DHS Publishes Interim Final Rule On Countries Eligible For Guam-CNMI Visa Waiver Program

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[Federal Register: March 23, 2011 (Volume 76, Number 56)]
[Rules and Regulations]              
[Page 16231-16233]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23mr11-1]                        

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

[USCBP-2011-0007; CBP Dec. 11-07]
RIN 1651-AA81

Clarification of Countries and Geographic Areas Eligible for
Participation in the Guam-Commonwealth of the Northern Mariana Islands
Visa Waiver Program

AGENCY: U.S. Customs and Border Protection, DHS.

ACTION: Interim final rule; solicitation of comments.

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SUMMARY: This interim final rule amends Department of Homeland Security
regulations to clarify that individuals holding British National
(Overseas) (BN(O)) passports as a result of their connection to the
Hong Kong Special Administrative Region (Hong Kong) are eligible for
participation in the Guam-Commonwealth of the Northern Mariana Islands
(CNMI) Visa Waiver Program. The Guam-CNMI Visa Waiver Program allows
certain nonimmigrant aliens to enter Guam and/or the CNMI as
nonimmigrant visitors for business or pleasure without a visa for a
period of authorized stay not to exceed forty-five days. This interim
final rule provides that beginning May 23, 2011, individuals holding
BN(O) passports as a result of their connection to Hong Kong and
traveling to Guam and/or the CNMI under the Guam-CNMI Visa Waiver
Program on such BN(O) passport must present it and a Hong Kong
identification card.

DATES: Effective Date: The effective date of the rule is May 23, 2011.
    Comment Date: Comments must be received by May 23, 2011.

ADDRESSES: Please submit comments, identified by docket number, by one
of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2011-0007.
    Mail: Border Security Regulations Branch, Office of
International Trade, U.S. Customs and Border Protection, Mint Annex,
799 9th Street, NW., Washington, DC 20229-1179.
    Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Comments submitted
will be available for public inspection in accordance with the Freedom
of Information Act (5 U.S.C. 552) and 19 CFR 103.11(b) on normal
business days between the hours of 9 a.m. and 4:30 p.m. at the Border
Security Regulations Branch, Office of International Trade, U.S.
Customs and Border Protection, 799 9th Street, NW., 5th Floor,
Washington, DC. Arrangements to inspect submitted comments should be
made in advance by calling Mr. Joseph Clark at (202) 325-0118.

FOR FURTHER INFORMATION CONTACT: Cheryl C. Peters, U.S. Customs and
Border Protection, Office of Field Operations, (202) 344-1438.

SUPPLEMENTARY INFORMATION:

I. Public Comments

    Interested persons are invited to submit written comments on all
aspects of this interim final rule. U.S. Customs and Border Protection
(CBP) also invites comments on the economic, environmental or
federalism effects of this rule. We urge commenters to reference a
specific portion of the rule, explain the reason for any recommended
change, and include data, information, or authorities that support such
recommended change.

II. Background

A. Guam-CNMI Visa Waiver Program

    Section 702 of the Consolidated Natural Resources Act of 2008
(CNRA), Public Law 110-229, 122 Stat. 754, 854, subject to a transition
period, extends the immigration laws of the United States to the
Commonwealth of the Northern Mariana Islands (CNMI) and provides for a
visa waiver program for travel to Guam and/or the CNMI. See sections
212 and 214 of the Immigration and Nationality Act (INA), as amended (8
U.S.C. 1182 and 1184). On January 16, 2009, the Department of Homeland
Security (DHS), through CBP, issued an interim final rule in the
Federal Register replacing the then-existing Guam Visa Waiver Program
with the Guam-CNMI Visa Waiver Program and setting forth the
requirements for nonimmigrant visitors seeking admission into Guam and/
or the CNMI under the Guam-CNMI Visa Waiver Program. See 74 FR 2824.
    The January 2009 rule provided that, beginning June 1, 2009, DHS
would begin the administration and enforcement of the Guam-CNMI Visa
Waiver Program. This program allows nonimmigrant visitors to seek
admission for business or pleasure for entry into Guam and/or the CNMI
without a visa for a period of authorized stay not to exceed forty-five
days. On March 31, 2009, the Secretary of Homeland Security, after the
necessary consultations, announced the delayed start of the transition
period until November 28, 2009. On May 28, 2009, a technical amendment
to the January 2009 rule was published, extending the implementation
date of the Guam-CNMI Visa Waiver Program from June 1, 2009 to November
28, 2009. See 74 FR 25387.
    The January 2009 rule lists the countries and geographic areas from
which otherwise eligible individuals may travel to Guam and/or the CNMI
under the Guam-CNMI Visa Waiver Program. Among those countries and
geographic areas listed are Hong Kong and the United Kingdom. The
January 2009 rule allows individuals possessing a Hong Kong Special
Administrative Region (SAR) passport and Hong Kong identification card
as a result of their connection to Hong Kong to travel under the Guam-
CNMI Visa Waiver Program. The January 2009 rule does not address the
eligibility of individuals holding British National (Overseas) (BN(O))
passports as a result of their connection to Hong Kong for travel to
Guam and/or the CNMI under the Guam-CNMI Visa Waiver Program, and
questions have arisen about their eligibility for travel under that
program.

B. British Nationals (Overseas)

    On July 1, 1997, sovereignty over Hong Kong reverted from the
United Kingdom to the People's Republic of China, establishing Hong
Kong as a Special Administrative Region of the People's Republic of
China. In the years prior to the reversion, the United Kingdom created
a new category of British nationality, British National (Overseas)
(BN(O)). A person who was considered a British national by his or her
connection with Hong Kong, as defined in the Hong Kong (British
Nationality) Order 1986, was entitled to apply for BN(O) status, and to
hold a passport in that status, by registration. BN(O) status is for
life, but is not transferable, and registration ended in 1997. BN(O)
passports, while British travel documents, do not confer the same
rights as regular United Kingdom passports. BN(O) passports are issued
to permanent residents of Hong Kong and do not confer the right of
abode in the United Kingdom.

C. The Amendment

    Under the Guam Visa Waiver Program, the predecessor to the current
Guam-CNMI Visa Waiver Program, BN(O) passport holders were eligible to
participate in the program as citizens of ``the United Kingdom
(including the citizens of the colony of Hong Kong).'' 8 CFR
212.1(e)(3)(i). As a result of the reversion of sovereignty, Hong Kong
and the United Kingdom are listed separately for the Guam-CNMI Visa
Waiver Program. 8 CFR 212.1(q)(2)(ii).
    In light of the questions that have arisen regarding whether BN(O)
passport holders qualify under the Guam-CNMI Visa Waiver Program in the
absence of a specific reference in the regulation to BN(O) passport
holders, CBP believes it is appropriate to amend the regulations to
clarify this issue. The amended regulation explicitly allows Hong Kong
individuals holding BN(O) passports as a result of their connection to
Hong Kong to travel to Guam and/or the CNMI under the Guam-CNMI Visa
Waiver Program. This clarification is based on the political changes in
Hong Kong, the idiosyncrasies of the law of the United Kingdom
discussed above, and the status of BN(O) passport holders as permanent
residents of Hong Kong. Like Hong Kong SAR passport holders, BN(O)
passport holders must present a Hong Kong identification card to travel
to Guam and/or the CNMI under the Guam-CNMI Visa Waiver Program.
    In order to provide BN(O) passport holders sufficient time to
become aware of and adjust to the Hong Kong identification card
requirement for participation in the Guam-CNMI Visa Waiver Program, the
effective date of the amended regulation is May 23, 2011.
    In addition, to provide further clarity in the regulation, DHS is
relocating the existing regulatory requirements applicable to travelers
from Taiwan under the Guam-CNMI Visa Waiver Program, from a
parenthetical regarding Taiwan within the country list at 8 CFR
212.1(q)(2)(ii) in place since the January 2009 rule, to a new
paragraph, 8 CFR 212.1(q)(2)(ii)(B). This new paragraph contains
substantively identical text to the parenthetical in the January 2009
rule. The regulation continues to require that in order to participate
in the program as a result of a connection to Taiwan, an individual
must be a resident of Taiwan who begins his or her travel in Taiwan and
who travels on direct flights from Taiwan to Guam or the CNMI without
an intermediate layover or stop, except that the flights may stop in a
territory of the United States en route.

III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    Section 702(b) of the CNRA directs that all regulations necessary
to implement the Guam-CNMI Visa Waiver Program shall be considered a
foreign affairs function for purposes of section 553(a) of the
Administrative Procedure Act (APA). See section 212 of the INA, as
amended (8 U.S.C. 1182(l)(3)). As was the case with the January 2009
rule that replaced the Guam Visa Waiver Program with the Guam-CNMI Visa
Waiver Program, this interim final rule is exempt from the notice and
comment and 30-day delayed effective date requirements of the APA. See
74 FR 2824. DHS is nevertheless providing the opportunity for public
comments. Further, a 60-day delayed effective date is provided in order
to allow BN(O) passport holders sufficient time to become aware of and
adjust to the Hong Kong identification card requirement for
participation in the Guam-CNMI Visa Waiver Program.

B. Executive Order 12866

    Section 3(d)(2) of Executive Order 12866 provides that the
Executive Order does not apply to a regulation that involves a foreign
affairs function of the United States, and thus it does not apply to
this rule. Accordingly, the Office of Management and Budget has not
reviewed this regulation under that Executive Order.

C. Regulatory Flexibility Act

    Because this rule is being issued as an interim final rule on the
foreign affairs function of the United States, as set forth above, a
regulatory flexibility analysis is not required under the Regulatory
Flexibility Act (5 U.S.C. 601-612).

List of Subjects in 8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.

Amendments to Regulations

    Part 212 of title 8 of the Code of Federal Regulations is amended
as set forth below:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANT; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
1. The authority citation for part 212 is revised to read as follows:

    Authority:  8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185 note
(section 7209 of Pub. L. 108-458); 8 CFR part 2.

    Section 212.1(q) also issued under section 702, Public Law 110-
229, 122 Stat. 754, 854.

0
2. Section 212.1(q)(2)(ii) is revised to read as follows:

Sec.  212.1  Documentary Requirements for Nonimmigrants.

* * * * *
    (q) * * *
    (2) * * *
    (ii) Eligible Countries and Geographic Areas. Nationals of the
following countries are eligible to participate in the Guam-CNMI Visa
Waiver Program for purposes of admission to both Guam and the CNMI:
Australia, Brunei, Japan, Malaysia, Nauru, New Zealand, Papua New
Guinea, Republic of Korea, Singapore, and the United Kingdom. Travelers
with a connection to one of the following geographic areas--the Hong
Kong Special Administrative Region (Hong Kong) or Taiwan--may also be
eligible to participate in the Guam-CNMI Visa Waiver Program for
purposes of admission to both Guam and the CNMI, see paragraphs
(q)(2)(ii)(A) and (q)(2)(ii)(B) respectively.
    (A) Hong Kong Special Administrative Region (Hong Kong). To be
eligible to participate in the program as a result of a connection to
Hong Kong, the following documentation is required: A Hong Kong Special
Administrative Region (SAR) passport with a Hong Kong identification
card; or a British

National (Overseas) (BN(O)) passport with a Hong Kong identification
card.
    (B) Taiwan. To be eligible to participate in the program as a
result of a connection to Taiwan, one must be a resident of Taiwan who
begins his or her travel in Taiwan and who travels on direct flights
from Taiwan to Guam or the CNMI without an intermediate layover or
stop, except that the flights may stop in a territory of the United
States en route.
* * * * *

    Dated: March 16, 2011.
Janet Napolitano,
Secretary.
[FR Doc. 2011-6555 Filed 3-22-11; 8:45 am]
BILLING CODE 9111-14-P

Agency: