[Federal Register Volume 66, Number 4 (Friday, January 5, 2001)]
[Proposed Rules]
[Pages 1064-1066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-357]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 3533]
RIN 1400-AA48


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.

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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, (202) 663-1204; or e-mail: 
[email protected].

[[Page 1065]]


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

[[Page 1066]]

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:


Sec. 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.
[FR Doc. 01-357 Filed 1-4-01; 8:45 am]
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