01-356. Bureau of Consular Affairs; Visas: Aliens Ineligible to Transit Without Visas (TWOV)

AGENCY:

Bureau of Consular Affairs, Department of State.

ACTION:

Interim rule with request for comments.

SUMMARY:

Section 212(d)(4)(A) of the Immigration and Nationality Act (INA) permits the Secretary of State, acting jointly with the Attorney General, to waive the visa and passport requirement of INA 212(a)(7)(B) for certain aliens in direct transit through the United States. This waiver allows an alien to transit the United States without a passport and visa provided the alien is traveling on a carrier signatory to an agreement with the Immigration and Naturalization Service (INS) in accordance with INA 233(c) and bears documentation establishing identity and nationality which permits the alien's entry into another country. This rule sets forth a new list of countries that are ineligible to transit without visa (TWOV).

DATES:

Effective Date: This interim rule is effective February 5, 2001.

Comment Date: Interested persons should submit comments on or before March 6, 2001.

ADDRESSES:

Submit comments, in duplicate, to the Chief, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20522-0113.

FOR FURTHER INFORMATION CONTACT:

H. Edward Odom, Chief, Legislation and Regulations Division, Visa Office, Room L603-C, SA-1, Department of State, Washington, DC 20520-0106, [phone]; or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

What Is the Authority for Allowing or Prohibiting Transit Without Visa?

Section 212(d)(4)(C) of the Immigration and Nationality Act (INA) provides the authority for the Secretary of State, acting jointly with the Attorney General, to waive the passport and/or visa requirement for a nonimmigrant who is in immediate and continuous transit through the United States and is using a carrier that has entered into a Transit Without Visa (TWOV) Agreement as provided in INA 233(c)

Who Determines Which Countries Can Transit Without a Visa?

Since TWOV does not involve the issuance of a visa, the Department's role in the day-to-day administration of the TWOV program is minimal. Therefore, the Department's regulation at 22 CFR 41.2(i), for the most part, is merely a restatement of the INS regulation on the same subject. The Department does become involved, however, in the designation of those countries whose citizens are ineligible to utilize the TWOV. The current regulation provides a list of ineligible countries.

Interim Rule

How Will the Department of State Amend its Regulations?

This rule, and the INS rule published elsewhere in this issue, amends the list of countries which the Department and the INS have determined are not eligible for this transit without visa (TWOV) program.

The Department has also dropped from the regulation the list of countries whose citizens were eligible to TWOV solely on the basis of reciprocity. A separate list of such countries is no longer deemed necessary and thus will no longer be maintained. Rather a single list of countries whose citizens have been denied TWOV privileges will be published.

The Department is also amending the reference to “INA 238(d)” to read “INA 233”.

Which Countries Will Benefit From This Amendment?

Due to the breakup of the former Soviet Union, citizens of Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan are now eligible to TWOV. Because of the democratization of the former Warsaw Pact countries, citizens of Albania, Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia may also TWOV. The TWOV privilege is also extended to citizens of Croatia, the Former Yugoslav Republic of Macedonia and Slovenia, formerly part of the Socialist Federal Republic of Yugoslavia.

Which Countries Are Added to the List of Countries Whose Citizens Cannot TWOV?

The rule adds Angola, Belarus, Burma, Burundi, Central African Republic, People's Republic of China, Congo (Brazzaville), Nigeria, Russia, Sierra Leone, Somalia and Sudan to the list of countries whose citizens cannot TWOV.

What Criteria Is Used To Determine Ineligibility to TWOV?

In determining which countries may or may not TWOV, the Department (in conjunction with the INS) takes into consideration such things as:

(1) Abuse of the TWOV privilege;

(2) Nonimmigrant visa refusal rates;

(3) The stability of the country;

(4) Whether citizens of the country are linked to terrorist activity, narcotics trafficking; or international criminal activity;

(5) Any Presidential proclamation restricting the entry of the country's citizens; and

(6) Security concerns.

Based on a review of these and other relevant factors, the Department and the INS will determine the countries whose citizens will not be eligible to TWOV. The agencies will periodically review the list to determine whether countries should be added or removed.

Administrative Procedure Act

The Department is implementing this rule as an interim rule, with a 60-day provisions for post-promulgation public comments, based on the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and 553(d)(3). The Department considers this rule to be beneficial to the general public since it extends the TWOV privilege to citizens of several additional countries. In addition, this rule grants and recognizes an exemption or relief from restrictions within the scope of 5 U.S.C. 5553(d)(1). The Department finds it necessary to implement this rule effective immediately to minimize abuse of the TWOV privilege.

Regulatory Flexibility Act

The Department of State, 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.

Unfunded Mandates Reform Act of 1995

This 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 year and it will not significantly or uniquely affect 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 rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. 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 significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

The Department of State does not consider this rule, 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 13132

This regulation 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 rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act

This rule does not impose any new reporting or record-keeping requirements. The information collection requirement (Form OF-156) contained by reference in this rule was previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act.

List of Subjects in 22 CFR Part 41

• Aliens
• Nonimmigrants
• Passports and visas

In view of the foregoing, the Department amends 22 CFR as follows:

PART 41—[AMENDED]

1. The authority citation continues to read as follows:

Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681 et. seq.

2. Section 41.2 is amended by revising paragraph (i) to read as follows:

§ 41.2

Waiver by Secretary of State and Attorney General of passport and/or visa requirements for certain categories of nonimmigrants.

* * * * *

(i) Aliens in immediate transit without visa (TWOV). (1) An alien in immediate and continuous transit through the United States is not required to be in possession of a passport or visa if:

(i) The carrier transporting the alien has signed an agreement with the Immigration and Naturalization Service (INS) pursuant to the provisions of INA 233(c); and

(ii) The alien is en route to a specified foreign country; and

(iii) The alien possesses documentation establishing identity, nationality, and the ability to enter a country other than the United States.

(2) Notwithstanding the provisions of paragraph (i)(1) of this section, this waiver is not available to an alien who is a citizen of: Afghanistan, Angola, Bangladesh, Belarus, Bosnia-Herzegovina, Burma, Burundi, Central African Republic, People's Republic of China, Congo (Brazzaville), India, Iran, Iraq, Libya, Nigeria, North Korea, Pakistan, Russia, Serbia, Sierra Leone, Somalia, Sri Lanka, Sudan.

Dated: September 15, 2000.

Maura Harty,

Acting Assistant Secretary for Consular Affairs.