[Federal Register Volume 68, Number 152 (Thursday, August 7, 2003)]
[Rules and Regulations]
[Pages 46948-46949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20204]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice: 4434]


Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act; Suspension of Transit Without Visa Program

AGENCY: Department of State.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule suspends the visa and/or passport waiver 
provisions of Department of State regulations, commonly known as the 
Transit Without Visa (TWOV) and the International-to-International 
(ITI) programs. By waiving the passport and/or visa requirements, the 
provisions of Department of State regulations facilitate travel through 
the United States of aliens who must transit the United States on 
direct and continuous travel from one country to another. This waiver, 
however, indirectly allows this category of aliens to bypass the formal 
nonimmigrant visa process that includes the prescreening of aliens 
prior to their arrival at a port of entry in the United States. Recent 
intelligence indicates a possible terrorist threat specific to the TWOV 
and ITI programs and additional increased threats of activities against 
the interests and the security of the United States. Therefore the 
Department of State and the Department of Homeland Security (DHS) have 
determined to suspend those programs. The rule is necessary in view of 
the recent intelligence reports.

DATES: This rule is effective August 2, 2003; written comments must be 
submitted by September 22, 2003.

ADDRESSES: Please submit written comments to the Chief, Legislation and 
Regulations Division, Directorate for Visa Services, Department of 
State, 2401 E Street, NW., Washington, DC 20520-0106, by FAX to (202) 
663-3898, or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Legislation and 
Regulations Division, Directorate for Visa Services, Department of 
State, 2401 E Street, NW., Washington, DC 20520-0106, (202) 663-1202.

SUPPLEMENTARY INFORMATION:

What Are the TWOV and ITI Programs?

    Pursuant to section 212(d)(4) of the Immigration and Nationality 
Act, 8 U.S.C. 1182(d)(4)(C), the Secretary of Homeland Security 
(previously the Secretary's authority under this section was exercised 
by the Attorney General) and the Secretary of State, acting jointly, 
may waive the visa and/or passport requirements for aliens proceeding 
in immediate and continuous transit through the United States. 
Therefore, aliens from many nations who desire to travel through the 
United States in transit from one country to another without the need 
of obtaining a visa may do so under the Transit Without Visa (TWOV) and 
International to International (ITI) procedures permitted under the 
provisions of 22 CFR 41.2(i).

Why Is It Necessary To Suspend the TWOV and ITI Programs?

    The waiver of passport and/or visa requirements permitted by these 
programs precludes the prescreening of participating aliens prior to 
their arrival at a port of entry in the United States. Because these 
aliens do not have to apply for a visa and be interviewed by a consular 
officer, there is no opportunity for U.S. authorities to determine 
prior to their arrival at the U.S. border whether a participating 
alien's travel is legitimate and whether the alien poses any threat to 
the United States. In view of the current intelligence of a possible 
terrorist threat specific to these programs, the Secretaries of State 
and Homeland Security have determined that the programs immediately be 
suspended while they evaluate the security risks involved in these 
programs over the next 60 days. During the 60 day review period, DHS 
and the Department of State will be reviewing comments and taking other 
steps to develop plans that

[[Page 46949]]

will ensure security. DHS and the Department of State have received 
specific, credible intelligence, including intelligence from the FBI 
and the CIA, that certain terrorist organizations have identified the 
visa and passport exemptions of the TWOV and ITI programs 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 the aircraft. 
Consequently, upon the signing of this rule and the signing of a 
similar rule by the Secretary of Homeland Security (see the Department 
of Homeland Security rule published elsewhere in this issue of the 
Federal Register) the TWOV and ITI programs immediately will be 
suspended. The suspension of these programs will require aliens seeking 
to transit the United States to be in possession of valid passports and 
visas unless the passport and/or visa requirements may be waived under 
other provisions of Part 41 and such a waiver has been obtained.

Regulatory Findings

Administrative Procedure 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). 
The effective date of this rule on August 2, 2003 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. There is a reasonable concern that publication of this rule 
with an effective date 30 to 60 days after publication would leave the 
United States unnecessarily vulnerable to a specific terrorist threat 
against persons in the United States during the interval between the 
publication of the rule and its effective date. To prevent such a 
result, DHS and the Department of State have determined that prior 
notice and public comment on this rule would be impractical and 
contrary to the public interest. Accordingly, there is good cause to 
publish this interim rule and to make it effective August 2, 2003.

Inapplicability of Prior Public Notice and Comment and Delayed Effect 
Requirements and the Regulatory Flexibility Act

    The Secretaries of State and Homeland Security have concluded that, 
under 5 U.S.C. 553(b)(3)(B), good cause exists for dispensing with 
prior notice and public comment requirements for these changes to the 
regulations. 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 
serious damage, injury, or death in the United States. Due to this 
credible security threat, it is necessary to implement certain measures 
to control the entry of persons arriving in the United States.
    Inasmuch as this suspension is predicated on a national security 
emergency as noted above, pursuant to 5 U.S.C. 553(b)(3)(B), prior 
notice and public procedure thereon are unnecessary and, pursuant to 5 
U.S.C. 553(d)(3), a delayed effective date is not required. 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.).

The Unfunded Mandates 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

    Although this rule may be determined to be a major rule as defined 
by section 804 of the Small Business Regulatory Enforcement Act of 
1996, it is exempt from review under that section pursuant to sections 
801 and 808(2) of that Act. The Department finds good cause in the 
potential direct threat from terrorists to find that review of this 
rule under section 804 is impractical and contrary to the public 
interest.

Executive Order 12866

    The Department of State considers this rule to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. The Department, however, in conjunction 
with DHS, concludes at this time that this regulatory action is not 
economically significant under section 3(f)(1), and specifically 
requests comments regarding this determination. The Office of 
Management and Budget (OMB) and the Department of Justice (DOJ) have 
reviewed this rule and its companion DHS rule printed elsewhere in this 
edition of the Federal Register, and have provided clearances. The DHS 
rule contains a DHS-conducted assessment of costs and benefits 
analysis; The Department of State adopts that analysis, upon which the 
determination of economic significance of this rule is based, as in the 
DHS rule.

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 require consultations or warrant 
the preparation of a federalism summary impact statement.

Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects in 22 CFR Part 41

    Aliens, Passports and visas.


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Accordingly, for the reasons discussed in the preamble, part 41 is 
amended as follows:

PART 41--[AMENDED]

0
1. The authority citation for part 41 continues to read:

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

Sec.  41.2  [Amended]

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2. The text of Sec.  41.2 paragraph (i) is removed and reserved.

    Dated: August 2, 2003.
Maura Harty,
Assistant Secretary of State, Bureau of Consular Affairs, Department of 
State.
[FR Doc. 03-20204 Filed 8-4-03; 4:18 pm]
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