 

different requirements between Mexican 

and Canadian TN nonimmigrant aliens. 

On March 10, 2004, the Department 

published an interim final rule in the 

Federal Register at 69 FR 11287 

eliminating the numerical cap on 

Mexican TN nonimmigrants and 

eliminating the associated requirement 

of a petition for Mexican-based 

professionals. Prior to the March 10, 

2004 effective date of this rule, Mexican 

TN nonimmigrant aliens were required 

to provide evidence of licensure as part 

of the petition process. Following 

elimination of the petition requirement 

on March 10, 2004, Mexican TN 

nonimmigrant aliens are no longer 

required to provide evidence of 

licensure as a prerequisite to admission 

to the United States. Thus, Mexican TN 

nonimmigrant aliens are treated the 

same as Canadian TN nonimmigrant 

aliens with respect to removal of the 

licensure requirement. Both Mexican 

and Canadian TN nonimmigrant aliens, 

however, must be reminded that State 

Federal Register / Vol. 69, No. 197 / Wednesday, October 13, 2004 / Rules and Regulations 60941

and Federal law continue to control in 

regard to any licensure requirement as 

a condition of employment in the 

United States. 

What Were the Specific Comments That 

the Former Service Received Regarding 

the Proposed Addition of Actuaries and 

Plant Pathologists to Appendix 

1603.D.1 of the NAFTA? 

The former Service received seven 

comments on the proposal to add 

actuaries and plant pathologists to the 

NAFTA. Of these comments, six agreed 

with the proposal and urged its 

adoption as written. 

One commenter urged the former 

Service to broaden the possible 

qualifications for the TN category of 

actuary. This particular commenter, a 

private law firm, asked that the 

government consider other academic 

disciplines as being essentially 

equivalent to a degree in actuarial 

science. 

The Department will not include this 

suggested change in this final rule as it 

is not consistent with the criteria agreed 

to by the three NAFTA parties to 

establish that an individual qualifies as 

an actuary. Therefore, the Department 

will adopt the proposed rule’s language 

with one modification. In lieu of 

inserting the profession of Actuary into 

the body of Appendix 1603.D.1, a new 

footnote to the category of 

Mathematician will note that actuaries 

are included within the meaning of the 

term ‘‘mathematician.’’ As it is generally 

accepted that an actuary is in fact a type 

of mathematician, the Department finds 

that inclusion of the profession of 

actuary within the meaning of the term 

mathematician is an acceptable and 

non-significant modification to the 

language of the proposed rule. 

The Department also notes that no 

comments were received regarding the 

proposal to add plant pathologists as a 

footnote to the category of biologists in 

Appendix 1603.D.1 to the NAFTA and 

the language of the proposed rule is 

adopted without change. 

Regulatory Flexibility Act 

The Department has reviewed this 

rule in accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605(b)) and, by 

approving it, the Department certifies 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. While some 

employers may be considered small 

entities, this final rule will benefit 

United States employers by allowing 

certain aliens to transfer their 

professional skills to the United States 

and to work in their chosen occupation 

in the United States in a more 

expeditious fashion. 

Unfunded Mandates Reform Act of 

1995 

This final rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely effect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This final rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This final rule will 

not result in an annual effect on the 

economy of $100 million or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Executive Order 12866 

This final rule is considered by the 

Department to be a ‘‘significant 

regulatory action’’ under Executive 

Order 12866, section 3(f), Regulatory 

Planning and Review. Accordingly, this 

regulation has been submitted to the 

Office of Management and Budget for 

review. 

This final rule is intended to benefit 

various United States employers by 

amending the Department’s regulations 

to add the professions of actuaries and 

plant pathologists to the list of viable 

NAFTA professional occupations. 

Indirectly, this final rule will benefit 

Canadian and Mexican actuaries and 

plant pathologists destined for 

employment in the United States, and, 

reciprocally, United States actuaries and 

plant pathologists destined for 

employment in either Canada or 

Mexico. The final rule imposes no new 

costs to the pre-existing filing fees for 

NAFTA professionals. Since this final 

rule provides a benefit to the public 

without producing any additional costs, 

the Department feels it is justified in 

issuing this final rule. 

Executive Order 13132 

This final rule 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 section 6 of Executive 

Order 13132, it is determined that this 

final rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

Executive Order 12988 Civil Justice 

Reform 

This final rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988.

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, all 

Departments are required to submit to 

the Office of Management and Budget 

(OMB), for review and approval, any 

reporting or recordkeeping requirements 

inherent in a rule. This final rule does 

not impose any new reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act.

List of Subjects in 8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Employment, 

Foreign officials, Health professions, 

Reporting and recordkeeping 

requirements, Students.

■ Accordingly, part 214 of chapter I of 

title 8 of the Code of Federal Regulations 

is amended as follows:

PART 214—NONIMMIGRANT CLASSES

■ 1. The authority citation for part 214 

continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 

1184, 1186a, 1187, 1221, 1281, 1282, 1301–

1305 and 1372; sec. 643, Pub. L. 104–208, 

110 Stat. 3009–708; section 141 of the 

Compacts of Free Association with the 

Federated States of Micronesia and the 

Republic of the Marshall Islands, and with 

the Government of Palau, 48 U.S.C. 1901, 

note, and 1931 note, respectively; 8 CFR part 

2.

■ 2. Section 214.6 is amended by:

■ a. Revising the section heading;

■ b. Redesignating footnotes 5 and 6 as 

footnotes 6 and 7, respectively;

■ c. Adding a new footnote 5 at the end 

of the occupation ‘‘Mathematician’’ in 

paragraph (c), Appendix 1603.D.1;

■ d. Adding footnote 8 at the end of the 

occupation ‘‘Biologist’’ in paragraph (c), 

Appendix 1603.D.1; and

■ e. Adding the text of new footnotes 5 

and 8. 

The revision and additions read as 

follows:

§ 214.6 Canadian and Mexican citizens 

seeking temporary entry to engage in 

business activities at a professional level.

* * * * *

60942 Federal Register / Vol. 69, No. 197 / Wednesday, October 13, 2004 / Rules and Regulations 

(c)* * *

5The term ‘‘Mathematician’’ includes the 

profession of Actuary. An Actuary must 

satisfy the necessary requirements to be 

recognized as an actuary by a professional 

actuarial association or society. A 

professional actuarial association or society 

means a professional actuarial association or 

society operating in the territory of at least 

one of the Parties.

* * * * * 8The term ‘‘Biologist’’ includes the 

profession of Plant Pathologist.

Dated: October 6, 2004. 

Tom Ridge, 

Secretary of Homeland Security.

[FR Doc. 04–23011 Filed 10–12–04; 8:45 am] 

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