[Federal Register Volume 73, Number 222 (Monday, November 17, 2008)]
[Rules and Regulations]
[Pages 67711-67713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27062]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 73, No. 222 / Monday, November 17, 2008 /
Rules and Regulations
[[Page 67711]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 217
RIN 1601-AA54
Additional Countries Designated for the Visa Waiver Program
AGENCY: Office of the Secretary; DHS.
ACTION: Final rule; technical amendment.
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SUMMARY: Citizens and eligible nationals of participating Visa Waiver
Program countries may apply for admission to the United States at a
U.S. port of entry as nonimmigrant aliens for a period of ninety days
or less for business or pleasure without first obtaining a nonimmigrant
visa, provided that they are otherwise eligible for admission under
applicable statutory and regulatory requirements. This rule adds the
Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of
Korea, and the Slovak Republic to the list of countries authorized to
participate in the Visa Waiver Program.
DATES: This final rule is effective on November 17, 2008.
FOR FURTHER INFORMATION CONTACT: Marc Frey, Department of Homeland
Security, Office of Policy, (202) 282-9555.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Visa Waiver Program
Pursuant to section 217 of the Immigration and Nationality Act
(INA), 8 U.S.C. 1187, the Secretary of Homeland Security (the
Secretary), in consultation with the Secretary of State, may designate
certain countries as Visa Waiver Program (VWP) countries if certain
requirements are met. Those requirements include, without limitation,
(i) meeting the statutory rate of nonimmigrant visa refusal for
nationals of the country, (ii) a government certification that it has a
program to issue machine readable, tamper-resistant passports that
comply with International Civil Aviation Organization (ICAO) standards,
(iii) a U.S. government determination that the country's designation
would not negatively affect U.S. law enforcement and security
interests, (iv) government agreement to report, or make available to
the U.S. government information about the theft or loss of passports,
(v) the government accepts for repatriation any citizen, former
citizen, or national not later than three weeks after the issuance of a
final order of removal, and (vi) the government enters into an
agreement with the United States to share information regarding whether
citizens or nationals of that country represent a threat to the
security or welfare of the United States or its citizens.
Section 711 of the Implementing Recommendations of the 9/11
Commission Act of 2007, Public Law No. 110-53, 121 Stat. 266, 338 (Aug.
3, 2007) (the 9/11 Act), authorizes the Secretary to expand the VWP to
additional countries by waiving the low nonimmigrant visa refusal rate
requirement. See 8 U.S.C. 1187(c)(8). To waive the low nonimmigrant
visa refusal rate requirement, the Secretary of Homeland Security must
certify to Congress that: (i) The Electronic System for Travel
Authorization (ESTA) is ``fully operational,'' and (ii) an air exit
system is in place that can verify the departure of not less than
ninety-seven percent of foreign nationals who exit through U.S.
airports. Those certifications have been made. To qualify for a waiver
under 8 U.S.C. 1187(c)(8), a country must: (i) Meet all of the security
requirements of the statute; (ii) the Secretary of Homeland Security
determines that the totality of the country's security risk mitigation
measures provide assurance that the country's participation in the VWP
would not compromise the law enforcement, security or immigration
enforcement interests of the United States; (iii) there has been a
sustained reduction in the rate of refusals for nonimmigrant visas for
nationals of the country and conditions exist to continue such
reduction; (iv) the country cooperated with the U.S. government on
counterterrorism initiatives, information sharing and preventing
terrorist travel before the date of its designation as a program
country and the Secretaries of Homeland Security and State determine
that such cooperation will continue; and (v) the rate of refusals for
nonimmigrant visitor visas during the previous full fiscal year was not
more than ten percent or the visa overstay rate for the previous full
fiscal year does not exceed the maximum visa overstay rate, once such
rate is established. See 8 U.S.C. 1187(c)(8)(B).
The INA also sets forth requirements for continued eligibility and,
where appropriate, termination of program countries.
Citizens and eligible nationals of VWP countries may apply for
admission to the United States at a U.S. port of entry as nonimmigrant
aliens for a period of ninety days or less for business or pleasure
without first obtaining a nonimmigrant visa, provided that they are
otherwise eligible for admission under applicable statutory and
regulatory requirements. The designated countries in the VWP include
Andorra, Australia, Austria, Belgium,\1\ Brunei, Denmark, Finland,
France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein,
Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San
Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United
Kingdom.\2\ See 8 CFR 217.2(a).
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\1\ After May 15, 2003, citizens of Belgium must present a
machine-readable passport in order to be granted admission under the
Visa Waiver Program.
\2\ The United Kingdom refers only to British citizens who have
the unrestricted right of permanent abode in the United Kingdom
(England, Scotland, Wales, Northern Ireland, the Channel Islands and
the Isle of Man); it does not refer to British overseas citizens,
British dependent territories' citizens, or citizens of British
Commonwealth countries.
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To travel to the United States under the VWP, an alien must be from
a participating country and must (1) be seeking entry as a tourist for
90 days or less, (2) be a national of a program country, (3) present an
electronic passport or a machine readable passport issued by a
designated VWP participant country to the air or vessel carrier before
departure; \3\ (4) execute the required
[[Page 67712]]
immigration forms, (5) if arriving by air or sea, arrive on an
authorized carrier, (6) not represent a threat to the welfare, health,
safety or security of the United States, (7) have not violated U.S.
immigration law during a previous admission under the visa waiver
program, (8) possess a round trip ticket; and (9) waive the right to
review or appeal a decision regarding admissibility or to contest other
than on the basis of an application for asylum, any action for removal.
See Section 217(a) of the Immigration and Nationality Act (INA), 8
U.S.C. 1187(a). See also 8 CFR part 217.
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\3\ For countries designated as VWP member countries prior to
November 17, 2008, passports issued before October 26, 2006, need
not contain the electronic chip that includes the biographic and
biometric information of the passport holder provided the passports
comply with International Civil Aviation Organization machine
readable standards.
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DHS, in consultation with the Department of State (DOS), has
evaluated the countries of the Czech Republic, Estonia, Hungary,
Latvia, Lithuania, the Republic of Korea, and the Slovak Republic for
VWP designation to ensure the country meets the requirements set forth
in section 711 of the 9/11 Act and section 217 of the INA. The
Secretary has determined that these countries have satisfied the
statutory requirements to be VWP countries; therefore, the Secretary,
in consultation with the Secretary of State, has designated these
countries as eligible for the VWP.\4\
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\4\ On November 14, 2008, the Secretary of State nominated these
countries for membership in the VWP.
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This final rule adds the Czech Republic, Estonia, Hungary, Latvia,
Lithuania, the Republic of Korea, and the Slovak Republic to the list
of countries authorized to participate in the VWP. Accordingly,
beginning November 17, 2008, citizens and eligible nationals from these
additional VWP countries may apply for admission to the United States
at a U.S. port of entry as nonimmigrant aliens for a period of ninety
days or less for business or pleasure without first obtaining a
nonimmigrant visa, provided that they are otherwise eligible for
admission under applicable statutory and regulatory requirements. Each
new member country has agreed that its citizens must obtain an approved
travel authorization from U.S. Customs and Border Protection (CBP) via
the Electronic System for Travel Authorization and must possess a valid
electronic passport. For more information about the Electronic System
for Travel Authorization program, please see the interim final rule at
73 FR 32440.
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
This final rule merely lists those countries that the Secretary of
Homeland Security, in consultation with the Secretary of State, has
designated as VWP eligible countries in accordance with 8 U.S.C.
1187(c). This final rule neither imposes additional burdens on, nor
takes away any existing rights or privileges from, the public.
Therefore, pursuant to 5 U.S.C. 553(b)(B), notice and comment
procedures are unnecessary. For the same reasons, pursuant to 5 U.S.C.
553(d)(3), a delayed effective date is not required.
This final rule is also excluded from the rulemaking provisions of
5 U.S.C. 553 as a foreign affairs function of the United States because
it advances the President's foreign policy goals, involves bilateral
agreements that the United States has entered into with participating
VWP countries, and directly involves relationships between the United
States and its alien visitors. Accordingly, DHS is not required to
provide public notice and an opportunity to comment before implementing
the requirements under this final rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996
(SBREFA), requires an agency to prepare and make available to the
public a regulatory flexibility analysis that describes the effect of a
proposed rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions) when the agency is
required ``to publish a general notice of proposed rulemaking for any
proposed rule.'' Because this rule is being issued as a final rule, on
the grounds set forth above, a regulatory flexibility analysis is not
required under the RFA.
DHS has considered the impact of this rule on small entities and
had determined that this rule will not have a significant economic
impact on a substantial number of small entities. The individual aliens
to whom this rule applies are not small entities as that term is
defined in 5 U.S.C. 601(6). Accordingly, there is no change expected in
any process as a result of this rule that would have a direct effect,
either positive or negative, on a small entity.
C. 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 one 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.
D. Executive Order 12866
This amendment does not meet the criteria for a ``significant
regulatory action'' as specified in Executive Order 12866.
E. Executive Order 13132
The 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, DHS has determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
This 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 217
Air carriers, Aliens, Maritime carriers, Passports and visas.
Amendments to the Regulations
0
For the reasons stated in the preamble, DHS amends part 217 of title 8
of the Code of Federal Regulations (8 CFR part 217), as set forth
below.
PART 217--VISA WAIVER PROGRAM
0
1. The general authority citation for part 217 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
0
2. In section 217.2 the definition of the term ``Designated country''
in paragraph (a) is revised to read as follows:
Sec. 217.2 Eligibility.
(a) * * *
Designated country refers to Andorra, Australia, Austria, Belgium,
Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein,
Lithuania, Luxembourg,
[[Page 67713]]
Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of
Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, and the United Kingdom. The United Kingdom refers only to
British citizens who have the unrestricted right of permanent abode in
the United Kingdom (England, Scotland, Wales, Northern Ireland, the
Channel Islands and the Isle of Man); it does not refer to British
overseas citizens, British dependent territories' citizens, or citizens
of British Commonwealth countries. After May 15, 2003, citizens of
Belgium must present a machine-readable passport in order to be granted
admission under the Visa Waiver Program.
Dated: November 7, 2008.
Michael Chertoff,
Secretary.
[FR Doc. E8-27062 Filed 11-14-08; 8:45 am]
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