03-5244. Attorney General's Evaluations of the Designations of Belgium, Italy, Portugal, and Uruguay as Participants Under the Visa Waiver Program

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Visa Waiver Program (VWP) permits nationals from designated countries to apply for admission to the United States for ninety (90) days or less as visitors for business or pleasure without first obtaining a nonimmigrant visa. This interim rule summarizes the evaluations of the Attorney General related to the participation of Belgium, Italy, Portugal, and Uruguay in the VWP. The Department of Justice, in consultation with the Department of State, has determined that: (1) Belgium will be allowed to continue participating in the VWP on a provisional basis for one year, with another evaluation to be conducted at that time to determine whether Belgium's continued participation in the VWP is in the law enforcement and security interests of the United States. In addition, after May 15, 2003, citizens of Belgium who wish to travel to the United States under the VWP must present a machine-readable passport issued by the Government of Belgium.

(2) Italy will continue to be designated as a VWP country without change.

(3) Portugal will continue to be designated as a VWP country, with the Department of State taking appropriate action.

(4) Uruguay will be be terminated from the VWP because Uruguay's participation in the VWP is inconsistent with U.S. interest in enforcing the immigration laws of the United States because there are high intercept and overstay rates for Uruguayans. Nationals of Uruguay who intend to travel to the United States after April 15, 2003, for legitimate business or pleasure must acquire a nonimmigrant visa at a U.S. consulate or embassy prior to their arrival in the United States.

DATES:

Effective date: This interim rule is effective April 15, 2003.

Comment date: Written comments must be submitted on or before May 6, 2003.

ADDRESSES:

Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper handling, please reference “RIN 1115-AB93” on your correspondence. Comments may be submitted electronically to the Immigration and Naturalization Service (Service) at [e-mail]. Comments submitted electronically should include “RIN 1115-AB93” in the subject heading. Comments are available for public inspection at the above address by calling [phone] to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Colleen Manaher, 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 Visa Waiver Progam (“VWP”)?

The VWP permits nationals from designated countries to apply for admission to the United States for ninety (90) days or less as nonimmigrant visitors for business or pleasure without first obtaining a nonimmigrant visa from a U.S. consular officer abroad, provided that all statutory and regulatory requirements are met. 8 U.S.C. 1187(a). If arriving by air or sea, a VWP traveler must arrive on a carrier that signed an agreement (“signatory carrier”) guaranteeing to transport inadmissible or deportable VWP travelers out of the United States at no expense to the United States. 8 U.S.C. 1187(e).

Why Is the Attorney General Issuing This Interim Rule?

The VWP began in 1988 as a pilot program and remained such until October 30, 2000, when the Visa Waiver Permanent Program Act, Pub. L. No. 106-396, 114 Stat. 1637, made the program permanent, with some modifications. The Visa Waiver Permanent Program Act added a new requirement that the Attorney General conduct periodic evaluations of each country participating in the VWP. 8 U.S.C. 1187(c)(5)(A)(i). The evaluations must address the effect of the country's continued designation on the law enforcement and security interests of the United States. 8 U.S.C. 1187(c)(5)(A)(i)(I). The statute also requires the Attorney General, in consultation with the Secretary of State, to determine whether an evaluated country's designation should be continued or terminated. 8 U.S.C. 1187(c)(5)(A)(i)(II). Additionally, the statute provides that “[n]otwithstanding any other provision of this section, the Attorney General, in consultation with the Secretary of State, may for any reason (including national security) . . . rescind any . . . designation previously granted under this section.” 8 U.S.C. 1187(d).

Evaluations of Belgium, Italy, Portugal, and Uruguay were conducted following the attacks of September 11, 2001. Officials from the Immigration and Naturalization Service (“INS”) and Department of State participated in the evaluation process, which included visiting each individual country and meeting with representatives of each country's government. Reports summarizing the evaluations were drafted, incorporating comments from law enforcement and security agencies of the United States.

What Is the Attorney General's Determination Regarding Belgium and Why?

Belgium will be allowed to continue participating in the VWP on a provisional basis for one year, with another evaluation to be conducted at that time to determine whether Belgium's continued participation in the VWP is in the law enforcement and security interests of the United States. In addition, after May 15, 2003, citizens of Belgium that wish to travel to the United States under the VWP must present a machine-readable passport issued by the Government of Belgium.

During the course of the evaluation of Belgium, it became apparent that there is cause for concern as to the integrity of nonmachine-readable Belgian passports and to the inadequate reporting of lost or stolen passports by the Belgian government. In March 2001, the Government of Belgium began issuing machine-readable passports that include security features. However, there remain thousands of valid nonmachine-readable Belgian passports in circulation.

In addition, the evaluation team collected data regarding the number of stolen or lost Belgian passports, including blank passports that contain no photograph or identifying information. There is a concern that, in the past, there has not been comprehensive reporting of lost or stolen passports, and that such reporting has not been timely.

For these reasons, pursuant to 8 U.S.C. 1187(d), after May 15, 2003, Belgian citizens seeking to enter the United States must present a machine-readable passport in order to be admitted under the VWP. Nationals of Belgium who possess a nonmachine-readable passport who intend to travel to the United States after May 15, 2003, for legitimate business or pleasure must acquire a nonimmigrant visa at a U.S. consulate or embassy prior to their arrival in the United States. As stated, under 8 U.S.C. 1187(d), the Attorney General “may refrain from waiving the visa requirement in respect to nationals of any country which may otherwise qualify for designation. * * *” After May 15, 2003, the Attorney General will refrain from waiving the visa requirement for any citizen of Belgium who does not present a machine-readable passport at the time of the application for admission. In addition, after one year, Belgium will again be evaluated for continued participation in the VWP. The Department of State will take appropriate action to inform the Government of Belgium as to the expectations of the Government of the United States during the provisional one-year period.

What Is the Attorney General's Determination Regarding Italy and Why?

Italy will continue to be designated as a VWP country without change. Overall, the efforts of the Government of Italy to advance the law enforcement, security, and extradition interests of the United States were found to be satisfactory. Abuse of the VWP by Italian nationals appears to be minor.

What Is the Attorney General's Determination Regarding Portugal and Why?

Portugal will continue to be designated as a VWP country. It should be noted, however, that the evaluation raised concerns about the timeliness of reporting of lost or stolen passports by the Government of Portugal. The Department of State will take appropriate action to address those concerns with the Government of Portugal.

What Is the Attorney General's Determination Regarding Uruguay and Why?

Effective April 15, 2003, Uruguay will be terminated from the VWP because Uruguay's participation in the VWP is inconsistent with the U.S. interest in enforcing the immigration laws of the United States.

Uruguay's program designation appears to facilitate high-risk travel to the United States. Between 1998 and 2001, Uruguayan nonimmigrant travel to the United States increased approximately 15%, while the number of U.S. port-of-entry intercepts increased approximately 320%. In 2002, Uruguayan nationals were two to three times more likely than all nonimmigrants on average to have been denied admission at the border.

In Fiscal Year (“FY”) 2001, there were 16,878,477 visits to the United States from citizens of the 29 VWP countries. Of that total, 72,915 visits were from Uruguayan citizens. In FY 2001, 151 Uruguayans were denied admission to the United States. In FY 2001, the INS confirmed that 1,194 Uruguayans had overstayed before departing the U.S.

The termination of Uruguay in the VWP is based on the significant increase in the number of inadmissible Uruguayans seeking admission to the United States since Argentina was terminated from the VWP on February 21, 2002. For the past three years Uruguay has experienced a recession that has caused its citizens to seek to use the VWP to live and work illegally in the United States. Uruguayan air arrivals had an apparent overstay rate of 37%, more than twice the rate of the average apparent overstay rate for all air arrival nonimmigrants (14.9%).

In May 2001, the United States Government notified the Government of Uruguay of its concerns regarding Uruguayan abuse of the VWP. Notwithstanding the efforts of the Government of Uruguay, the number of Uruguayan nationals intercepted more than doubled from 151 in FY 2001 to 356 in FY 2002.

Accordingly, the Attorney General is terminating Uruguay's participation in the VWP under sections 217(c)(5)(A)(i)(II) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(5)(A)(i)(II)). This section authorizes the Attorney General, in consultation with the Secretary of State, to terminate a country's VWP designation after the periodic evaluation. The abuse of the VWP by Uruguayan nationals seeking to remain permanently in the United States is inconsistent with the enforcement of U.S. immigration laws. The Attorney General also is rescinding the designation of Uruguay under section 217(d) of the Immigration and Nationality Act (8 U.S.C. 1187(d)), which permits the Attorney General, in consultation with the Secretary of State, to rescind any designation “for any reason.”

What Is the Legal Status of a Uruguayan National Who Was Admitted to the United States Under the VWP Before April 15, 2003, and Who Has Time Remaining on His or Her Period of Admission?

As long as the alien lawfully gained admission under the VWP before the effective date of this termination of designation rule, and continues to be in compliance with the terms of his or her admission, he or she may remain in the United States for the period of time authorized on the date of admission.

The Department notes, however, that an alien admitted as a visitor for business or pleasure under the VWP is not eligible for change or extension of nonimmigrant status under the existing regulations.

Good Cause Exception

This interim rule is effective April 15, 2003, although the Service invites post-promulgation comments and will address any such comments in a final rule. The visa waiver program statute provides that “[a] termination of the designation of a country under [8 U.S.C. 1187(c)(5)(A)(i)] shall take effect on the date determined by the Attorney General, in consultation with the Secretary of State.” 8 U.S.C. 1187(c)(5)(A)(ii). Additionally, a rescission of a designation under 8 U.S.C. 1187(d) may be made “at any time.” 8 U.S.C. 1187(d). If the provisions of 5 U.S.C. 553 are otherwise applicable, however, 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 for the following reasons.

Reestablishing the normal nonimmigrant visa requirements for Uruguayan nationals will have the effect of stemming the flow of unauthorized immigration to the United States by such nationals. This action must be taken as soon as possible. The effective date of the termination, April 15, 2003, will allow travelers who have travel plans in the near future to proceed with those plans and will allow the Department of State sufficient time to prepare for the additional workload resulting from the termination. Because further delaying the effective date of this interim rule is contrary to the public interest, there is good cause under 5 U.S.C. 553 to make this rule effective on April 15, 2003 without notice and comment.

Regulatory Flexibility Act

The Attorney General, 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. Although individuals doing business with small entities will no longer be allowed to enter the United States without having a visa, they will be able to seek admission to the United States by obtaining a nonimmigrant visa at a United States consulate or embassy prior to arrival in the United States. This action is necessary to further the law enforcement and national security interests of the United States.

Executive Order 12866

This rule is considered by the Department of Justice, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review.

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 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, all departments are required to submit to OMB, for review and approval, any reporting requirements inherent in a final rule. This rule does not impose any new reporting and recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 217

• Air carriers
• Aliens
• Maritime carriers
• Passports and visas

PART 217—VISA WAIVER PROGRAM

1. The heading for part 217 is revised as set forth above.

Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.

2. The authority citation for part 217 continues to read as follows:

§ 217.2

[Amended]

3. Section 217.2(a) is amended under the definition “Designated country” by removing “and Uruguay” from the list of countries, by adding “and” before “the United Kingdom” and adding a period after, and by adding after “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”.

Dated: February 28, 2003.

John Ashcroft,

Attorney General.