01-357. Bureau of Consular Affairs; Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act-Amendment of Transit Without Visa (TWOV) List.

AGENCY:

Bureau of Consular Affairs, Department of State.

ACTION:

Proposed rule, with request for comments.

SUMMARY:

This rule proposes to amend the Department of State regulation that allows for a waiver of the visa and passport requirement under the Transit Without Visa (TWOV) Program authorized under section 233 of the Immigration and Nationality Act (INA) for citizens of certain countries who are in immediate and continuous transit through the United States. The Department proposes to remove from the current regulation the list of countries ineligible to participate in the TWOV Program and to publish a separate list which will be updated and published periodically.

This rule also sets forth the criteria, which among other factors, will be used in determining which countries will be ineligible for the TWOV privilege.

DATES:

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, D.C. 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, D.C. 20520-0106, [phone]; or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Background/Waiver Authority

Section 212(d)(4)(C) of the Immigration and Nationality Act (INA) provides 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).

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 designating those countries whose citizens are ineligible for the TWOV privilege.

How will the Regulation Be Changed

Amending the List of Ineligible Countries

The current regulation provides a list of countries whose citizens are ineligible for the TWOV privilege. The Department proposes to amend this regulation by removing the list of ineligible countries from the regulation and afterward, periodically, to publish such a list it in a Federal Register Notice. This will allow the Department to review and publish any revised list more frequently and more easily.

Determining Ineligibility to TWOV

In this rule the Department proposes criteria which will be used in determining for the purpose of publishing the list in the Federal Register those countries whose citizens will be ineligible to transit without visa. The list is not exhaustive. Other relevant factors, as determined by the Department and the INS, may be considered as well.

Based on these criteria, and other relevant factors, the Department and INS intend to periodically compile an updated list of countries whose citizens are ineligible for the waiver privilege and to publish the list in a notice in the Federal Register.

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.

What Criteria Will Be Considered in Determining Eligibility to TWOV

Along with other factors which the Department and the INS have determined relevant, the Department will consider.

(i) Whether citizens of the country have abused this waiver privilege in the past;

(ii) Whether citizens of the country have a high nonimmigrant visa refusal rate;

(iii) Whether there is insurrection or instability in the country, such that citizens of the country should apply for visas to ensure that they are not intending immigrants;

(iv) Whether a significant number of citizens of the country are linked to terrorist activity, narcotics trafficking, or international criminal activity;

(v) Whether the President has issued a proclamation under section INA 212(f) pertaining to citizens of the country; or

(vi) Whether the country poses significant security concerns.

Proposed Rule

How Will the Department of State Amend Its Regulations

The Department of State proposes to amend 22 CFR 41.2(i) by removing the list of countries for which the transit without visa privilege is not available. After consideration of the criteria outlined above, the Department and the INS propose to publish and update a list of countries whose citizens are ineligible for the TWOV privilege.

What Effect Will This Rule Have on Aliens Currently Excluded From the TWOV Privilege

This is a proposed rule and, therefore, does not affect aliens currently excluded from the TWOV privilege. Any changes to the list of ineligible aliens will take effect upon publication of a final rule. At the time of publication of the final rule, the Department will also publish a separate notice designating those countries whose citizens are ineligible for the TWOV privilege. The Department and the INS will review and update this list periodically.

Administrative Procedure Act

The Department is publishing this rule as a proposed rule, with a 60-day provision for public comments.

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)(2) and adding paragraph (i)(3) 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). * * *

(2) Notwithstanding the provisions of paragraph (i)(1) of this section, an alien is not eligible for this waiver if the alien is a national of a country whose citizens the Secretary of State and/or the Attorney General have designated to be ineligible to transit the United States without a visa. The Department and the INS may designate such nationalities based on a variety of considerations including, but not limited to, the following:

(i) Whether citizens of the country have abused this waiver privilege in the past;

(ii) Whether citizens of the country have a high nonimmigrant visa refusal rate;

(iii) Whether there is insurrection or instability in the country, such that citizens of the country should apply for visas to ensure that they are not intending immigrants;

(iv) Whether a significant number of citizens of the country are linked to terrorist activity, narcotics trafficking, or international criminal activity;

(v) Whether the President has issued a proclamation under section INA 212(f) pertaining to citizens of the country; or

(vi) Whether the country poses significant security concerns.

(3) The Secretary of State, acting jointly with the Attorney General, will review periodically and publish in the Federal Register an updated list of countries whose citizens they have determined are ineligible to transit without visa.

Dated: September 15, 2000.

Maura Harty,

Acting Assistant Secretary for Consular Affairs.