Establishing U.S. Ports of Entry in the Commonwealth of the Northern Mariana Islands (CNMI) and Implementing the Guam-CNMI Visa Waiver Program, 2824-2836 [E9-942]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Bureau of Customs and Border Protection

[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2824-2836]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-942]


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

DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

8 CFR Parts 100, 212, 214, 215, 233, and 235

 19 CFR Parts 4 and 122

[USCBP-2009-0001; CBP Dec. No. 09-02]
RIN 1651-AA77


Establishing U.S. Ports of Entry in the Commonwealth of the 
Northern Mariana Islands (CNMI) and Implementing the Guam-CNMI Visa 
Waiver Program

AGENCY: Customs and Border Protection, DHS.

ACTION: Interim final rule; solicitation of comments.

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

SUMMARY: Section 702 of the Consolidated Natural Resources Act of 2008 
(CNRA) 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 the CNMI. This rule 
implements section 702 of the CNRA by amending U.S. Customs and Border 
Protection (CBP) regulations to replace the current Guam Visa Waiver 
Program with a new Guam-CNMI Visa Waiver Program. Accordingly, this 
interim final rule sets forth the requirements for nonimmigrant 
visitors who seek admission for business or pleasure and solely for 
entry into and stay on Guam or the CNMI without a visa for a period of 
authorized stay of no longer than forty-five days. In addition, this 
rule establishes six ports of entry in the CNMI in order to administer 
and enforce the Guam-CNMI Visa Waiver Program and to allow for 
immigration inspections in the CNMI, including arrival and departure 
controls, under the Immigration and Nationality Act (INA).

DATES: Effective Date: This interim final rule is effective January 16, 
2009.
    Implementation Date: Beginning June 1, 2009, Customs and Border 
Protection (CBP) will begin operation of this program and required 
compliance with this interim final rule will begin. The existing Guam 
Visa Waiver Program

[[Page 2825]]

remains in effect for travel to Guam until the start of the transition 
period.
    Comment Date: Comments must be received by March 17, 2009.

ADDRESSES: Please submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2009-0001.
     Mail: Border Security Regulations Branch, Office of 
International Trade, Customs and Border Protection, Mint Annex, 799 9th 
Street, NW., Washington, DC 20001.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to https://www.regulations.gov, 
including any personal information provided.
     Docket: For access to the docket to read background 
documents or comments received, go to https://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, 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, Office of Field 
Operations, at (202) 344-1438.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Comments
II. Background and Purpose
    A. Current Requirements for the Guam Visa Waiver Program
    B. The Consolidated Natural Resources Act of 2008
III. Establishing the Guam-CNMI Visa Waiver Program
    A. Program Countries
    1. General Eligibility Criteria
    2. ``Significant Economic Benefit'' Criteria
    3. Determination of Country Eligibility
    4. Suspension of Program Countries
    B. Alien Eligibility Criteria
    1. Requirements for Admission
    2. Inadmissibility and Deportability
    3. Bond Provision
    4. Maintenance of Status
    5. Applicability of Section 212 of the INA--Passport and Visa 
Requirement
    6. Applicability of Section 217 of the INA--Visa Waiver Program
IV. Conforming Changes and Amendments
    A. Changes to CBP Form I-736 ``Guam Visa Waiver Information'' 
and to CBP Form I-760 ``Guam Visa Waiver Agreement''
    B. Conforming Changes to Title 8 of the Code of Federal 
Regulations
    C. Conforming Changes to Title 19 of the Code of Federal 
Regulations
V. Establishing Ports of Entry in the CNMI
VI. Effective Date
VII. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Order 12866
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132
    F. Executive Order 12988
    G. Paperwork Reduction Act
    H. Privacy
List of Subjects

I. Public Comments

    Interested persons are invited to submit written comments on all 
aspects of this interim final rule. 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 and Purpose

    This interim final rule establishes the Guam-Commonwealth of the 
Northern Mariana Islands (CNMI) Visa Waiver Program as authorized under 
section 702(b) of the Consolidated Natural Resources Act of 2008 
(CNRA), Public Law 110-229, 122 Stat. 754, 860. As explained in more 
detail below, this rule replaces the current Guam Visa Waiver Program 
with a new Guam-CNMI Visa Waiver Program. Under this rule, CBP also is 
establishing six ports of entry in the CNMI to enable DHS to administer 
and enforce the Guam-CNMI Visa Waiver Program, and to allow for the 
application of U.S. immigration laws in the CNMI as directed under 
section 702 of the CNRA.

A. Current Requirements for the Guam Visa Waiver Program

    Pursuant to section 212(l) of the Immigration and Nationality Act 
(INA) and DHS regulations, aliens who are citizens of eligible 
countries or geographic areas (hereinafter countries) may apply for 
admission to Guam at a Guam port of entry as nonimmigrant visitors for 
a period of fifteen 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.\1\ See 8 U.S.C. 1182(l) and 8 CFR 212.1(e). The alien 
must be a citizen of a country that: (i) Has a visa refusal rate of 
16.9% or less, or is a country whose visa refusal rate exceeds 16.9% 
and has an established preinspection or preclearance program, pursuant 
to a bilateral agreement with the United States; (ii) is within 
geographical proximity to Guam unless the country has a substantial 
volume of nonimmigrant admissions to Guam as determined by the 
Commissioner of CBP and extends reciprocal privileges to citizens of 
the United States; (iii) is not designated by the Department of State 
as being of special humanitarian concern; and (iv) poses no threat to 
the welfare, safety or security of the United States, its territories 
or commonwealths. 8 CFR 212.1(e)(2). The existing regulations also 
provide that any potential threats to the welfare, safety, or security 
of the United States, its territories, or commonwealths will be dealt 
with on a country by country basis, and a determination by the 
Secretary that a threat exists will result in the immediate deletion of 
the country from the listing of eligible countries.
---------------------------------------------------------------------------

    \1\ Establishment of the Guam Visa Waiver Program was predicated 
upon the Attorney General, in consultation with the Secretary of 
State and the Secretary of the Interior, and after consultation with 
the Governor of Guam, making a joint determination that: (i) An 
adequate arrival and departure control system has been developed on 
Guam, and (ii) such a waiver does not represent a threat to the 
welfare, safety, or security of the United States or its territories 
and commonwealths. See section 212(l) of the INA, 8 U.S.C. 1182(l).
---------------------------------------------------------------------------

    Currently, the determination as to which countries may participate 
in the Guam Visa Waiver Program is based on the countries' geographical 
proximity to Guam on the premise that they maintain a traditional 
interchange with Guam. Countries that are not in geographic proximity 
to Guam may be included if they have a substantial volume of 
nonimmigrant admissions to Guam and extend reciprocal privileges to 
citizens of the United States. The following countries meet these 
eligibility requirements and are currently members of the Guam Visa 
Waiver Program: Australia, Brunei, Indonesia, Japan, Malaysia, Nauru, 
New Zealand, Papua New Guinea, Republic of Korea, Singapore, Solomon 
Islands, Taiwan (residents who begin travel in Taiwan and fly to Guam 
without an intermediate layover or stop en route), the United Kingdom 
(including citizens of Hong Kong), Vanuatu, and Western Samoa. See 8 
CFR 212.1(e)(3)(i).
    An alien from one of these eligible countries currently may be 
admitted into Guam under the Guam Visa Waiver

[[Page 2826]]

Program if the alien: (i) Is classifiable as a visitor for business or 
pleasure; (ii) is solely entering and staying on Guam for a period not 
to exceed fifteen days; (iii) is in possession of a round-trip 
nonrefundable and nontransferable transportation ticket bearing a 
confirmed departure date not exceeding fifteen days from the date of 
admission to Guam; (iv) is in possession of a completed and signed Guam 
Visa Waiver Information Form (CBP Form I-736); (v) waives any right to 
review or appeal under the INA of an immigration officer's 
determination as to the admissibility of the alien at the port of entry 
into Guam; and (vi) waives any right to contest other than on the basis 
of an application for asylum, any action for deportation of the alien. 
See 8 CFR 212.1(e)(1).

B. The Consolidated Natural Resources Act of 2008

    On May 8, 2008, the President signed into law the Consolidated 
Natural Resources Act of 2008 (CNRA), Public Law 110-229, 122 Stat. 
754. Section 702(a) of the CNRA extends U.S. immigration laws to the 
CNMI and authorizes DHS to create a Guam-CNMI Visa Waiver Program. See 
sections 212 and 214 of the INA, 8 U.S.C. 1182 and 1184.
    This interim final rule establishes the Guam-CNMI Visa Waiver 
Program and sets forth the requirements for nonimmigrant visitors 
seeking admission into Guam or the CNMI under the Guam-CNMI Visa Waiver 
Program. These amendments ensure that the regulations conform to 
current border security needs and facilitate CBP's dual core missions 
of protecting our nation's borders and fostering legitimate 
international travel.
    Section 702(b) of the CNRA requires the Secretary of Homeland 
Security to consult with the Secretary of State and the Secretary of 
the Interior, the Governor of Guam and the Governor of the CNMI in the 
development of these regulations. Accordingly, representatives of DHS, 
including CBP, during a July 10-16, 2008 visit to Guam and the CNMI, 
met with officials of the Guam Government, the CNMI Government and 
representatives of the Marianas Visitors Authority, the Guam Visitors 
Bureau, the Hotel Association of the Northern Mariana Islands, and the 
Saipan Chamber of Commerce. At the request of the Governor of Guam, DHS 
officials met with Governor Camacho, his staff, and members of the Guam 
Visitor's Bureau on September 15, 2008, in Washington, DC. 
Representatives of DHS also met on November 21, 2008 with Delegate-
elect Gregorio ``Kilili'' Sablan, the first Delegate from the CNMI to 
the U.S. House of Representatives, as well as with members of the Hotel 
Association of the Northern Mariana Islands (HANMI) on December 5, 
2008. Additionally, interagency meetings were held on September 9, 
October 21, 2008 and December 5, 2008, between DHS, the Department of 
State, and the Department of the Interior, among others, in order to 
come to an agreement over the implementation of the Guam-CNMI Visa 
Waiver Program.

III. Establishing the Guam-CNMI Visa Waiver Program

    The following are the eligibility criteria for countries and 
aliens.

 A. Program Countries

1. General Eligibility Criteria
    The country eligibility requirements established in this rulemaking 
under the Guam-CNMI Visa Waiver Program differ from those under the 
Guam Visa Waiver Program. The new requirements take into account the 
provisions and purposes of the CNRA and ensure that the regulations 
conform to current border security needs. In determining the criteria 
for making country eligibility determinations for the Guam-CNMI Visa 
Waiver Program, DHS considered a variety of factors to ensure that the 
new Guam-CNMI Visa Waiver Program reflected Congress's stated purposes 
of the CRNA to, among others: (1) Ensure effective border control 
procedures; (2) properly address national security and homeland 
security concerns in extending U.S. immigration law to the CNMI; and 
(3) maximize the CNMI's potential for future economic and business 
growth. See section 701(a)(1).
    Section 702 of the CRNA provides that ``[i]n determining whether to 
grant or continue providing the waiver under this subsection to 
nationals of any country, the Secretary of Homeland Security, in 
consultation with the Secretary of the Interior and the Secretary of 
State, shall consider all factors that the Secretary deems relevant, 
including electronic travel authorizations, procedures for reporting 
lost and stolen passports, repatriation of aliens, rates of refusal for 
nonimmigrant visitor visas, overstays, exit systems, and information 
exchange.'' In determining country eligibility for participation in the 
Guam-CNMI Visa Waiver Program under this rule, the Secretary of 
Homeland Security found relevant, and thus considered, each of these 
enumerated factors.
    This rulemaking also provides for these new eligibility conditions 
to ensure the safety, security, and welfare of the United States. Under 
these new requirements a country's nationals may not participate in the 
Guam-CNMI Visa Waiver Program if: (1) The country poses a threat to the 
welfare, safety or security of the United States, its territories or 
commonwealths; (2) the country is designated by the Department of State 
as being of special humanitarian concern; or (3) if the country does 
not accept for repatriation any citizen, former citizen, or national 
admitted into Guam or the CNMI under the Guam-CNMI Visa Waiver Program 
within three weeks after issuance of a final order of removal.
2. ``Significant Economic Benefit'' Criteria
    Section 702(b) of the CNRA requires the Secretary to include in the 
list of participating countries, a list of those countries from which 
the CNMI has received a ``significant economic benefit'' from the 
number of visitors for pleasure within the one-year period preceding 
the date of enactment of the CNRA. However, if the Secretary determines 
that such a country's inclusion represents a threat to the welfare, 
safety, or security of the United States, or determines that such 
country is not eligible based on other factors the Secretary deems 
relevant, then that country will not qualify as an eligible country.
    DHS has determined that, during the relevant timeframe, visitors 
for pleasure from the People's Republic of China (PRC) and the Russian 
Federation (Russia) provided a significant economic benefit to the 
CNMI. This determination is based on the economic analysis below and 
takes into account the total on-island spending of these visitors on a 
per country basis, calculated by the Marianas Visitors Authority. 
During the period of May 2007 through April 2008, DHS calculated 
visitor arrivals to the CNMI by country of residence. PRC nationals 
represented ten percent of visitor arrivals and Russian nationals 
represented one percent of visitor arrivals. The total on-island 
spending by PRC nationals was $38 million and for Russian nationals was 
$20 million. Per person on-island spending was equal to $967 for PRC 
nationals and $4,323 for Russian nationals.
    At this time, however, due to political, security, and law 
enforcement concerns, including high nonimmigrant visa refusal rates 
and concerns with cooperation regarding the repatriation of citizens, 
subjects, nationals and residents of the country subject to a final 
order of removal, nationals of the

[[Page 2827]]

PRC and Russia are not eligible to participate in the Guam-CNMI Visa 
Waiver Program when the program is implemented.
    After additional layered security measures, which may include, but 
are not limited to, electronic travel authorization to screen and 
approve potential visitors prior to arrival in Guam and the CNMI, and 
other border security infrastructure, DHS will make a determination as 
to whether nationals of the PRC and Russia can participate in the Guam-
CNMI Visa Waiver Program. In making such a determination, DHS will 
consider the welfare, safety, and security of the United States and its 
territories, as well as other considerations deemed relevant by the 
Secretary.
    If DHS determines that nationals from the PRC and/or Russia may 
participate in the Guam-CNMI Visa Program, DHS will amend the 
regulations as necessary.
3. Determination of Country Eligibility
    This rulemaking includes a listing of all countries that have been 
determined to be eligible to participate in the Guam-CNMI Visa Waiver 
Program, and whose nationals may apply for admission into Guam or the 
CNMI under the Guam-CNMI Visa Waiver Program. The new Guam-CNMI Visa 
Waiver Program list includes all of the countries that were included in 
the Guam Visa Waiver Program, except for Indonesia, the Solomon 
Islands, Vanuatu, and Western Samoa. The Solomon Islands are not 
included on the list of eligible countries for the Guam-CNMI Visa 
Waiver Program in consideration of ongoing civil and political 
instability. Indonesia, Vanuatu, and Western Samoa are not included on 
the list of eligible countries due to very high rates of refusal for 
nonimmigrant visitor visas. In addition, these four countries do not 
provide a ``significant economic benefit'' to the CNMI. Therefore, DHS 
does not find their removal from the program country list, based on 
such factors as ongoing civil and political instability, or high 
nonimmigrant visa refusal rates, to outweigh any existing economic 
benefits from their past inclusion under the Guam Visa Waiver Program. 
The following countries are designated for participation in the Guam-
CNMI Visa Waiver Program: Australia, Brunei, Hong Kong (Hong Kong 
Special Administrative Region (SAR) passport and Hong Kong 
identification card is required), Japan, Malaysia, Nauru, New Zealand, 
Papua New Guinea, Republic of Korea, Singapore, Taiwan, and the United 
Kingdom.
4. Suspension of Program Countries
    This rule also incorporates the provisions in the CNRA regarding 
the suspension of countries from the Guam-CNMI Visa Waiver Program. 
Section 702(b) of the CNRA requires the Secretary to monitor the 
admission of nonimmigrant visitors to Guam and the CNMI, and to suspend 
the admission of nationals from a country if the Secretary determines 
that admissions from that country have resulted in an unacceptable 
number of overstays, unlawful entry into other parts of the United 
States, or visitors seeking withholding of removal or seeking asylum.
    The CNRA also requires the Secretary to suspend admissions from a 
country if the Secretary determines that visitors from that country 
pose a risk to the law enforcement or security interests of Guam, the 
CNMI, or the United States, including the interest in the enforcement 
of U.S. immigration laws. Any designated country that fails to meet the 
country eligibility criteria under new Sec.  212.1(q) shall be removed 
for good cause. In determining whether to continue to grant the waiver, 
consistent with the statutory factors listed in section 702(b) of the 
CNRA, designated countries must, within three weeks after the issuance 
of a final order of removal, accept for repatriation any citizen, 
former citizen or national admitted into Guam or the CNMI under this 
program. Failure to accept for repatriation may result in suspension of 
that country from the program. The CNRA also provides that the 
Secretary may suspend the Guam-CNMI Visa Waiver Program on a country-
by-country basis for other good cause.

B. Alien Eligibility Criteria

1. Requirements for Admission
    The CNRA authorizes the Secretary to allow an alien to enter Guam 
or the CNMI as a nonimmigrant visitor for business or pleasure for a 
period not to exceed forty-five days after the Secretary of Homeland 
Security, in consultation with the Secretaries of State and the 
Interior and the Governors of Guam, and the CNMI determines that: (i) 
Adequate arrival and departure control systems have been developed in 
Guam and the CNMI, and (ii) such a waiver does not represent a threat 
to the welfare, safety, or security of the United States or its 
territories and commonwealths.
    In addition to the requirements that aliens currently seeking 
admission to Guam under the current Guam Visa Waiver program must meet, 
DHS is adding three new admission requirements. Under this interim 
final rule, to be considered eligible for admission into Guam or the 
CNMI under the Guam-CNMI Visa Waiver Program, nonimmigrant aliens must 
also: (i) Be in possession of a valid unexpired passport that meets the 
standards of the International Civil Aviation Organization (ICAO) for 
machine readability and which is issued by a country that meets the 
eligibility requirements as determined by the Secretary; (ii) have not 
previously violated the terms of any prior admissions to the United 
States under the Guam-CNMI Visa Waiver Program, the prior Guam Visa 
Waiver Program, or the Visa Waiver Program as described in section 
217(a) of the Act and admissions pursuant to any immigrant or 
nonimmigrant visa; and (iii) present a valid completed and signed CBP 
Form I-94, known as the Arrival-Departure Record Form (Form I-94).
    Although not specifically required under the Guam Visa Waiver 
Program regulations, pursuant to operational practices, nonimmigrant 
visitors currently must present a valid completed and signed CBP Form 
I-94 to enter Guam under the Guam Visa Waiver Program. This rulemaking 
explicitly requires completion of an I-94 to enter Guam and the CNMI 
under the Guam-CNMI Visa Waiver Program.
    Additionally, consistent with existing Guam Visa Waiver Program 
regulations, an alien will not be admitted under the Guam-CNMI Visa 
Waiver Program unless the alien (i) has waived any right to review or 
appeal under the INA of an immigration officer's determination as to 
the admissibility of the alien and (ii) has waived any right to contest 
any action for removal of the alien, other than on the basis of an 
application for withholding of removal under section 241(b)(3) of the 
INA, 8 U.S.C. 1231(b)(3), or withholding or deferral of removal under 
the regulations implementing Article 3 of the United Nations Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment, or an application for asylum if permitted under section 208 
of the INA, 8 U.S.C. 1158.
2. Inadmissibility and Deportability
    This rule provides DHS with the authority to remove aliens and to 
make determinations as to admissibility and deportability under 8 CFR 
212.1(q)(8). CBP may remove an alien seeking admission under the Guam-
CNMI Visa Waiver Program upon a determination that the alien is 
inadmissible to Guam or the CNMI under one or more of the grounds of 
inadmissibility (other than for lack of visa) listed under section 212 
of the INA. See 8 U.S.C. 1182. This rule

[[Page 2828]]

also provides that an immigration officer may remove a Guam-CNMI Visa 
Waiver Program applicant who presents fraudulent or counterfeit travel 
documents. Likewise, DHS will have the authority to remove an alien 
admitted under the Guam-CNMI Visa Waiver Program who has violated his/
her status under one or more grounds of deportability as listed under 
section 237 of the INA. See 8 U.S.C. 1227. Accordingly, aliens who have 
been determined to be inadmissible or deportable will not be referred 
to an immigration judge for further inquiry, examination or hearing, 
except that an alien admitted to Guam under the Guam-CNMI Visa Waiver 
Program, who applies for asylum or withholding of removal under section 
241(b(3) of the INA or withholding or deferral of removal under the 
regulations implementing Article 3 of the United Nations Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment must be issued a Form I-863 for a proceeding in accordance 
with 8 CFR 208.2(c)(1) and (2).
    The CNRA provides that, during the transition period, section 208 
of the INA, 8 U.S.C. 1158, which provides for asylum, does not apply to 
aliens physically present in the CNMI. See Public Law 110-229, 122 
Stat. 754, section 702(a). Therefore, prior to January 1, 2015, an 
alien who is physically present in the CNMI under the Guam-CNMI Visa 
Waiver Program may not apply for asylum and an immigration judge will 
not have jurisdiction over asylum applications filed by an alien 
physically present in the CNMI under the Guam-CNMI Visa Waiver Program. 
Aliens physically present in the CNMI during the transition period who 
express a fear of persecution or torture only may establish eligibility 
for withholding of removal pursuant to INA 241(b)(3) or pursuant to the 
regulations implementing Article 3 of the United Nations Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment.
    This rule amends 8 CFR 214.1, regarding ineligibility for 
extensions of stay to add a limitation regarding extensions of stay for 
any Guam-CNMI Visa Waiver Program nonimmigrants. Currently, 
nonimmigrants who were admitted into the United States as visitors for 
business or pleasure pursuant to the Visa Waiver Program (section 217 
of the INA) are ineligible for an extension of stay. This amendment 
will provide that nonimmigrants admitted pursuant to the Guam-CNMI Visa 
Waiver Program are ineligible for an extension of stay. Additional 
technical changes to 8 CFR 233.5 to include references to the CNMI also 
are made where appropriate.
3. Bond Provision
    Section 702(b) of the CNRA also requires that the regulations 
include any bonding requirements for nationals of some or all of those 
countries who may present an increased risk of overstaying their period 
of authorized stay or other potential problems. See section 702(b). 
This rule implements this new bonding provision in new section 
212.1(q), which provides that the Secretary may require a bond on 
behalf of an alien seeking admission under the Guam-CNMI Visa Waiver 
Program when the Secretary deems it appropriate.
4. Maintenance of Status
    This rule includes a provision allowing an alien admitted to Guam 
or the CNMI under the Guam-CNMI Visa Waiver Program to seek a period of 
satisfactory departure. Under this rule, CBP and U.S. Citizenship and 
Immigration Services (USCIS) have the discretion to grant a period of 
satisfactory departure to an alien admitted under the Guam-CNMI Visa 
Waiver Program in the event of an emergency. Under new Sec.  
212.1(q)(7), this rule provides that if an alien admitted under the 
Guam-CNMI Visa Waiver Program is prevented from departing within the 
period of his or her authorized stay due to an emergency, CBP or USCIS 
may grant satisfactory departure to permit the alien to delay departing 
Guam or the CNMI for a period not to exceed fifteen days. If the alien 
departs within the extended time period, the alien will be regarded as 
having departed within the required time period and will not be 
considered as having overstayed his period of authorized stay.
5. Applicability of Section 212 of the INA--Passport and Visa 
Requirement
    Another result of applying the U.S. immigration laws to the CNMI, 
is that, pursuant to section 212 of the INA, 8 U.S.C. 1182, 
nonimmigrant visitors who seek admission to the CNMI must possess a 
valid passport and a valid visa, unless they are applying for entry 
under a visa waiver program. This means that nonimmigrant visitors who 
are not eligible for either the Visa Waiver Program under 8 CFR part 
217 (VWP) or the Guam-CNMI Visa Waiver Program must possess a valid 
passport and must obtain a visa from a U.S. Embassy or Consulate. They 
will no longer be able to visit the CNMI using the CNMI Visitor Entry 
Permit.\2\
---------------------------------------------------------------------------

    \2\ Nonimmigrant visitors who seek admission to Guam already 
must possess a valid passport and a valid visa, or a valid passport 
(and no visa) if they are applying for entry under a visa waiver 
program. This will not change under this interim final rule.
---------------------------------------------------------------------------

6. Applicability of Section 217 of the INA--Visa Waiver Program
    The CNRA extends the immigration laws of the United States to the 
CNMI. Thus, the admission of aliens to the CNMI is governed by the 
provisions of the INA. As indicated above, this rule amends 8 CFR 215.1 
to add the CNMI to the definition of the United States to ensure that 
the INA applies to the CNMI.
    Section 217 of the INA, 8 U.S.C. 1187, establishes the VWP. Under 
the VWP, nationals of designated countries can apply for admission to 
the United States at ports of entry for business or pleasure for up to 
90 days without first obtaining a nonimmigrant visa. The regulations 
implementing the VWP are at 8 CFR part 217. Under this interim final 
rule, both the VWP and the Guam-CNMI Visa Waiver Program will be in 
operation in the CNMI. Thus, nonimmigrant visitors may be able to apply 
for admission to the CNMI under one or both programs, depending on the 
eligibility status of the nonimmigrant visitors' country of nationality 
or citizenship. The permitted length of stay will depend on whether the 
nonimmigrant visitors are admitted under the VWP (up to 90 days) or 
under the Guam-CNMI Visa Waiver Program (up to 45 days).\3\
---------------------------------------------------------------------------

    \3\ The immigration laws of the United States already apply to 
Guam. Thus, nonimmigrant visitors from designated countries already 
can apply for admission to Guam under the VWP under section 217 of 
the INA or the Guam Visa Waiver Program under section 212(1) of the 
INA. Under this interim final rule, visitors from participating 
countries will be able to apply for admission to Guam or the CNMI 
under the VWP or the Guam-CNMI Visa Waiver Program. The permitted 
length of stay depends on whether they are admitted under the VWP 
(up to 90 days) or under the Guam-CNMI Visa Waiver Program (up to 45 
days).
---------------------------------------------------------------------------

IV. Conforming Changes and Amendments

A. Changes to CBP Form I-736 ``Guam Visa Waiver Information'' and to 
CBP Form I-760 ``Guam Visa Waiver Agreement''

    Under the current Guam Visa Waiver Program, an alien seeking 
admission must present a completed CBP Form I-736 ``Guam Visa Waiver 
Information'' (I-736) in order to be admitted into Guam without a visa. 
The alien must also present a completed and signed CBP Form I-94/
Arrival-Departure Record Form (I-94). The I-736 will be revised so that 
it will be entitled:

[[Page 2829]]

``Guam-CNMI Visa Waiver Information Form.'' Additionally, the portion 
of the form allowing for a maximum stay of 15 days visit will be 
changed to allow for a maximum stay of 45 days. The amended forms will 
not be available until after the effective date of the regulation, and 
not required until the start of the transition period, currently June 
1, 2009.
    Currently, transportation lines transporting nonimmigrant visitors 
under the Guam Visa Waiver Program into Guam from foreign territories 
must enter into a contract with CBP by executing CBP Form I-760 ``Guam 
Visa Waiver Agreement'' (I-760). Form I-760 will be revised so that it 
will be titled ``Guam-CNMI Visa Waiver Agreement'' and references to 
the CNMI will be inserted, where appropriate.\4\ A conforming change 
that adds a new provision at 8 CFR 233.6 has been made to include 
transportation lines bringing aliens to the CNMI in addition to Guam.
---------------------------------------------------------------------------

    \4\ The current provisions of the Guam Visa Waiver Program set 
forth in 8 CFR 212.1(e) will apply to nonimmigrant visitors seeking 
admission to Guam under the Guam Visa Waiver Program until the start 
of the transition period--currently June 1, 2009, when the new Guam-
CNMI Visa Waiver Program is implemented. The current CBP Forms I-736 
and I-60 are to be used for purposes of the Guam Visa Waiver Program 
through this date.
---------------------------------------------------------------------------

B. Conforming Changes to Title 8 of the Code of Federal Regulations

    Part 215 of title 8 of the CFR describes the procedures concerning 
aliens who depart from the United States. Section 215.1 sets forth the 
definitions for 8 CFR Part 215. This rule amends 8 CFR 215.1 to add the 
CNMI to the definition of the United States to ensure that the INA 
applies to the CNMI beginning June 1, 2009.
    To conform the amendments to existing laws, this rule deletes both 
``Canal Zone'' and ``Trust Territory of the Pacific'' from the 
definitions of the United States, under 8 CFR 215.1, paragraphs (e), 
(g), and (j).
    This rule also makes a conforming change in paragraph (e) of Sec.  
212.1 by adding the phrase ``Until June 1, 2009,'' to the beginning of 
the first sentence. This change will allow the existing Guam Visa 
Waiver Program to continue until the Guam -CNMI Visa Waiver program 
takes effect on the transition date.
    The deletion of ``the Canal Zone'' from 8 CFR 215.1 is being made 
to reflect that the United States no longer has control over the Canal 
Zone, pursuant to the Panama Canal Zone Act of 1979, Public Law 96-70. 
Similarly, the term ``Trust Territory of the Pacific Islands'' is being 
removed from 8 CFR 215.1 to update the regulations to reflect current 
law.\5\
---------------------------------------------------------------------------

    \5\ The ``Trust Territory of the Pacific Islands'' (TTPI) is no 
longer in existence. On November 3, 1986, President Reagan announced 
by Proclamation that the TTPI agreement between the CNMI and the 
United States was terminated after the Trusteeship Council of the 
United Nations concluded that the United States satisfactorily 
discharged its obligations under the agreement. See Proclamation No. 
5564, 51 FR 40399 (November 7, 1986). As announced by President 
Reagan's Proclamation, the United States fully established its 
agreement with CNMI. This agreement is entitled ``Covenant to 
Establish a Commonwealth of the Northern Mariana Islands in 
Political Union with the United States,'' Public Law 99-239, 48 
U.S.C. 1801. With regard to the CNMI, the CNMI then became a self-
governing Commonwealth in political union with and under the 
sovereignty of the United States. Therefore, DHS is deleting the 
term ``Trust Territory of the Pacific Islands'' to conform the 
regulations to existing law.
---------------------------------------------------------------------------

C. Conforming Changes to Title 19 of the Code of Federal Regulations

    This rule amends 19 CFR 4.7b(a) and 122.49a(a) to add the CNMI to 
the definition of the term ``United States'' for purposes of the filing 
of electronic passenger and crew arrival manifests prior to the arrival 
of vessels and aircraft in the United States.

V. Establishing Ports of Entry in the CNMI

    Currently, CBP does not have a presence in the CNMI. In order to 
implement section 702 of the CNRA, CBP must establish operations in the 
CNMI to allow for immigration inspections, including arrival and 
departure controls, under the INA. Such operational controls are also 
necessary to establish the Guam-CNMI Visa Waiver Program. Therefore, 
the Secretary is designating six ports of entry in the CNMI for 
immigration purposes only. The CNMI will continue to enforce and 
administer its own customs and agriculture laws. This rule amends 8 CFR 
part 100 to establish Ports-of-Entry, as defined in 8 CFR 100.4(c), to 
provide air and sea ports in close proximity to the CNMI facilities on 
the islands of Saipan, Tinian, and Rota.\6\
---------------------------------------------------------------------------

    \6\ Because the INA already applies to Guam and ports of entry 
have already been established in Guam to administer and enforce the 
INA, no amendments to 8 CFR part 100 are needed with respect to 
Guam. Guam will continue to administer its own customs laws.
---------------------------------------------------------------------------

VI. Effective Date

    These regulations will be effective January 16, 2009. Beginning 
June 1, 2009, unless the start of the transition period is delayed, 
U.S. immigration law applies to the CNMI and the Guam-CNMI Visa Waiver 
Program will be implemented. The immediate effective date of this rule 
allows nationals from the designated participating countries to prepare 
for their travel to either Guam or the CNMI under the program. In 
addition, CBP will have the necessary time to establish ports of entry 
in the CNMI and to set up the necessary infrastructure to implement the 
Guam-CNMI Visa Waiver Program and enforce U.S. immigration laws. 
Beginning June 1, 2009, DHS will begin operating ports-of-entry in the 
CNMI for immigration inspection of arriving aliens and establish 
departure control for certain flights leaving the CNMI. In addition, on 
that date, DHS will begin the administration and enforcement of the 
Guam-CNMI Visa Waiver Program.
    The date of June 1, 2009, may be delayed by the Secretary of 
Homeland Security, in consultation with the Secretary of the Interior, 
the Secretary of Labor, the Secretary of State, the Attorney General, 
and the Governor of the Commonwealth of the CNMI, for up to 180 days if 
the date for application of the immigration laws to the CNMI is delayed 
pursuant to section 702(b) of the CNRA. Any delay in the implementation 
date of the Guam-CNMI Visa Waiver Program will be published in the 
Federal Register. Prior to the start of the transition period, 
currently June 1, 2009, the current requirements pertaining to the Guam 
Visa Waiver Program will apply to nonimmigrant visitors seeking 
admission into Guam. Additionally, section 702(b) directs that the 
promulgation of the regulations shall be considered a foreign affairs 
function for purposes of the notice and comment and 30-day delayed 
effective date requirements under the Administrative Procedure Act. See 
5 U.S.C. 553(a).

VII. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    Section 702(b) of 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). Accordingly, this interim final 
rule is exempt from the notice and comment and 30-day effective date 
requirements of the APA. Although DHS is not required to provide prior 
public notice or an opportunity to comment, DHS is nevertheless 
providing the opportunity for public comments. In accordance with 
section 702(a) of the CNRA, this rule is effective January 16, 2009. 
Implementation and compliance with this interim final rule will begin 
on the date that begins the transition period, which is currently June 
1, 2009.

[[Page 2830]]

B. Executive Order 12866

    This interim final rule is not a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review, due to the foreign affairs exemption described above. 
Accordingly, the Office of Management and Budget has not reviewed this 
regulation under that Executive Order.
    DHS has, however prepared an economic analysis of the potential 
impacts of this interim final rule. A summary of the analysis is 
presented below. The complete details of the analysis can be found in 
the Economic Analysis in the public docket for this rule.
    The most significant change for admission to the CNMI as a result 
of the rule will be for visitors from those countries who are not 
included in either the existing Visa Waiver Program under 8 CFR part 
217 or the Guam-CNMI Visa Waiver Program established by the rule. These 
visitors must apply for U.S. visas, which require in-person interviews 
at U.S. embassies or consulates and higher fees than the CNMI currently 
assesses for its visitor entry permits. For admission to Guam, the 
primary change will be the extension of the maximum allowable period of 
stay from fifteen days to forty-five days for visitors of countries 
included in the Guam-CNMI Visa Waiver Program and the opportunity for 
visitors admitted under the Guam-CNMI Visa Waiver Program to travel 
between Guam and the CNMI without the requirement to obtain a visa or a 
visitor entry permit.
    In this analysis, we estimate the incremental costs associated with 
the interim final rule. Specifically, we assess and estimate the 
potential impact of implementing the Guam-CNMI Visa Waiver Program on 
the economies of the CNMI and Guam, with particular focus on their 
tourism sectors. While tourism impacts are ``indirect'' effects of the 
rule (where the impacts to visitors are the ``direct'' effect because 
visitors are directly regulated), we consider these impacts because 
tourism represents a major component of the economies of both the CNMI 
and Guam.
    We anticipate that the CNMI will experience most of the economic 
impact of this rule because the rule federalizes the entry and exit 
procedures for nonimmigrant visitors to the CNMI. We first estimate the 
changes in the travel demand of nonimmigrant visitors to the CNMI 
(i.e., the reduction in visitors due to implementation of the Guam-CNMI 
Visa Waiver Program) had the Guam-CNMI Visa Waiver Program been 
implemented in our baseline year of analysis (May 2007 to April 2008). 
We then estimate the associated changes in the total amount of visitor 
spending in the CNMI. Next, we estimate the associated changes in net 
economic output, income, and employment in the CNMI. Finally, we 
project these economic impacts to each year of our five-year analysis 
period (May 2009 through April 2014) and calculate the present value of 
these cost impacts.
    For Guam, we do not anticipate that the interim final rule will 
significantly affect its economy because the Guam-CNMI Visa Waiver 
Program only modifies the existing Guam visa waiver program by 
extending the allowable duration of stay from fifteen days to forty-
five days. Thus, we qualitatively assess two of the three issues that 
may arise as a result of implementing the Guam-CNMI Visa Waiver 
Program, namely: (1) The impact of extending the allowable period of 
stay from fifteen days to forty-five days on visitor behavior, 
spending, and the Guam economy in general; (2) the impact of adding the 
CNMI to the existing Guam Visa Waiver Program on visitor decisions to 
visit the CNMI instead of or in addition to Guam; and (3) the impact of 
excluding Indonesia, the Solomon Islands, Vanuatu, and Western Samoa in 
the list of program-eligible countries (these four countries currently 
are participating countries in the Guam Visa Waiver Program).
    Because of limitations in the data, we cannot reliably predict and 
quantify what percentages of visitors to Guam would elect to stay in 
Guam longer than fifteen days, by how many additional days, and the 
resulting impact on Guam's economy. On-island tourist expenditures in 
Guam are quite substantial, and additional days of stay on the island 
would have a positive impact on Guam's economy. Conversely, adding the 
CNMI to the existing Guam Visa Waiver Program to establish the Guam-
CNMI Visa Waiver Program could divert visitor travel away from Guam to 
the CNMI. Under the interim final rule, nationals from those countries 
included in the Guam-CNMI Visa Waiver Program, which includes all the 
countries currently included in the Guam Visa Waiver Program, may now 
enter the CNMI without having to apply for and obtain a CNMI visitor 
entry permit. Such a change may increase the potential for visitors 
from these countries to travel to the CNMI instead of or in addition to 
Guam. The Guam-CNMI Visa Waiver Program will facilitate travel between 
Guam and the CNMI, and packaged tours of both islands may appeal to 
some tourists, especially visitors that have already visited Guam. 
However, we do not have sufficient data to reliably predict and 
quantify the extent to which visitors from countries included in the 
Guam-CNMI Visa Waiver Program would elect to spend part or all of a 
planned visit in the CNMI instead of, or in addition to, Guam and how 
this change would affect the Guam economy.
    Finally, we present the costs CBP expects to incur to develop and 
administer the Guam-CNMI Visa Waiver Program.
Impacts to the CNMI
    The two largest foreign markets for visitors to the CNMI in the 
baseline year of our analysis (May 2007 to April 2008) are Japan and 
the Republic of Korea. Because this rule does not change the baseline 
conditions for Japanese visitors and will ease requirements for Korean 
visitors, we do not estimate any significant changes in visitation 
levels for these two countries.
    To estimate the impacts on tourism from other affected countries, 
we use an ``elasticity of demand'' for long-haul international leisure 
trips available from the published literature to compare the change in 
cost (both in out-of-pocket expenses as well as the value of time 
burden) that obtaining a visa represents to the trip cost to the CNMI. 
In this analysis, we estimate out-of-pocket expenses of $187 (including 
the fee, photos, travel costs, and other miscellaneous expenses) plus 
an average time of five hours to obtain the visa (including completing 
the necessary Department of State forms and having an interview at a 
U.S. embassy). Applying a demand elasticity of -1.04, we find that if 
the rule had been in effect in the baseline year of analysis (May 2007 
to April 2008) the potential impact of this regulation would have been 
a reduction of approximately 5,017 tourist arrivals from the PRC, 194 
tourist arrivals from Russia, and 618 tourist arrivals from the 
Philippines to the CNMI. We estimate that a strong majority of 
travelers from these countries would continue traveling to the CNMI 
even with the implementation of the rule. These visitors represent the 
three largest tourist markets that primarily will be affected by the 
rule because they are not included on the list of eligible countries 
for the Guam-CNMI Visa Waiver Program and, therefore, will now be 
required to obtain U.S. visas to visit the CNMI (previously PRC and 
Russia, but not the Philippines, were eligible for admission to the 
CNMI under its visitor entry permit program).
    Based on visitor spending data provided by the Marianas Visitors

[[Page 2831]]

Authority, we estimate that the associated reductions in spending would 
have been $4.9 million from the Chinese, $0.8 million from the 
Russians, and $0.5 million from the Filipinos. In sum, the total 
visitor spending in the CNMI could potentially have declined by $6.2 
million, or 2.0 percent of the $317 million in total visitor spending. 
Using economic multiplier data available from the published literature, 
we estimate that the potential reduction in visitor spending of $6.2 
million leads to a reduction of between $8.3 million and $12.5 million 
in economic output, $2.1 million and $2.4 million in income, and 
between 131 and 162 jobs in the CNMI.
    Applying these baseline year estimates to our five-year period of 
analysis (2009 to 2014), assuming no growth in the number of visitors 
or the amounts they spend in the CNMI, results in a total present value 
estimate of $29.2 million (3 percent discount rate) and $27.1 million 
(7 percent discount rate) in lost CNMI visitor spending. We estimate 
that the total present value losses in CNMI economic output and income 
are between $36.4 million and $59.1 million, and $9.4 million and $11.4 
million, respectively, depending on the discount rate applied. Tables 1 
and 2 summarize the results of our analysis.

                           Table 1--Impacts to Visitors, CNMI Economic Analysis, $2008
----------------------------------------------------------------------------------------------------------------
                                                                    Annual lost
                                                   Potential No.   CNMI visitor      Estimated
                     Country                          of lost        spending        total on-    % of on-island
                                                     visitors     (undiscounted)      island       spending lost
                                                     annually           ($M)      spending  ($M)
----------------------------------------------------------------------------------------------------------------
Japan...........................................               0            $0.0            $162             0.0
Korea...........................................               0             0.0              65             0.0
China...........................................           5,017             4.9              38            12.9
Russia..........................................             194             0.8              20             4.2
Philippines.....................................             618             0.5               3            18.3
Others..........................................               0             0.0              29             0.0
                                                 ---------------------------------------------------------------
    Total.......................................           5,829             6.2             317             2.0
----------------------------------------------------------------------------------------------------------------


                          Table 2--Summary of Economic Impacts, CNMI Economic Analysis
----------------------------------------------------------------------------------------------------------------
                                             Lost CNMI
                                              visitor         Estimated lost CNMI     Estimated lost CNMI income
                                          spending  ($M)     economic output  ($M)                ($M)
----------------------------------------------------------------------------------------------------------------
Total, May 2007-Apr 2008 (undiscounted).            $6.2  $8.3 to $12.5.............  $2.1 to $2.4.
Total (2009-2014), 3% discount rate.....            29.2  39.1 to 59.1..............  10.1 to 11.4.
Total (2009-2014), 7% discount rate.....            27.1  36.4 to 54.9..............  9.4 to 10.6.
----------------------------------------------------------------------------------------------------------------

    We have not quantified the losses associated with excluding 
Indonesia, the Solomon Islands, Vanuatu, and Western Samoa from the 
Guam-CNMI Visa Waiver Program because the Marianas Visitors Authority 
did not report statistics for these countries individually; they are 
captured in the ``other'' category in Table 1. Because their current 
number of visits is low (too low to be reported by the Marianas 
Visitors Authority), any potential economic losses would also be small.
Impacts to Guam
    We attempted to quantify the potential economic impact of the 
interim final rule on Guam, although we anticipate it to be minimal. 
Because of limitations in the available data, we could not reliably 
predict and quantify how many Guam-CNMI Visa Waiver Program-eligible 
visitors would elect to stay in Guam longer than the current fifteen 
day limit and by how many days, or elect to spend part or all of their 
planned visit in the CNMI instead of or in addition to Guam. Additional 
days of stay on the island would have a positive impact on Guam's 
economy. However, visitors diverting their travel plans from Guam to 
the CNMI and visitors from Indonesia, the Solomon Islands, Vanuatu, and 
Western Samoa forgoing travel to Guam would have a negative impact. The 
net economic effect of these two factors is unknown.
Government Costs
    Finally, CBP estimates that it will incur costs to establish and 
administer six new air and sea ports of entry in the CNMI. The costs 
consist of two primary categories: (1) Non-recurring capital costs and 
other initial or one-time expenses incurred in the first year or prior 
to implementation of the Guam-CNMI Visa Waiver Program, and (2) 
recurring operating, maintenance, and personnel costs expected to be 
incurred each year. CBP will need to build, operate, and maintain the 
infrastructure needed at the six ports of entry to achieve the 
requisite level of security (e.g., arrival and departure control) and 
operational efficiency commensurate with other CBP-operated ports. CBP 
estimates a capital cost of approximately $25.8 million to develop this 
infrastructure, and a recurring cost of $153,100 per year for port 
operation and maintenance. CBP plans to staff these ports initially 
with experienced temporary duty assignment staff on a short-term basis, 
gradually replacing them with permanent staff. CBP estimates initial 
costs of approximately $3.7 million for personnel relocation as well as 
recurring costs of approximately $7.8 million per year for personnel 
salary and benefits and $5.3 million per year for associated temporary 
duty costs (e.g., airfare, per diem food and housing allowances, 
vehicle rental). Applying these estimated costs to the applicable years 
of our 5-year analysis period results in total present value cost for 
government implementation of $87.3 million to $91.7 million, depending 
on the discount rate applied.
Sources of Uncertainty
    Because the Commonwealth of the Northern Mariana Islands is small 
and remote, the quality and quantity of prior economic data and 
analyses are very limited. We have relied on the best

[[Page 2832]]

available data in estimating the economic impact of implementing the 
Guam-CNMI Visa Waiver Program. Nonetheless, we recognize that there are 
significant limitations and uncertainties in our analysis.
    The key sources of uncertainty in our analysis are the value of 
time and demand elasticity for Chinese, Russian, and Filipino visitors. 
These data are key inputs into our estimates of the reduction in the 
number of these visitors to the CNMI. To estimate the value of time, we 
apply the wages from the highest paid industry category among all 
industries reported in an International Labor Organization (ILO) 
database; however, we recognize that these data are imperfect. First, 
comparing wages, and by extension opportunity costs, across countries 
is notoriously difficult. In addition, it is likely that only the more 
affluent citizens of these countries would engage in international 
travel to the CNMI and, therefore, we likely understate their value of 
time. We test the sensitivity of our wage estimates and find that the 
estimated loss in CNMI visitor spending could increase by about 40 
percent assuming a much higher wage rate ($20 per hour).
    The demand elasticity value we use (-1.04) is also a significant 
source of uncertainty because it may not be representative of visitor 
demand to the CNMI (demand elasticities for specifically the CNMI or 
other Pacific Islands are not available). On the one hand, for the more 
affluent travelers, the additional travel (visa) costs may not 
currently represent a significant portion of their household budget or 
travel cost and thus may not be a major factor influencing their travel 
decisions (less elastic). There may not be very many travelers from the 
PRC, Russia, and the Philippines for whom the visa costs and burden are 
particularly meaningful--they are either wealthy enough that it does 
not matter, or their economic status is such that international travel 
is out of reach regardless of the additional travel costs. On the other 
hand, other alternative destinations exist that would provide these 
visitors with a comparable experience to that of the CNMI. As a result, 
some of these visitors may simply choose to forgo travel to the CNMI 
because of the additional burden associated with the visa requirements 
and instead seek other alternative destinations (more elastic).
    Finally, in applying an own-price elasticity of travel demand, we 
have presented a binary choice for a traveler based solely on price--
``go'' or ``do not go.'' In reality, travelers are faced with complex 
decisions and myriad substitutes for particular trips. There is 
evidence in the travel literature that price may not be a very big 
determinant of destination selection. Additionally, a traveler could 
still choose to visit the CNMI but may spend less while on the islands. 
This would still be a loss to the CNMI economy, but it would be less 
than what we have estimated in this analysis. We have chosen to 
estimate direct costs using demand elasticities to avoid deliberately 
misrepresenting these costs (we would not want to assume that 
travelers' decisions will be completely unaffected by the new entry 
requirements), knowing that we may then be overstating the simplicity 
of the traveler's decision-making process. In doing this, we have 
likely overstated indirect costs.
    Another source of uncertainty is in the multipliers used to 
calculate lost economic output, income, and employment as a result of 
lost tourist spending. Although we use a range of values, the actual 
total economic impact could be significantly lower or higher than the 
results presented in this analysis.
    A final source of uncertainty is our assumption that the number of 
visitors or the amounts they spend in the CNMI will remain constant 
over the five-year analysis period. The historic year-to-year trends in 
the number of visitors from the PRC, Russia, and the Philippines on 
which we could estimate a future growth rate vary widely from negative 
growth (-69.0 percent) to positive growth (118.7 percent). We also 
cannot reliably predict future growth (or loss) rates given the ever-
changing global economy and political climate, airline and tourism 
industries, the volatility of the CNMI economy, and other factors 
affecting international travel.

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).

D. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 
enacted as Public Law 104-4, 109 Stat. 48, on March 22, 1995, requires 
each Federal agency, to the extent permitted by law, to prepare a 
written assessment of the effects of any Federal mandate in a proposed 
or final agency rule that may result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation) in 
any one year. Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires 
the Federal agency to develop an effective process to permit timely 
input by elected officers (or their designees) of State, local, and 
tribal governments on a proposed ``significant intergovernmental 
mandate.'' A ``significant intergovernmental mandate'' under the UMRA 
is any provision in a Federal agency regulation that will impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section 
204(a), provides that, before establishing any regulatory requirements 
that might significantly or uniquely affect small governments, the 
agency shall have developed a plan that, among other things, provides 
for notice to potentially affected small governments, if any, and for a 
meaningful and timely opportunity to provide input in the development 
of regulatory proposals.
    This rule would not impose a significant cost or uniquely affect 
small governments. The economic impacts of this rule are presented in 
the Executive Order 12866 discussion of this document.

E. Executive Order 13132

    This 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 interim final rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

F. Executive Order 12988

    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 collections of information encompassed within this rule have 
been submitted to the OMB for review in accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507) under OMB Control Number 1651-
0109 (Guam Visa Waiver Information) for CBP Form I-736 and OMB Control 
Number 1651-0111 for Form I-94 (Arrival and Departure Record).

[[Page 2833]]

    An agency may not conduct, and a person is not required to respond 
to, a collection of information unless the collection of information 
displays a valid control number assigned by OMB. The burden estimates 
for the two forms affected by this rule are presented below.
    OMB Control Number 1651-0109 (Guam-CNMI Visa Waiver Information)
    Estimated annual average reporting and/or recordkeeping burden: 
30,000 hours.
    Estimated annual average number of respondents: 360,000.
    Estimated average burden per respondent: 5 minutes.
    Estimated frequency of responses: Once per year.
    OMB Control Number 1651-0111 (Arrival and Departure Record).
    Estimated annual average reporting and/or recordkeeping burden: 
60,000 hours.
    Estimated annual average number of respondents: 360,000.
    Estimated average burden per respondent: 10 minutes.
    Estimated frequency of responses: Once per year.
    Comments concerning the accuracy of this burden estimate and 
suggestions for reducing this burden should be directed to the Office 
of Management and Budget, Attention: Desk Officer for the Department of 
Homeland Security, Office of Information and Regulatory Affairs, 
Washington, DC 20503. A copy should also be sent to the Border Security 
Regulations Branch, Customs and Border Protection, Mint Annex, 799 
Ninth Street, NW., Washington, DC 20001.

H. Privacy

    DHS will publish a Privacy Impact Assessment (PIA) on its Web site. 
In addition, DHS is also preparing a separate Systems of Records Notice 
(SORN) in conjunction with this interim final rule.

List of Subjects

8 CFR Part 100

    Organization and functions (Government agencies)

8 CFR Part 212

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

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

8 CFR Part 215

    Administrative practice and procedure, Aliens, Travel restrictions.

8 CFR Part 233

    Air carriers, Maritime carriers, Aliens, Government Contracts.

8 CFR Part 235

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

19 CFR Part 4

    Customs duties and inspection, Reporting and recordkeepin