[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
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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.
---------------------------------------------------------------------------

    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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