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]



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Rules and Regulations
Federal Register
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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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