[Federal Register Volume 68, Number 152 (Thursday, August 7, 2003)]
[Rules and Regulations]
[Pages 46926-46929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20130]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 212, 214, 231 and 233

[CBP DEC. 03-14]
RIN 1515-AD36


Suspension of Immediate and Continuous Transit Programs

AGENCY: Department of Homeland Security (DHS).

ACTION: Interim rule with request for comments.

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SUMMARY: The Immediate and Continuous Transit program, also known as 
the Transit Without Visa (TWOV) program and the International-to-
International (ITI) program allow an alien to be transported in-transit 
through the United States to another foreign country without first 
obtaining a nonimmigrant visa from the Department of State overseas, 
under section 212(d)(4) of the Immigration and Nationality Act (Act), 
provided the carrier has entered into an Immediate and Continuous 
Transit Agreement on Form I-426, pursuant to section 233(c) of the Act. 
This rule suspends immediate and continuous transit provisions for both 
the TWOV and ITI programs. The current regulations provide that an 
alien may be transported through the United States in accordance with 
the provisions of section 233(c) of the Act. The recent receipt of 
credible intelligence concerning a threat specific to the TWOV program 
and additional increased threats of activities against the interests 
and the security of the United States, has led to the decision to 
suspend this program.

DATES: This interim rule is effective August 2, 2003; written comments 
must be submitted on or before September 22, 2003.

ADDRESSES: Written comments are to be addressed to the Bureau of 
Customs and Border Protection, Office of Regulations and Rulings, 
Regulations Branch, 1300 Pennsylvania Avenue, NW., Washington, DC 
20229. Submitted comments may be inspected at the Bureau of Customs and 
Border Protection at 799 9th Street, NW., Washington, DC 20229. 
Comments are available for public inspection at the above address by 
calling (202) 572-8768 to arrange for an appointment.

[[Page 46927]]


FOR FURTHER INFORMATION CONTACT: Kenneth Sava, Director, Air and Sea 
Passenger Operations, Bureau of Customs and Border Protection, 1300 
Pennsylvania Avenue, NW., Room 5.4-0, Washington, DC 20229, telephone 
number (202) 927-0530.

SUPPLEMENTARY INFORMATION:

What Are the TWOV and ITI Programs?

    The Transit Without Visa (TWOV) and International-to-International 
(ITI) programs were established under authority now vested with the 
Secretary of Homeland Security (and since delegated to the 
Commissioner, Customs and Border Protection (CBP)) in 8 U.S.C. 
1182(d)(4) and 1223, among other authorities. See also, 6 U.S.C. 251(5) 
(transfer of former Immigration and Naturalization Service (INS) 
inspection functions to DHS); Department of Homeland Security 
Reorganization Plan of January 30, 2003, (transfer of former INS 
inspection functions to Commissioner of Customs, renamed Bureau of 
Customs and Border Protection), H.R. Doc. 108-32 (2003).
    The TWOV and ITI programs allow aliens to transit through the 
United States without a nonimmigrant visa while en route from one 
foreign country to a second foreign country with one or more stops in 
the United States. Air carriers who enter into the TWOV or both the 
TWOV and lTl agreements, depending on the circumstances, transport 
these aliens to the United States.

What Is the Authority for Participation in the TWOV and ITI Program?

    Section 212(d)(4)(C) of the Immigration and Nationality Act (Act) 
provides authority for the Secretary of Homeland Security 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 authorized under section 233(c) of the Act. The 
required contract for participation in the TWOV program is an Immediate 
and Continuous Transit Agreement, Form I-426 (known as a TWOV 
Agreement). The required contracts for participation in the ITI program 
are (1) a TWOV Agreement and (2) an Immediate and Continuous Transit 
Agreement with provisions for use of an In-Transit Lounge (known as an 
ITI Agreement).

Why Is DHS Suspending the Immediate and Continuous Transit Provisions?

    In light of the importance of preventing terrorist acts, and as set 
forth in Executive Order No. 13284 of January 23, 2003, 68 FR 4075, 
that grave acts of terrorism and threats of terrorism committed by 
foreign terrorists, including the terrorist attacks in New York, 
Pennsylvania, and the Pentagon committed on September 11, 2001, pose an 
immediate threat of further attacks on United States nationals or the 
United States and constitute an unusual and extraordinary threat to the 
national security, foreign policy, and economy of the United States, it 
is necessary to suspend the TWOV and ITI programs to protect the 
security interests of the United States. By this interim rule, the 
Secretaries of State and Homeland Security will immediately suspend the 
TWOV and ITI programs while they evaluate the security risks involved 
in these programs over the next 60 days.
    The provisions for aliens eligible for the TWOV program preclude 
prescreening of passengers prior to their arrival at a port of entry in 
the United States, by permitting the waiver of nonimmigrant visa 
requirements for such persons. Accordingly, such provisions shall be 
suspended immediately to safeguard the interests of the United States 
by controlling the entry or attempted entry of persons transiting 
through the United States. Suspension of these provisions will require 
aliens in immediate and continuous transit to be in possession of valid 
nonimmigrant visas unless such a requirement is otherwise waived. DHS 
has established procedures for the handling of passengers in transit to 
the United States when this rule takes effect and will be working with 
carriers to minimize disruption.
    The suspension of these regulations does not preclude the use of 
ITI lounges for any other authorized purpose. Foreign government 
officials may continue to transit the United States pursuant to 8 CFR 
212.1(f)(3). During the 60 day review period, DHS will be working with 
the airlines, airports, foreign governments, and others to develop 
plans that will ensure security, as well as reviewing comments 
submitted in conjunction this interim rule.
    DHS and the Department of State have received specific, credible 
intelligence, including from intelligence and law enforcement sources, 
including the Central Intelligence Agency (CIA) and Federal Bureau of 
Investigation (FBI), that certain terrorist organizations have 
identified this exemption from the normal visa issuance procedures as a 
means to gain access to the United States, or to gain access to 
aircraft en route to or from the United States, to cause damage to 
infrastructure, injury, or loss of life in the United States or on 
board aircraft en route to or from the United States.
    Due to this credible security threat, it is necessary to implement 
certain measures to restrict the transit of aliens through the United 
States. The waiver of visa requirements for aliens in the TWOV program 
precludes prescreening of passengers prior to their arrival at a port 
of entry in the United States. Accordingly, such provisions are 
suspended immediately to safeguard the national security interest of 
the United States by restricting the transit of such persons.
    The Secretaries of State and Homeland Security may waive passport 
and visa requirements for certain categories of non-immigrants jointly. 
These regulations are promulgated jointly with the Secretary of State.

Comments

    Consideration will be given to any written comments timely 
submitted. The shortened comment period of 45 days is necessary to 
receive and consider comments prior to DHS reevaluation of this 
suspension in 60 days.

Administrative Procedures Act

    The immediate implementation of this rule as an interim rule, with 
a 45-day provision for post-promulgation public comments, is based on 
findings of ``good cause'' pursuant to 5 U.S.C. 553(b) and 553(d)(3). 
Making the effective date of this rule on the date of signature is 
necessary for the national security of the United States and to prevent 
the TWOV and ITI programs from being used to conduct terrorist acts 
against the United States.
    DHS has received credible intelligence that certain terrorist 
organizations have identified this exemption from the normal visa 
issuance procedures as a means to gain access to the United States or 
an aircraft en route to the United States to cause serious damage, 
injury, or death in the United States. Due to this credible security 
threat, it is necessary to implement measures immediately to control 
the entry of persons arriving in the United States.
    For these reasons, there is substantial basis for concern that 
prior publication of a proposed rule for public comment, and the 
requirement for a 30-day delayed effective date after publication of a 
final rule, would leave the United States seriously and unnecessarily 
vulnerable to a specific terrorist threat against persons in the United 
States during the period of time before the final rule could become 
effective after

[[Page 46928]]

the end of the public comment period and the further 30-day delay.
    Accordingly, DHS has determined that prior notice and public 
comment on this rule, and a delay in the effective date, would be 
impracticable and contrary to the public interest. Moreover, DHS is 
making this rule effective upon signature, prior to publication in the 
Federal Register, in view of the urgency of the threats posed to the 
public safety and security of the United States. Upon signature, DHS 
will provide actual notice of the suspension of the TWOV and ITI 
programs to all affected air carriers, and has also provided widespread 
publicity of this change to the traveling public. Accordingly, there is 
good cause to publish this interim rule and to make it effective upon 
its signature. DHS welcomes post-promulgation public comment on this 
interim rule.

Regulatory Flexibility Act

    Since this document is not subject to the prior notice and public 
procedure requirements of 5 U.S.C. 553, it is not subject to the 
provisions of the Regulatory Flexibility Act, as amended (5 U.S.C. 601 
et seq.).

Paperwork Reduction Act

    This interim final rule will not impose additional reporting or 
record-keeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. Chapter 35).

Executive Order 12866

    This rule is considered by the Department of Homeland Security to 
be a significant regulatory action under Executive Order 12866, section 
3(f), Regulatory Planning and Review. The Department, however, 
concludes at this time that this regulatory action is not economically 
significant under section 3(f)(1), and specifically requests comments 
regarding this determination. Accordingly, this regulation has been 
submitted to the Office of Management and Budget (OMB) for review.
    DHS has assessed both the costs and benefits of this rule, as 
required by Executive Order 12886, section 3(f), and has made a 
reasoned determination that the benefits justify the costs. Suspending 
the Transit Without Visa program will safeguard the homeland security 
interests of the United States by controlling the entry of persons 
permitted to travel to and through the United States. DHS and the 
Department of State have received credible intelligence that certain 
terrorist organizations have identified this exemption from the normal 
visa issuance procedures to gain access to the United States or an 
aircraft en route to the United States to cause injury to United States 
infrastructure or its citizens. We cannot at this time present any 
quantifiable information regarding this threat.
    Costs include the potential for lost airline revenue for those air 
carriers who have historically carried Transit Without Visa passengers. 
The air carriers transported 381,065 TWOV passengers and 233,434 ITI 
passengers to the United States in fiscal year 2002. For the purposes 
of this analysis, DHS assumes an average price per flight of $800 for 
TWOV passengers, and requests comments on this assumption. Therefore, 
the total revenue the airlines earn from these passengers is 
approximately $300 million per year. With this program suspended, 
passengers that would otherwise be able to travel through the United 
States without visas would now be required to obtain visas, which may 
result in some travelers re-routing their trips away from the United 
States and fewer travelers transiting through the United States. The 
re-routing may affect demand for travel on U.S. airlines versus foreign 
airlines. The diminished number of travelers transiting the United 
States may also adversely affect retail businesses at certain airports. 
Note that DHS does not at this time know for how long this program will 
be suspended, and therefore what fraction of this yearly revenue may be 
affected by any activity attributable to this rulemaking. This rule 
calls for a suspension and 60 day review and possible permanent 
modifications to the program. When DHS has determined the possible 
permanent impact of these modifications, we will reassess all 
assumptions and estimations regarding costs.
    For the purposes of the Executive Order, costs also include the 
lost consumer surplus of passengers participating in the TWOV program. 
This impact, however, depends crucially on the price elasticity of TWOV 
program flights and the characteristics of reasonable substitutes for 
these flights, such as obtaining a visa for an otherwise identical 
itinerary, switching travel out of the United States, or not traveling 
at all. This cost should be bounded by the time and convenience of 
obtaining a visa for an otherwise identical flight, which is a viable 
alternative for these passengers. Currently, the State Department 
charges approximately $100 per visa application. Without quantifying 
convenience costs, if passengers simply obtained a visa and did not 
otherwise alter their flight plans, the cost of the rule to passengers 
would be approximately $40 million per year. Again, DHS does not know 
for how long this program will be suspended. Note that this would also 
be the total cost of the rule, since airlines would not lose any of 
their revenue under this scenario. We encourage the submission of 
comments further quantifying the potential economic impact.

Executive Order 13132: Federalism

    The interim 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, this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

List of Subjects

8 CFR Part 212

    Administrative practice and procedure, Aliens, Passports and visas, 
Reporting and recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Reporting and record 
keeping requirements.

8 CFR Part 231

    Air carriers, Aliens, Maritime carriers, Reporting and 
recordkeeping requirements.

8 CFR Part 233

    Air carriers, Aliens, Maritime carriers, Reporting and 
recordkeeping requirements.

Amendment of the Regulations

0
Accordingly, chapter 1 of title 8 of the Code of Federal Regulations is 
amended as follows:

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

0
1. The authority citation for part 212 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227.


Sec.  212.1  [Amended]

0
2. The text of Sec.  212.1 paragraphs (f)(1) through (f)(2) are removed 
and reserved.

[[Page 46929]]

PART 214--NONIMMIGRANT CLASSES

0
3. The authority citation for part 214 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1162, 1182, 1184, 1186a, 
1187, 1221, 1223, 1281, 1282, 1301-1305 and 1372; section 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.


Sec.  214.2  [Amended]

0
4. In Sec.  214.2, paragraph (c)(1) is removed and reserved.

PART 231--ARRIVAL-DEPARTURE MANIFESTS

0
5. The authority citation for part 231 is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1221, 1223 and 1229.

Sec.  231.1  [Amended]

0
6. In Sec.  231.1, paragraph (b) is removed and reserved.

PART 233--CONTRACTS WITH TRANSPORTATION LINES

0
7. The authority citation for part 233 is revised to read as follows:

    Authority: 8 U.S.C. 1103, 1182, 1223.

Sec.  233.3  [Removed and Reserved]

0
8. Section 233.3 is removed and reserved.

    Dated: August 2, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-20130 Filed 8-6-03; 4:18 pm]
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