[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Rules and Regulations]
[Pages 16231-16233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6555]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / 
Rules and Regulations

[[Page 16231]]



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.

-----------------------------------------------------------------------

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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2011-0007.
    <bullet> 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.

[[Page 16232]]

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

[[Page 16233]]

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]
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