[Federal Register Volume 68, Number 45 (Friday, March 7, 2003)]
[Rules and Regulations]
[Pages 10954-10957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5244]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 217

RIN 1115-AB93


Attorney General's Evaluations of the Designations of Belgium, 
Italy, Portugal, and Uruguay as Participants Under the Visa Waiver 
Program

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The Visa Waiver Program (VWP) permits nationals from 
designated countries to apply for admission to the United States for 
ninety (90) days or less as visitors for business or pleasure without 
first obtaining a nonimmigrant visa. This interim rule summarizes the 
evaluations of the Attorney General related to the participation of 
Belgium, Italy, Portugal, and Uruguay in the VWP. The Department of 
Justice, in consultation with the Department of State, has determined 
that: (1) Belgium will be allowed to continue participating in the VWP 
on a provisional basis for one year, with another evaluation to be 
conducted at that time to determine whether Belgium's continued 
participation in the VWP is in the law enforcement and security 
interests of the United States. In addition, after May 15, 2003, 
citizens of Belgium who wish to travel to the United States under the 
VWP must present a machine-readable passport issued by the Government 
of Belgium.
    (2) Italy will continue to be designated as a VWP country without 
change.
    (3) Portugal will continue to be designated as a VWP country, with 
the Department of State taking appropriate action.
    (4) Uruguay will be be terminated from the VWP because Uruguay's 
participation in the VWP is inconsistent with U.S. interest in 
enforcing the immigration laws of the United States because there are 
high intercept and overstay rates for Uruguayans. Nationals of Uruguay 
who intend to travel to the United States after April 15, 2003, for 
legitimate business or pleasure must acquire a nonimmigrant visa at a 
U.S. consulate or embassy prior to their arrival in the United States.

DATES: Effective date: This interim rule is effective April 15, 2003.
    Comment date: Written comments must be submitted on or before May 
6, 2003.

[[Page 10955]]


ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference ``RIN 1115-AB93'' on your correspondence. 
Comments may be submitted electronically to the Immigration and 
Naturalization Service (Service) at [email protected]. Comments 
submitted electronically should include ``RIN 1115-AB93'' in the 
subject heading. Comments are available for public inspection at the 
above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Colleen Manaher, Assistant Chief 
Inspector, Inspections Division, Immigration and Naturalization 
Service, 425 I Street NW., Room 4064, Washington, DC 20536, telephone 
number: (202) 514-3019.

SUPPLEMENTARY INFORMATION:

What Is the Visa Waiver Progam (``VWP'')?

    The VWP permits nationals from designated countries to apply for 
admission to the United States for ninety (90) days or less as 
nonimmigrant visitors for business or pleasure without first obtaining 
a nonimmigrant visa from a U.S. consular officer abroad, provided that 
all statutory and regulatory requirements are met. 8 U.S.C. 1187(a). If 
arriving by air or sea, a VWP traveler must arrive on a carrier that 
signed an agreement (``signatory carrier'') guaranteeing to transport 
inadmissible or deportable VWP travelers out of the United States at no 
expense to the United States. 8 U.S.C. 1187(e).

Why Is the Attorney General Issuing This Interim Rule?

    The VWP began in 1988 as a pilot program and remained such until 
October 30, 2000, when the Visa Waiver Permanent Program Act, Pub. L. 
No. 106-396, 114 Stat. 1637, made the program permanent, with some 
modifications. The Visa Waiver Permanent Program Act added a new 
requirement that the Attorney General conduct periodic evaluations of 
each country participating in the VWP. 8 U.S.C. 1187(c)(5)(A)(i). The 
evaluations must address the effect of the country's continued 
designation on the law enforcement and security interests of the United 
States. 8 U.S.C. 1187(c)(5)(A)(i)(I). The statute also requires the 
Attorney General, in consultation with the Secretary of State, to 
determine whether an evaluated country's designation should be 
continued or terminated. 8 U.S.C. 1187(c)(5)(A)(i)(II). Additionally, 
the statute provides that ``[n]otwithstanding any other provision of 
this section, the Attorney General, in consultation with the Secretary 
of State, may for any reason (including national security) . . . 
rescind any . . . designation previously granted under this section.'' 
8 U.S.C. 1187(d).
    Evaluations of Belgium, Italy, Portugal, and Uruguay were conducted 
following the attacks of September 11, 2001. Officials from the 
Immigration and Naturalization Service (``INS'') and Department of 
State participated in the evaluation process, which included visiting 
each individual country and meeting with representatives of each 
country's government. Reports summarizing the evaluations were drafted, 
incorporating comments from law enforcement and security agencies of 
the United States.

What Is the Attorney General's Determination Regarding Belgium and Why?

    Belgium will be allowed to continue participating in the VWP on a 
provisional basis for one year, with another evaluation to be conducted 
at that time to determine whether Belgium's continued participation in 
the VWP is in the law enforcement and security interests of the United 
States. In addition, after May 15, 2003, citizens of Belgium that wish 
to travel to the United States under the VWP must present a machine-
readable passport issued by the Government of Belgium.
    During the course of the evaluation of Belgium, it became apparent 
that there is cause for concern as to the integrity of nonmachine-
readable Belgian passports and to the inadequate reporting of lost or 
stolen passports by the Belgian government. In March 2001, the 
Government of Belgium began issuing machine-readable passports that 
include security features. However, there remain thousands of valid 
nonmachine-readable Belgian passports in circulation.
    In addition, the evaluation team collected data regarding the 
number of stolen or lost Belgian passports, including blank passports 
that contain no photograph or identifying information. There is a 
concern that, in the past, there has not been comprehensive reporting 
of lost or stolen passports, and that such reporting has not been 
timely.
    For these reasons, pursuant to 8 U.S.C. 1187(d), after May 15, 
2003, Belgian citizens seeking to enter the United States must present 
a machine-readable passport in order to be admitted under the VWP. 
Nationals of Belgium who possess a nonmachine-readable passport who 
intend to travel to the United States after May 15, 2003, for 
legitimate business or pleasure must acquire a nonimmigrant visa at a 
U.S. consulate or embassy prior to their arrival in the United States. 
As stated, under 8 U.S.C. 1187(d), the Attorney General ``may refrain 
from waiving the visa requirement in respect to nationals of any 
country which may otherwise qualify for designation. * * *'' After May 
15, 2003, the Attorney General will refrain from waiving the visa 
requirement for any citizen of Belgium who does not present a machine-
readable passport at the time of the application for admission. In 
addition, after one year, Belgium will again be evaluated for continued 
participation in the VWP. The Department of State will take appropriate 
action to inform the Government of Belgium as to the expectations of 
the Government of the United States during the provisional one-year 
period.

What Is the Attorney General's Determination Regarding Italy and Why?

    Italy will continue to be designated as a VWP country without 
change. Overall, the efforts of the Government of Italy to advance the 
law enforcement, security, and extradition interests of the United 
States were found to be satisfactory. Abuse of the VWP by Italian 
nationals appears to be minor.

What Is the Attorney General's Determination Regarding Portugal and 
Why?

    Portugal will continue to be designated as a VWP country. It should 
be noted, however, that the evaluation raised concerns about the 
timeliness of reporting of lost or stolen passports by the Government 
of Portugal. The Department of State will take appropriate action to 
address those concerns with the Government of Portugal.

What Is the Attorney General's Determination Regarding Uruguay and Why?

    Effective April 15, 2003, Uruguay will be terminated from the VWP 
because Uruguay's participation in the VWP is inconsistent with the 
U.S. interest in enforcing the immigration laws of the United States.
    Uruguay's program designation appears to facilitate high-risk 
travel to the United States. Between 1998 and 2001, Uruguayan 
nonimmigrant travel to the United States increased

[[Page 10956]]

approximately 15%, while the number of U.S. port-of-entry intercepts 
increased approximately 320%. In 2002, Uruguayan nationals were two to 
three times more likely than all nonimmigrants on average to have been 
denied admission at the border.
    In Fiscal Year (``FY'') 2001, there were 16,878,477 visits to the 
United States from citizens of the 29 VWP countries. Of that total, 
72,915 visits were from Uruguayan citizens. In FY 2001, 151 Uruguayans 
were denied admission to the United States. In FY 2001, the INS 
confirmed that 1,194 Uruguayans had overstayed before departing the 
U.S.
    The termination of Uruguay in the VWP is based on the significant 
increase in the number of inadmissible Uruguayans seeking admission to 
the United States since Argentina was terminated from the VWP on 
February 21, 2002. For the past three years Uruguay has experienced a 
recession that has caused its citizens to seek to use the VWP to live 
and work illegally in the United States. Uruguayan air arrivals had an 
apparent overstay rate of 37%, more than twice the rate of the average 
apparent overstay rate for all air arrival nonimmigrants (14.9%).
    In May 2001, the United States Government notified the Government 
of Uruguay of its concerns regarding Uruguayan abuse of the VWP. 
Notwithstanding the efforts of the Government of Uruguay, the number of 
Uruguayan nationals intercepted more than doubled from 151 in FY 2001 
to 356 in FY 2002.
    Accordingly, the Attorney General is terminating Uruguay's 
participation in the VWP under sections 217(c)(5)(A)(i)(II) of the 
Immigration and Nationality Act (8 U.S.C. 1187(c)(5)(A)(i)(II)). This 
section authorizes the Attorney General, in consultation with the 
Secretary of State, to terminate a country's VWP designation after the 
periodic evaluation. The abuse of the VWP by Uruguayan nationals 
seeking to remain permanently in the United States is inconsistent with 
the enforcement of U.S. immigration laws. The Attorney General also is 
rescinding the designation of Uruguay under section 217(d) of the 
Immigration and Nationality Act (8 U.S.C. 1187(d)), which permits the 
Attorney General, in consultation with the Secretary of State, to 
rescind any designation ``for any reason.''

What Is the Legal Status of a Uruguayan National Who Was Admitted to 
the United States Under the VWP Before April 15, 2003, and Who Has Time 
Remaining on His or Her Period of Admission?

    As long as the alien lawfully gained admission under the VWP before 
the effective date of this termination of designation rule, and 
continues to be in compliance with the terms of his or her admission, 
he or she may remain in the United States for the period of time 
authorized on the date of admission.
    The Department notes, however, that an alien admitted as a visitor 
for business or pleasure under the VWP is not eligible for change or 
extension of nonimmigrant status under the existing regulations.

Good Cause Exception

    This interim rule is effective April 15, 2003, although the Service 
invites post-promulgation comments and will address any such comments 
in a final rule. The visa waiver program statute provides that ``[a] 
termination of the designation of a country under [8 U.S.C. 
1187(c)(5)(A)(i)] shall take effect on the date determined by the 
Attorney General, in consultation with the Secretary of State.'' 8 
U.S.C. 1187(c)(5)(A)(ii). Additionally, a rescission of a designation 
under 8 U.S.C. 1187(d) may be made ``at any time.'' 8 U.S.C. 1187(d). 
If the provisions of 5 U.S.C. 553 are otherwise applicable, however, 
the Service finds that good cause exists for adopting this rule without 
the prior notice and comment period ordinarily required by 5 U.S.C. 553 
for the following reasons.
    Reestablishing the normal nonimmigrant visa requirements for 
Uruguayan nationals will have the effect of stemming the flow of 
unauthorized immigration to the United States by such nationals. This 
action must be taken as soon as possible. The effective date of the 
termination, April 15, 2003, will allow travelers who have travel plans 
in the near future to proceed with those plans and will allow the 
Department of State sufficient time to prepare for the additional 
workload resulting from the termination. Because further delaying the 
effective date of this interim rule is contrary to the public interest, 
there is good cause under 5 U.S.C. 553 to make this rule effective on 
April 15, 2003 without notice and comment.

Regulatory Flexibility Act

    The Attorney General, 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. Although individuals 
doing business with small entities will no longer be allowed to enter 
the United States without having a visa, they will be able to seek 
admission to the United States by obtaining a nonimmigrant visa at a 
United States consulate or embassy prior to arrival in the United 
States. This action is necessary to further the law enforcement and 
national security interests of the United States.

Executive Order 12866

    This rule is considered by the Department of Justice, to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget (OMB) for review.

Executive Order 13132

    This 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, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs 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-

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based companies in domestic and export markets.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163, all departments are required to submit to OMB, for review 
and approval, any reporting requirements inherent in a final rule. This 
rule does not impose any new reporting and recordkeeping requirements 
under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 217

    Air carriers, Aliens, Maritime carriers, Passports and visas.

PART 217--VISA WAIVER PROGRAM

    1. The heading for part 217 is revised as set forth above.

    Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.

    2. The authority citation for part 217 continues to read as 
follows:


Sec.  217.2  [Amended]

    3. Section 217.2(a) is amended under the definition ``Designated 
country'' by removing ``and Uruguay'' from the list of countries, by 
adding ``and'' before ``the United Kingdom'' and adding a period after, 
and by adding after ``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: February 28, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-5244 Filed 3-6-03; 8:45 am]
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