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[Federal Register: January 5, 2001 (Volume 66, Number 4)]
[Rules and Regulations]               
[Page 1017-1018]
From the Federal Register Online via GPO Access []

[[Page 1017]]

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 2020-99]
RIN 1115-AF81

Update of the List of Countries Whose Citizens or Nationals Are 
Ineligible for Transit Without Visa (TWOV) Privileges to the United 
States Under the TWOV Program

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.
SUMMARY: The Transit Without Visa (TWOV) Program allows certain aliens 
to transit the United States en route to a specified foreign country 
without a passport or visa provided they are traveling on a carrier 
signatory to an agreement with the Immigration and Naturalization 
Service (Service) in accordance with section 233(c) of the Act. This 
interim rule updates the list of those countries that the Service, 
acting on behalf of the Attorney General and jointly with the 
Department of State, has determined to be ineligible for participation 
in the TWOV program. This rule also removes certain countries from the 
ineligible listing so that aliens from these countries can have their 
passport and visa requirements waived. This rule is intended to benefit 
the travelling public by expanding the number of countries whose 
citizens or nationals may transit the United States without a visa 
while preventing an increase in the abuse of the TWOV program by 
citizens or nationals of countries placed on the ineligible list.

DATES: Effective Date: This interim rule is effective February 5, 2001.
    Comment Date: 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 4034, Washington, DC 
20536. Please include INS number 2020-99 on your correspondence to 
ensure proper and timely handling. 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 F. Hutnick, Assistant Chief 
Inspector, Immigration and Naturalization Service, 425 I Street, NW, 
room 4064, Washington, DC 20536, telephone number (202) 616-7499.


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 (see Department of State regulation published 
elsewhere in this issue of the Federal Register) 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, in this case an Immediate and Continuous 
Transit Agreement on Form I-426, also known as a TWOV Agreement.

How Does This Interim Rule Amend the Regulations?

    As the Service will no longer consider where a citizen of a 
particular country resides in determining under what conditions he or 
she may participate in the TWOV program, this interim rule amends the 
regulations by removing Sec. 212.1(f)(2). This rule amends 
Sec. 212.1(f)(3) by adding certain countries to the list of countries 
whose citizens are ineligible for TWOV privileges and re-designates 
Sec. 212.1(f)(3) as Sec. 212.1(f)(2).

How Will This Amendment Affect Carrier Liability in Pending Cases 
Involving the Bringing to the United States of an Alien Who Was 
Ineligible for TWOV Privileges?

    This change will not have any effect on pending cases. The change 
enters into force on February 5, 2001, and applies to cases involving 
aliens who arrive in the United States on or after that date. If, 
before that date, a carrier violated the Act by bringing an alien who 
did not have a visa and was not eligible for TWOV privileges, the 
carrier's violation was complete at that time. The fact that an alien 
from that country may now be eligible for TWOV privileges, therefore, 
will not relieve the carrier of liability.

What Countries Will Benefit From This Action?

    In the aftermath of the breakup of the former Soviet Union, the 
Service and the Department of State are waiving the passport and visa 
requirements for citizens of certain former Union of Soviet Socialist 
Republics which request to transit the United States without a 
nonimmigrant visa. These countries, from the former Soviet Union, 
include: Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Moldova, 
Tajikistan, Turkmenistan, Ukraine, and Uzbekistan. They now will be 
afforded TWOV privileges.
    Due to the democratization of the former Warsaw Pact countries, the 
citizens from these countries will be allowed to transit the United 
States without a nonimmigrant visa. The countries that will be afforded 
this privilege will include: Albania, Bulgaria, the Czech Republic, 
Estonia, Hungary, Latvia, Lithuania, Poland, Romania, and Slovakia.
    Due to the relative stability of certain countries that were 
formerly part of the Socialist Federal Republic of Yugoslavia, this 
rule will allow citizens of the following countries to use the TWOV 
program: Croatia, the Former Yugoslav Republic of Macedonia, and 
    Lastly, the improved stability in Mongolia and Vietnam will permit 
citizens of these countries to apply for TWOV privileges under this 

What Countries Are Being Added to the Ineligibility List in 
Sec. 212.1(f)(2), as Revised?

    The following countries are being added to Sec. 212.1(f)(2) making 
the waiver of passport and visa requirement not available to an alien 
who is a citizen of that country (ineligible for TWOV privileges): 
Angola, Belarus, Burma, Burundi, Central African Republic, People's 
Republic of China, Congo (Brazzaville), Nigeria, Russia, Sierra Leone, 
Somalia, and Sudan.

Why Are Citizens From These Countries Now Ineligible for TWOV 

    In determining which countries may or may not transit without visa, 
the Service (in conjunction with the Department of State) takes into 
consideration such things as, but not limited to, past abuse of the 
transit without visa privilege; the country's nonimmigrant visa refusal 
rate; whether the country grants United States nationals reciprocal 
treatment; the country's crime rate, the stability of the country; any 
security concerns; whether the country has diplomatic relations with 
the United States; and other relevant factors.

Good Cause Exception

    The implementation of this rule as an interim rule, with a 60-day 
provision for post-promulgation public comments, is based on the ``good 
cause'' exceptions found at 5 U.S.C. 553(b)(B) and 553(d)(3). A notice 
and comment period

[[Page 1018]]

prior to implementation would have been unnecessary and contrary to the 
public interest. A portion of this rule expands the categories of 
persons who may transit the United States without a visa and is thus 
considered beneficial to both the traveling public and the United 
States Government. Moreover, this aspect of the rule grants or 
recognizes an exemption or relieves a restriction within the scope of 
the exception set forth at 5 U.S.C. 553(d)(1). Certain other countries 
have been added to the countries ineligible to transit without a visa. 
The reason for the necessity for implementation of this aspect of the 
interim rule is as follows: It is necessary to prevent an anticipated 
sharp increase in the abuse of the TWOV program by citizens of the 
countries placed on the list of ineligible TWOV countries. These 
countries are placed on the ineligible to TWOV list for a variety of 
reasons including past abuse of the transit without visa privilege; the 
country's nonimmigrant visa refusal rate; whether the country grants 
United States citizens reciprocal treatment; the country's crime rate; 
the stability of the country; any security concerns; and, whether the 
country has diplomatic relations with the United States, among other 

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 of a particular 
country may transit the United States under the TWOV program. These 
aliens are not considered small entities as that term is defined under 
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 

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 actions'' 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 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 final 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 amended as follows:


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

    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. Removing paragraph (f)(2);
    b. Redesignating paragraphs (f)(3) and (f)(4) as paragraphs (f)(2) 
and (f)(3) respectively; and by
    c. Revising newly redesignated paragraph (f)(2), to read as 

Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (f) * * *
    (2) Unavailability to transit. This waiver of passport and visa 
requirement is not available to an alien who is a citizen of 
Afghanistan, Angola, Bangladesh, Belarus, Bosnia-Herzegovina, Burma, 
Burundi, Central African Republic, People's Republic of China, Congo 
(Brazzaville), Cuba, India, Iran, Iraq, Libya, Nigeria, North Korea, 
Pakistan, Russia, Serbia, Seirra Leone, Somalia, Sri Lanka, and Sudan.
* * * * *

    Dated: December 21, 2000.
Mary Ann Wyrsch,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-354 Filed 1-4-01; 8:45 am]