2023-21574. Designation of Israel for the Visa Waiver Program

AGENCY:

Office of the Secretary; Department of Homeland Security (DHS).

ACTION:

Final rule; technical amendment.

SUMMARY:

Eligible citizens, nationals, and passport holders from designated Visa Waiver Program countries may apply for admission to the United States at U.S. ports of entry as nonimmigrant noncitizens 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. The Secretary of Homeland Security, in consultation with the Secretary of State, has designated Israel as a country that is eligible to participate in the Visa Waiver Program. Accordingly, this rule updates the list of countries designated for participation in the Visa Waiver Program by adding Israel.

DATES:

This final rule is effective on September 29, 2023. The Secretary's designation was effective on September 26, 2023. The designation will be implemented on November 30, 2023.

FOR FURTHER INFORMATION CONTACT:

Anjum Agarwala, Department of Homeland Security, Visa Waiver Program Office, (202) 790–5207.

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 ^[1] if certain requirements are met. Those requirements include: (1) a U.S. Government determination that the country meets the applicable statutory requirement with respect to nonimmigrant visitor visa refusals for nationals of the country during the previous full fiscal year; (2) a U.S. Government determination that the country extends or agrees to extend reciprocal privileges to citizens and nationals of the United States; (3) an official certification that it issues machine-readable, electronic passports that comply with internationally accepted standards; (4) a U.S. Government determination that the country's designation would not negatively affect U.S. law enforcement and security interests; (5) an agreement with the United States to report, or make available through other designated means, to the U.S. Government information about the theft or loss of passports; (6) a U.S. Government determination that the government accepts for repatriation any citizen, former citizen, or national not later than three weeks after the issuance of a final executable order of removal; and (7) 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.

Prior to this final rule, the designated countries in the VWP were Andorra, Australia, Austria, Belgium, Brunei, Chile, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan,^[2] and the United Kingdom. ³ See8 CFR 217.2(a).

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, any person who is not a citizen or national of the United States (hereinafter a “noncitizen”) must satisfy the following:

(1) be seeking admission as a nonimmigrant visitor for business or pleasure for ninety days or less;

(2) be a national of a program country;

(3) present a machine-readable, electronic passport issued by a designated VWP participant country to the air or vessel carrier before departure;

(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 any previous admission under the VWP;

(8) possess a round-trip ticket, unless exempted by statute or federal regulation;

(9) the identity of the noncitizen has been checked to uncover any grounds on which the noncitizen may be inadmissible to the United States, and no such ground has been found;

(10) certain aircraft operators, as provided by statute and regulation, must electronically transmit information about the noncitizen passenger;

(11) obtain an approved travel authorization via the Electronic System for Travel Authorization (ESTA). For more information about the ESTA, please see 8 CFR part 217.5 (regulation effective July 8, 2015), 80 FR 32,267 (June 8, 2015), 75 FR 47,701 (Aug. 9, 2010);

(12) has not been present, at any time on or after March 1, 2011 in Iraq, Syria, a country that is designated by the Secretary of State as a state-sponsor of terrorism, or a country or area of concern designated by the Secretary of Homeland Security, in accordance with 8 U.S.C. 1187(a)(12)(D), subject to statutorily delineated exemptions or a waiver authorized by the Secretary; and

(13) 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.

See sections 217(a) and 217(b) of the INA, 8 U.S.C. 1187(a)–(b); see also8 CFR part 217.

B. Designation of Israel

The Department of Homeland Security, in consultation with the Department of State, has evaluated Israel for VWP designation to ensure that it meets the requirements set forth in section 217 of the INA. The Secretary has determined that Israel has satisfied the statutory requirements for initial VWP designation; therefore, the Secretary, in consultation with the Secretary of State, has designated Israel as a program country.

This final rule adds Israel to the list of countries authorized to participate in the VWP. Accordingly, beginning November 30, 2023, eligible citizens and nationals of Israel may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for business or pleasure for a period of ninety days or less 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 merely 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 section 217(c) of the INA, 8 U.S.C. 1187(c). This amendment is a technical change to merely update the list of VWP countries. Therefore, notice and comment for this rule is unnecessary and contrary to the public interest because the rule has no substantive impact, is technical in nature, and relates only to management, organization, procedure, and practice.

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 noncitizen visitors. Accordingly, DHS is not required to provide public notice and an opportunity to comment before implementing this final rule.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 604(a)), 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 rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency was required “to publish a general notice of proposed rulemaking” prior to issuing the final rule. Because this rule is being issued as a final rule without a prior proposal, on the grounds set forth above, a regulatory flexibility analysis is not required under the RFA.

In addition, 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 noncitizens 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

This amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866, as amended by Executive Order 14094.

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 the Office of Management and Budget (OMB) Control Number 1651–0111, Arrival and Departure Record, to allow eligible Israeli passport holders to use an ESTA to apply for authorization to travel under the VWP prior to departing for the United States. U.S. Customs and Border Protection (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 Paperwork Reduction Act of 1995 (PRA). Because of the designation of Israel for participation in the VWP, the Department is requesting OMB approval of this information collection in accordance with the PRA (44 U.S.C. 3507).

The addition of Israel to the VWP will result in an estimated annual increase to information collection 1651–0111 of 30,000 responses and 6,500 burden hours. The total burden hours for ESTA, including Israel, is as follows:

Estimated annual reporting burden: 3,256,500 hours.

Estimated number of respondents: 15,030,000 respondents.

Estimated average annual burden per respondent: 13 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

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

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

2. In § 217.2(a), revise the definition of “Designated country” to read as follows:

§ 217.2

Eligibility.

(a) * * *

Designated country refers to Andorra, Australia, Austria, Belgium, Brunei, Chile, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Poland, 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. Taiwan 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.

* * * * *

Alejandro N. Mayorkas,

Secretary.

Footnotes

1.  All references to “country” or “countries” in the laws authorizing the Visa Waiver Program are read to include Taiwan. See Taiwan Relations Act of 1979, Public Law 96–8, section 4(b)(1) (codified at 22 U.S.C. 3303(b)(1)) (providing 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”). This is consistent with the United States' one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

2.  Taiwan 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.

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.