Full opinion text
MEMORANDUM AND ORDER GLASSER, District Judge. Before the court is a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 by plaintiff Linea Area Nacional de Chile S.A. d/b/a Lan-Chile Airlines (“Lan-Chile”), and the cross-motion for summary judgment by defendant Chris Sale, Acting Commissioner of the Immigration and Naturalization Service, United States Department of Justice (“INS” or the “Service”). At issue is a policy of the INS which holds carriers such as Lan-Chile responsible for detaining certain excludable aliens pending resolution of their applications for political asylum. For the following reasons, plaintiff Lan-Chile’s motion is granted and the cross-motion of defendant INS is denied. FACTS The material facts are not in dispute. Lan-Chile is a corporation organized under the laws of Chile with its principal place of business in Miami, Florida. Complaint, ¶ 4. Lan-Chile is a foreign air carrier authorized by a permit issued to it under Section 402 of the Federal Aviation Act to provide air transportation services between the United States and Chile. Id. Lan-Chile operates regularly scheduled flights between various cities in South America and John F. Kennedy International Airport (“JFK Airport”) in New York City. Lan-Chile’s 3(g) Statement, ¶ 1. Pursuant to an agreement between Lan-Chile and INS — the “Immediate and Continuous Transit Agreement” (the “Transit Agreement”) (Form 1-426) — Lan-Chile is allowed to transit aliens through the United States if the aliens carry the appropriate travel documentation establishing permission to enter a country other than the United States. Complaint, Ex. A. Lan-Chile’s 3(g) Statement, ¶ 2; INS’s Response to Lan-Chi-le’s 3(g) Statement at 2. Aliens who travel through the United States pursuant to Form 1-426 are commonly referred to as “transits without visas,” or “TWOVs.” The typical lay-over at JFK Airport for TWOVs is less than eight hours. Lan-Chile’s Reply Memorandum of Law at 20 n. 11. On September 3, 1990, a group of three aliens presented themselves to Lan-Chile representatives in Santiago, Chile with airplane tickets to travel on a Lan-Chile flight transiting through JFK Airport to Seoul, South Korea with a layover at JFK Airport. Lan-Chfle’s 3(g) Statement, ¶ 3; INS’s Response to Lan-Chile’s 3(g) Statement at 2. When they arrived at JFK Airport, these aliens requested political asylum in the United States, and Lan-Chile was instructed by INS to assume custody of the aliens pending further investigation. Lan-Chile’s 3(g) Statement, ¶ 4; INS’s Response to Lan-Chi-le’s 3(g) Statement at 2. Lan-Chile then retained a private security firm to guard the aliens in a motel. Lan-Chile’s 3(g) Statement, ¶5; INS’s Response to Lan-Chile’s 3(g) Statement at 2. On October 22, 1990, and December 19, 1992, a group of six aliens and nine aliens, respectively, arrived at JFK Airport on a Lan-Chile carrier with documentation evidencing an intent to travel to Seoul, South Korea. When they arrived at JFK Airport they also requested political asylum. INS ordered Lan-Chile to assume custody of these aliens. They were delivered to the private security firm for detention and placed under 24-hour armed guard. The aliens who arrived on September 3, 1990 and December 19, 1992, were detained by Lan-Chile for “several months” before they were paroled by INS. Affidavit of Pablo Cuevas (Station Manager for Lan-Chile at JFK Airport), August 27, 1993, ¶ 7; Affidavit of John Zulueta (former Station Manager for Lan-Chile at JFK Airport) (“Zulueta Affd”), August 17, 1993, ¶ 7. The aliens who arrived on October 22, 1990, remained in detention for approximately four months until paroled by INS. Lan-Chile’s 3(g) Statement, ¶8; INS’s Response to Lan-Chile’s 3(g) Statement at 2-3. During the time period in which the nine aliens who arrived on December 19, 1992, were detained by Lan-Chile under armed guard, several escaped and others required medical attention at a hospital. Zulueta Affd, ¶ 7. On at least one occasion, two of the aliens ordered by INS to be detained by Lan-Chile overpowered one of the private security guards and had to be chased through the streets of New York City. Affidavit of David H. Coburn (“Cobum Affd”), September 2, 1993, ¶4. In accordance with the INS’s instructions for detention, Lan-Chile paid for the hotel rooms, the private security guards, and food for the detained aliens. Cobum Affd, ¶3. Lan-Chile also arranged for medical attention when needed. Letter from David H. Coburn to Edward Grant, INS, March 8, 1993 at 1 (Plaintiffs Motion for Summary Judgment, Ex. 3). Lan-Chile has expended several hundred thousand dollars in fees to the private security firm and the motel in response to the INS’s detention order. Co-burn Affd, ¶ 6; Lan-Chile’s 3(g) Statement, ¶ 17. On or about June 15, 1993, Lan-Chile served and filed its complaint. Lan-Chile seeks (i) a declaration that INS’s policies, which assign responsibility to Lan-Chile for the detention of these aliens pending the processing of their political asylum applications, exceeds INS’s statutory authority and are in violation of the Administrative Procedure Act (the “APA”), and that INS is responsible for assuming custody and paying all expenses incurred in detaining these aliens (Count I); and (ii) a declaration that these policies are arbitrary and capricious and in violation of the APA (Count II). Plaintiff also seeks an order requiring INS to “reimburse Lan-Chile for amounts that Lan-Chile has paid or may become obligated to pay ... in connection with the detention of these aliens.” Complaint, ¶42. DISCUSSION I. Summary Judgment Standard Summary judgment “shall be rendered forthwith if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In opposing a properly supported summary judgment motion, “an adverse party may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). “The moving party is ‘entitled to a judgment as a matter of law1 [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In deciding a summary judgment motion the court need not resolve disputed issues of fact but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir.1988). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. “In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all factual inferences in favor of the party against whom summary judgment is sought.” Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). In this case, the issues are entirely legal and the resolution of the motion and cross-motion turn on a proper interpretation of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (the “INA”), the relevant regulations promulgated thereunder, and INS’s interpretation of the statute, the regulations and the Transit Agreement. Summary judgment, therefore, is appropriate. Dia Navigation Co. v. Reno, 831 F.Supp. 360, 365 (D.N.J.1993) (in challenge to INS’s policy of requiring vessels to detain stowaways pending their political asylum applications the court converts INS’s cross-motion to dismiss into a cross-motion for summary judgement and grants the cross-motion because the “unresolved issues are primarily legal rather than factual”) (quoting Crain v. Board of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir.1990)), rev’d on other grounds sub nom., Dia Navigation Co. v. Pomeroy, 34 F.3d 1255 (3d Cir.1994). II. Statutory Background A. 8 U.S.C. § ms Prior to 1986, Section 233 of the INA, 8 U.S.C. § 1223, provided that carriers bore the financial responsibility for detaining aliens who were temporarily removed for examination and inspection prior to the determination of their eligibility to enter the United States. This section provided in relevant part that “[w]henever a temporary removal of aliens is made under this section, the vessels or aircraft ... shall pay all expenses of such removal to a designated place for examination ... and all expenses arising during subsequent detention_” 8 U.S.C. § 1223(b) (1970) (emphasis added) (repealed Pub.L. No. 99-500, 100 Stat. 1783-56 (1986)). Like its predecessor section, Section 1223(b) allowed immigration officials to impose on the carrier the duty of safekeeping the alien and maintaining him at the carrier’s expense. Low King Yong v. Pan Am Airways, 74 F.Supp. 657, 659 (D.Hawaii 1947). Regulations issued by the Service stated that aliens in the country pursuant to the TWOV program were also to remain in the custody of the carrier during their time in the United States. See, e.g., 38 Fed.Reg. 14962 (June 7, 1973); 8 C.F.R. § 214.2(c)(1) (1973) (“An applicant for admission under the transit without visa privilege must establish that he is admissible under the immigration laws ... Provided, That until his departure from the United States he shall be in the custody of the carrier which brought him to the United States[.]”) (emphasis in original). At one time the regulation provided that the alien could only remain in the United States for eight hours, id, 38 Fed.Reg. 19197-98 (June 29, 1973), but this was amended to allow longer stays, 38 Fed.Reg. 24891 (Sept. 11, 1973), 8 C.F.R. § 214.2(c)(1) (1994) (“if there is no scheduled transportation within that 8-hour period, continuation of the journey thereafter on the first available transport will be satisfactory.”). The regulations were explicit that “until his departure from the United States responsibility for his continuous actual custody will lie with the transportation line which brought him to the United States unless at the direction of the district director he is in the custody of this Service or other custody approved by the Commissioner.” 8 C.F.R. § 214.2(c)(1) (1973). Of great significance for purposes of this challenge to the INS policy, however, is the following from Section 214.2(c)(1) which authorizes the transit of TWOVs through the United States: The privilege of transit without a visa may be authorized only under the conditions that the transportation line, without the prior consent of the Service, will not refund the ticket which was presented to the Service as evidence of the aliens’s confirmed and onward reservations; that the alien will not apply for extension of temporary stay or for adjustment of status under section 2j.5 of the Act, and that until his departure from the United States responsibility for his continuous actual custody will lie with the transportation line which brought him to the United States.... 8 C.F.R. § 214.2(c)(1) (1994) (emphasis added). As the undisputed facts outlined above demonstrate, the TWOVs in this action did, in fact, apply for an extension of temporary stay; they requested political asylum. Regulations regarding aliens other than TWOVs also provided that carriers must accept the responsibility of detaining inadmissible aliens pursuant to transit agreements entered into with the Service. 47 Fed.Reg. 30044-46 (July 9, 1982): Where an alien who appears to be inadmissible has arrived aboard a regular carrier which has entered into a contract with the Attorney General under section 238 of the [INA] [8 U.S.C. § 1228(e) ], the placing of aliens in the custody of the carrier, as authorized by section 233 of the [INA] [8 U.S.C. § 1223], will ordinarily satisfy the detention requirements of the statute. In cases where carrier custody appears to be inadequate to protect the safety of the public, or where the security precautions which the carrier will take appear to be inadequate or inappropriate to detain the alien, custody may be assumed by the Service. Id. at 30045. See also id. at 30046 (citing a revised 8 C.F.R. § 235.3(d) (“Any alien subject to detention ... may be placed in the custody of the carrier[.]”)). As one court recently summarized, in upholding the Service’s right to impose the financial obligation of detaining stowaways pending their applications for political asylum, “historically, the maintenance expenses incident to the inspection, examination, and detention of aliens were borne, pursuant to section 1223, by the commercial carriers responsible for transporting such aliens into this country.” Argenbright Sec. v. Ceskoslovenske Aeroline, 849 F.Supp. 276, 280 (S.D.N.Y.1994). B. Pub.L. No. 99-591 — The Immigration User Fee Statute On October 30, 1986, Congress repealed Section 233 of the INA, 8 U.S.C. § 1223, when it passed The Department of Justice Appropriation Act of 1986, Pub.L. No. 99-591, 100 Stat. 1783-56. This act established the Immigration User Fee Statute (the “1986 User Fee Statute” or the “Act”) which has been codified in 8 U.S.C. § 1356(d) to (l). The 1986 User Fee Statute provided in relevant part that “the Attorney General shall charge and collect $5 per individual for the immigration inspection of each passenger arriving at a port of entry in the United States[.]” 8 U.S.C. § 1356(d). The disposition of these receipts was outlined in Section 1356(h)(2)(A)(i) to (v): The Secretary of the Treasury shall refund out of the Immigration User Fee Account to any appropriation the amount paid out of such appropriation for expenses incurred by the Attorney General in providing immigration inspection and prein-spection services for commercial aircraft or vessels and in— (i) providing overtime immigration inspection services for commercial aircraft or vessels; (ii) administration of debt recovery, including the establishment and operation of a national collection office; (iii) expansion, operation and maintenance of information systems for nonimmigrant control and debt collection; (iv) detection of fraudulent documents used by passengers traveling to the United States; and (v) providing detention and deportation services for excludable aliens arriving on commercial aircraft and vessels. (emphasis added). As the above section indicates, the thrust of the 1986 User Fee Statute is to reimburse the Attorney General for funds she expends in connection with the inspection and prein-spection of aliens and the costs associated with their detention and deportation. In repealing Section 1223, “one of the new statute’s primary functions was to reverse the existing rule, requiring carriers to bear the expense of detaining aliens pending hearings on their immigration status.” Dia Navigation, 34 F.3d at 1260. See also Argenbright, 849 F.Supp. at 280 (“[The 1986 User Fee Statute] shifted the financial responsibility for the detention and deportation costs of excludable aliens to the INS.”). The enactment of the 1986 User Fee Statute, however, did not result in the repeal of 8 U.S.C. § 1227(a) which provides, in part, that the cost of maintaining an “excluded” alien prior to his or her deportation, including detention expenses, remains upon the carrier responsible for transporting such alien into the United States. The repeal of Section 1223 also had no effect on that section of the INA which authorizes the federal government to enter into contracts with the carriers regarding the continuous transit of passengers through the United States. See 8 U.S.C. § 1228(e). Plaintiff argues that the 1986 User Fee Statute now mandates that INS bear the physical and financial responsibility for detaining TWOVs who seek political asylum upon their arrival in the United States. Lan-Chile’s Memorandum of Law at 10-14. INS, on the other hand, contends that “[b]y repealing 8 U.S.C. § 1223, and modifying 8 U.S.C. § 1222, Congress apparently intended to free carriers in certain cases from liability for detention costs for certain ex-cludable aliens.” INS’s Opposition Memorandum of Law at 16 (emphasis added). INS contends that the enactment of the 1986 User Fee Statute did not alter the Service’s authority to enter into or continue the transit agreements discussed supra. These agreements, it contends, place the physical and financial responsibility of detaining TWOVs pending a determination of their application for political asylum upon the carriers. INS’s Reply Memorandum of Law at 9. The term “excludable aliens” referred to in the 1986 User Fee Statute refers to specific classes of aliens who enter the United States. A list of excludable aliens is found in 8 U.S.C. § 1182(a). They include, among others, aliens who are excludable because of health reasons, criminal backgrounds, security risks, risk of becoming a public charge, or stowaways. The statute also provides that, Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided under this chapter is excluda-ble. 8 U.S.C. § 1182(a)(6)(C)(i). Upon the assumption that the aliens detained by Lan-Chile misrepresented at the outset their intention to travel through the United States to South Korea, they are guilty of fraud or misrepresentation. United States v. Kavazanjian, 623 F.2d 730, 738 (1st Cir.1980) (“We agree that the aliens, by arriving as TWOVs with no intention of effecting an orderly and expeditious departure, were guilty of fraud or misrepresentation.”). Therefore, pursuant to 8 U.S.C. § 1182(a)(6)(C)(i), the TWOVs detained by plaintiff in this action were “excludable aliens.” This point is conceded by INS. INS’s Memorandum of Law at 9 (“An alien who obtains TWOV status with the intent of claiming asylum upon his arrival in the United States is held to be excludable from the United States on the ground that he had made a willful misrepresentation of ar material fact in procuring his TWOV document.”). See also Aerolíneas Argentinas v. United States, 31 Fed.Cl. 25, 27 (1994) (“A TWOV who violates the TWOV requirements is ex-cludable.”). It is important to note that neither a passport nor a visa is required of a TWOV who comes to the United States for passage through it to a designated foreign country. All that is required is that he possess a travel document establishing his identity, nationality and ability to enter another country. 8 CFR 212.1(f)(1). Those documents presented to INS upon arrival here are not fraudulent and would permit the TWOV to continue on his journey to the country of his destination if he chose to do so. That person becomes an excludable alien when he constructively abandons those documents and hence his status as a TWOV, when he refuses to continue on his journey and applies for political asylum instead. It is at that moment that he becomes an excludable alien for the reason that he has no authorization to remain here. Quite clearly, he is not a stowaway. It is also significant to note the distinction between the TWOV who becomes an excluda-ble alien and a stowaway. Unlike the term “excludable aliens,” the term “excluded” alien, as found in Section 1227(a), is not defined in the INA. Two district courts have concluded that even though “stowaways” are listed in Section 1182 as “excludable aliens,” they should be considered “excluded” and hence do not fall under the umbrella of the 1986 User Fee Statute, but rather are covered, by Section 1227(a) which mandates carrier responsibility for detention costs. Dia Navigation Co. v. Reno, 831 F.Supp. 360, 367 (D.N.J.1993), rev’d on other grounds sub nom., Dia Navigation Co. v. Pomeroy, 34 F.3d 1255 (3d Cir.1994); Argenbright Sec. v. Ceskoslovenske Aeroline, 849 F.Supp. 276, 280 (S.D.N.Y.1994). Both courts reached this conclusion based on the fact that stowaways are a particularly disfavored category of aliens and that, unlike other aliens, they are not entitled to an exclusion hearing before an immigration judge to determine whether they “shall be excluded and deported,” 8 U.S.C. § 1226(a), and they are not entitled to an appeal to the Attorney General in the event of. an adverse determination. See 8 U.S.C. § 1323(d). Argenbright, 849 F.Supp. at 281 (“In fact, except for temporary medical treatment, alien stowaways are not even permitted to land in the United States.”) (citing 8 U.S.C. § 1323(d)). Stowaways who apply for political asylum, however, are accorded asylum hearings and the right of appeal. Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir.1983). In Sava, the Second Circuit reconciled Section 1323(d)’s directive denying stowaways a hearing and the right to appeal from an exclusion order with Section 1158’s directive that the Service establish uniform procedures for asylum applications “irrespective of [an] alien’s status.” In reaching the conclusion that the 1986 User Fee Statute does not mandate Service responsibility for stowaways who seek asylum, the district courts in Argenbright and Dia Navigation noted that even though asylum-seeking stowaways are granted political asylum, hearings and appeals pursuant to Sava, this does not change their status as de facto “excluded” aliens. The court in Argenbright reasoned: The fact that stowaways may now apply for political asylum has not altered their excluded status. See Yiu Sing Chun v. Sava, 708 F.2d at 876; Matter of Waldei, 19 I & N Dee. 189, 193 (BIA 1984); cf., United States ex rel. Tom We Shung v. Murff, 176 F.Supp. 253, 256-58 (S.D.N.Y.1959).... While section 1158(a) entitles a stowaway to apply for political asylum, the right is limited “solely to the issue of asylum eligibility,” thereby preserving the basic thrust of section 1323(d). Yiu Sing Chun, 708 F.2d at 876. Thus, despite the availability of an asylum hearing, stowaways remain “excluded” aliens and, as such, the expenses incident to their detention must be borne by carriers pursuant to section 1227(a)(1). Dia Navigation, 831 F.Supp. at 371-73. Argenbright, 849 F.Supp. at 281 (footnote omitted) (emphasis added). In Dia Navigation Co. v. Pomeroy, 34 F.3d 1255 (3d Cir.1994), the Third Circuit reversed the district court’s grant of summary judgment in favor of the government on the ground that the INS unlawfully failed to follow notice and comment rulemaking procedures mandated by the APA before adopting the policy of requiring carriers to bear the financial burden of detaining stowaways pending their political asylum applications. In so doing, the court also acknowledged that “[o]ne consequence of [a stowaway’s disfavored status] is that, in contrast to other excludable aliens, stowaways are automatically subject to deportation and have no right to a hearing to determine their status.” Dia Navigation, 34 F.3d at 1259 (emphasis added). Stowaways who do not seek political asylum, therefore, are subject to immediate deportation. The court noted, however, “a fundamental tension in the statutory framework”: Sections 1227(a)(1) and 1323(d) require that stowaways be deported immediately unless the Attorney General in the exercise of her discretion determines otherwise, and § 1227(a)(1) places the burden of deportation, and any detention incident to deportation, on the carrier. Section 1105a, however, provides that asylum applicants may not be deported until their applications have been processed, and this is not a matter of discretion. The statute nowhere addresses the question presented here— the status of an asylum applicant, otherwise excluded, pending the processing of the asylum application. Id. at 1262. For purposes of the challenge to the INS policy before this court, the Third Circuit’s observations in Dia Navigation highlight the fact that, unlike stowaways, TWOVs are not an historically disfavored class of aliens and, unlike stowaways, Section 1323(d) does not bar them from a hearing before an immigration judge or an appeal to the Attorney General regarding their status as an excludable alien. Whereas stowaways who do not seek political asylum are subject to immediate deportation, the same cannot be said of TWOVs. In other words, the tension noted by the Dia Navigation court between “excluded” and “excludable” aliens as it relates to stowaways is not applicable to TWOVs who do enjoy the right to an exclusion hearing and appeal, whereas stowaways do not. C. Legislative History of the 1986 User Fee Statute In support of its interpretation that the 1986 User Fee Statute mandates that INS bear the custodial, physical and financial responsibility of detaining TWOVs pending the determination of their applications for political asylum, Lan-Chile draws the court’s attention to several legislative reports. These reports, it argues, establish that it was Congress’s intent to “relieve carriers of the obligation to serve as jailers on behalf of INS.” Lan-Chile’s Memorandum of Law at 11. For example, Lan-Chile draws the court’s attention to a 1985 Senate Appropriations Committee Report, in which the Committee stated that it was, concerned about the policy of the Immigration and Naturalization Service which requires scheduled passenger airlines to assume custody and financial responsibility for aliens who arrive by plane in the United States without proper documenta-tion_ The Committee believes this policy raises significant questions about the equity and legal propriety of requiring private entities to assume the financial burdens of maintaining and, at the same time exercising physical custody over, excluda-ble aliens for extended periods of time. Specifically, the Committee is concerned about the possible ramifications of detention of aliens by airline personnel or their agents who are not, of course, law enforcement officials. S.Rep. No. 99-150, 99th Cong., 1st Sess. 37 (1985) (emphasis added). Identical language appears in the House Appropriations Committee report as well. H.Rep. No. 99-197, 99th Cong., 1st Sess. 38 (1985). Although the Senate and House Reports specifically discussed aliens who arrive “without proper documentation,” the House Appropriations Committee was even more expansive in its 1986 report. The Committee wrote, Last year the Committee expressed concern about the policy of the INS, which requires scheduled passenger airlines to assume custody and financial responsibility for aliens who arrive by plane in the United States without proper documentation. Specifically, the Committee expressed concerns about the possible ramifications of requiring air carriers, who are not, of course, law enforcement officers, to detain such aliens in hotels and motels. The Committee wishes to reiterate concern over this policy and notes its strong support for a change in policy which would require INS to assume, in all cases, all custodial responsibility when the transporting air carriers have demonstrated a good faith effort to detect inadmissibility prior to boarding the aircraft. H.Rep. No. 99-669, 99th Cong., 2d Sess. 35 (1986) (emphasis added). Other references in the legislative history relate to the committees’s concern over aliens who arrive without proper documentation. E.g., S.Rep. No. 99^25, 99th Cong., 2d Sess. 47 (1986) (calling for Congress to “release scheduled passenger airlines and vessels from the responsibility to assume custody or financial responsibility for aliens who arrive by plane or commercial vessel in the United States without proper documentation.”). The legislative reports, therefore, unambiguously demonstrate Congress’s intent to shift the financial and physical responsibility of excludable aliens to the Service, even if they do not specifically address the unique situation of TWOVs who seek political asylum, or, for that matter, stowaways who seek political asylum. The Third Circuit is in agreement. Dia Navigation, 34 F.3d at 1262 (“[T]he backdrop for the present statutory scheme is the repeal of § 1223, which clearly did place the burden of paying for detention on carriers, and a legislative history strongly evincing congressional desire to place responsibility for detention on INS.”). The Service also argues, correctly, that reference to legislative history alone is not appropriate in this case because neither the language of the Act nor its legislative history demonstrate Congress’s intent to change the long-standing policy of allowing INS to enter into transit agreements with carriers regarding TWOVs. While it is also true that none of the reports cited by plaintiff use the words “transit without visa aliens” or explicitly state the applicability of the statute to TWOVs per se, the intent of Congress as it relates to the detention of excludable aliens in general is clearly articulated. D. Regulations After the 1986 User Fee Statute In ordering Lan-Chile to provide for the detention of the excludable aliens in this case, the Service relied in part on certain regulations issued following the enactment of the 1986 User Fee Statute. Section 285.3(d) of Title 8 of the Code of Federal Regulations, for example, provides as follows: (d) Service custody. The Service will assume custody of any alien subject to detention under § 235.3(b) or (c) of this section, except in the case of an alien who is presented as a Transit Without Visa (TWOV) passenger. 8 C.F.R. § 235.3(d) (1994) (emphasis added). Aliens who are subject to detention under Section 235.3(b) and (c) include aliens with no documentation or false documentation, or aliens who have documentation but “appear[ ] to the inspecting officer to be inadmissible!].]” 8 C.F.R. § 235.3(c) (1994). In 8 C.F.R. 238.3(c) (1994), INS states that, (c) Carrier responsibility. Nothing contained within the provisions of section 286 of the Act [8 U.S.C. § 1356] [the 1986 User Fee Statute] shall be deemed to waive the carrier’s liability for detention, transportation, and other expenses incurred in the bringing of aliens to the United States under the terms of this section. “This section” (238.3(a)) refers to “[a] transportation line bringing aliens to the United States pursuant to § 212.1(f)(1),” which establishes the procedures for the TWOV program. Section 212.1(f)(1), in turn, provides that “A passport and visa are not required of an alien who is being transported in immediate and continuous transit through the United States in accordance with the terms of an agreement entered into between the transportation line and the Service under the provisions of section 238(d) of the Act [8 U.S.C. § 1228(c) ] on form 1-426 to insure such immediate and continuous transit through, and departure from, the United States en route to a specifically designated foreign country: Provided, That such alien is in possession of a travel document or documents establishing his/her identity and nationality and ability to enter some country other than the United States.” 8 C.F.R. § 212.1(f)(1) (1994) (emphasis in original). The scope of these regulations could not be clearer: Read and construed in their entirety, the regulations and the statutes form a mosaic which compels the conclusion that the transportation line was intended to be responsible for the custody of a TWOV only so long as necessary “to insure such immediate and continuous transit through, and departure from, the United States en route to a specifically designated foreign country.” The irresistibility of that conclusion is buttressed by 8 C.F.R. § 214.2(c)(1) (1994) which, in relevant part provides: The privilege of transit without a visa may be authorized only under the condition[] that ... the alien will not apply for extension of temporary stay ... Upon the application by the alien for political asylum, which triggers an extension of his stay, the condition upon which the privilege of transit without a visa was granted is breached. At that moment, his status as a TWOV is forfeited and he becomes an ex-cludable alien, having no other rightful authorization to remain in the country. If, therefore, the privilege granted to transportation lines is on condition that the alien will continue in transit and not apply for extension of temporary stay and the carrier accepts the privilege upon that condition, imposing custodial responsibility upon the carrier when the alien breaches the condition is hardly defensible. In 1989 the INS promulgated 54 Fed.Reg. 100-02 (Jan. 4, 1989), which stated that, Certain commentators requested clarification regarding carrier/Serviee responsibility for detained aliens in immediate and continuous transit (TWOV passengers). Although the issue of carrier responsibility may be a thorny one, the rules and regulations are very clear. Pub.L. 99-591 did not repeal section 238 of the Act; thus, contracts entered into pursuant to section 288, and in this particular instance we are concerned with carrier financial responsibility for detained TWOV passengers, are valid and enforceable. In sum, carriers are responsible for the detention expenses of detained TWOV passengers while in Service custody as well as having financial responsibility for return transportation to TWOV passengers point to embarkation following a deportation/exclusion order. Id. at 101 (emphasis added). This statement by the Service neatly summarizes its position in this litigation; namely, that irrespective of the passage of the 1986 User Fee Statute, carriers remain responsible for the detention of asylum-seeking TWOVs because of the contracts they have entered into pursuant to 8 U.S.C. § 1228. E. Pub.L. No. 103-121 On October 27, 1993, Congress passed the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, Pub.L. No. 108-121, 107 Stat. 1153-97, which amended the 1986 User Fee Statute. The Act now reads as follows: The Secretary of the Treasury shall refund out of the Immigration User Fee Account to any appropriation the amount paid out of such appropriation for expenses incurred by the Attorney General in providing immigration inspection and prein-spection services for commercial aircraft or vessels and in: ... (v) providing detention and deportation services for: excludable aliens arriving on commercial aircraft and vessels; and any alien who is excludable under section 1182(a) of this title who has attempted illegal entry into the United States through avoidance of immigration inspection at air or sea ports-of-entry. (vi) providing exclusion and asylum proceedings at air or sea ports-of-entry for: excludable aliens arriving on commercial aircraft and vessels including immigration exclusion proceedings resulting from presentation of fraudulent documents and failure to present documentation; and any alien who is excludable under section 1182(a) of this title who has attempted illegal entry into the United States through avoidance of immigration inspection at air or sea ports-of-entry. 8 U.S.C. § 1356(h)(2)(A)(v) and (vi) (Oct. 27, 1993) (emphasis added). The import of this amendment is clear: If there was any doubt before October 27, 1993, as to the scope of the 1986 User Fee Statute vis-a-vis stowaways the doubt can now be put to rest. The Act now makes explicit that the Attorney General is to be reimbursed for monies which she expends in providing detention services for excludable aliens who are excludable pursuant to Section 1182 because of their attempted illegal entry through avoidance of immigration inspection. It logically follows that if the Attorney General is to be reimbursed for providing these services, she must first incur the expenses incident to the detention services. The Act also makes clear that the Attorney General must be reimbursed for fees expended in providing detention and deportation services for excludable aliens and for exclusion and asylum proceedings at air or sea ports-of-entry for aliens. III. The Administrative Procedures Act Count I of the complaint alleges that the INS policy of requiring Lan-Chile to shoulder the physical and financial responsibility of detaining TWOVs pending the determination of their political asylum applications is “in excess of statutory authority and otherwise not in accordance with law, in violation of the [APA].” Complaint, ¶35. In Count II, Lan-Chile alleges that this INS policy is “arbitrary and capricious and therefore violates the [APA].” Complaint, ¶40. A. Count I Section 706 of Title 5 of the United States Code provides in relevant part that a court reviewing agency action shall “compel agency action unlawfully withheld or unreasonably delayed” and shall hold unlawful and set aside any agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [.]” 5 U.S.C. § 706(1), (2) (emphasis added). The Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), outlined the proper method of reviewing an agency’s interpretation of a statute which it administers. “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781. If the statute does not clearly and unambiguously reflect the intent of Congress, the court cannot substitute its own construction of the statute; “[r]ather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782. The agency’s legislative regulations are “given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. at 2782. The agency’s interpretation of the statute need only be reasonable: “[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. Furthermore, an agency’s construction of a statutory scheme is to be accorded “considerable weight.” Id. The Court stated that the principle of deference to administrative interpretations, has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations.... If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we would not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned. Id. at 844r-45, 104 S.Ct. at 2782-83 (citations omitted). Applying these “well-settled principles,” id. at 845, 104 S.Ct. at 2783, to this case, it is first to be noted that Congress has not “directly spoken to the precise question at issue.” The 1986 User Fee Statute does not unambiguously states that INS is responsible for detaining TWOVs who request political asylum; rather, it states that the Attorney General shall be reimbursed for funds expended in, among other things, detaining “excludable aliens.” Likewise, the legislative history of Pub.L. No. 99-591 does not indicate a clear intent by Congress regarding the specific case of the cost of detaining asylum seeking TWOVs pending the determination of their applications for political asylum, although it clearly establishes the general intent of Congress to shift the responsibility for detaining excludable aliens from the private carriers to the federal government. Turning then to the agency’s interpretation of the 1986 User Fee Statute and the regulations promulgated thereunder, the question is whether this interpretation is reasonable and whether it is based on a permissible construction of the statute. In this ease, the court is called upon to review the action of an administrative agency which requires common carriers to bear the physical and financial responsibility of detaining TWOVs who have applied for political asylum regardless of the passage of the 1986 User Fee Statute. In reaching its determination that such action is proper, the Service is interpreting the Act itself, the regulation which allegedly exempts TWOVs from the purview of the Act (8 C.F.R. § 235.3(d) (1994)), and the Transit Agreement which is authorized by the INA. In Osorio v. Immigration and Naturalization Service, 18 F.3d 1017 (2d Cir.1994), the Second Circuit was recently asked to review agency action which also turned on the interpretation of the INA and its related regulations. In Osorio, the Board of Immigration Appeals (the “BIA”) affirmed an Immigration Judge’s decision denying an application for political asylum by a former union activist in Guatemala. In so doing, the BIA interpreted the phrase “political opinion” as found in 8 U.S.C. § 1101(a)(42)(A) and 8 C.F.R. § 208.18(b) (1994) to mean that persons who are persecuted on account of their membership in or leadership of a union and the activities that flow therefrom are not eligible for asylum on any basis. The Second Circuit reversed the BIA’s determination because “[t]his interpretation of the Act contradicts the plain meaning of the Act.” Id. at 1031. The court explained: In reviewing a decision of the BIA, we are mindful of the substantial deference we owe such administrative tribunals in their interpretations of statutory law. Nevertheless, we will reverse an unreasonable interpretation of the BIA_ Specifically, we will reverse the BIA’s interpretation of statutory law where “ ‘it appears from the statute or its legislative history’ ” that the interpretation is contrary to Congress’s intent. Id. at 1022 (emphasis added). See also Lok v. Immigration and Naturalization Service, 548 F.2d 37, 39-41 (2d Cir.1977) (Court of Appeals holds that BIA’s interpretation of the INA is not reasonable because the plain language of the act and the legislative history indicate that the agency’s position frustrates Congressional intent). Given the well-settled maxim that agency action and agency interpretation of statutes and regulations are only owed substantial deference if they are “reasonable,” we now turn to the Service’s interpretation of the 1986 User Fee Statute, the regulations promulgated thereunder, and the Transit Agreement to determine if the agency has violated the APA. 1. The Reach of the 1986 User Fee Stat'ute and the Regulations Promulgated Thereunder It is conceded that the repeal of 8 U.S.C. § 1223 and the passage of the 1986 User Fee Statute shifted the burden of detaining “ex-cludable aliens” from the carriers to the INS. 53 Fed.Reg. 1791 (Jan. 22,1988) (“Subsection 206 of Pub.L. 99-591 places the responsibility for physical custody of excludable aliens pursuant to former section 233 of the Immigration and Nationality Act of 1952, as amended ... on the INS.”). INS also concedes that aliens who defraud the government by accessing the TWOV program when they are, in fact, planning to seek political asylum, are “excludable aliens” pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). Furthermore, it is undisputed that TWOVs who arrive pursuant to the contract signed by the Service are not immediately “excluded” as are stowaways who do not request political asylum; they are in the country pursuant to a legitimate program endorsed by the government but are “excludable” because by seeking asylum they have abandoned their status as TWOVs and have no authorization to remain. The plain meaning of the Act, therefore, coupled with the definition of “excludable aliens” found in the INA and the “excluda-ble” status of the aliens, (i.e., they have no visa), together with the legislative backdrop to the repeal of Section 1223 and the legislative reports relating thereto, compel the conclusion that the Attorney General must be reimbursed for “expenses incurred ... in ... providing detention and deportation services for [TWOVs who request political asylum] arriving on commercial aircraft and vessels[.]” 8 U.S.C. § 1356(h)(2)(A)(v). Given the fact that the Act was designed to relieve carriers of the physical and financial responsibility of detaining aliens, see discussion of legislative history supra, it follows that an INS policy (or an INS interpretation of the Act or its regulations) which results in imposing upon the carriers custodial responsibility for these excludable aliens is in clear contravention of the plain meaning of the Act and is in violation of Congressional intent, and hence is unreasonable and in violation of the APA. Osorio, 18 F.3d at 1031. Furthermore, it is also inequitable to hold the carriers physically and financially responsible for detaining these particular aliens because (i) it would have been impossible to screen the aliens before boarding to determine which aliens planned on seeking asylum; (ii) there are no guidelines for how long a carrier must detain the alien before his or her application is processed; and (iii) it is inconsistent with the statutory and regulatory basis which merely contemplates allowing TWOVs to transit through the country. a. A Question of Equity In Aerolíneas Argentinas v. United States, 31 Fed.Cl. 25 (1994), the court rejected in dicta the argument that it is inequitable to hold the airlines responsible for a situation which they cannot avoid; ie., preventing the boarding of TWOVs who intend to seek political asylum once they arrive in the United States. Id. at 32 n. 9. The court wrote: “[T]he INS provided guidance that dealt with such problems, by presuming proper boarding and no stowaway status if there is ‘reasonable diligence’ by the carrier at the port of embarkation, which the carrier may show by ‘photocopying the documents and tickets of persons who are profiled as possible violators.’ ” Id. (quoting INS Operations Cable: Stowaways on Commercial Airline Flights, at 10 (Dee. 19, 1989)). It is difficult to understand how the airlines are in a position to effectively screen passengers with an eye toward ferreting out those properly documented TWOVs who, upon arriving in the United States, will discontinue their journey and make application for political asylum. “Reasonable diligence” in the form of checking and photocopying documents does not provide the carrier with the ability to read the minds of these passengers to insure that those who plan to seek asylum will not be allowed to board. b. The Lack of Guidelines The unreasonableness of the Service’s interpretation of the 1986 User Fee Statute and its regulations is forcefully highlighted by the fact that if the agency’s interpretations are accepted, the private carriers are obliged to maintain custody of asylum seeking TWOVs indefinitely and with absolutely no guidelines as to the custodial conditions they must provide for their detainees, irrespective of the passage of the 1986 Act. In this regard, the district court in Dia Navigation reported on the unreasonableness of the agency’s position in a colloquy which is worth reporting at length: At oral argument, the Government attorney, Alexander Shapiro, Esq. (“Shapiro”) took the implausible position that, whatev er the conditions or duration of detention imposed by the INA, a carrier cannot challenge those conditions as unreasonable.... For instance, the 23 July 1993 Tr. reads, in part: COURT: Suppose the[e asylum] [sic] hearing doesn’t occur for two years. By definition, that’s reasonable? SHAPIRO: Yes, your Honor.... COURT: Ten years, would that be reasonable? SHAPIRO: If necessary to hold the alien that long, yes.... COURT: Suppose the hearing just didn’t occur for 60 days, but could have occurred within 10 days, are those additional 50 days unreasonable? SHAPIRO: No.... COURT: I’m asking you whether [carriers] have the right to challenge what the INS does. You say no. The INS can do literally anything, take as much time as it wants, impose as many conditions as it wants and then the INS can say, this is reasonable and they’re at a dead end. Is that what you’re saying? SHAPIRO: Essentially, yes, your Hon- or.... COURT: That just doesn’t sound fair. You can have [an INS inspector] who has a bad day and says, I want two guards on this guy 24 hours a day, I want him put in the Plaza, I want him given gourmet meals and you’re telling me that that vessel owner can’t say a thing about that, right? SHAPIRO: Yes. Dia Navigation, 831 F.Supp. at 377 n. 36 (emphasis in original), rev’d on other grounds sub nom., Dia Navigation Co. v. Pomeroy, 34 F.3d 1255 (3d Cir.1994). This exchange between the Service and the court highlights the fact that the agency’s interpretation of the 1986 User Fee Statute and its regulations is seriously flawed because, notwithstanding the passage of the 1986 Act, the agency continues to believe that the Service can hold private carriers responsible for jailing these aliens indefinitely and pursuant to any conditions the agency deems appropriate. The mere statement of that position bespeaks its unsoundness. Furthermore, although the legislative history of the 1986 User Fee Statute did not specifically discuss the issue of TWOVs who request political asylum, it does establish that Congress was concerned about compelling corporations to become private jailers. The possible negative ramifications of turning private corporations into jailers is obvious and it was a concern noted by the House Appropriations Committee one year prior to the passage of the 1986 User Fee Statute. H.R.Rep. No. 197, 99th Cong., 1st Sess. 38 (1985) (“Specifically, the Committee is concerned about the possible ramifications of detention of aliens by airline personnel or their agents who are not, of course, law enforcement officials.”). INS, on the other hand, argues that its construction of the 1986 User Fee Statute is reasonable because (i) the Act only requires reimbursement of expenses incurred by the Attorney General and does not mandate payment to private carriers; (ii) Section 1228(c) still allows the INS to enter into contracts to guarantee the passage of TWOVs through the United States; and (iii) the Act only intended to free carriers in certain cases from liability for detention costs for certain excludable aliens, not all excluda- ble aliens. INS’s Memorandum of Law at 13-18. These arguments need not detain us long. First, for purposes of determining whether the agency action in this case is reasonable, the fact that the Attorney General is the party authorized to receive reimbursements from the Immigration User Fee Account weighs in favor of the carriers because it indicates, as does the legislative history, that the Government should be bearing the responsibility of detaining these excluda-ble aliens. Second, as discussed below, the Transit Agreements which the carriers and the Service entered into in the 1950s — and which survived both the 1986 Act and the 1993 amendments — do not mandate that the carriers bear the physical and financial responsibility for indefinite detention of TWOVs who are no longer aliens in transit. Finally, the Service’s reference to the intent of the 1986 Act is belied by its legislative history and the plain meaning of the statute itself: Section 1356 of Title 8 of the United States Code provides that the Attorney General must be reimbursed for “expenses incurred ... in ... providing detention and deportation services for excludable aliens arriving on commercial aircraft and vessels[.]” 8 U.S.C. § 1356(h)(2)(A)(v) (emphasis added). The 1986 Act does not limit itself to “certain” excludable aliens; it provides that the government must take responsibility for the detention of “excludable aliens.” The Service’s approach in interpreting the 1986 User Fee Statute has been to start with the conclusion that the term “excludable aliens” does not include the aliens at issue in this challenge and then work backwards. This is reminiscent of Justice Frankfurter’s observation that, “[i]n matters of statutory construction ... it makes a great deal of difference whether you start with an answer or with a problem.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 529 (1947). The INS also argues that it is reasonable for the Service to interpret the 1986 User Fee Statute as still requiring carrier responsibility for asylum-seeking TWOVs because, as the district court in Dia Navigation and Argenbright concluded, those sections of the INA which survived passage of the Act and which mandate carrier responsibility for the detention of “excluded” aliens would be rendered superfluous if, in fact, the 1986 User Fee Statute is read as relieving carriers of responsibility in this situation. However, because Dia Navigation and Argenbright dealt with a specific and distinct category of excludable aliens (i.e., stowaways) for which there is a statutory provision clearly establishing carrier responsibility for detention (Section 1323(d)), these cases are inapposite. Whereas Section 1323(d) allegedly requires carriers to detain stowaways irrespective of the 1986 User Fee Statute, Section 1228(c) only provides that INS may enter into contracts with the carriers to guarantee passage through the United States; unlike Section 1323(d), Section 1228(c) does not unambiguously state that carriers are responsible for the detention of the aliens in question. Therefore, Section 1228 is not rendered superfluous by the fact that this court has determined that the 1986 User Fee Statute requires that INS bear the physical and financial responsibility of detaining TWOVs who have discontinued their journey and are therefore no longer aliens in transit while their applications for political asylum are being processed. To the extent that the Transit Agreements require the private carriers to detain TWOVs qua TWOVs during their lay-over in the United States prior to their departure for the final leg of their journey, they retain their validity. c. The Statutory and Regulatory Basis of the TWOV Program The very statutory and regulatory provisions which provide for the transiting of aliens through the United States also demonstrates that the INS policy in this action exceeds its statutory authority and is in violation of the APA. As noted above, Section 214.2(e)(1) of Title 8 of the Code of Federal Regulations specifically provides that the privilege of allowing the carriers to transit passengers through the United States is authorized on the condition that “the alien will not apply for extension of temporary stay or for adjustment of status under section 245 of the Act.” This regulatory provision, in the court’s view, is very significant, if not disposi-tive. It indicates the Service’s position that the TWOV program is not applicable if the alien applies for an adjustment of status or for an extension of his right to remain temporarily in the country. TWOVs who seek political asylum are seeking an extension of their right to stay temporarily in the country and, therefore, the carrier’s responsibilities vis-a-vis the Transit Agreement must necessarily come to an end. Furthermore, as noted earlier, the statutory provision which provides for the Transit Agreement, 8 U.S.C. § 1228(c), only speaks of guaranteeing passage of these aliens “through” the United States; once a TWOV requests political asylum he is no longer an alien transiting through the United States. (1) Custody v. Cost In a letter to the court dated August 5, 1994, the Service argues that the Third Circuit’s decision in Dia Navigation supports its interpretation of the 1986 User Fee Statute because the court acknowledged that 8 C.F.R. § 253.1(f)(3) (1994) allows the Service to parole stowaways into the custody of the private carriers irrespective of the passage of the 1986 User Fee Statute. This regulation, which was promulgated pursuant to the notice and comment provisions of the APA, provides in relevant part as follows: (f) Any alien crewman, stowaway, or alien temporarily excluded under section 235(c) of the Act [8 U.S.C. § 1225(c) ] who alleges that he cannot return to his country of nationality or last habitual residence ... because of fear of persecution ... is eligible to apply for asylum or withholding of deportation under part 208 of this chapter. ... (3) Pending adjudication of the application by the Asylum Officer, the applicant may be detained by the Service, or paroled into the custody of the ship’s agent or otherwise paroled in accordance with § 212.5 of this chapter and shall not be excluded or deported before a decision is rendered by the Asylum OfGeer on his asylum application. 8 C.F.R. § 253.1(f)(3) (1994) (emphasis added). This regulation allows the Service to parole into the custody of a private carrier three types of excludable aliens: (i) alien crewmen; (ii) stowaways; and (iii) aliens temporarily excluded pursuant to 8 U.S.C. § 1225(c). Section 1225(c), in turn, provides in relevant part that “[a]ny alien ... who may appear to the examining immigration officer ... to be excludable under subpara-graph (A) (other than clause (ii)), (B), or (C) of section 1182(a)(3) of this title shall be temporarily excluded....” Sections 1182(a)(3)(A)© and (iii) provide, in turn, that aliens who seek to enter to engage in espionage or sabotage or violate laws prohibiting export of designated goods or information or to engage in activity designed to overthrow the Government of the United States by force are excludable. Therefore, 8 C.F.R. § 253.1(f)(3) (1994), only gives the Service the option of paroling stowaways, alien crewmen and security-risk aliens into the custody of the private carrier pending the adjudication of their asylum applications, regardless of the passage of the 1986 User Fee Statute. The Service does not contend that the asylum-seeking aliens in this action are security-risk aliens pursuant to 8 U.S.C. § 1182(a)(3), and hence 8 C.F.R. § 253.1(f)(3) (1994) is irrelevant for purposes of this motion. As the Service correctly notes, however, the court in Dia Navigation recognized the difference between the custody of asylum-seeking stowaways (and pursuant to Section 253.1(f)(3) the Service may still parole these aliens into carrier custody) and the cost of detaining these asylum-seeking aliens (which, the court reasoned, can only be borne by the carriers if the Service adopts its policy pursuant to the notice and comment requirements of the APA). The Service therefore argues that, at the very least, this court cannot reach the determination that the Service is responsible for both the custody and the cost of detaining asylum-seeking aliens because the court in Dia Navigation held that the Service’s interpretation of Section 253.1(f)(3) was reasonable. There are at least three responses to this contention. First, Section 253.1(f)(3) does not deal with TWOVs, who, after arrival in the United States seek asylum; it is concerned with alien crewmen, stowaways, and security-risk aliens. Therefore, it is not surprising that the Third Circuit, when faced with a regulation which specifically empowers the Service to parole into carrier custody certain aliens (such as stowaways), should conclude that the regulation is valid irrespective of the passage of the 1986 User Fee Statute. Second, there is no regulation eq