[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Rules and Regulations]
[Pages 79595-79597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30818]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 217

RIN 1601-AA54


Designation of Malta 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 U.S. 
ports of entry as nonimmigrant aliens for a period of 90 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 Malta 
to the list of countries authorized to participate in the Visa Waiver 
Program.

DATES: This final rule is effective on December 30, 2008.

FOR FURTHER INFORMATION CONTACT: Marc Frey, Department of Homeland 
Security, Office of Policy, (202) 282-9555.

SUPPLEMENTARY INFORMATION: 

[[Page 79596]]

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, 
(1) meeting the statutory rate of nonimmigrant visa refusal for 
nationals of the country; (2) a government certification that it has a 
program to issue machine readable, tamper-resistant passports that 
comply with International Civil Aviation Organization (ICAO) standards; 
(3) a U.S. government determination that the country's designation 
would not negatively affect U.S. law enforcement and security 
interests; (4) government agreement to report, or make available to the 
U.S. government information about the theft or loss of passports; (5) 
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 (6) 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.
    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 U.S. ports of entry as nonimmigrant 
aliens for a period of 90 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, Czech Republic, Denmark, 
Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, 
Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, the 
Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San 
Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, 
Switzerland, and the United Kingdom.\2\ See 8 CFR 217.2(a).
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    \1\ Since May 15, 2003, citizens of Belgium have had to 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 
a period of 90 days or less; (2) be a national of a VWP participant 
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 
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 Sections 217(a) and 217(b) of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1187(a)-(b). 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, has evaluated 
the country of Malta 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 Malta has satisfied 
the statutory requirements to be a VWP country; therefore, the 
Secretary, in consultation with the Secretary of State, has designated 
Malta as a VWP program country.\4\
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    \4\ The Secretary of State nominated Malta for membership in the 
VWP on December 17, 2008.
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    This final rule adds Malta to the list of countries authorized to 
participate in the VWP. Accordingly, beginning December 30, 2008, 
citizens and eligible nationals from Malta may apply for admission to 
the United States at U.S. ports of entry as nonimmigrant aliens for a 
period of 90 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. Malta has agreed that its citizens must obtain an 
approved travel authorization from 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.

II. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency 
may waive the normal notice and comment requirements if it finds, for 
good cause, that they are impracticable, unnecessary, or contrary to 
the public interest. The final rule merely lists a country that the 
Secretary of Homeland Security, in consultation with the Secretary of 
State, has designated as a VWP eligible country in accordance with 8 
U.S.C. 1187(c). This amendment is a technical change to update the list 
of VWP eligible countries. Therefore, notice and comment for this rule 
is unnecessary and contrary to the public interest because the rule has 
no substantive impact, is technical in nature, and relates only to 
management, organization, procedure, and practice. We do not anticipate 
receiving meaningful comments on this rule because Malta has already 
been designated as VWP-eligible. 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 a bilateral 
agreement that the United States has entered into with Malta, 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

[[Page 79597]]

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 
has 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 Sec.  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, Malta, 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.
* * * * *

Paul A. Schneider,
Deputy Secretary.
[FR Doc. E8-30818 Filed 12-29-08; 8:45 am]
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