[Federal Register Volume 77, Number 204 (Monday, October 22, 2012)]
[Rules and Regulations]
[Pages 64409-64411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25986]



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  Federal Register / Vol. 77, No. 204 / Monday, October 22, 2012 / 
Rules and Regulations  

[[Page 64409]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 217

RIN 1601-AA67


Designation of Taiwan for the Visa Waiver Program

AGENCY: Office of the Secretary, DHS.

ACTION: Final rule.

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SUMMARY: Eligible citizens, nationals and passport holders from 
designated Visa Waiver Program countries \1\ may apply for admission to 
the United States at U.S. ports 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. On October 2, 2012, the Secretary of Homeland Security, 
in consultation with the Secretary of State and with reference to the 
Taiwan Relations Act of 1979, designated Taiwan for participation in 
the Visa Waiver Program. Accordingly, this rule updates the list of 
countries designated for participation in the Visa Waiver Program by 
adding Taiwan.
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    \1\ With respect to all references to ``country'' or 
``countries'' in this document, it should be noted that the Taiwan 
Relations Act of 1979, Public Law 96-8, Section 4(b)(1), provides 
that ``[w]henever the laws of the United States refer or relate to 
foreign countries, nations, states, governments, or similar 
entities, such terms shall include and such laws shall apply with 
respect to Taiwan.'' 22 U.S.C. 3303(b)(1). Accordingly, all 
references to ``country'' or ``countries'' in the Visa Waiver 
Program authorizing legislation, Section 217 of the Immigration and 
Nationality Act, 8 U.S.C. 1187, are read to include Taiwan. This is 
consistent with the United States' one-China policy, under which the 
United States has maintained unofficial relations with Taiwan since 
1979.

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DATES: This final rule is effective on November 1, 2012.

FOR FURTHER INFORMATION CONTACT: Gianfranco Corti, Department of 
Homeland Security, Visa Waiver Program Office, (202) 282-8732.

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: 
(1) Meeting the statutory rate of nonimmigrant visitor visa refusals 
for nationals of the country; (2) a government certification that it 
issues machine-readable passports that comply with internationally 
accepted standards; (3) a U.S. government determination that the 
country's designation would not negatively affect U.S. law enforcement 
and security interests; (4) an agreement to report, or make available 
through other designated means, to the U.S. government information 
about the theft or loss of passports; (5) the government acceptance for 
repatriation any citizen, former citizen, or national not later than 
three weeks after the issuance of a final order of removal; and (6) an 
agreement with the United States to share information regarding whether 
citizens or nationals of the 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, probation and/or termination of program countries.
    The current designated countries in the VWP include Andorra, 
Australia, Austria, Belgium,\2\ Brunei, Czech Republic, Denmark, 
Estonia, Finland, France, Germany, Greece, 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.\3\ See 8 CFR 217.2(a).
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    \2\ After May 15, 2003, citizens of Belgium must present a 
machine-readable passport in order to be granted admission under the 
Visa Waiver Program.
    \3\ 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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    Citizens and eligible nationals of VWP countries may apply for 
admission to the United States at U.S. ports of entry as nonimmigrant 
visitors 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. To travel to the United States under the VWP, 
an alien must be from a participating country and must satisfy the 
following:
    (1) Be seeking entry as a tourist for ninety 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; \4\
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    \4\ For countries designated as VWP 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. See 8 U.S.C. 1732(c)(2).
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    (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 VWP;
    (8) Possess a round-trip ticket;
    (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; and
    (10) Obtain an approved travel authorization via the Electronic 
System for Travel Authorization (ESTA). ESTA is an automated system 
that determines the eligibility of visitors to travel to the U.S. under 
the Visa Waiver Program. For more information about the ESTA, please 
see the interim final rule at 73 FR 32440 (June 9, 2008), and 
implementing notice at 73 FR 67354 (November 13, 2008). 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.

[[Page 64410]]

B. Designation of Taiwan

    The Department of Homeland Security (DHS), in consultation with the 
Department of State, has evaluated Taiwan for VWP designation to ensure 
that it meets the requirements set forth in section 217 of the INA, as 
amended by section 711 of the Implementing Recommendations of the 9/11 
Commission Act of 2007, Public Law 110-53 (9/11 Act). The Secretary has 
determined that Taiwan has satisfied the statutory requirements for 
initial VWP designation; therefore, the Secretary, in consultation with 
the Secretary of State and with reference to the Taiwan Relations Act 
of 1979 (Pub. L. 96-8), has designated Taiwan for participation in the 
VWP.\5\
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    \5\ The Secretary of State nominated Taiwan for participation in 
the VWP on December 22, 2011.
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    This final rule adds Taiwan to the list of countries authorized to 
participate in the VWP. Accordingly, beginning November 1, 2012, 
eligible travelers possessing Taiwan electronic passports with valid 
personal identification numbers (household registration numbers) may 
apply for admission to the United States at U.S. ports of entry as 
nonimmigrant visitors 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.

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 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 conforming change to update the list of 
VWP countries. Notice and comment for this rule is unnecessary and 
contrary to the public interest, because the rule merely conforms the 
regulatory text to reflect the Secretary's designation of Taiwan as a 
VWP participant; it is technical in nature; and it relates only to 
management, organization, procedure, and practice. For the same 
reasons, pursuant to 5 U.S.C. 553(d)(3), a delayed effective date is 
not required.
    DHS is of the opinion that 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 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 
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 and 13563

    As discussed above, DHS is of the opinion that the subject of this 
rulemaking constitutes a foreign affairs function of the United States, 
and thus is exempt from the provisions of Executive Order 12866. The 
Department has nevertheless reviewed this rulemaking to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Orders 12866 and 13563. DHS does not consider this final rule 
to be a ``significant regulatory action'' under Executive Order 12866, 
Sec. 3(f), Regulatory Planning and Review, and Executive Order 13563.
    DHS plans to issue a final rule on the Electronic System for Travel 
Authorization (ESTA) and that final rule will respond to public 
comments received on the interim final rules related to ESTA. The final 
rule's economic analysis will address the costs and benefits associated 
with the ESTA program, including the addition of Taiwan to the VWP. The 
VWP offers numerous security and economic benefits to the United States 
by promoting legitimate travel while enhancing security standards and 
information sharing with international partners.

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.

G. Paperwork Reduction Act

    The Department of Homeland Security is modifying OMB Control Number 
1651-0111, Arrival and Departure Record, to allow eligible Taiwan 
passport holders to use the Electronic System for Travel Authorization 
(ESTA) to apply for authorization to travel under the VWP prior to 
departing for the United States. CBP uses the information to assist in 
determining if an applicant is eligible for travel under the VWP. The 
Department is requesting emergency processing of this change to 1651-
0111 as the information is essential to the mission of the agency and 
is needed prior to the expiration of time periods established under the 
PRA. Because of the designation of Taiwan for participation in the VWP, 
the Department is requesting OMB approval of this information 
collection in accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507).

[[Page 64411]]

    The addition of Taiwan to the Visa Waiver Program will result in an 
estimated annual increase to information collection 1651-0111 of 
240,000 responses and 60,000 burden hours. The total burden hours for 
ESTA, including Taiwan, is as follows:
    Estimated annual reporting burden: 4,785,000 hours.
    Estimated number of respondents: 19,140,000 respondents.
    Estimated average annual burden per respondent: 15 minutes.

List of Subjects in 8 CFR Part 217

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

Amendments to the Regulations

    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, 
Greece, 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, Taiwan, 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. Taiwan (designated consistent with the 
Taiwan Relations Act of 1979, Pub. L. 96-8 and the United States' one-
China policy) refers only to individuals who have unrestricted right of 
permanent abode on Taiwan and are in possession of an electronic 
passport bearing a personal identification (household registration) 
number.

Janet Napolitano,
Secretary.
[FR Doc. 2012-25986 Filed 10-19-12; 8:45 am]
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