[Federal Register Volume 66, Number 4 (Friday, January 5, 2001)]
[Proposed Rules]
[Pages 1053-1054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-355]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 66, No. 4 / Friday, January 5, 2001 / 
Proposed Rules  

[[Page 1053]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS. No. 1696-95]
RIN 1115-AD96


Establishing Criteria for Determining Countries Whose Citizens 
Are Ineligible for the Transit Without Visa (TWOV) Program

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: The Transit Without Visa (TWOV) program allows the Immigration 
and Naturalization Service (Service), acting jointly with the 
Department of State, to waive the passport and visa requirement for 
aliens from certain countries who request immediate and continuous 
transit privileges through the United States. This rule proposes to 
amend Service regulations by removing the list of those countries that 
are ineligible to participants in the TWOV program from the regulation. 
In its place the Service proposes to publish and update the list of 
countries that are ineligible to participate in the TWOV Program by 
Federal Register notice. This rule also sets forth a non-exhaustive 
list of factors that may be considered in determining those countries 
whose citizens or nationals are ineligible for the TWOV program.
    The criteria established in this rule will allow the Service to 
identify ineligible countries and provide for a regular review of all 
countries to determine their eligibility for participation in the TWOV 
program.

DATES: Written comments must be submitted on or before March 6, 2001.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 
20536. To ensure proper handling please reference INS No. 1696-95 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Robert Hutnick, Assistant Chief 
Inspector, Inspections Division, Immigration and Naturalization 
Service, 425 I Street, NW., Room 4064, Washington, DC 20536, telephone 
(202) 616-7499.

SUPPLEMENTARY INFORMATION:

What Is the Authority for Participation in the TWOV Program?

    Section 212(d)(4)(C) of the Immigration and Nationality Act (Act) 
provides authority for the Attorney General acting jointly with the 
Secretary of State to waive nonimmigrant visa requirements for aliens 
who are proceeding in immediate and continuous transit through the 
United States and are using a carrier which has entered into a contract 
with the Service authorized under section 233(c) of the Act. This 
contract is an Immediate and Continuous Transit Agreement, Form I-426, 
also known as a TWOV Agreement.

What Changes Are Proposed in This Rule?

    This rule proposes to amend Sec. 212.1(f)(2) by removing the list 
of countries ineligible to participate in the TWOV program (see 
Department of State regulation published elsewhere in this issue of the 
Federal Register). Instead, the Service, in conjunction with the 
Department of State, is proposing to publish and update the list of 
countries whose citizens or nationals are ineligible to participate in 
the TWOV Program by notice published in the Federal Register. This rule 
also sets forth the authority of the Service and the Department of 
State to designate citizens or nationals of certain countries to be 
ineligible to participate in the TWOV program. It also provides a non-
exhaustive list of factors to be considered in determining whether 
citizens or nationals of a particular country should not be eligible 
for participation in the TWOV program.

How Will Citizens From Ineligible Countries Know They Are 
Ineligible for the TWOV Programs?

    The Service and the Department of State will compile a revised list 
of countries ineligible for the TWOV privilege and from time to time, 
will publish this list as a notice in the Federal Register. The Service 
and Department of State will review this list periodically and publish 
by notice in the Federal Register any additions or deletions. The list 
will be made available upon written request to the Service's 
Headquarters Office of Inspections or on the Service's website.

What Other Changes Is the Service Making in This Proposed Rule?

    This rule also proposes to amend Sec. 212.1(f)(1) by revising the 
reference to section ``238(d)'' of the Act to read ``233(c)''. This is 
a necessary conforming change to reflect the current provision of law, 
as amended by the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, which grants the Attorney General the power 
to enter into contracts with transportation lines to guarantee the 
passage through the United States in immediate and continuous transit 
of aliens destined for foreign countries.

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 governs whether a citizen or national from a 
participant country may use the TWOV program. These aliens are not 
considered small entities as that term is defined under in 5 U.S.C. 
601(6).

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 1 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.

[[Page 1054]]

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 cost 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

    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. Accordingly, the Office of Management 
and Budget has waived its review process under section 6(a)(3)(A).

Executive order 13132

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

Executive order 12988 Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects in 8 CFR Part 212

    Administrative practice and procedure, Aliens, Passports and Visas.
    Accordingly, part 212 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. The authority citation for part 212 continues to read as 
follows:


    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252; 8 CFR part 2.
    2. Section 212.1 is amended by:
    a. Revising the reference to ``238(d)'' to read: ``233(c)'' in the 
first sentence in paragraph (f)(1); and by
    b. Revising paragraph (f)(2), to read as follows:


Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (f) * * *
    (2) Unavailability to transit. (i) Notwithstanding the provisions 
of paragraph (f)(1) of this section, the waiver of the passport and 
visa requirement is not available to an alien who is a citizen or 
national of a country designated by the Service and the Department of 
State to be ineligible. The Service and Department of State may 
designate such countries based on a variety of considerations 
including, but not limited to, the following:
    (A) Whether citizens or nationals of the country have abused the 
transit without visa privilege in the past;
    (B) Whether citizens or nationals of the country have a high 
nonimmigrant visa refusal rate;
    (C) Whether there is an insurrection or instability in the country, 
such that citizens or nationals of the country should apply for 
nonimmigrant visas to ensure that they are not intending immigrants;
    (D) Whether a significant number of citizens or nationals of the 
country are linked to terrorist activity, narcotics trafficking, or 
international criminal activity;
    (E) Whether the President has issued a proclamation under section 
212(f) of the Act suspending or restricting the entry of citizens or 
nationals of the country; or,
    (F) Whether the country poses significant security concerns.
    (ii) By notice in the Federal Register, the Service, acting jointly 
with the Department of State, shall review periodically and publish an 
updated list of countries ineligible for transit without visa 
privileges.
    (iii) A list of countries whose citizens or nationals are 
ineligible for TWOV privileges will be maintained by the Service's 
Headquarters Office of Inspections and is available upon written 
request.

    Dated: December 21, 2000.
Mary Ann Wyrsch,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-355 Filed 1-4-01; 8:45 am]
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