[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67063-67065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21574]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 217

RIN 1601-AA94


Designation of Israel for the Visa Waiver Program

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

ACTION: Final rule; technical amendment.

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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.
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    \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.
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    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,

[[Page 67064]]

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\ See 8 
CFR 217.2(a).
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    \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.
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    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 also 8 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.

[[Page 67065]]

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

0
1. The general authority citation for part 217 continues to read as 
follows:

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


0
2. In Sec.  217.2(a), revise the definition of ``Designated country'' 
to read as follows:


Sec.  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.
[FR Doc. 2023-21574 Filed 9-27-23; 8:45 am]
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