AND THE MINISTRY OF THE INTERIOR OF THE REPUBLIC OF ESTONIA REGARDING THE UNITED STATES VISA WAIVER PROGRAM AND RELATED ENHANCED SECURITY MEASURES
WHEREAS the United States Department of Homeland Security and the Ministry of the Interior of the Republic of Estonia (hereinafter collectively “the Participants”) wish to facilitate the travel of their respective citizens between their two countries;
WHEREAS the Participants desire to enhance the security of their two countries, including by deploying new capabilities to detect and prevent terrorist travel;
WHEREAS the Participants believe that travel between their respective countries should be conducted lawfully and consistent with the domestic legal requirements, including immigration requirements, of their respective countries;
TAKING NOTE of obligations of the Republic of Estonia under European Union and European Community law;
WHEREAS the Participants have determined that an arrangement concerning participation in the United States Visa Waiver Program (VWP) would both facilitate travel of their respective citizens and enhance their mutual security;
WHEREAS the Participants have reaffirmed that the principles of mutuality, fairness, and equality will guide this Memorandum of Understanding;
TAKING NOTE of Section 711 of the “Implementing Recommendations of the 9/11 Commission Act of 2007,” which reforms the VWP by expanding opportunities for participation in the program subject to certain enhanced security requirements; and
DESIRING to reach an understanding regarding those security requirements;
NOW THEREFORE THE PARTICIPANTS UNDERSTAND AS FOLLOWS:
A. GENERAL COMMITMENTS
1. Waiver of Three Percent Visa Refusal Rate Requirement:
In the event that the Republic of Estonia undertakes and the Ministry of the Interior of the Republic of Estonia and other competent authorities of the Republic of Estonia implement the security commitments mentioned in this Memorandum of Understanding, the U.S. Secretary of Homeland Security, in consultation with the U.S. Secretary of State and subject to other provisions of U.S. law (including provisions of law in Section 217(c)(8) of the Immigration and Nationality Act (INA)), intends to waive for the Republic of Estonia the statutory requirement that a country have a visa refusal rate for its nationals during the previous fiscal year of less than three percent (3%) in order to be designated for participation in the VWP.
2. Implementation of this Memorandum of Understanding:
The Ministry of the Interior of the Republic of Estonia intends to conclude implementing arrangements with the appropriate United States Government agencies, as necessary, in order to carry out the security commitments mentioned in this Memorandum of Understanding. In cases where the Ministry of the Interior is not the competent authority to implement these commitments, it intends to cooperate with the competent authorities of the Republic of Estonia to conclude such implementing arrangements. These implementing arrangements include arrangements regarding passenger and other information sharing, screening information concerning known or suspected terrorists, information to combat terrorism and serious crime, and information on migration matters, and should allow for the further dissemination of transferred information within the United States Government with appropriate safeguards for privacy and data protection. These implementing arrangements should be concluded consistent with the Participants' respective domestic laws and international obligations, including for the Republic of Estonia its obligations arising from membership in the EU.
3. Evaluation for Initial and Continued Designation in the VWP:
Before the Republic of Estonia is designated as a VWP Country, the U.S. Department of Homeland Security, in consultation with the U.S. Department of State, intends to evaluate the effect that the designation of the Republic of Estonia would have on the security, law enforcement, and immigration interests of the United States. It is the understanding of both Participants that the Republic of Estonia may be admitted upon a determination that such interests would not be compromised. Periodically (but not less than once every two years) the U.S. Department of Homeland Security, in consultation with the U.S. Department of State, intends to evaluate the effect of continued designation on the security, law enforcement, and immigration interests of the United States and determine whether the designation of the Republic of Estonia may be continued.
The evaluations for initial and continued designation should assess, among other factors listed at Section 217 of the Immigration and Nationality Act (INA)), how the Ministry of the Interior of the Republic of Estonia and other competent authorities of the Republic of Estonia implement the security commitments mentioned in this Memorandum of Understanding.
4. Technical Capability and Legislation:
The Ministry of the Interior of the Republic of Estonia intends to cooperate with other competent authorities of the Republic of Estonia to operate and maintain any records, systems, or programs necessary to effectuate the security commitments mentioned in this Memorandum of Understanding. The Ministry of the Interior of the Republic of Estonia intends to take all steps necessary to effectuate the security commitments stemming from this Memorandum of Understanding.
B. SECURITY COMMITMENTS
1. Electronic Travel Authorization (ETA) System:
a. Pursuant to Section 711 of the “Implementing Recommendations of the 9/11 Commission Act of 2007, the U.S. Department of Homeland Security intends to develop and implement an Electronic Travel Authorization (ETA) system to collect electronically such biographical and other information as the Secretary of Homeland Security deems necessary to determine, in advance of travel, the eligibility of a citizen of the Republic of Estonia to travel to the United States under the VWP and whether there exists a law enforcement or security risk in permitting the citizen to travel to the United States under the VWP.
b. Upon implementation of the ETA system, the Ministry of the Interior of the Republic of Estonia understands that all citizens of the Republic of Estonia traveling to the United States for business or tourism under the VWP will be required to use the ETA system.
c. The Participants, in cooperation with other competent domestic authorities, intend to make a joint outreach initiative, working with representatives of the travel and tourism industries, to ensure that citizens of the Republic of Estonia are aware of the obligation to use the ETA system when traveling to the United States under the VWP, and to provide them with information about how to use the system.
2. Information Sharing:
a. In general, the Ministry of the Interior of the Republic of Estonia, in cooperation with other competent authorities of the Republic of Estonia, intends to cooperate with the U.S. Department of Homeland Security to provide identifying information to be used in determining whether persons who intend to travel to the United States represent a threat to the security, law enforcement, and immigration interests of the United States. In order to facilitate such cooperation, the Ministry of the Interior of the Republic of Estonia intends to cooperate with competent authorities of the Republic of Estonia to conclude implementing arrangements referenced at section A.2. of this MOU with relevant United States Government agencies.
The Participants intend to cooperate in any law enforcement, immigration, or other investigation or proceeding that results from the provision of information described in Part B.2.a consistent with existing or subsequent legal assistance agreements and arrangements between their two countries and with their international obligations.
b. The Participants intend to collect, analyze, use, and share Advance Passenger Information (API) according to their respective domestic laws.
c. The Participants intend to collect, analyze, use, and share Passenger Name Record (“PNR”) information consistent with their respective domestic laws and international obligations, including the EU – US PNR Agreement signed on 26 July 2007.
d. For the purpose of these exchanges of information, the Ministry of the Interior of the Republic of Estonia and the U.S. Department of Homeland Security intend to abide by the requisite and appropriate safeguards for privacy and data protection defined in their respective domestic laws and consistent with their international obligations.
3. Reporting of Lost and Stolen Passports (LASP):
a. Without prejudice to sharing information via Interpol, the Ministry of the Interior of the Republic of Estonia, in cooperation with other competent authorities of the Republic of Estonia, intends to make available passport data for blank passports and issued passports reported as lost and stolen.
b. The Ministry of the Interior intends to maintain reporting practices for lost and stolen travel documents that disseminate to any interested party information on travel documents issued by the Republic of Estonia that have been reported lost or stolen. These practices include:
i. online verification of the validity of travel documents issued by the Republic of Estonia
ii. an online list, updated daily, of lost and stolen issued travel documents providing information including the passport number, the country of issuance, the document type, and the date of the reported loss or theft.
c. The Ministry of the Interior of the Republic of Estonia intends to identify a point of contact that is available at all times and is capable of providing expeditious assistance to the U.S. Department of Homeland Security and the U.S. Department of State to resolve questions about potentially lost or stolen passports that have been presented to the United States Government as a basis for identification. This point of contact should have access to passport issuance and LASP information maintained by the government entity responsible for storing and managing such data and should be capable of verifying whether or not the individual encountered is the person to whom the passport was issued, generally within four (4) hours.
d. The Ministry of the Interior of the Republic of Estonia intends to exchange information on LASP trends and analysis, and share exemplars of its national passports with the U.S. Department of Homeland Security and the U.S. Department of State. To facilitate compliance with these reporting standards and to address any questions about reporting practices, the Ministry of the Interior of the Republic of Estonia intends to establish a LASP point of contact at the policy level within the entity that is responsible for making available the data regarding blank and issued LASP.
4. Repatriation:
a. The Participants, intend, in accordance with relevant domestic and international law, to take steps necessary to ensure that the Republic of Estonia and the United States accept for repatriation any citizen or former citizen against whom a final order of removal is issued within 21 calendar days after notification is provided that such order has been issued. For purposes of this paragraph, the Participants intend to enter into consultations on particular cases as necessary. A “former citizen” of the Republic of Estonia for purposes of this Memorandum of Understanding is a person whom Estonia has recognized as an Estonian citizen and who has not been recognized as a citizen by any other state and who has become stateless by losing Estonian citizenship.
b. The U.S. Department of Homeland Security intends to provide the Ministry of the Interior of the Republic of Estonia with relevant information, to the extent authorized by law, concerning the person being repatriated, including information relating to the person's identity and the grounds for removal, as soon as legally feasible after the initiation of removal proceedings.
c. The Ministry of the Interior of the Republic of Estonia intends to confirm the identity and citizenship of the person within 21 calendar days after the U.S. Department of Homeland Security has provided the information necessary for the identification of a person to be readmitted, as mentioned in Part B.4.b.
5. Enhanced Standards for Travel Documents:
a. The Ministry of Interior intends to issue travel documents through a central issuing authority that is subject to strict audit and accountability mechanisms. The Ministry of Interior intends to notify the Department of Homeland Security without ungrounded delay about any findings of such audits that has or may have the potential to jeopardize the security of travel documents or issuance of such documents. The Participants intend to protect any information obtained as a result of such audits against any unauthorized disclosure.
b. The Ministry of the Interior of the Republic of Estonia, in cooperation with other competent authorities of the Republic of Estonia, intends to continue to issue travel documents that comply with ICAO requirements.
c. The Ministry of the Interior of the Republic of Estonia, in cooperation with other competent authorities of the Republic of Estonia, intends to issue travel documents that have unique, non-recurring identifying numbers affixed at the time of manufacture.
d. The Ministry of the Interior of the Republic of Estonia understands that, in the event that the Republic of Estonia is designated as a VWP country, only Estonian citizens in possession of electronic passports (i.e., machine readable passports with both a digitized photograph and an electronically readable chip containing designated travel document data) will be allowed to travel to the United States under the VWP.
6. Airport Security:
The Participants intend to cooperate with the competent authorities of their respective Governments to ensure that airport security standards and security operations of air carriers operating between airports of the respective countries are consistent with the Air Transport Agreement between the European Community and its Member States and the United States of America, done in Brussels on 25 April 2007 and in Washington on 30 April 2007.
7. Air Marshals:
The Ministry of Interior intends to develop and deploy an air marshals program that is in accordance with standards acceptable to the participants. The Ministry of Interior intends to permit United States Federal Air Marshals to operate and carry authorized weapons onboard flights by U.S. carriers that proceed to, from, or over the Republic of Estonia.
C. EFFECT:
The foregoing understandings and arrangements reflect the good faith intentions of the Participants. Nothing in this Memorandum of Understanding is intended to be legally binding against the Participants under domestic or international law. This Memorandum of Understanding should not be construed to create any right or benefit, substantive or procedural, enforceable at law or otherwise as between the Participants or by any third party against the Participants, their parent agencies, the United States, the Republic of Estonia, or the officers, employees, agents, or other associated personnel thereof.
Nothing in this Memorandum of Understanding is to be interpreted to affect the rights and obligations of the Participants as prescribed in the laws and legal regulations of the Republic of Estonia and the United States of America or by their participation in international treaties and agreements, including obligations arising from the membership of the Republic of Estonia in the European Union.
Signed at Tallinn on 12 March 2008.
Mr. Jüri Pihl
Minister of Internal Affairs of the Republic of Estonia
Mr. Michael Chertoff
US Secretary of Homeland Security