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  • News: DHS Designates Taiwan For Visa Waiver Program

    Federal Register, Volume 77 Issue 204 (Monday, October 22, 2012)
    [Federal Register Volume 77, Number 204 (Monday, October 22, 2012)]
    [Rules and Regulations]
    [Pages 64409-64411]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2012-25986]
    
    
    
    ========================================================================
    Rules and Regulations
                                                    Federal Register
    ________________________________________________________________________
    
    This section of the FEDERAL REGISTER contains regulatory documents 
    having general applicability and legal effect, most of which are keyed 
    to and codified in the Code of Federal Regulations, which is published 
    under 50 titles pursuant to 44 U.S.C. 1510.
    
    The Code of Federal Regulations is sold by the Superintendent of Documents. 
    Prices of new books are listed in the first FEDERAL REGISTER issue of each 
    week.
    
    ========================================================================
    
    
    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.
    
    -----------------------------------------------------------------------
    
    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.
    ---------------------------------------------------------------------------
    
        \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.
    
    ---------------------------------------------------------------------------
    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).
    ---------------------------------------------------------------------------
    
        \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.
    ---------------------------------------------------------------------------
    
        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\
    ---------------------------------------------------------------------------
    
        \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).
    ---------------------------------------------------------------------------
    
        (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\
    ---------------------------------------------------------------------------
    
        \5\ The Secretary of State nominated Taiwan for participation in 
    the VWP on December 22, 2011.
    ---------------------------------------------------------------------------
    
        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]
    BILLING CODE P
    
    
    
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