[Federal Register Volume 84, Number 217 (Friday, November 8, 2019)]
[Rules and Regulations]
[Pages 60316-60318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24328]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 217

RIN 1601-AA94


Designation of Poland for the Visa Waiver Program

AGENCY: Office of the Secretary, Department of Homeland Security (DHS).

ACTION: Final rule; technical amendment.

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SUMMARY: Eligible citizens, nationals, and passport holders from 
designated 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 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 31, 2019, the Secretary of Homeland Security, 
in consultation with the Secretary of State, designated Poland as a 
country that is eligible to participate in the Visa Waiver Program. 
Accordingly, this rule updates the list of countries designated for 
participation in the Visa Waiver Program by adding Poland.

DATES: This final rule is effective on November 11, 2019.

FOR FURTHER INFORMATION CONTACT: Erik Rye, Department of Homeland 
Security, Visa Waiver Program Office, (202) 282-9907.

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 \1\ if certain 
requirements are met. Those requirements include, without limitation: 
(1) A U.S. Government determination that the country meets the 
applicable statutory requirement with respect to nonimmigrant visitor 
visa refusals for nationals of the country; (2) an official 
certification that it issues machine-readable, electronic 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 with the United States to report, or make available through 
other designated means, to the U.S. Government information about the 
theft or loss of passports; (5) a U.S. Government determination that 
the government accepts for repatriation any citizen, former citizen, or 
national not later than three weeks after the issuance of a final 
executable 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.
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    \1\ All references to ``country'' or ``countries'' in the laws 
authorizing the Visa Waiver Program are read to include Taiwan. See 
Taiwan Relations Act of 1979, Public Law 96-8, section 4(b)(1) 
(codified at 22 U.S.C. 3303(b)(1)) (providing 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''). 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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    The INA also sets forth requirements for continued eligibility and, 
where appropriate, probation and/or termination of program countries.

[[Page 60317]]

    Prior to this final rule, the designated countries in the VWP were 
Andorra, Australia, Austria, Belgium, Brunei, Chile, 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,\2\ and the United Kingdom.\3\ See 8 CFR 
217.2(a).
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    \2\ Taiwan 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.
    \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 satisfy the following:
    (1) Be seeking admission as a nonimmigrant visitor for business or 
pleasure for ninety days or less;
    (2) be a national of a program country;
    (3) present a machine-readable, electronic passport issued by a 
designated VWP participant country to the air or vessel carrier before 
departure;
    (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 any previous 
admission under the VWP;
    (8) possess a round-trip ticket, unless exempted by statute or 
federal regulation;
    (9) the identity of the alien has been checked to uncover any 
grounds on which the alien may be inadmissible to the United States, 
and no such ground has been found;
    (10) certain aircraft operators, as provided by statute and 
regulation, must electronically transmit information about the alien 
passenger;
    (11) has not been present at any time after March 1, 2011 in Iraq, 
Syria, or any other country so designated by statute and regulation;
    (12) 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
    (13) obtain an approved travel authorization via the Electronic 
System for Travel Authorization (ESTA). For more information about the 
ESTA, please see 8 CFR 217.5 (regulation effective July 8, 2015), 80 FR 
32267 (June 8, 2015), 75 FR 47701 (Aug. 9, 2010).
    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.

B. Designation of Poland

    The Department of Homeland Security, in consultation with the 
Department of State, has evaluated Poland 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. The Secretary has determined 
that Poland has satisfied the statutory requirements for initial VWP 
designation; therefore, the Secretary, in consultation with the 
Secretary of State, has designated Poland as a program country.\4\
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    \4\ The Secretary of State nominated Poland for participation in 
the VWP on October 3, 2019.
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    This final rule adds Poland to the list of countries authorized to 
participate in the VWP. Accordingly, beginning November 11, 2019, 
eligible citizens and nationals of Poland may apply for admission to 
the United States at U.S. ports of entry as nonimmigrant visitors for 
business or pleasure for a period of ninety days or less 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 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 
section 217(c) of the INA, 8 U.S.C. 1187(c). This amendment is a 
technical change to merely update the list of VWP 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. 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 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.

[[Page 60318]]

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.

G. Paperwork Reduction Act

    The Department of Homeland Security is modifying OMB Control Number 
1651-0111, Arrival and Departure Record, to allow eligible Poland 
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 Poland 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).
    The addition of Poland to the Visa Waiver Program will result in an 
estimated annual increase to information collection 1651-0111 of 
300,000 responses and 75,000 burden hours. The total burden hours for 
ESTA, including Poland, is as follows:
    Estimated annual reporting burden: 3,625,000 hours.
    Estimated number of respondents: 14,500,000 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(a), the definition of ``Designated country'' is 
revised to read as follows:


Sec.  217.2   Eligibility.

    (a) * * *
    Designated country refers to Andorra, Australia, Austria, Belgium, 
Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, 
Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, 
Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, 
New Zealand, Norway, Poland, 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. Taiwan 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.
* * * * *

Kevin McAleenan,
Acting Secretary.
[FR Doc. 2019-24328 Filed 11-7-19; 8:45 am]
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