02-11164. Visas: Passports and Visas Not Required for Certain Nonimmigrants-Visa Waiver Program

ACTION:

Final rule.

SUMMARY:

This rule amends the Department of State's regulation regarding the Visa Waiver Pilot Program (VWPP) by removing from it the list of countries designated to participate in the Visa Waiver Program (VWP), by changing all references to the VWPP to references to the VWP, and by adding a paragraph to require that an alien denied admission under the VWP obtain a visa before again seeking admission into the United States. Each of the amendments is necessitated by a statutory change. Readers will now be referred to the Department of Justice (INS) regulations for the list of VWP-designated countries, the VWP will only be referred to as such, rather than the VWPP, and an alien from a VWP country refused admission to the United States under the VWP will be permitted to file a visa application as the only form of appeal from such a denial.

DATES:

Effective date: The rule takes effect on May 7, 2002.

FOR FURTHER INFORMATION CONTACT:

Patrick Chairge, Legislation and Regulations Division, Visa Office, Room L603-C, SA-1, Department of State, Washington, DC 20520-0106, 202-663-1202.

SUPPLEMENTARY INFORMATION:

What Is the History of the Visa Waiver Program (VWP)?

Authority for the Visa Waiver Program is contained in section 217 of the Immigration and Nationality Act, added initially by section 313 of the Immigrant Reform and Control Act of 1986 (IRCA). Until the enactment of the Visa Waiver Permanent Program Act (VWPPA), Public Law 106-369, on October 30, 2000, the VWP was a pilot program, known as the Visa Waiver Pilot Program (VWPP). Under the original provisions of the VWPP, the Attorney General acted jointly with the Secretary of State to determine which countries would be designated to have their nationals participate in the VWP. However, prior to the enactment of the VWPPA, Public Law 104-208 amended the statutory language to permit the Attorney General, after consultation with the Secretary of State, to make that determination. In addition, among the other changes made to the VWP by the VWPPA was the addition of a requirement that aliens denied admission into the United States under the VWP must obtain a visa prior to again seeking admission. The Department previously has promulgated regulations regarding the VWP at 22 CFR 41.2(l).

How Is the Department Amending Its Regulation?

Effective February 21, 2002, the Attorney General, after consultation with the Secretary of State, terminated Argentina as a country designated to participate in the Visa Waiver Program (VWP). Under the Department's existing regulation the removal of Argentina would necessitate an amendment by the Department to its list of VWP countries found at 22 CFR 41.2(l)(2). However, in view of the fact that final authority for designating countries to participate in the VWP now rests with the Attorney General, the Department is taking this opportunity to eliminate the list of designated countries entirely from its regulation and is replacing it with a cross reference to the authoritative list contained in the VWP regulation of the Department of Justice (INS) found at 8 CFR 217.2(a). Further, the Department is changing the name of the program used in its regulation to the Visa Waiver Program in order to reflect the program's permanent status per the VWPPA. Finally, the Department is also adding a new paragraph 2 to the regulation to require consular officers to accept and adjudicate a properly filed visa application from a national of a program country who has been denied admission under the Visa Waiver Program by virtue of an INA 212(a) inadmissibility. Pursuant to the VWPPA, no other means of administrative or judicial review of a denial is permitted.

Regulatory Findings

Administrative Procedure Act

The Department's implementation of this regulation as a final rule is based upon the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). Publication of this regulation as a final rule will expedite implementation of Public Laws 106-369 and 104-208, both already in effect. The change of the name of the program and the removal of the list of countries from the current regulation serve only to conform the existing regulation to the relevant statutes without any administrative interpretation or additional burden being placed on the public. Likewise, the application requirement for persons refused admission simply informs the public of a new statutory requirement, placing it in the context of the relevant Department regulation. In view of these circumstances, the Department does not believe that a solicitation for comments would serve any useful purpose.

Regulatory Flexibility Act

The Department of State, 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.

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 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 12866

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

Executive Order 13132

This regulation 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.

Paperwork Reduction Act

This rule does not impose any new reporting or record-keeping requirements. The information collection requirement (Form DS-156) contained by reference in this rule was previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act as OMB control number 1405-0018.

List of Subjects in 22 CFR Part 41

• Aliens
• Nonimmigrants
• Passports and visas

For the reasons set forth in the preamble, the Department is amending the regulations at 22 CFR 41.2 to read as follows:

PART 41—[AMENDED]

1. The authority citation for Part 41 continues to read as follows:

Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801.

2. Revise § 41.2(l) to read as follows:

§ 41.2

Waiver by Secretary of State and Attorney General of passport and/or visa requirements for certain categories of nonimmigrants.

* * * * *

(l) Visa waiver program. (1) A visa is not required of any person who seeks admission to the United States for a period of 90 days or less as a visitor for business or pleasure and who is eligible to apply for admission to the United States as a Visa Waiver Program applicant. (For the list of countries whose nationals are eligible to apply for admission to the United States as Visa Waiver Program applicants, see 8 CFR 217.2(a)).

(2) An alien denied admission under the Visa Waiver Program by virtue of a ground of inadmissibility described in INA section 212(a) that is discovered at the time of the alien's application for admission at a port of entry or through use of an automated electronic database may apply for a visa as the only means of challenging such a determination. A consular officer must accept and adjudicate any such application if the alien otherwise fulfills all of the application requirements contained in Part 40, § 41.2(l)(1).

Dated: March 22, 2002.

Mary A. Ryan,

Assistant Secretary for Consular Affairs, Department of State.