01-55. Removing Burma From the Guam Visa Waiver Program

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Guam Visa Waiver Program (GVWP) waives the nonimmigrant visa requirement for nationals of certain countries, including Burma (internationally recognized as Union of Myanmar), who apply for admission as a nonimmigrant visitor for business or pleasure for the sole purpose of visiting Guam for a period not exceeding 15 days. This rule will remove Burma from the list of countries authorized to participate in the GVWP without significantly restricting legitimate travel to Guam. This action is necessary to protect the United States' law enforcement and national security interests.

DATES:

Effective Date: This interim rule is effective January 10, 2001.

Comment Date: Written comments must be submitted on or before March 5, 2001.

ADDRESSES:

Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2099-00 on your correspondence. Comments are available for public inspection at the above address by calling [phone] to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Marty Newingham, Assistant Chief Inspector, Inspections Division, Immigration and Naturalization Service, 425 I Street NW, Room 4064, Washington, DC 20536, telephone number: [phone].

SUPPLEMENTARY INFORMATION:

What Is the GVWP?

The GVWP waives the nonimmigrant visa requirement for certain aliens who apply for admission as a nonimmigrant visitor for business or pleasure for the sole purpose of visiting Guam for a period not exceeding 15 days.

The Omnibus Territories Act of 1986, Public Law 99-396, provided statutory authority to implement the GVWP. On December 18, 1987, the Immigration and Naturalization Service (Service) published a final rule in the Federal Register at 52 FR 48082, implementing the provisions of Public Law 99-396. The final rule also designated several countries including Burma to the list of countries authorized to participate in the GVWP.

What Are The Requirements for Initial GVWP Participation?

For a country to participate in the GVWP:

• The Attorney General, Secretary of State, and Secretary of Interior, acting jointly, after consultation with the Governor of Guam, must designate the country for the GVWP.
• The waiver of a nonimmigrant visa must pose no threat to the welfare, safety, or security of the United States, its territories, or commonwealths.
• The country must have a nonimmigrant visa refusal rate of 16.9 percent or less or have an established pre-inspection or pre-clearance program pursuant to a bilateral agreement with the United States.
• The country must be in geographical proximity to Guam, unless the country has a substantial volume of nonimmigrant travel to Guam and extends reciprocal privileges to citizens of the United States.
• The Department of State must not have designated the country as being of special humanitarian concern.

What Are The Requirements for Removing a Country From Participation in the GVWP?

The Commissioner shall immediately remove a country from the GVWP if she determines that the program country poses a potential threat to the welfare, safety, or security of the United States (including enforcement of the immigration laws of the United States).

Why Is the Service Removing Burma From the List of Authorized GVWP Countries With This Interim Rule?

• The Service has consulted with the Department of Justice, the Department of State, the Department of Interior, and the Governor of Guam and determined that Burma no longer meets the eligibility requirements for participating in the GVWP.
• Although Congress intended to limit the GVWP to short-term visitors to Guam, recently, the Agana Port-of-Entry has experienced an increasing number of Burmese GVWP applicants for admission who seek to remain permanently in the United States. Consequently, the Service has expended disproportionate resources in order to process Burmese travelers to Guam. These expenditures have created significant obstacles for the orderly enforcement of the U.S. immigration laws in Guam, including extended wait times for arriving travelers seeking to enter Guam.
• The refusal rate for Burmese applicants for visitors visas exceeded 40 percent over the last 4 years (1996-1999).
• The United States has not established a pre-inspection or pre-clearance program in Burma.
• Burma is a country in economic and political turmoil.
• Despite multiparty elections in 1990 that resulted in a decisive victory for the main opposition party, the military junta ruling Burma has refused to relinquish power.
• Burma lacks the will and ability to effectively participate in the anti-drug effort.

Good Cause Exception

This interim rule is effective January 10, 2001, although the Service invites post-promulgation comments and will address any such comments in a final rule. The Service finds that good cause exists for adopting this rule without the prior notice and comment period ordinarily required by 5 U.S.C. 553. Section 212.1(e)(2) of the Service's existing regulations provides that the Commissioner will immediately remove a country from the GVWP if she determines that the country poses a potential threat to the welfare, safety, or security of the United States, its territories, or commonwealths. As stated in the supplemental portion of this rule the Commissioner has made such a determination in the case of Burma. It would be contrary to the public interest to allow such a potential threat to continue for the prior notice and comment period normally required under 5 U.S.C. 553(b)(B) and (d)(3). The United States' law enforcement and national security concerns outweigh the interests of Burma nationals in having the nonimmigrant visa requirement waived under the GVWP.

The Service adopts this rule with a 7 day delayed effective date. The delayed effective date is to provide some flexibility for nationals of Burma who have already made plans to travel to Guam.

Burma nationals who have made travel plans in advance of 7 days, will still be able to travel to Guam as nonimmigrant visitors, but they will need to obtain an appropriate visa to do so.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. After January 10, 2001. Burmese nationals who wish to travel to Guam temporarily for legitimate business or pleasure purposes will still be permitted to visit Guam, if, prior to their journey, they acquire a nonimmigrant visa at a U.S. Embassy or consulate. This rule furthers the law enforcement and national security interests of the United States without significantly restricting legitimate travel to Guam. It does not affect small entities as that term is defined in 5 U.S.C. 601(6).

Executive Order 12866

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

Executive Order 13132

This 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, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

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.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12988 Civil Justice Reform

This final 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 212

• Administrative practice and procedure
• Aliens
• Immigration
• Passports and visas
• Reporting and recordkeeping requirements

Accordingly, part 212 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

1. The authority citation for part 212 is revised to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 1226, 1227; 8 CFR part 2.

§ 212.1

[Amended]

2. Section 212.1 is amended by:

a. Removing the country “Burma,” from the first sentence in paragraph (e)(3)(i).

Dated: November 30, 2000.

Mary Ann Wyrsch,

Acting Commissioner, Immigration and Naturalization Service.