[Federal Register Volume 80, Number 109 (Monday, June 8, 2015)]
[Rules and Regulations]
[Pages 32267-32294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13919]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 80, No. 109 / Monday, June 8, 2015 / Rules
and Regulations
[[Page 32267]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 217
[Docket Nos. USCBP-2008-003 and USCBP-2010-0025; CBP Dec. No. 15-08]
RIN 1651-AA72 and RIN 1651-AA83
Changes to the Visa Waiver Program To Implement the Electronic
System for Travel Authorization (ESTA) Program and the Fee for Use of
the System
AGENCY: U.S. Customs and Border Protection; DHS.
ACTION: Final rule.
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SUMMARY: This rule adopts as final, with one substantive change,
interim amendments to DHS regulations published in the Federal Register
on June 9, 2008 and August 9, 2010 regarding the Electronic System for
Travel Authorization (ESTA). ESTA is the online system through which
nonimmigrant aliens intending to enter the United States under the Visa
Waiver Program (VWP) must obtain a travel authorization in advance of
travel to the United States. The June 9, 2008 interim final rule
established ESTA and set the requirements for use for travel through
air and sea ports of entry. The August 9, 2010 interim final rule
established the fee for ESTA. This document addresses comments received
in response to both rules and some operational modifications affecting
VWP applicants and travelers since the publication of the interim
rules.
DATES: This rule is effective on July 8, 2015.
FOR FURTHER INFORMATION CONTACT: Suzanne Shepherd, U.S. Customs and
Border Protection, Office of Field Operations, at
suzanne.m.shepherd@dhs.gov and (202) 344-3710.
SUPPLEMENTARY INFORMATION:
Table of Contents
Executive Summary
I. Background and Purpose
A. The Visa Waiver Program
B. The Electronic System for Travel Authorization (ESTA)
C. The Fee for Use of ESTA and the Travel Promotion Act Fee
II. Discussion of Comments Submitted in Response to the Interim
Final Rule Establishing ESTA and Interim Final Rule Announcing the
ESTA Fee
A. Overview
B. Discussion of Comments
1. Impact on Travel
2. Impact on Short Notice Travelers
3. Implementation of ESTA
4. Plain Language and ESTA Web Site Assistance
5. Internet Concerns and Third Party Applications
6. The Role of ESTA for VWP Travelers
7. In-Transit Travel
8. ESTA Enforcement
9. State Department Coordination
10. ESTA Expansion to Land Arrivals
11. Impact on Existing Laws and Agreements
12. I-94W Paper Form
13. Preclearance Ports and Internet Kiosks
14. ESTA Applications at Airports
15. ESTA Validity Period
16. Passport Issues
17. Denied Travel Authorization
18. Expedited Review
19. ESTA Application Status Notifications for Travelers and
Carriers
20. Proof of Travel Authorization
21. Mandatory and Optional Data Elements
22. ESTA Interaction With Other Systems
23. Method of Payment
24. ESTA Fee and the Travel Promotion Act (TPA) Fee
25. APA Procedures
26. Effective Date
27. Privacy
28. Economic Analysis; Regulatory Flexibility Act; Paperwork
Reduction Act
29. Comments That Are Beyond the Scope of the IFRs
III. Conclusion
A. Regulatory Amendments
B. Operational Modifications
IV. Statutory and Regulatory Requirements
A. Executive Order 13563 and Executive Order 12866
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132
E. Paperwork Reduction Act
F. Executive Order 12988 Civil Justice Reform
G. Privacy
List of Subjects
Regulations
Executive Summary
Prior to implementing the Electronic System for Travel
Authorization (ESTA), international travelers from Visa Waiver Program
(VWP) countries \1\ were not evaluated, in advance of travel, for
eligibility to travel to the United States under the VWP. In the wake
of the tragedy of September 11, 2001, Congress enacted the Implementing
Recommendations of the 9/11 Commission Act of 2007, Public Law 110-53.
To address this identified vulnerability of the VWP, section 711 of the
Implementing Recommendations of the 9/11 Commission Act of 2007
(section 711 of the 9/11 Act), was enacted, requiring the Secretary of
Homeland Security to implement a system that would provide for the
advance screening of international travelers by allowing DHS to
identify subjects of potential interest before they board a conveyance
destined for the United States.
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\1\ With respect to all references to ``country'' or
``countries'' in this document, it should be noted that the Taiwan
Relations Act of 1979, Public Law 96-8, Section 4(b)(1), provides
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.'' 22 U.S.C. 3303(b)(1). Accordingly, all
references to ``country'' or ``countries'' in the Visa Waiver
Program authorizing legislation, Section 217 of the Immigration and
Nationality Act, 8 U.S.C. 1187, are read to include 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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On June 9, 2008, the Department of Homeland Security (DHS)
published an interim final rule in the Federal Register (73 FR 32440)
announcing the creation of the ESTA program for nonimmigrant aliens
traveling to the United States by air or sea under the VWP. On November
13, 2008, DHS published a notice in the Federal Register (73 FR 67354)
announcing that ESTA would be mandatory for all VWP participants
traveling to the United States at air or sea ports of entry beginning
January 12, 2009.
On March 4, 2010, the United States Capitol Police Administrative
Technical Corrections Act of 2009, Public Law 111-145, was enacted.
Section 9 of this law, the Travel Promotion Act of 2009 (TPA), mandated
the Secretary of Homeland Security to establish a fee for the use of
ESTA and begin assessing and collecting the fee.
[[Page 32268]]
On August 9, 2010, DHS published an interim final rule in the
Federal Register (75 FR 47701) announcing that, beginning September 8,
2010, a $4 ESTA fee would be charged to each ESTA applicant to ensure
recovery of the full costs of providing and administering the system
and an additional $10 TPA fee would be charged to each applicant
receiving travel authorization through September 30, 2015.\2\
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\2\ The TPA authorized collection of the $10 TPA fee through
September 30, 2014. However, on July 2, 2010, the Homebuyer
Assistance and Improvement Act of 2010, in part, amended the TPA by
extending the sunset provision of the TPA fee and authorizing the
Secretary to collect this fee through September 30, 2015. See Public
Law 111-198 at Sec. 5. The sunset provision was further extended by
the Travel Promotion, Enhancement, and Modernization Act of 2014
through September 30, 2020.
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DHS received a total of 39 submissions in response to the June 9,
2008 and August 9, 2010 interim final rules. Most of these submissions
contained comments providing support, voicing concerns, highlighting
issues, or offering suggestions for modifications to the ESTA program.
After review of the comments, this rule finalizes the June 9, 2008
interim final rule regarding the ESTA program and the August 9, 2010
interim final rule regarding the ESTA fee for nonimmigrant aliens
traveling to the United States by air or sea under the VWP with one
substantive regulatory change allowing the Secretary of Homeland
Security to adjust ESTA travel authorization validity periods on a per
country basis to the three year maximum or to a lesser period of time.
This final rule also contains one minor technical change that removes
the specific reference to the Pay.gov payment system. In addition,
based on the experience gained from operating the ESTA program since
its inception and the comments received, DHS has made a few operational
changes to ESTA as it was described in the two interim final rules. For
example, VWP travelers no longer need to complete the Form I-94W
Nonimmigrant Visa Waiver Arrival/Departure paper form upon arrival in
the United States at air and sea ports of entry. Also, VWP travelers
who provide an email address to DHS when they submit their application
will receive an automated email notification indicating that their ESTA
travel authorization will be expiring soon. DHS has also updated the
information on the ESTA Web site to address some of the comments.
Additionally, DHS has made some changes to the required ESTA
application and paper Form I-94W.
On November 26, 2013, DHS published a 60-day notice and request for
comments in the Federal Register (78 FR 70570) regarding the extension
and revision of information collection 1651-0111. On February 14, 2014,
DHS published a 30-day notice and request for comments in the Federal
Register (79 FR 8984) regarding the extension and revision of that
information collection. Both notices describe various proposed changes
to the ESTA application and paper Form I-94W questions to make them
more understandable to VWP travelers, including revisions to the
questions about communicable diseases, crimes involving moral
turpitude, engagement in terrorist activities, fraud, employment in the
U.S., visa denials, and visa overstays. DHS also proposed to remove a
question about the custody of children. On December 9, 2014, DHS
published another 60-day notice and request for comments in the Federal
Register (79 FR 73096) regarding the extension and revision of
information collection 1651-0111. This notice concerns additional
changes to the ESTA application and paper Form I-94W that will allow
DHS to collect more detailed information about VWP travelers by making
previously optional questions mandatory and by adding questions
concerning aliases, employment, and emergency contact information among
other data elements. These changes are necessary to improve the
screening of travelers before their admittance into the U.S. All of the
changes in the referenced notices took effect on November 3, 2014.
This rule is considered an economically significant regulatory
action because it will have an annual effect on the U.S. economy of
$100 million or more in any one year. Costs to U.S. entities include
the cost to carriers to modify or develop systems to transmit ESTA
information to DHS.
ESTA provides benefits to U.S. entities by reducing the number of
inadmissible aliens who would arrive in the United States by more than
40,000 per year. This reduces the number of aliens DHS will have to
process in the United States who would be found to be inadmissible upon
their arrival, reduces the number of inadmissible aliens carriers would
need to transport back to their points of origin, and reduces wait
times for other international travelers arriving at U.S. ports of
entry. Though not a quantifiable benefit, this rule will enhance
security by providing DHS with information on travelers before they
board a conveyance destined for the United States. Table ES-1 shows the
range of annualized costs and benefits of this rule to each U.S. entity
from 2008-2018, using 3 and 7 percent discount rates.
ES-1--Annualized Costs and Benefits of the Rule to U.S. Entities, 2008-2018
[$2013]
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3% Discount rate 7% Discount rate
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Costs
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Carriers--Systems.............. $22 million............................ $24 million.
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Benefits
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Carriers--Inadmissibility 65 million to 69 million............... 63 million to 66 million.
Savings.
CBP--Inadmissibility Savings... 6 million.............................. 6 million.
Total Inadmissibility Savings.. 71 million to 75 million............... 69 million to 72 million.
Carriers--Forms Maintenance 2 million.............................. 2 million.
Savings.
CBP--Forms Maintenance Savings. 0.2 million............................ 0.2 million.
Total Forms Maintenance Savings 2 million.............................. 2 million.
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[[Page 32269]]
In addition to costs and benefits to U.S. entities, this rule will
affect foreign entities. Costs to foreign entities include the cost
(the $14 fee and related expenses) and time burden for foreign
travelers to obtain a travel authorization, and the cost and time
burden for foreign travelers to obtain a B-1/B-2 visa if a travel
authorization is denied. Benefits to foreign entities include the
savings to foreign travelers in new VWP countries for no longer needing
to apply for visas and the savings to foreign travelers in no longer
needing to fill out a paper Form I-94W or Form I-94. Table ES-2 shows
the range of annualized costs and benefits of this rule to each foreign
entity from 2008-2018, using 3 and 7 percent discount rates.
ES-2--Annualized Costs and Benefits of the Rule to Foreign Entities, 2008-2018
[$2013]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
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Costs
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Travelers--Fee for Travel $131 million to $138 million........... $127 million to $133 million.
Authorization.
Travelers--Time Burden for 126 million to 282 million............. 122 million to 271 million.
Travel Authorization.
Travelers--Visa Costs.......... 14 million to 21 million............... 14 million to 21 million.
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Benefits
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Travelers--Visa Savings........ 182 million to 244 million............. 173 million to 231 million.
Travelers--I-94/I-94W Savings.. 67 million to 150 million.............. 65 million to 144 million.
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I. Background and Purpose
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, in
consultation with the Secretary of State, may designate countries for
participation in the Visa Waiver Program (VWP) if certain requirements
are met.\3\ Eligible citizens and nationals of VWP countries may apply
for admission to the United States at a U.S. port of entry as
nonimmigrant visitors for a period of ninety (90) 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. Other nonimmigrant
visitors must obtain a visa from a U.S. embassy or consulate and
generally must undergo an interview by consular officials overseas in
advance of travel to the United States.
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\3\ The current list of VWP countries is set forth in 8 CFR
217.2(a).
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B. The Electronic System for Travel Authorization (ESTA)
On August 3, 2007, the President signed into law the Implementing
Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Public
Law 110-53. Section 711 of the 9/11 Act required that the Secretary of
Homeland Security, in consultation with the Secretary of State, develop
and implement a fully automated electronic travel authorization system
to collect biographical and other information as the Secretary
determines necessary to evaluate, in advance of travel, the eligibility
of the applicant to travel to the United States under the VWP, and
whether such travel poses a law enforcement or security risk. See 8
U.S.C. 1187(h)(3)(A).
On June 9, 2008, DHS published an interim final rule in the Federal
Register (73 FR 32440) announcing the creation of the ESTA program for
nonimmigrant visitors traveling to the United States by air or sea
under the VWP. See 8 CFR 217.5. ESTA provided for an automated
collection of the information required on the Form I-94W Nonimmigrant
Visa Waiver Arrival/Departure paper form (Form I-94W) in advance of
travel. ESTA is intended to fulfill the statutory requirements
described in Section 711 of the 9/11 Act. For purposes of this
document, the June 9, 2008 interim final rule is referred to as the
ESTA IFR.
On November 13, 2008, DHS published a notice in the Federal
Register (73 FR 67354) announcing that use of ESTA would be mandatory
for all VWP travelers traveling to the United States seeking admission
at air and sea ports of entry beginning January 12, 2009. Since that
date, VWP travelers have been required to receive travel authorization
through ESTA prior to boarding a conveyance destined for an air or sea
port of entry in the United States. Travelers unable to receive
authorization through ESTA may still apply for a visa to travel to the
United States.
C. The Fee for Use of ESTA and the Travel Promotion Act Fee
On March 4, 2010, the United States Capitol Police Administrative
Technical Corrections Act of 2009, Public Law 111-145, was enacted.
Section 9 of this law, the Travel Promotion Act of 2009 (TPA), mandated
the Secretary of Homeland Security to establish a fee for the use of
ESTA and begin assessing and collecting the fee no later than six
months after enactment. See 8 U.S.C. 1187(h)(3)(B).
The TPA provided that the required fee consist of the sum of $10
per travel authorization (TPA fee) to fund the newly authorized
Corporation for Travel Promotion and an amount that will at least
ensure recovery of the full costs of providing and administering the
System (ESTA fee), as determined by the Secretary. See 8 U.S.C.
1187(h)(3)(B). The TPA fee has a sunset provision and the Secretary is
authorized to collect this fee only through September 30, 2020.\4\ The
ESTA fee, in contrast, does not include a sunset provision, but will be
reassessed on a regular basis to ensure it is set at a level to fully
recover ESTA operating costs.
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\4\ See Footnote 3 above regarding the extension of the sunset
provision of the Travel Promotion Act fee through September 30,
2020.
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On August 9, 2010, DHS published an interim final rule in the
Federal Register (75 FR 47701) announcing that, beginning September 8,
2010, a $4 ESTA fee would be charged to each ESTA applicant to ensure
recovery of the full costs of providing and administering the system
and an additional $10 TPA fee would be charged to each applicant
receiving a travel authorization through September 30, 2020. See 8 CFR
217.5(h). For purposes of this document, the August 9, 2010 interim
final rule is referred to as the ESTA Fee IFR.
For more details regarding ESTA, please see the ESTA IFR (73 FR
32440).
[[Page 32270]]
For more details regarding the fees associated with ESTA, please see
the ESTA Fee IFR (75 FR 47701). Additional information may also be
found on the ESTA Web site at https://esta.cbp.dhs.gov.
II. Discussion of Comments Submitted in Response to the Interim Final
Rule Announcing ESTA and Interim Final Rule Announcing the ESTA Fee
A. Overview
DHS issued the ESTA IFR on June 8, 2008 and the ESTA Fee IFR on
August 9, 2010. Although DHS promulgated both IFRs without first
soliciting public notice and comment procedures, DHS provided a sixty
day post-promulgation comment period for each rule. Each IFR solicited
public comments that DHS would consider before adopting the interim
regulations as final. The ESTA IFR went into effect on January 12, 2009
and the ESTA Fee IFR became effective on September 8, 2010. DHS
received twenty-two submissions in response to the ESTA IFR and
seventeen submissions in response to the ESTA Fee IFR. Many of the
submissions contained multiple comments. This final rule addresses all
the comments submitted within the comment periods that are within the
scope of the two interim final rules.
Of the twenty-two submissions for the ESTA IFR, most included
comments seeking clarification on specific issues, highlighting
concerns or issues with ESTA, or offering solutions to issues or
alternatives to ESTA. Many of the operational issues raised by
commenters have already been addressed by DHS during implementation of
ESTA, which our responses reflect. Of the seventeen submissions to the
ESTA Fee IFR, some commenters objected to the fees generally and others
sought clarification regarding the fees, such as why there were two
components and when the fees would be incurred.
Due to the evolution of ESTA and the occasional overlap of comments
received in response to both interim final rules, all of the following
comments are grouped by category. Except where necessary, comments to
the ESTA IFR and comments to the ESTA Fee IFR are not distinguished.
B. Discussion of Comments
1. Impact on Travel
Comment: Some commenters expressed support for ESTA because it will
allow VWP travelers the opportunity to learn of travel eligibility
problems in advance of arrival.
Response: DHS agrees that one benefit of ESTA is that it informs
travelers of their eligibility to travel to the United States under the
VWP before departing for the United States. Applicants who are not
eligible to travel to the United States through the VWP can attempt to
make alternative arrangements in advance, such as obtaining a visa from
a U.S. embassy or consulate. For more information about visa
application procedures, please visit http://www.travel.state.gov.
Comment: A few commenters expressed concern that the ESTA fee and
the TPA fee could negatively impact how the world views the United
States and could be perceived as an obstacle to legitimate travel. The
commenters claimed this could result in some travelers avoiding the
United States, which would hurt tourism, business interests, and the
travel industry.
Response: There are a lot of variables that can influence the
numbers of VWP travelers who come to the United States. DHS is
confident that ESTA is not a significant deterrent. Despite the
assertion that ESTA and the ESTA fee would negatively affect tourism to
the United States, DHS has seen no decrease in VWP travel coming to the
United States since ESTA was announced, even after accounting for
countries that have joined the VWP since ESTA was implemented. Through
the end of 2012, there have been over 50 million travel authorizations
granted through ESTA.
Comment: Some commenters noted that significant burdens could be
placed on airlines due to passengers attempting to board without having
first obtained ESTA travel authorization.
Response: Prior to implementation, DHS conducted significant
outreach to the travel industry and the traveling public to ensure that
they were aware of the ESTA requirements, including the need to have a
valid ESTA travel authorization prior to boarding a conveyance destined
for an air or sea port in the United States. In addition to outreach,
DHS took various steps, including delaying implementation and
establishing an informed-compliance period, to enable the travel
industry and the traveling public to adjust to the new requirements.
This is explained in more detail in Section II. B. 3 (Implementation of
ESTA). As a result of these steps and the outreach, the concerns raised
in this comment never materialized.
2. Impact on Short Notice Travelers
Comment: A number of comments were received regarding the timeline
for ESTA approval and the impact on last minute travelers applying at
the airport on the day of scheduled travel. One commenter asked DHS to
monitor the system for problems to determine if there are negative
impacts on last minute business travelers and to provide guidance on
what a last minute traveler should do in the case where he or she has
not received an ESTA determination, but needs to depart for the United
States. Some commenters said that DHS' recommended timeline for
applying for an ESTA travel authorization (no later than 72 hours prior
to departure) is not sufficient to accommodate last minute business
travelers.
Response: An ESTA travel authorization is generally valid for two
years so concerns about last minute travel will only be for those who
have not already received travel authorization through the ESTA Web
site. Also, potential VWP travelers may apply for an ESTA travel
authorization even if they do not have immediate plans to travel to the
United States. This enables VWP travelers to know whether they are
eligible to travel to the United States under the VWP even before
purchasing tickets. Furthermore, ESTA was designed to accommodate last
minute or emergency travel. ESTA allows travelers to apply for a travel
authorization on the day of departure and provides almost an immediate
response to the applicant for the vast majority of applications.
Applicants should be aware, however, that they risk not having the
required authorization to travel to the United States if their
application requires additional processing beyond the time between when
they submit their application and when their voyage to the United
States begins. VWP travelers without a valid ESTA travel authorization
cannot board conveyances destined for the United States.
In cases in which a determination is not granted immediately, it
may take anywhere from a few minutes to a few days for a decision to be
made. In most cases, the applicant will receive an ESTA decision within
72 hours. However, additional time may be necessary if manual vetting
is required or there is a system overload. An applicant may contact the
ESTA Telephone Help Desk at 202-344-3710 between the hours of 8:00 a.m.
to 4:00 p.m. (ET) Monday through Friday for assistance in processing
their pending application. However, there is no guarantee that a
determination will be made in time to allow the traveler to board a
conveyance destined for the United States. This is why DHS recommends
that travelers apply for an ESTA travel authorization early in the
planning process.
[[Page 32271]]
3. Implementation of ESTA
Comment: One commenter stated that if DHS were to maintain ESTA's
original timetable, then cumbersome, manual solutions would have to be
developed and promulgated for those carriers who cannot manage
automated solutions. Another commenter stated that DHS should offer a
discretionary period during which airlines allow VWP travelers without
ESTA travel authorization to travel to the United States under the
condition that they complete the I-94W paperwork upon arrival and
educate these passengers on how to use ESTA for future VWP travel.
Response: In promulgating the ESTA IFR, DHS built in a delayed
effective date for the rule to allow air carriers and VWP travelers to
adjust to the new ESTA process. Specifically, the ESTA IFR provided
that ESTA would become mandatory sixty days after the Secretary
published notice in the Federal Register. See 72 FR 32440. On November
13, 2008, DHS published a notice in the Federal Register, which
announced that ESTA would be mandatory for all VWP travelers beginning
January 12, 2009. See 73 FR 67354. The January 12, 2009 date provided
five months advance notice before DHS would implement the rule. It also
was the beginning of what DHS termed the Informed Compliance period.
This meant that while all travelers and carriers were expected to be
ESTA-compliant, DHS established a transition period to enable travelers
and carriers to adjust to the new requirements. During the Informed
Compliance period, travelers arriving without prior ESTA authorization
were not refused admission on this basis. Instead, they were permitted
to complete the paper form I-94W upon arrival in the United States.
Also, during this period, DHS did not levy fines on carriers for
boarding travelers without prior ESTA authorization. This enabled the
carriers to make the necessary system-adjustments for ESTA. As a result
of the advance notice and the informed compliance period, there was no
need for the manual solutions referenced in the above comment.
Further, DHS set up an internet-accessible system where certain
carriers could check the ESTA status for VWP travelers without having
to make the extensive system modifications required for carriers
regularly transporting VWP travelers. For the most part, the internet-
accessible system could be used by smaller or private carriers that
transport VWP travelers on an irregular basis, or for emergency
situations that may arise from time to time. For more information on
this internet-accessible system, please contact the ESTA Help Desk at
202-344-3710.
Comment: Some commenters stated that ESTA was announced too quickly
and prevented the travel industry from assessing the required changes
and evaluating the ramifications and costs. Other commenters asked DHS
to provide a transition period during which DHS would not levy
penalties on carriers.
Response: As explained above, DHS provided a significant amount of
notice before implementing ESTA as a mandatory requirement on January
12, 2009. This was followed by approximately one year of an Informed
Compliance period during which travelers and carriers were expected to
be ESTA-compliant but were not penalized for noncompliance. The
Informed Compliance period ended on January 20, 2010. As of that date,
individuals without an ESTA travel authorization would be refused
admission and, as allowed for under Sec. 217(e) of the INA (Carrier
Agreements), fines would be issued against non-compliant carriers. DHS
also provided an additional 60-day grace period after January 20, 2010
for carriers having difficulty with the systems modifications.
From the date the ESTA IFR published, the travel industry had more
than two years (and more than one year from the date it became
mandatory) to evaluate and adjust to the ESTA requirements and to
assess the costs related to ESTA and implement appropriate systems
modifications. During the time between when ESTA was announced and when
it became mandatory, DHS sought input and worked with the travel
industry to address operational issues. DHS believes that this program
has been highly successful in large part due to the cooperation between
DHS and the travel industry.
Comment: Many commenters had suggestions for the implementation of
ESTA, such as beginning ESTA as a pilot program to adequately measure
its impact, phasing it in over time rather than all at once, or waiting
until a certain percentage of VWP travelers are compliant before making
ESTA mandatory.
Response: As explained above, DHS implemented ESTA by using an
Informed Compliance period to facilitate the transition to the new
requirements. The ESTA IFR provided travelers and the travel industry
with the needed information about the new requirements and provided
ample notice and time to prepare for ESTA. DHS believed that the most
effective way to implement ESTA was to inform all VWP travelers and the
travel industry about the new requirements and to implement them for
all VWP countries and carriers at the same time. To facilitate a smooth
transition, DHS also conducted significant public outreach and worked
closely with the carriers involved with the VWP.
Implementing ESTA as a pilot program, based on country of
embarkation, port of arrival, language, or by any other piecemeal
approach would have meant multiple processes for carriers and DHS staff
at ports of entry. Moreover, DHS believes that such an approach would
not have aided the transition to the new requirements but rather would
have been confusing to the traveling public and travel industry.
Additionally, waiting until after a certain percentage of VWP travelers
were compliant would have been ineffective in strengthening the VWP in
a timely manner. DHS believes that ESTA was implemented in a way that
allowed for substantial analysis of the program and its impact, as well
as providing adequate notice to allow affected travelers and the travel
industry to adjust to ESTA's requirements comfortably.
Comment: One commenter stated that DHS should process ESTA
applications upon arrival for the small minority of passengers who
arrive without ESTA authorization.
Response: The 9/11 Act specifically required the Secretary to
collect the necessary biographical and other information ``to evaluate,
in advance of travel,'' the traveler's eligibility to travel to the
United States under the VWP. See 8 U.S.C. 1187(h)(3)(A). Therefore,
allowing VWP travelers to obtain an ESTA upon arrival in the United
States would contradict the language of the 9/11 Act and undercut DHS's
ability to evaluate the traveler's eligibility to enter the United
States under the VWP, in advance of travel. DHS believes that such a
process also could disincentivize VWP travelers from obtaining an ESTA
before departing for the United States.
DHS provided VWP travelers with the necessary information to comply
with ESTA requirements, as well as the transitional periods described
above prior to requiring compliance. Currently all VWP travelers are
responsible for obtaining ESTA authorization prior to boarding an air
carrier or sea vessel destined for the United States. As such, a VWP
traveler should not attempt to board and a carrier should not allow a
VWP traveler to board without ESTA travel authorization.
[[Page 32272]]
Comment: One commenter stated that DHS should have considered
proposals from the private sector to develop an ESTA-like system,
rather than developing ESTA as a government designed online system.
Response: DHS considered many alternatives and possible solutions
during the ESTA planning, design, and development process. DHS decided
to develop ESTA as a DHS system based on a variety of factors,
including the impact that the VWP has on national security, the need to
coordinate with other programs, and time constraints.
Comment: Two commenters agreed with the way that DHS implemented
ESTA. One commenter liked the fact that DHS moved aggressively to
implement new security measures required to expand the VWP and in
concluding bilateral agreements with qualified prospective VWP
countries. Another commenter stated that DHS is fulfilling a critical
role in accommodating and responding to the needs of last minute
travelers.
Response: DHS appreciates the comments expressing support for the
implementation and expansion of ESTA and the VWP.
Comment: A few commenters asked DHS to provide alternative means
for submitting an ESTA application such as integrating ESTA into the
travel industry's reservation system, providing a staffed telephone
hotline to permit users to report their information to the ESTA system,
or allowing carriers to apply on behalf of travelers.
Response: In order to meet the statutory requirement that DHS
create a fully automated electronic travel authorization, DHS
established the online ESTA Web site for submitting the ESTA
application. Other options, such as allowing carriers to apply on
behalf of travelers using their reservation system or a telephone
number where VWP travelers could call in and report the information,
would not have met the requirement to establish a fully automated
electronic travel authorization system and would have raised security
and privacy concerns.
4. Plain Language and ESTA Web Site Assistance
Comment: A few commenters requested that DHS use plain language on
the ESTA Web site, including the eligibility questions, in order to
avoid confusion about eligibility requirements or about when a new ESTA
application is required.
Response: DHS has used plain language in the ESTA application and
on the ESTA Web site wherever possible and, in an effort to accommodate
the majority of the VWP traveling public, the ESTA Web site has been
translated into 23 languages. On November 3, 2014, DHS revised the
eligibility questions on the ESTA Web site in order to make them
clearer while still providing DHS with the information needed to make
ESTA eligibility determinations. The Web site also features a ``Help''
section to assist applicants by providing definitions of certain terms
and clear answers to questions on a variety of subjects, including
situations in which an applicant is required to reapply before the
expiration date of their ESTA. As specified on the Web site, a traveler
must obtain a new travel authorization under any of the following
circumstances:
1. The individual is issued a new passport;
2. The individual's name changes;
3. The individual changes gender;
4. The individual changes their country of citizenship; or
5. The circumstances underlying the traveler's previous responses
to any of the ESTA application questions requiring a ``yes'' or ``no''
response have changed.
Comment: One commenter notes that the Frequently Asked Questions
(FAQs) posted on the ESTA Web site are very useful and asked DHS to
post more of them.
Response: FAQs are posted on the ESTA Web site under the HELP
section at https://esta.cbp.dhs.gov/esta/WebHelp/ESTA_Screen-Level_Online_Help_1.htm. Questions and answers are posted on an ad hoc
basis to address issues as they arise. DHS will continue to monitor
feedback and post appropriate general information when it is determined
to be helpful to the traveling public.
5. Internet Concerns and Third Party Applications
Comment: Several commenters raised concerns about whether the ESTA
online system will be able to handle the Web traffic as more travelers
fill out their ESTA applications online.
Response: ESTA is designed to accommodate a significant amount of
Web traffic. DHS takes necessary measures to ensure that the ESTA Web
site is readily available throughout the day and to minimize any
technical disruptions. To date, ESTA has experienced no significant
delays stemming from an increase in Web traffic.
Comment: Some commenters expressed concerns about fraudulent ESTA
emails designed to solicit personal information and fraudulent Web
sites attempting to gather information for criminal purposes by
imitating ESTA and asked how DHS plans to address these types of
issues.
Response: All ESTA applicants should apply for an ESTA travel
authorization at the following ESTA Web site: https://esta.cbp.dhs.gov.
DHS takes necessary measures to ensure the safety and reliability of
personal identification information furnished to DHS through this Web
site. The ESTA Web site is a secure Web site under DHS protocol. Each
approved application is assigned a unique identifier that corresponds
to the designated traveler. These unique identifiers directly
correspond to an approved traveler and verification is only done
electronically between the carriers and DHS. Therefore, the
confirmation cannot be copied or manipulated.
DHS monitors Web sites that purport to offer ESTA authorization and
will continue to provide outreach to the VWP traveling public to ensure
they know how to submit the ESTA application. If an ESTA applicant
receives emails claiming to be ESTA related that ask for personal
information, the applicant should report this to the ESTA Help Desk at
202-344-3710.
Comment: Many commenters stated that the ESTA fee could create
opportunities for other Web sites to charge users to complete the ESTA
applications.
Response: DHS has no control over third parties providing
assistance in applying for travel authorization. However, DHS has
designed the system to be user friendly so as to minimize the need to
seek assistance. For instance, the ESTA Web site is available in 23
languages and has information on the ESTA home page about traveler
eligibility and passport requirements as well as a HELP feature that
includes answers to frequently asked questions.
Comment: Some commenters asked about alternatives for ESTA
applicants without internet access. One commenter asked if an
individual within the United States could apply for an ESTA on behalf
of the traveler. One commenter asked if applicants who use a third
party to complete an ESTA application should provide the traveler's
email address or that of the third party who applies on the traveler's
behalf.
Response: In order to accommodate people who may not have
familiarity with or access to computers or the internet, DHS designed
ESTA to allow a third party, such as a relative, friend, or travel
agent, to submit an application on behalf of the traveler. The location
of the third party filling out the ESTA
[[Page 32273]]
application is immaterial. The traveler or third party can apply within
or outside the United States. In all cases, the traveler is responsible
for the answers submitted on his or her behalf by a third party and the
third party must check the box on the ESTA application indicating that
he or she completed the application on the traveler's behalf. The email
address provided should be the traveler's email address. If the
traveler does not have an email address, he or she may provide an
alternative third-party email address belonging to a point of contact
(e.g. a family member, friend, or business associate).
Comment: One commenter stated that DHS should ascertain the
percentage of travelers entering the United States who will use the
internet and other means (such as a travel agent) to make travel
arrangements to demonstrate how many travelers do not book travel
through the internet and would thus have difficulty obtaining
authorization through the ESTA Web site.
Response: DHS has seen no evidence that VWP travelers are having
difficulty obtaining ESTA authorization through the ESTA Web site.
Additionally, in the economic analysis posted on the docket with the
ESTA IFR (Regulatory Assessment for the Interim Final Rule: Changes to
the Visa Waiver Program to Implement the Electronic System for Travel
Authorization), DHS provided extensive information on historic booking
patterns, internet penetration, and computer prevalence. This
information has been updated in the economic analysis prepared for this
final rule (Regulatory Assessment for the Final Rule: Changes to the
Visa Waiver Program to Implement the Electronic System for Travel
Authorization and the Fee for Use of the System), posted on the docket
with this final rule. To see detailed information relevant to this
comment, please refer to Chapter 2 (Regulatory Baseline: Historic &
Projected Traveler Levels) of this document. In summary, internet
penetration and computer access is high in VWP countries and has grown
since the ESTA IFR published in 2008. Twenty-four of the 37 countries
in the VWP have internet penetration rates above 75 percent and only
one country (Greece) has an internet penetration rate of less than 50
percent. As discussed above, VWP travelers who do not have direct
access to the internet may submit the application through a third
party. DHS continues to believe that these third parties, such as
relatives, friends, and travel agents, will be key players in the
continued success of ESTA.
6. The Role of ESTA for VWP Travelers
Comment: One commenter stated that requiring VWP travelers to
obtain ESTA travel authorization is the functional equivalent of a visa
because passengers do not need any documentation other than a valid
passport before traveling to the United States. Another commenter
stated that ESTA requires certain foreign citizens to obtain an exit
permit from the U.S. government before they may leave their own
country.
Response: These comments do not accurately portray ESTA. Under the
VWP, eligible citizens, nationals and passport holders from designated
VWP countries may apply for admission to the United States as
nonimmigrant visitors for a period of ninety days or less for business
or pleasure without first obtaining a nonimmigrant visa. ESTA, however,
is not the functional equivalent of a visa because eligible travelers
from participating countries are exempt from the visa requirement.
Application for a nonimmigrant visa to travel to the United States
involves the payment of a higher fee and generally requires travel to a
U.S. embassy or consulate for an in person interview.
Rather, ESTA is the functional equivalent of the Form I-94W that
VWP travelers were previously required to complete upon arrival in the
United States. As a result of the ESTA IFR, only eligible travelers
from VWP countries arriving by air and sea now present the information
collected on the Form I-94W through ESTA in advance of their travel to
the United States. VWP travelers arriving in the United States by land
are still required to complete a paper Form I-94W. VWP travelers who
receive ESTA travel authorization are not required to report to a State
Department consular office and obtain a visa before traveling to the
United States.
ESTA is not equivalent to an exit permit from the foreign country
and does not require anyone to obtain an exit permit from a foreign
country. Rather, ESTA fulfills a requirement for VWP travelers
intending to enter the United States by air and sea.
7. In-Transit Travel
Comment: One commenter remarked that ESTA should provide clear
instructions to passengers who transit through the United States onward
to other destinations as to whether they are required to comply with
ESTA requirements.
Response: DHS does not currently operate a transit without visa
program. Travelers who transit through the United States en route to
another country must either obtain travel authorization via ESTA to
travel under the VWP or they must have a visa. This is true even if the
individual is leaving the United States on the same day or even on the
same plane. Travelers who will transit through the United States en
route to another country can simply enter the words ``In Transit'' in
the address lines under the heading ``Address While In The United
States'' on the ESTA application.
8. ESTA Enforcement
Comment: One commenter stated that ESTA is impracticable and
unenforceable because it does not specify any enforcement mechanisms.
Response: DHS disagrees. There are enforcement mechanisms that
apply to individuals and carriers involved in the VWP. All VWP
travelers are responsible for obtaining ESTA authorization prior to
boarding an air or sea vessel destined for the United States and may be
prevented from boarding and/or denied admission to the United States
upon arrival if they do not have ESTA travel authorization. Carriers
that transport VWP travelers are required to enter into agreements with
the United States, pursuant to Sec. Sec. 103 and 217 of the INA, to
become VWP signatory carriers. These agreements impose certain
obligations upon carriers and provide for the imposition of fines if
certain obligations are not met. For example, VWP signatory carriers
incur fines if they transport travelers who require a valid ESTA travel
authorization but do not have one.
Comment: One commenter stated that the phrase ``prior to embarking
on a carrier for travel to the United States'' is too vague and that it
should define the relevant terms. Another commenter stated that the
regulation should specify the manner of providing data to obtain an
ESTA travel authorization.
Response: Based on the plain language meaning of the phrase ``prior
to embarking on a carrier for travel to the United States,'' travelers
must have ESTA travel authorization prior to boarding an air carrier or
sea vessel destined for the United States. The term ``United States''
is defined at 8 U.S.C. 1101(a)(38). With regard to the manner of
submitting the ESTA application, DHS has made substantial efforts to
educate the public on how to obtain an ESTA travel authorization, and
has also provided such information in the ESTA IFR and this document.
Over 50 million ESTA travelers arrived in the United States between
2009 and 2011, an indication that applicants are aware of how to submit
an ESTA application.
[[Page 32274]]
Comment: Some commenters stated that ESTA will cause logistical
problems because carriers will have to determine the visa class of
travelers.
Response: This is not accurate. Only travelers coming to the United
States under the VWP are required to obtain an ESTA travel
authorization and these travelers are exempt from visa requirements.
Carriers will not have to determine the visa class for these VWP
travelers.
Comment: One commenter claimed that airlines will incur significant
penalties and liabilities if they deny boarding to passengers who
arrive without an ESTA travel authorization or when a passenger arrives
at the port of entry and must be returned to his point of departure at
the carrier's expense.
Response: For the purposes of ESTA, a carrier's responsibility is
limited to the verification of the traveler's ESTA application status.
Carriers that wish to transport travelers under the VWP are required to
become VWP signatory carriers. VWP signatory carriers will incur fines
if they transport travelers who require a valid ESTA travel
authorization but do not have one. It should be noted that ESTA is not
a determination of admissibility; it merely authorizes the traveler to
board a conveyance destined for the United States. Passengers
determined to be inadmissible to the United States are required to
return to their country of origin and carriers are responsible to
provide these passengers transportation back to their point of
departure. The fact that travel authorization was granted does not
absolve the carrier from this responsibility. Carriers agree to the
following in the VWP carrier agreement:
The carrier will remove from the United States (on the first
available means of transportation to the alien's point of departure
to the United States) any alien transported by the carrier to the
United States for admission under the Visa Waiver Program in the
event that the alien is determined by a U.S. Customs and Border
Protection officer at the Port of Entry to be not admissible to the
United States or is determined by a U.S. Customs and Border
Protection officer to have remained unlawfully in the United States
beyond the 90-day period of admission under the Visa Waiver Program.
The carrier will carry out the responsibilities under this paragraph
in a manner that does not impose on the United States expenses
related to the transportation of such alien from the point of
arrival in the U.S.
Comment: One commenter indicated that there is no provision in the
9/11 Act about the carrier's role in implementing and enforcing ESTA.
As such, DHS is not authorized to compel carriers to assume a function
which Congress mandated on individuals.
Response: DHS agrees that the 9/11 Act requires certain individuals
to obtain a travel authorization prior to traveling to the United
States. However, VWP signatory carriers are responsible for verifying
that the traveler has a valid ESTA travel authorization prior to
allowing a VWP traveler to board a conveyance destined for the United
States. This responsibility is set forth in the VWP carrier agreements
described above.
9. State Department Coordination
Comment: One commenter stated that DHS and the State Department
must work together to ensure travelers are well-informed regarding
their responsibilities under the ESTA program.
Response: DHS coordinated closely with the State Department during
the development and implementation of ESTA and this coordination was
essential to the efficient implementation of ESTA. DHS's ongoing
coordination with the State Department remains essential to the ongoing
administration of the ESTA. DHS partnered with the State Department to
develop a strategic communications and outreach plan aimed at notifying
VWP travelers of the new ESTA requirements. DHS personnel traveled
extensively to VWP countries, attended major international travel
conferences, distributed printed materials, and spoke with the travel
industry and the public regarding ESTA. DHS continues to conduct
extensive public outreach at U.S. ports of entry and overseas with the
assistance of the State Department, to ensure that the traveling public
and the travel industry as a whole are sufficiently informed regarding
ESTA.
Comment: Some commenters noted that a significant number of ESTA
denials could result in increased visa demand, thereby causing
significant delays, and asked that DHS coordinate with the State
Department as needed.
Response: Since January 12, 2009, when ESTA became mandatory for
all VWP travelers traveling to the United States at air or sea ports of
entry, DHS has processed over 50 million VWP traveler applications and
denied approximately one-third of one percent (0. 23%) of all
applications. As such, there have not been a significant number of
denials. Moreover, as stated elsewhere in this document, DHS continues
to work with the State Department to ensure the efficient
administration of ESTA.
Comment: One commenter stated that DHS and the State Department
should offer clear direction and access to entry alternatives to those
that do not have a travel authorization via ESTA.
Response: ESTA is required for VWP travelers arriving in the United
States at air and sea ports of entry. As explained on the ESTA Web
site, persons who do not have an ESTA travel authorization may apply
for a visa issued by the State Department. Individuals traveling to the
United States with a passport and valid visa are not traveling under
the VWP and these individuals would not need to obtain an ESTA travel
authorization.
10. ESTA Expansion to Land Arrivals
Comment: One commenter stated that to be effective, ESTA should
apply to all modes of transportation and asked how ESTA will function
at the land borders.
Response: Currently, ESTA is required only for VWP travelers
arriving in the United States by air or sea. VWP travelers who arrive
in the United States at a land border port of entry are not required to
obtain ESTA authorization. These travelers must submit a completed
paper Form I-94W at the land border port of entry. However, DHS is
considering expanding ESTA to VWP travelers arriving at a land border
by way of a separate rulemaking.
11. Impact on Existing Laws and Agreements
Comment: One commenter stated that the ESTA rule exceeds the
statutory authority of Section 217 of the INA by imposing additional
requirements beyond what is imposed by the statute. The commenter
claims the statute only obliges travelers to ``electronically provide
information,'' whereas the ESTA IFR requires that the traveler
providing information also receive a travel authorization.
Response: DHS disagrees. Section 217(a)(11) of the INA (8 U.S.C.
1187(a)(11)), as amended, specifically requires the Secretary of
Homeland Security to determine whether the person submitting the
electronic travel authorization is eligible to travel to the United
States under the VWP. It provides that each alien traveling under the
program shall, before applying for admission to the United States,
electronically provide biographical information and such other
information as the Secretary of Homeland Security determines necessary
to determine the eligibility of, and whether there exists a law
enforcement or security risk in permitting, the alien to travel to the
United States and that upon review of such information, the Secretary
of Homeland Security shall determine whether the alien is eligible to
travel to the United States under the program. Moreover, section
217(h)(3)(C)(i) of the
[[Page 32275]]
INA (8 U.S.C. 1187 (h)(3)(C)(i)) provides for regulations ``that
provide for a period, not to exceed three years, during which a
determination of eligibility to travel under the program will be
valid.'' As such, the statutory provisions anticipate a determination
of eligibility to travel. Therefore requiring a VWP traveler to receive
ESTA travel authorization does not exceed the statutory authority.
Comment: Some commenters claimed that ESTA limits the freedom of
movement of individuals and that this violates international
agreements, including Article 13 of the Universal Declaration of Human
Rights (UDHR) \5\ and Articles 10, 12, and 21 of the International
Covenant on Civil and Political Rights (ICCPR).\6\
---------------------------------------------------------------------------
\5\ The UDHR, a United Nations General Assembly declaration,
consists of 30 articles relating to the respect for and observance
of human rights and fundamental freedoms. For more information,
please see http://www.un.org/en/documents/udhr/index.shtml.
\6\ The ICCPR, a United Nations General Assembly covenant,
commits its parties to respect the civil and political rights of
individuals. The United States ratified the ICCPR with reservations
not applicable to the articles referenced in this comment (Articles
10, 12, and 21). For more information, please see http://treaties.un.org/doc/db/survey/CovenantCivPo.pdf.
---------------------------------------------------------------------------
Response: DHS disagrees that ESTA limits the freedom of movement of
individuals and that this violates international agreements. The
referenced provisions do not pertain to ESTA and they are outside the
scope of the ESTA rulemakings. Article 13 of the UDHR refers to freedom
of movement and residence within the borders of each state as well as
the right to leave a country or return to one's own country. Article 10
of the ICCPR applies to persons deprived of their liberty in relation
to the penitentiary system. Article 12 of the ICCPR concerns the right
to liberty of movement when lawfully in the territory of a state, the
freedom to leave a country including one's own, and the right to
reenter one's own country. Article 21 of the ICCPR concerns the right
to peaceful assembly. ESTA does not limit an individual's rights to
leave a country, limit an individual's right to reenter one's own
country, relate to individuals in the penitentiary system, or have any
impact on an individual's right to peaceful assembly.
Comment: Some commenters expressed concerns that the ESTA Web site
may contravene disability laws and raise discrimination issues because
it discriminates against those who are unable to access the internet
due to a disability.
Response: DHS endeavors to take the necessary steps to ensure that
persons with disabilities can comply with the regulatory requirements.
Persons that are unable to access the internet due to a disability may
apply for an ESTA travel authorization through a third party.
12. I-94W Paper Form
Comment: One commenter stated that ESTA duplicates the information
required by the paper Form I-94W that has to be completed upon arrival
in the United States. Some commenters stated that ESTA will have a
negative impact on travel to the United States because obtaining an
ESTA travel authorization is an additional hurdle for VWP travelers who
must also answer the same questions on the paper Form I-94W upon
arrival. Other commenters stated that DHS should eliminate the paper
Form I-94W to facilitate improved processing of travelers. One
commenter said that the elimination of the paper Form I-94W should not
be completed until all carriers are capable of validating a traveler's
ESTA authorization status. Another commenter said that DHS should
eliminate the paper Form I-94W on a carrier-by-carrier basis to provide
an early incentive to carriers to comply at an early stage.
Response: ESTA was designed to automate the paper Form I-94W with
the ultimate goal of replacing it, not duplicating it. The ESTA IFR
stated: ``The development and implementation of the ESTA program will
eventually allow DHS to eliminate the requirement that VWP travelers
complete an I-94W prior to being admitted to the United States. As DHS
moves towards elimination of the I-94W requirement, a VWP traveler with
valid ESTA authorization will not be required to complete the paper
form I-94W when arriving on a carrier that is capable of receiving and
validating messages pertaining to the traveler's ESTA application
status as part of the traveler's boarding status.'' See 73 FR 32440 at
32443.
The requirement to complete the paper Form I-94W was eliminated for
VWP travelers arriving in the United States at air or sea ports of
entry on or after June 29, 2010. Eliminating the paper Form I-94W for
these VWP travelers ensured that there was no further duplication.\7\
Prior to eliminating the paper Form I-94W for air and sea VWP
travelers, DHS provided adequate time to allow carriers to make the
necessary adjustments in their systems to enable them to verify VWP
traveler's ESTA authorization status. As explained more fully in the
ESTA Application Status Notifications for Travelers and Carriers
section below, DHS worked closely with the affected carriers to ensure
that their systems were able to send and receive ESTA application
status messages. DHS decided not to eliminate the paper Form I-94W on a
carrier-by-carrier basis because this would have created confusion at
the ports for carriers, travelers, and DHS personnel and could have
increased wait or processing times and resulted in missed connections
for travelers.
---------------------------------------------------------------------------
\7\ The elimination of the paper Form I-94W for VWP travelers
arriving at air and sea ports of entry was announced as a goal in
the ESTA IFR and communicated with the public and carriers through
outreach. Secretary Napolitano also released a statement announcing
the elimination as well: http://www.dhs.gov/ynews/releases/pr_1274366942074.shtm.
---------------------------------------------------------------------------
Comment: One commenter stated that the Form I-94W should be
eliminated for non-VWP countries.
Response: The Form I-94W is only required for nationals from VWP
countries.
13. Preclearance Ports
Comment: One commenter stated that ESTA should not be required for
passengers traveling from preclearance ports in Canada to the United
States, given that they have already been vetted.
Response: The 9/11 Act required the Secretary of Homeland Security,
in consultation with the Secretary of State, to develop and implement a
fully automated electronic travel authorization system to collect
certain information in advance of travel to the United States. ESTA
fulfills this statutory requirement. Therefore, ESTA is required for
all VWP travelers arriving in the United States at air or sea ports of
entry, regardless of their last foreign location prior to arriving at
the United States. Preclearance locations are locations outside the
United States where travelers are inspected and examined by DHS
personnel to ensure compliance with U.S. customs, immigration, and
agriculture laws, as well as other laws enforced at the U.S. border.
Such inspections and examinations prior to arrival in the United States
generally enable passengers to exit the domestic terminal or connect
directly to a U.S. domestic flight without undergoing further
processing. However, travelers who are inspected and examined at these
preclearance locations are still required to have a visa, or if
eligible, to comply with the requirements of the VWP.
[[Page 32276]]
14. ESTA Applications at Airports
Comment: Some commenters stated that DHS should provide Internet-
accessible kiosks for day of departure applications because some
foreign airports lack Internet access. One commenter asked DHS to
install ESTA kiosks in preclearance locations.
Response: DHS does not have the authority or the resources to
establish Internet-access kiosks in foreign airports, including
preclearance locations. Nonetheless, travelers may be able to apply for
an ESTA travel authorization on the day of departure if other Internet
access is available. In fact, some global airports have kiosks or
dedicated links at Internet cafes in international terminals available
for use by travelers. However, simply having Internet access, and thus
the ability to apply for an ESTA travel authorization does not
guarantee an ESTA travel authorization will be granted or granted in
time. ESTA applicants who apply early and are denied a travel
authorization may still have time to obtain a visa.
Comment: One commenter disagrees with DHS's estimate (15 minutes)
of the time required for a VWP traveler to apply for an ESTA travel
authorization. The commenter believes that oftentimes passenger check-
in times are longer and access to public Internet facilities is either
unavailable or limited.
Response: The 15 minute estimate of the time required for the VWP
traveler to apply for an ESTA authorization is based on the traveler's
interaction with the ESTA Web site. This time estimate did not consider
factors such as a lack of computer or limited or unavailable Internet
connectivity at passenger check-in. DHS encourages VWP travelers to
apply for an ESTA authorization well before arriving at the airport.
15. ESTA Validity Period
Comment: Multiple comments were received regarding ESTA's two year
validity period. Some commenters noted that it is unnecessarily
restrictive or will result in more travelers applying for a visa. One
commenter asked DHS to describe circumstances where the validity period
would be extended to three years, which is the upper limit allowed
under the 9/11 Act. One commenter stated that the two year validity
period and accompanying fee creates a burden for European citizens
wishing to travel to the United States because European citizens make
up a significant portion of total travelers to the United States.
Response: Section 711 of the 9/11 Act directs the Secretary of
Homeland Security, in consultation with the Secretary of State, to
prescribe regulations that provide for a period of validity for a
travel eligibility determination, not to exceed three years. See 8
U.S.C. 1187(h)(3)(C)(i); 8 CFR 217.5(d). DHS believes that, generally,
a two year validity period provides DHS with a reasonable timeframe to
reevaluate a VWP applicant's eligibility to travel without
overburdening VWP travelers. After considering the comments and in
light of the statutorily authorized maximum validity of three years,
DHS believes that it would be beneficial for the Secretary of Homeland
Security to retain discretion to adjust validity periods on a per
country basis to the three year maximum or to a lesser period of time.
Therefore, this final rule now provides that the ESTA validity period
is two years unless the Secretary Homeland Security, in consultation
with the Secretary of State, decides to increase or decrease the
validity period for a designated VWP country on a case-by-case basis.
Under this final rule, notice of any change to ESTA travel
authorization periods will be published in the Federal Register and
updated on the ESTA Web site. DHS believes that this change enhances
the Secretary's flexibility to recognize countries' bilateral
information sharing and further promotes compliance standards for
member countries' participation in the VWP. To effect this change, the
regulations will be amended by adding a new 8 CFR 217.5(d)(3).
Regarding the claims that the two year validity period and
accompanying fee are burdensome and may lead some travelers to decide
to obtain a visa, DHS believes that obtaining an ESTA travel
authorization is less burdensome than obtaining a visa. In fact, DHS
believes that the ease with which an ESTA travel authorization can be
obtained leads most VWP-eligible travelers to obtain an ESTA travel
authorization rather than a visa before traveling to the United States.
VWP travelers who obtain an ESTA travel authorization do not have to
apply for a visa nor do they have to pay the costs associated with
obtaining a visa to travel to the United States.
16. Passport Issues
Comment: One commenter stated that the passport expiration date's
impact on the ESTA validity period is complicated.
Response: Generally, an ESTA travel authorization is valid for a
period of either two years from the date of authorization or the date
the traveler's passport expires--whichever is sooner. See 8 CFR
217.5(d)(1). However, there is an exception at 8 CFR 217.5(d)(2) for
travelers from certain countries who have not entered into agreements
with the United States regarding the expiration date of passports;
specifically, agreements providing that passports are recognized as
valid for the return of the bearer to the country of the foreign-
issuing authority for a period of six months beyond the expiration date
specified in the passport. For travelers from these countries, an ESTA
travel authorization is not valid beyond six months prior to the
expiration date of the passport. In addition, travelers from these
countries whose passports will expire in six months or less will not
receive ESTA travel authorization. Moreover, as specified elsewhere in
this document and on the ESTA Web site, a traveler must obtain a new
travel authorization under any of the following circumstances:
1. The individual is issued a new passport;
2. The individual's name changes;
3. The individual changes gender;
4. The individual changes their country of citizenship; or
5. The circumstances underlying the traveler's previous
responses to any of the ESTA application questions requiring a
``yes'' or ``no'' response have changed.
In order to make things clear, DHS provides the exact ESTA
expiration date on the ESTA Web site screen granting approval for
travel authorization. In addition, as explained more fully in the ESTA
Application Status Notification for Travelers and Carriers section, DHS
has updated the ESTA system to provide email notification to
individuals approximately 30 days before the expiration of their ESTA
travel authorization, informing them that their ESTA travel
authorization will expire in approximately 30 days. However, this
feature is only available if the VWP traveler provided an email address
through the ESTA Web site.
Comment: One commenter stated that passport validity should have no
bearing on the validity of a travel authorization via ESTA.
Response: A valid passport is essential for travel to the United
States. Under the INA, any immigrant or nonimmigrant alien seeking
admission to the United States must have proper documentation,
including a valid and unexpired passport. See 8 U.S.C. 1182(a)(7). An
ESTA travel authorization is not valid unless the traveler has a valid
and unexpired passport. For those wishing to travel to the United
States under the VWP, an expired passport necessitates obtaining both a
new passport and applying for a new ESTA travel authorization.
[[Page 32277]]
Comment: Some commenters highlighted system limitations related to
the passport section of the ESTA Web site. For example, United Kingdom
passports are valid for more than the maximum 10-year period allowed by
ESTA and the German passport contains 10 characters and ESTA only
accepts 9 characters.
Response: Based on commenter input, DHS has made the necessary
modifications to the ESTA Web site to ensure that passport information
can be properly entered in the ESTA application. With regard to the
examples provided, DHS has modified the ESTA Web site to allow
passports that are valid for more than 10 years to be entered and to
allow more than 9 characters for passport identification numbers.
17. Denied Travel Authorization
Comment: One commenter stated that approximately 85,000 travelers a
year could be denied travel authorizations based on errors when
submitting information and that reapplying would be costly and time
consuming.
Response: As stated above, on average, a total of 0.23% of ESTA
travel authorization applications are denied each year. This amounts to
an average of 52,000 denials per year. While it is unknown what
percentage of these denials are based on user error when submitting
information, DHS has taken steps to minimize the number of applications
denied based on keystroke errors. For example, the ESTA Web site
prompts each applicant to review the data submitted for the overall
application prior to submission. If the applicant finds an error, a
correction may be made. In addition, the ESTA Web site requires the
applicant to reaffirm the passport number and family name prior to
submission of the application. DHS believes that the opportunity to
review data prior to submission should minimize the incidences of
keystroke errors. If an applicant makes a mistake when filling out the
passport information, identifying biographic information, or
eligibility questions, and he or she realizes the mistake after the
applicant submits the ESTA application and the application for travel
authorization is denied, he or she will need to submit a new ESTA
application and pay the applicable fee. However, there is no guarantee
that the subsequent application will result in travel authorization.
Any other mistakes, including email address, telephone number, carrier
name, flight number, city where the applicant is boarding, and address
while in the United States, may be corrected or updated by using the
ESTA update function, which can be done free of charge.
Comment: One commenter stated that the costs to the air carrier
industry and travelers are high when compared to the small percentage
of VWP travelers who are denied travel authorization. Another commenter
stated that the cost to airlines of returning passengers found
inadmissible is significant. According to the commenter, that cost is
over $10 million per year (7,200 passengers at a cost of $1,500 each in
fines).
Response: The 9/11 Act directed DHS to create an electronic system
to collect certain biographical and other information to evaluate, in
advance of travel, the eligibility of the applicant to travel to the
United States under the VWP, and whether such travel poses a law
enforcement or security risk. The security benefits of ESTA cannot only
be quantified based solely on the number of ESTA applicants refused
travel authorization. The VWP was created in recognition of the high
percentage of travelers from the specified countries that will be
deemed eligible to travel to the United States without a visa. ESTA
also provides other benefits to travelers and carriers. It saves VWP-
eligible travelers time and effort upon arrival in the United States
and informs those who are not eligible before they board the carrier to
the United States.
Though the commenter's calculations of the cost incurred by
airlines to return inadmissible travelers is correct based on the
commenter's assumptions, DHS believes that ESTA presents additional
cost saving opportunities to the carriers that are responsible for
returning inadmissible travelers to their points of origin. Carriers
transporting VWP travelers always have been required to transport
inadmissible travelers who arrive in the United States back to their
point of origin. Therefore, ESTA does not impose additional costs in
this regard. Moreover, because ESTA is designed to prevent inadmissible
travelers from arriving at U.S. ports of entry, carriers will have
fewer inadmissible travelers to transport from the United States, which
should decrease their transportation costs. As stated in the Executive
Order 12866 section below, no longer needing to transport and inspect
inadmissible travelers will save carriers and DHS between $78 and $84
million annually.
Comment: Some commenters would like DHS to advise applicants why
travel authorization was denied so that the issue could be addressed to
enable travel under the VWP.
Response: DHS does not share information related to the denial of
an ESTA travel authorization due to the complexities of the travel
eligibility decision-making process, which is based on a combination of
factors, including those related to security. However, an applicant who
feels that the denial was improper may contact the ESTA Help Desk at
202-344-3710 or file a redress request through the DHS Travel Redress
Inquiry Program (TRIP) Web site, http://www.dhs.gov/dhs-trip. If the
denial was based on a genuine misunderstanding, for instance, where the
applicant misunderstood a question and provided an answer resulting in
the denial, then the application may be approved. However, DHS cannot
guarantee that contacting the ESTA Help Desk or using the DHS TRIP Web
site will result in an application being approved. As always, a
traveler may apply for a nonimmigrant visa at a U.S. embassy or
consulate.
18. Expedited Review
Comment: Some commenters would like to be able to request an
expedited review through ESTA.
Response: As stated above, most applications receive an immediate
response. However, if necessary, an individual may request an expedited
review by calling the ESTA Help Desk at 202-344-3710.
19. ESTA Application Status Notifications for Travelers and Carriers
Comment: Some commenters asked how travelers will be notified of
their approval for travel.
Response: ESTA applicants are notified of their travel eligibility
on the screen at the ESTA Web site. In most cases, ESTA applicants are
notified of their status within seconds of submitting their
application, with travel authorization either being granted or denied.
In other cases, the ESTA applicant may be in a ``pending'' status,
where a final determination of travel eligibility has not been reached.
For an applicant who provides an email address during the application
process, DHS sends an email indicating that there has been an update to
the travel authorization status and that the decision can be viewed at
the ESTA Web site. Applicants who did not provide an email address will
need to refer back to the ESTA Web site at a later time to check for
changes in status. As of November 3, 2014, email addresses are a
mandatory data element.
Comment: Some commenters would like DHS to send a notification
about when an ESTA authorization will expire.
[[Page 32278]]
Response: Based on feedback, DHS updated the system to provide
email notification to individuals approximately 30 days before the
expiration of their ESTA travel authorization, informing them that
their ESTA travel authorization will expire in approximately 30 days.
The email notification advises recipients to go to the official ESTA
Web site to reapply as follows:
ESTA Expiration Warning: ATTENTION! Your travel authorization
submitted on (date of application) (application number) via ESTA
will expire within the next 30 days. It is not possible to extend or
renew a current ESTA travel authorization. You will need to reapply
at https://esta.cbp.dhs.gov if travel to the United States is
intended in the near future.
Comment: A few commenters stated that applicants receiving a
pending message, rather than an authorized or denied message, should be
authorized to travel to the United States because the traveler would
still submit their information on the Form I-94W and will be inspected
upon arrival.
Response: Generally, a decision on an individual's ESTA application
is issued within seconds of submission. However, travelers with a
``pending'' status will have to wait until the pending status is
resolved to ``Authorization Approved'' prior to a carrier allowing a
VWP traveler to board an aircraft or vessel destined for the United
States. DHS cannot allow ESTA applicants without an approved
authorization to travel to the United States, as to do so would prevent
DHS from being able to fully screen the applicant, and thus contradict
the Congressional mandates under the 9/11 Act. Because an exact
timeline for travel authorization decisions cannot be provided in all
cases, DHS encourages travelers to apply early for an ESTA travel
authorization, such as before they purchase their tickets to the United
States.
Comment: One commenter stated that the ``travel not authorized''
message is vague and should be changed to inform applicants that they
were unsuccessful and to inform them that they may still apply for a
visa.
Response: DHS has amended the ``travel not authorized'' message to
inform the applicant about the next steps in the process of seeking
travel to the United States. The response now reads as follows:
You are not authorized to travel to the United States under the
Visa Waiver Program. You may be able to obtain a visa from the
Department of State for your travel. Please visit the Department of
State Web site at www.travel.state.gov for additional information
about applying for a visa.
Comment: One commenter stated that instead of using the system-
generated 16-digit reference number, passengers should be able to use a
passport or other travel document number to access their ESTA
application.
Response: The 16-digit reference number is a unique number
generated by ESTA that may be used to check the status of an
applicant's status and to update optional information, such as flight
itinerary and address in the United States. This number is linked to
each ESTA application and approval. A travel document number cannot be
used as a reference number for several reasons. First, it may lack
sufficient security to uniquely identify a person. Second, since
passports are generally issued for 10 years and an ESTA travel
authorization is generally valid for two years, DHS would be unable to
distinguish between applications from the same individual. Also, it
would be confusing where a person possesses more than one passport,
such as those who have dual citizenship.
Comment: Some commenters wanted to know the specific content of the
ESTA application status messages carriers will be shown on pre-
departure and if there will be a distinction between flights departing
the United States and arriving flights.
Response: DHS sends a clear message to carriers to inform them
whether the VWP traveler has the required travel authorization prior to
boarding. Carriers will receive one of the following messages for
travelers: A--ESTA on file OK to board; B--No ESTA on file; C--ESTA
denied; Z--ESTA not applicable OK to board. Carriers may board
travelers associated with messages A and Z. Carriers may not board
travelers associated with messages B and C. ESTA authorization is not
required for flights departing the United States so there is no need
for ESTA messaging for departing flights.
20. Proof of Travel Authorization
Comment: Some commenters asked DHS to provide a receipt to serve as
proof of ESTA travel authorization and asked what to do in airports
that lack printers. Other commenters described situations where
travelers were not allowed to board despite having ESTA travel
authorization and were asked to present a paper printout of their
travel authorization.
Response: ESTA travel authorization only may be validated
electronically. The air or sea carrier must receive an electronic
message directly from DHS stating that the traveler has a valid ESTA
travel authorization prior to allowing the individual to board the
conveyance destined for the United States. A printout showing that ESTA
travel authorization was granted is not proper proof and DHS does not
require VWP travelers to present a paper printout as evidence of having
obtained ESTA travel authorization. If travelers are interested in
having something tangible for their own records, such as a receipt,
they may print the screen on the ESTA Web site showing that travel
authorization has been granted, but this will not serve as proof for
travel purposes.
Comment: Some commenters had concerns about the possibility of a
forged ESTA approval.
Response: As explained in the previous response, ESTA travel
authorization can only be verified electronically with an electronic
status message from DHS and as such, cannot be forged.
21. Mandatory and Optional Data Elements
Comment: Many comments were received requesting clarification about
which data elements are mandatory and which are optional.
Response: On December 9, 2014, DHS published a notice regarding
changes to the ESTA application and paper Form I-94W in the Federal
Register (79 FR 73096). These changes collect more detailed information
about a traveler by making previously optional data elements mandatory
and by adding additional data elements concerning other names or
aliases, current or previous employment, and emergency contact
information among other questions.
[[Page 32279]]
The mandatory data elements are clearly indicated by a red asterisk
on the ESTA Web site. They are: Applicant's Name (Family Name and First
(Given) Name; Known other names or aliases (Yes or No); Birth Date
(Day, Month, and Year); City of Birth; Country of Birth; Gender (Male
or Female); Parents' Names (Family Name, First (Given) Name); Passport
Number; Passport Issuing Country (Country of Citizenship); Passport
Issuance Date (Day, Month, and Year); Passport Expiration Date (Day,
Month, and Year); Country of Citizenship; Citizen of any other country
(Yes or No); Contact Email Address; Contact Telephone Number (Type,
Country Code, and Number); Contact Home Address (Address Line 1,
Apartment Number, Address Line 2, City, State/Province/Region, and
Country); Emergency Contact (Family Name and First (Given) Name);
Emergency Contact Telephone Number (Type, Country Code, and Number);
Emergency Contact Email Address; Travel to U.S. occurring in transit to
another country (Yes or No); and Current or previous employer (Yes or
No). Applicants must also answer eight eligibility questions regarding,
for example: Questions about physical and mental disorders, drug abuse
and addiction, and communicable diseases, arrests and convictions for
certain crimes, and past history of visa revocation or deportation, and
they must complete the Certification field (or third-parties field, if
applicable). The above mandatory information is the information the
Secretary deems necessary to evaluate whether an alien is admissible to
the United States under VWP and whether such travel poses a law
enforcement or security risk. Optional data elements, which should be
provided if known, are as follows: Address while in the United States
(Address Lines 1 and 2, City, and State); employer's telephone number
(country code and number); and job title. Upon submission, ESTA will
automatically collect the Internet Protocol address (IP address)
associated with the application for vetting purposes, as explained in
the Privacy Impact Assessment Update for the Electronic System for
Travel Authorization--Internet Protocol Address and System of Records
Notice Update, dated July 18, 2012, available at http://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
22. ESTA Interaction With Other Systems
Comment: Some commenters asked DHS to link ESTA with other
government systems or programs, such as the State Department's visa
issuance system or the Global Entry trusted traveler program.
Response: DHS is committed to achieving high levels of efficiency
through the integration of its programs and policies. To this end, DHS
coordinated ESTA with other government systems and programs to the
extent possible. However, some systems or programs, are not suitable
for linking with ESTA. For example, ESTA should not be linked with the
State Department's visa issuance system because an ESTA travel
authorization enables VWP travelers to travel to the United States
without a visa. Further, ESTA should not be linked with Global Entry
because the two programs have different purposes. ESTA travel
authorization is a determination of suitability to travel to the United
States, whereas Global Entry is intended to expedite low risk travelers
upon arrival in the United States.
Comment: One commenter believes that ESTA is unnecessary because it
duplicates APIS/AQQ and is costly to the airline industry.
Response: ESTA does not duplicate APIS/AQQ. While both programs
promote the security of the United States and some data elements may
overlap, the programs are distinct. Advance Passenger Information
System (APIS) data consists of certain biographical information and
conveyance details collected via the passenger reservation and check-in
processes. This information is transmitted to DHS in advance of arrival
through the Quick Query system. This is known to carriers as APIS/AQQ.
APIS/AQQ does not include an eligibility screening process and applies
to all flights beginning or ending in the United States. In contrast,
ESTA is specific to the VWP and includes basic biographical questions
as well as questions to determine a person's eligibility to travel
under the VWP. Although DHS is mindful of the costs to the travel
industry to implement ESTA, DHS has tried to implement ESTA in a way
that minimizes costs while at the same time adhering to the
Congressional mandate to develop ESTA within certain timeframes.
Comment: Some commenters stated that ESTA complicates carriers'
efforts to meet the pre-departure APIS requirements as they adapt their
systems. Other commenters asked whether a carrier that has received
APIS/AQQ accreditation is required to go through a future accreditation
process once ESTA messages have been incorporated. Some commenters
noted that the Consolidated User Guide, UN/EDIFACT, arrived in late
July 2008 and that this provided insufficient time for carriers to be
compliant with the initial January 2009 deadline for ESTA.
Response: This comment was submitted in response to the ESTA IFR.
At the time, DHS recognized the challenges facing the carriers to
ensure that their systems were compatible with ESTA and APIS in order
to receive and validate ESTA messages. To this end, DHS established an
ESTA testing process for all VWP signatory carriers to demonstrate the
carrier's ability to successfully transmit and receive ESTA messages
through APIS/AQQ. All VWP signatory carriers successfully completed the
testing process. DHS worked closely with each carrier to enable them to
make modifications to attain compliance with ESTA requirements in a
timely manner. DHS made a concerted effort to accommodate carriers as
time became an issue and allowed carriers to demonstrate a plan and
schedule to achieve compliance if they were not on schedule to be
compliant by the stated date. As the results showed, the joint effort
between DHS and the carriers was highly successful despite concerns at
the time that the necessary user guide information was late when
provided in July 2008.
Comment: One commenter stated that there may be passenger
processing delays caused by travelers who confuse APIS data
requirements with ESTA requirements. They may believe that the
submission of the APIS data elements to the travel agent or carrier in
advance of travel fulfills the ESTA requirement or vice versa and thus
arrive at the airport on the day of departure without an ESTA travel
authorization. Additionally, the commenter stated that DHS should make
it clear in public outreach that ESTA's requirements are distinct from
the APIS requirements, and that providing information for one program
does not cover the other.
Response: VWP travelers are not responsible for providing DHS with
APIS data. The carriers provide this information to DHS. It is the
responsibility of the VWP traveler to apply for and obtain ESTA travel
authorization prior to boarding an air or sea carrier destined for the
United States. DHS has conducted outreach to ensure VWP travelers are
aware of their responsibilities regarding the need to have a valid ESTA
travel authorization prior to boarding a conveyance destined for the
United States and is confident that there will be no passenger
processing delays arising due to confusion regarding APIS requirements
and ESTA requirements.
[[Page 32280]]
Comment: One commenter asked if APIS data would suffice as an
alternative to having a valid ESTA travel authorization and another
asked if APIS submissions would suffice for updates to information on
the ESTA Web site.
Response: There is no alternative to having ESTA travel
authorization for VWP travel. Each VWP traveler must receive travel
authorization through the ESTA Web site prior to boarding a conveyance
destined for an air or sea port of entry in the United States.
Additionally, APIS data is not an acceptable means for updating changes
to any of the mandatory data elements. As noted above in the Mandatory
and Optional Data Elements section, changes to any of the mandatory
data elements require a new travel authorization.
Comment: One commenter stated that the address and passport
information collected through ESTA should be defaulted to read, ``Refer
to APIS Entry'' to avoid the need for the carrier to adapt their APIS
system to accommodate ESTA. Several commenters stated that ESTA should
be harmonized with APIS/AQQ.
Response: Though the two systems are distinct, ESTA does work in
conjunction with APIS/AQQ. For carriers that transport VWP travelers,
the APIS/AQQ system was configured to selectively activate inclusion of
ESTA application status in the message response to the carrier, thereby
allowing carriers to know if the traveler has ESTA travel authorization
and is eligible to board without a visa. As such, a ``Refer to APIS
Entry'' message is unnecessary.
Comment: Some commenters had concerns regarding travel eligibility
or carrier penalties if a VWP traveler failed to update his or her
information, such as flight itinerary, or if this information differed
from the APIS transmission made by carriers.
Response: As communicated through public outreach, carriers will
not be penalized in situations where an ESTA application does not
reflect the current address or flight details for the traveler's trip
to the United States. Should the travelers wish to update their address
and flight itinerary details, they are able to do so by accessing their
application on the ESTA Web site and updating the information, free of
charge.
23. Method of Payment
Comment: One commenter stated that DHS should permit different
forms of payment in addition to credit cards for paying the ESTA fees.
Some commenters pointed out that credit card use is not as widespread
in the European Union as it is in the United States and that some
prospective travelers may not have credit cards.
Response: DHS currently uses the system Pay.gov to process payment
information. This system collects and processes payments from credit
cards and credit/debit cards from the following institutions:
MasterCard, VISA, American Express, Discover, Japan Credit Bureau, and
Diners Club. However, based on the feedback received, DHS is currently
investigating the option of allowing payments to be made from
additional sources. If DHS decides to expand the allowable methods of
payment, DHS will announce this to the public through outreach
programs, travel Web sites, and postings on the ESTA Web site. An
applicant who does not have a credit card may arrange for a third
party, such as a relative or travel agent, to submit the payment.
Additionally, DHS has made changes to the payment functionality on
the ESTA Web site to allow for groups of up to 50 applications to be
paid with a single transaction. This functionality was added to
accommodate those applications filed in group situations, such as a
travel agent working on behalf of a group of travelers or a family
applying together. A group is formed when a user adds an application to
an existing application at which time a group of two applications is
formed. At that time, the system will request information on the Group
Point of Contact (POC) who will be paying for the applications. The
Group POC can add to that initial group of two by creating new
applications or retrieving existing ones. The system will monitor the
number of applications in a group and will not allow the group to
exceed 50 applications. After the creation of the group is complete,
the system will ask the Group POC to submit payment. The ESTA fee will
be charged for each application submitted and the TPA fee will be
charged for each travel authorization granted.
24. ESTA Fee and the TPA Fee
Comment: A few commenters oppose the ESTA fee stating that there
are too many fees already. One commenter acknowledged the need to
offset the cost of maintaining a program such as ESTA with a fee, but
thought that the $4 charge would more than be made up by what these
travelers spend in the United States.
Response: The TPA directed DHS to establish a fee for ESTA that
consists of the sum of $10 per travel authorization (TPA fee) and an
amount that will at least ensure recovery of the full costs of
providing and administering the System, as determined by the Secretary
(ESTA fee). DHS has determined that the $4 ESTA fee is necessary to
ensure the full costs of providing and administering the System. The
statute does not permit DHS to consider benefits to the travel industry
that result from VWP travelers coming to the United States in
determining the ESTA fee.
Comment: One commenter stated that a $.050 administrative fee would
be more appropriate than a $4 administrative charge for collecting the
$10 TPA fee.
Response: The $4 ESTA fee is unrelated to the $10 TPA fee. The $4
ESTA fee goes to DHS to pay the costs associated with operating ESTA.
The $10 TPA fee goes to a fund in the Department of the Treasury
established by the Travel Promotion Act of 2009 to fund the activities
of the Corporation for Travel Promotion.
Comment: One commenter supports the $10 TPA fee in order to provide
a well-funded mechanism to reach out to actual and prospective
travelers to explain the rationale and details of ESTA.
Response: The TPA established the Corporation for Travel Promotion
as a nonprofit corporation for the purpose of promoting foreign
leisure, business, and scholarly travel to the U.S. and maximizing the
economic and social benefits of that travel for communities across the
country. The purpose of the $10 TPA fee is to provide funds for the
Corporation for Travel Promotion to attract visitors to the United
States. The $10 TPA Fee does not fund any outreach regarding ESTA.
Comment: Some commenters oppose the $10 TPA fee because they
believe that VWP travelers would receive no benefit from such fee. They
indicate that the $10 TPA fee should not be paid by visitors already
coming to the United States. Some commenters believe that the $10 TPA
fee is a hidden subsidy for the commercial tourism sector and that the
travel industry should advertise on its own to entice potential
visitors.
Response: Eligible travelers from VWP countries who receive an ESTA
travel authorization may benefit from the $10 TPA fee, as these fees
fund the Corporation for Travel Promotion that is mandated to help
communicate travel requirements to travelers to the United States. In
addition, they do not have to pay to obtain a visa and do not need to
report for an interview at a U.S. embassy or consulate. In addition,
the $10 TPA fee is only required with the initial application or
renewal of the ESTA, and will cover as many trips as the traveler takes
to the United States during the
[[Page 32281]]
ESTA travel authorization's validity period.
The $10 TPA fee amount was set by the TPA to fund the Corporation
for Travel Promotion, which was established by the TPA as a partnership
between the travel industry and the federal government to create a
marketing and promotion program to compete for international visitors
and to create jobs and economic growth.
Comment: Some commenters were concerned that other countries could
reciprocate with a travel promotion fee of their own which would harm
U.S. travelers.
Response: DHS has no control over foreign governments charging
travel promotion fees of their own. Some countries, including Visa
Waiver Program countries, have established their own version of a
travel promotion fee.
Comment: A few commenters asked whether the $4 ESTA fee and the $10
TPA fee would be charged for updating information.
Response: The $4 ESTA fee is charged each time a new ESTA
application is submitted. The $10 TPA fee will be charged whenever a
new ESTA travel authorization is granted. For example, if an applicant
applies for an ESTA travel authorization but the ESTA application is
denied, the applicant will be charged the $4 ESTA fee but not the $10
TPA fee. Updates to non-mandatory fields of information, such as flight
number or address in the United States, will not require a new travel
authorization and as such, will not require a new ESTA application.
However, changes to one of the required data fields will necessitate a
new ESTA application. In order to obtain travel authorization, the
applicant will have to pay the $4 ESTA fee and the $10 TPA fee if
travel authorization is granted.
Comment: Some commenters stated that they understand the need to
charge the $4 ESTA fee for a new ESTA travel authorization due to
changes such as name, gender, or country of citizenship within the two
year validity period, but feel that charging the additional $10 TPA fee
is not consistent with the issuance of an ESTA travel authorization
that is valid for two years.
Response: The Travel Promotion Act of 2009 explicitly stated that
the fee would be ``$10 per travel authorization.'' Therefore, until
September 30, 2020 when the TPA fee provision expires, the $10 TPA fee
must be collected whenever a new travel authorization is granted.
25. APA Procedures
Comment: A few commenters state that DHS should have implemented
ESTA through prior notice and comment procedures instead of as an
interim final rule.
Response: DHS is committed to ensuring that the public has an
opportunity to comment on rulemakings and publishes proposed rules for
public notice and comment whenever possible. In order to mitigate the
security vulnerabilities of the VWP and fulfill the mandates of the 9/
11 Act, consistent with the Administrative Procedure Act, DHS
implemented ESTA as an interim final rule under the ``procedural,''
``good cause,'' and ``foreign affairs'' exceptions to the APA's
rulemaking requirements. See 5 U.S.C. 553. Discussion by DHS on how the
ESTA IFR met these exceptions is set forth at 73 FR 32440 at 32444. In
addition, DHS sought feedback from interested persons and provided 60
days for the public to submit comments on both the ESTA IFR and the
ESTA Fee IFR. DHS has reviewed these comments thoroughly and as
discussed in this document, has implemented many of the commenters'
suggestions.
Comment: One commenter stated that the ESTA IFR's good cause
exception does not apply because the national security justification is
not fully explained and that the ESTA IFR's Regulatory Analysis found
no new security benefits.
Response: The ESTA IFR was properly implemented under the APA's
good cause exception as provided in 5 U.S.C. 553(b)(B). DHS determined
that prior notice and comment rulemaking was impracticable and contrary
to the public interest because it would hinder DHS's ability to address
security vulnerabilities of the VWP that Congress asked DHS to address
in the 9/11 Act. As stated in the ESTA IFR, implementation of this rule
prior to notice and comment was necessary to protect the national
security of the United States and to prevent potential terrorists from
exploiting VWP. See 73 FR 32440 at 32444.
Comment: One commenter stated that the economic analysis in the
Executive Order 12866 section of the ESTA IFR contradicted DHS's
national security justification because an effective date was
established six months after publication of the ESTA IFR.
Response: The ESTA IFR became effective on August 8, 2008, 30 days
after the date of publication. See 73 FR 32440. However, in the ESTA
IFR, DHS stated that it would provide a 60 day prior notice to the
public via publication in the Federal Register before mandatory
implementation. Consistent with this, DHS published a notice in the
Federal Register on November 13, 2008, and announced that mandatory
compliance would be required for VWP travelers on January 12, 2009. See
73 FR 67354. The time period between the ESTA IFR's effective date and
the date it became mandatory allowed DHS to address the numerous
operational issues inherent in designing and building an electronic
system. It also enabled DHS to request and receive public comments.
Even though ESTA did not become mandatory right away, the system was
established at the time of implementation and could be used by VWP
travelers to submit advance information. Therefore, it did provide some
immediate security benefits.
Comment: Some commenters stated that DHS's use of the APA's
procedural exception in the ESTA IFR was improper because the
procedures established by the ESTA IFR are substantively different from
what they were previously and because it imposes expensive burdens on
carriers and travelers.
Response: DHS believes the procedural exception in 5 U.S.C.
553(b)(A) was appropriately used in the ESTA IFR. As explained in the
ESTA IFR, ESTA merely automated an existing reporting requirement for
nonimmigrant aliens, as captured in the Nonimmigrant Alien Arrival/
Departure (I-94W) paper form. See 73 FR 32440 at 32444. Although ESTA
altered the method and time for VWP travelers to provide DHS with
required information, it did not substantively affect nonimmigrant
aliens' rights to apply for admission under the VWP; nor did it alter
the criteria aliens must meet to be admitted to the United States under
the VWP.
Additionally, there were no substantive changes affecting carriers.
The INA already required carriers to ensure that passengers have
appropriate documentation to travel to the United States. In addition,
carriers were already required to electronically verify and transmit
passenger information to DHS through APIS/AQQ.
DHS is mindful of the fact that ESTA imposed some external costs on
the travel industry and some inconveniences to the traveler. However,
as described elsewhere in this document, ESTA also facilitates travel
and provides cost savings. In any case, the fact that an agency's rule
imposes a burden, even a substantial burden, does not automatically
mean that prior notice and comment rulemaking is required.
Comment: One commenter stated that the foreign affairs exception to
the APA requirements was not justified because
[[Page 32282]]
the IFR failed to cite to undesirable international consequences.
Response: DHS believes the foreign affairs exception in 5 U.S.C.
553(a)(1) was justified. The foreign affairs function applies because
ESTA ``advances the President's foreign policy goals, involves
bilateral agreements that the United States has entered into with
participating VWP countries, and directly involves relationships
between the United States and its alien visitors.'' See 73 FR 32440 at
32444.
26. Effective Date
Comment: Several commenters had questions regarding the six month
implementation requirement of the TPA and asked DHS to explain how the
September 8, 2010 effective date for the ESTA Fee IFR was reached.
Response: The TPA was signed March 4, 2010. The ESTA Fee IFR
published in the Federal Register on August 9, 2010. DHS decided to
provide a full 30 days of notice post-publication in order to give the
public sufficient time to adjust to the changes. This resulted in the
September 8, 2010 effective date.
27. Privacy
Comment: Some commenters claimed that requiring carriers to submit
ESTA applications on behalf of travelers would violate European Union
data privacy regulations or lead to other difficult situations, such as
applications submitted on the day of departure in crowded airports.
Response: DHS does not require carriers or any other third party to
submit ESTA applications on behalf of travelers. ESTA allows VWP
travelers the option of seeking assistance from a third party in
submitting an ESTA application. Travelers who do not wish to use ESTA
may apply to the U.S. State Department for a visa.
DHS addresses privacy concerns associated with ESTA in the ESTA
Privacy Impact Assessment (PIA) and subsequent ESTA PIA updates which
may be found at: http://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
Comment: Some commenters were concerned that the credit card
information submitted by the ESTA applicant could be used improperly.
They would like DHS to clarify which credit card details, if any, are
retained or used for purposes other than those for which they were
collected and to provide information about how DHS safeguards this
information.
Response: The ESTA Web site is operated by the United States
Government and employs technology to prevent unauthorized access to
information. Personal information submitted through the ESTA Web site
is protected in accordance with U.S. law and DHS Privacy Policy. The
ESTA Web site employs software programs to identify unauthorized
attempts to upload or change information, or otherwise cause damage.
The credit card information that is entered in the ESTA Web site is
not retained in the ESTA database. Currently, the data entered on the
ESTA Web site is forwarded to Pay.gov for payment processing and
Pay.gov forwards the traveler's name and an ESTA tracking number to
DHS's Credit/Debit Card Data System (CDCDS) for payment reconciliation.
Pay.gov sends a nightly activity file, including the last four digits
of the credit card, authorization number, billing name, address, ESTA
tracking number, and Pay.gov tracking numbers, to CDCDS. Pay.gov also
sends a daily batch file with the necessary payment information to a
commercial bank for settlement processing. After processing, the
commercial bank sends a settlement file, including the full credit card
number, authorization number, card type, transaction date, amount, and
ESTA tracking number to CDCDS. CDCDS retains the data from these
transactions on different tables.
CDCDS matches the data transmitted from ESTA, Pay.gov, and the
commercial bank by the ESTA tracking number and posts payments to DHS's
account. DHS uses the data in CDCDS to manually research and reconcile
unmatched transactions to the proper account, and to research and
respond to charge-backs by the applicant, if necessary.
ESTA fee procedures, including collection, use, and retention of
credit card information, are detailed in the PIA Update for the ESTA
Fee, which can be found at http://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
Comment: One commenter asked DHS to clarify data retention periods
that were referenced in the ESTA IFR.
Response: ESTA data retention periods are detailed in the ESTA PIA
and subsequent updates found at http://www.dhs.gov/privacy-documents-us-customs-and-border-protection. ESTA application data remains active
for the period of time that the ESTA travel authorization is valid,
which, as explained above, is generally two years or until the
traveler's passport expires, unless one of the situations listed at 8
CFR 217.5(e) occurs requiring a new travel authorization. DHS will then
maintain this information for an additional year, after which it will
be archived for twelve years to allow retrieval of the information for
law enforcement, national security, or investigatory purposes. Once the
information is archived, the number of officials with access to it will
be further limited. These retention periods are consistent both with
border search authority and with the border security mission mandated
by Congress. Data linked to active law enforcement lookout records,
enforcement activities, and/or investigations or cases, including ESTA
applications that are denied, will remain accessible for the life of
the law enforcement activities to which they are related.
In those instances when a VWP traveler's ESTA application data is
used for purposes of processing their application for admission to the
United States, the ESTA application data will be used to create a
corresponding admission record in DHS's Non-Immigrant Information
System (NIIS). This corresponding admission record will be retained in
accordance with the NIIS retention schedule, which is 75 years.
Payment information is not stored in ESTA, but is forwarded to
Pay.gov and stored in DHS's financial processing system, CDCDS. Records
are retained there for nine months in an active state to reconcile
accounts and six years and three months in an archived state in
conformance with National Archives and Records Administration (NARA)
General Schedule 6 Item 1 Financial Records management requirements,
which may be found online at: http://www.archives.gov/records-mgmt/grs/grs06.html. The nine month active status is necessary to handle
reconciliation issues (including chargeback requests and retrievals).
Comment: One commenter stated that the agreement between the United
States and the European Union on Passenger Name Records (PNR) data does
not adequately cover the security questions posed in ESTA.
Response: This comment was received in response to the ESTA IFR and
as such, is likely referring to the 2007 agreement between the United
States of America and the European Union on the Use and Transfer of
Passenger Name Records to the United States Department of Homeland
Security'' (PNR Agreement). An updated version of this agreement was
signed on December 14, 2011, and went into effect on July 1, 2012.\8\
Although there are no
[[Page 32283]]
material differences between the 2007 version and the updated PNR
Agreement, this response applies to the version that went into effect
on July 1, 2012.
---------------------------------------------------------------------------
\8\ For more information on the 2011 PNR agreement, please see
http://www.dhs.gov/sites/default/files/publications/privacy/Reports/dhsprivacy_PNR%20Agreement_12_14_2011.pdf.
---------------------------------------------------------------------------
PNR data is submitted by airlines to DHS and contains a variety of
traveler information including the passenger's name, contact details,
travel itinerary, and other reservation details, as described in the
DHS Automated Targeting System (ATS) Privacy Impact Assessment. The PNR
Agreement addresses the privacy and security of PNR data transferred
from the EU and does not pertain to ESTA. A Privacy Impact Assessment
of ESTA, which includes a discussion of related security issues, can be
found at http://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
Comment: One commenter remarked that VWP countries should monitor
and limit the fees that third party vendors may charge a passenger for
filling out ESTA applications on the passenger's behalf.
Response: It would be inappropriate for DHS to comment on how
foreign governments regulate businesses or to dictate what fees a third
party vendor charges for passengers to have an ESTA application filled
out. DHS is aware that there have been several sites that were charging
inordinate fees for information on the program and to apply for an ESTA
travel authorization. DHS issued an Advisory about these Web sites in
November 2008 to inform the traveling public that these sites are not
affiliated with the United States government and travelers who
accidentally go to those sites should exit and go to the official ESTA
Web site at https://esta.cbp.dhs.gov. DHS also has claimed rights for
ESTA via an application submitted to the U.S. Patent and Trade Office
to protect against unauthorized use of the ESTA symbol and name. DHS
continues to work on outreach and communications to the public to
provide the most up to date information to assist travelers in
complying with the requirement. As such, this comment is beyond the
scope of these rulemakings.
Comment: One commenter stated that ESTA should be implemented at a
later date because there are too many current visa holders who are
overstaying in the United States, thus burdening American taxpayers
with the costs of deporting overstaying visa holders.
Response: Although DHS recognizes that there may be cases where
visa holders are overstaying their allowed time period for visiting the
United States, the purpose of ESTA is to allow
[[Page 32285]]
DHS to determine travel eligibility and enhance the security of the
United States and the VWP, and not to identify possible enforcement
actions against visa holders or VWP travelers who have overstayed their
authorized period of admission. As such, this comment is beyond the
scope of these rulemakings.
Comment: Some commenters claimed that the ESTA rule violated the
Airline Deregulation Act because it is an ``attempt to restrict the
obligation of airlines to transport all passengers complying with their
published tariffs'' and that DHS failed to consider ``the public right
of freedom of transit of the navigable airspace'' as required by the
Airline Deregulation Act.
Response: The main purpose of the Airline Deregulation Act (Public
Law 95-504), signed into law on October 24, 1978, was to remove
government control over fares, routes, and market entry (of new
airlines) from commercial aviation. ESTA does not impose any
restrictions on fares, routes, or market entry from commercial aviation
and as such, this comment is beyond the scope of these rulemakings.
III. Conclusion
A. Regulatory Amendments
The amendments to title 8 of the Code of Federal Regulations, as
set forth in the ESTA IFR, published June 8, 2008, and the ESTA Fee
IFR, published August 9, 2010, are adopted as final with the following
changes:
The ESTA regulations are being modified by adding a new Sec.
217.5(d)(3) to allow for flexibility to adjust the validity period for
a designated VWP country and to state that notice of any such change
will be published in the Federal Register and reflected on the ESTA Web
site. In addition to addressing comments regarding the extension of the
validity period discussed above, DHS's decision to include this new
section providing the Secretary with the flexibility to extend or
shorten the ESTA travel authorization validity period for a designated
VWP country is being done under the authority of the foreign affairs
function of the United States to administer the VWP and is exempt from
notice and comment rulemaking and delayed effective date requirements
generally required under 5 U.S.C. 553. See 5 U.S.C. 553(a)(1).
Additionally, section 217.5(h)(2) of the ESTA regulations contains a
reference to the Treasury Department's Pay.gov financial system
(Pay.gov). In light of the possibility that DHS may want to offer
alternative methods of submitting payment in the future, DHS is
removing the sentence that refers to Pay.gov.
B. Operational Modifications
As discussed in this document, DHS has made various minor changes
to ESTA in response to comments received, such as the creation of the
email notification regarding a traveler's impending ESTA travel
authorization expiration and various changes made to the language used
on the ESTA Web site to ensure clarity. Despite making only one
substantive and one technical changes to the regulations in this final
rule, DHS would like to highlight five operational modifications
affecting ESTA applicants and VWP travelers since the publication of
the interim final rules:
1. Elimination of the Paper Form I-94W
The requirement to complete the Nonimmigrant Alien Arrival/
Departure (I-94W) paper form was eliminated for VWP travelers arriving
in the United States at air or sea ports of entry on or after June 29,
2010. For these travelers, ESTA satisfies the requirement to complete
and submit a paper Form I-94W upon arrival in the United States. DHS
worked extensively with carriers to bring about an orderly transition
to remove the paper Form I-94W from circulation and to ensure that all
affected parties were aware of the updated requirements. Currently,
only VWP travelers arriving at the United States at land ports of entry
are required to complete the paper Form I-94W.
2. Addition of Country of Birth to the Form I-94W
On May 16, 2011 and July 25, 2011, DHS published notices in the
Federal Register proposing to revise the Form I-94W collection of
information by adding a data field for ``Country of Birth'' to ESTA and
to the paper Form I-94W. These notices also solicited comments
regarding the proposed revision. No comments were received. As of
December 11, 2011, country of birth is a required data element on all
ESTA applications. Individuals who obtained travel authorizations prior
to this date do not need to provide ``Country of Birth'' to maintain
travel authorization; however, such individuals must provide ``Country
of Birth'' information if and when applying for a new travel
authorization after their current ESTA travel authorization expires.
3. Collection of Internet Protocol Address
On July 30, 2012, DHS published an updated System of Records Notice
in the Federal Register (77 FR 44642) notifying the public that DHS
would begin collecting the Internet Protocol address (IP address)
associated with a submitted ESTA application. The IP address will be
used along with other application data for vetting purposes.
4. Multiple Application Payment Function
As discussed above, DHS modified the payment functionality to allow
for a single credit card transaction to pay for up to 50 ESTA
applications. A group point of contact must submit payment after
inputting or retrieving the relevant applications. This modification
will allow groups such as businesses or a family to submit ESTA
applications without having to submit payment information for each
individual application.
5. Modification of the Eligibility Questions on the Form I-94W and ESTA
Application
On November 26, 2013 and February 14, 2014, DHS published notices
in the Federal Register proposing to revise the Form I-94W collection
of information by amending the eligibility questions to the ESTA
application and to the paper Form I-94W to make the questions clearer
and easier to understand while still providing DHS with the information
needed to make eligibility determinations. See 78 FR 70570 and 79 FR
8984. These notices also solicited comments regarding the proposed
revisions. No comments were received. On December 9, 2014, DHS
published a 60-day notice regarding additional changes to the ESTA
application and paper Form I-94W in the Federal Register. See 79 FR
73096. These changes collect more detailed information about a traveler
by making previously optional questions mandatory and by adding
additional questions concerning other names or aliases, current or
previous employment, and emergency contact information among other
questions. These changes are necessary to improve the screening of
travelers before their admittance into the U.S. On November 3, 2014,
DHS amended the questions accordingly.
IV. Statutory and Regulatory Requirements
A. Executive Order 13563 and Executive Order 12866
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits
[[Page 32286]]
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This rule is an economically significant regulatory action under
section 3(f) of Executive Order 12866 as it has an annual effect on the
economy of $100 million or more in any one year. As a result, this rule
has been reviewed by the Office of Management and Budget. The following
summary presents the costs and benefits to applicant carriers and
DHS.\10\
---------------------------------------------------------------------------
\10\ The complete Regulatory Assessment can be found in the
docket for this rulemaking: http://www.regulations.gov.
---------------------------------------------------------------------------
The purpose of ESTA is to allow DHS to establish, in advance of
travel, the eligibility of certain foreign travelers to enter the
United States and whether the alien's proposed travel to the U.S. poses
a law enforcement or security risk. Upon review of such information,
DHS will determine whether the alien is eligible to travel to the
United States. There are currently 37 countries in the VWP.\11\
Furthermore, as additional countries are brought into the VWP, their
citizens are also required to comply with ESTA. Additionally, because
the information provided by the traveler through ESTA is the same
information that was previously collected on the I-94W form (Arrival
and Departure Record), travelers who receive a travel authorization
through ESTA do not have to complete this form while en route to the
United States.
---------------------------------------------------------------------------
\11\ The current VWP countries are Andorra, Australia, Austria,
Belgium, Brunei, the Czech Republic, Estonia, Denmark, Finland,
France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan,
Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Monaco, the
Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore,
Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan,
and the U.K. Since the June 9, 2008, publication of the interim
final rule, the Czech Republic, Estonia, Greece, Hungary, Latvia,
Lithuania, Malta, Slovakia, South Korea, and Taiwan have entered the
VWP. With the exception of Taiwan, which was designated for
participation in the VWP effective November 1, 2012, these countries
were previously designated as ``Roadmap'' countries.
---------------------------------------------------------------------------
The primary parameters for this analysis are as follows--
The period of analysis is 2008 to 2018.
For the purpose of this analysis, DHS assumes that
travelers from all VWP countries began complying with the ESTA
requirements on January 1, 2009, except for Greece and Taiwan, which
DHS assumes began complying with the ESTA requirements on January 1,
2010 and January 1, 2013, respectively.\12\
---------------------------------------------------------------------------
\12\ DHS notes that Taiwan entered the VWP on November 1, 2012.
However, DHS uses January 1, 2013 as Taiwan's ESTA start date for
the analysis because data on I-94/I-94W arrivals by country are only
available on an annual basis.
---------------------------------------------------------------------------
Air and sea carriers that transport these VWP travelers
are not directly regulated under this rule; therefore, they are not
responsible for completing ESTA applications on behalf of their
passengers. However, carriers have chosen to either modify their
existing systems or potentially develop new systems to submit ESTA
applications for their customers. For this analysis, DHS assumes that
carriers incurred system development costs in 2008 and incur operation
and maintenance costs every year thereafter (2009-2018). DHS notes that
it transmits travelers' authorization status through its existing
Advance Passenger Information System (APIS), and therefore carriers did
not have to make significant changes to their existing systems in
response to this rule.
Impacts to Air & Sea Carriers
DHS estimates that 8 U.S.-based air carriers and 13 sea carriers
are indirectly affected by the rule. An additional 53 foreign-based air
carriers and 6 sea carriers are indirectly affected. As noted
previously, DHS transmits a passenger's ESTA application or
authorization status to the air carriers using APIS. When a passenger
checks in for her flight, the passport is swiped and the APIS process
begins. DHS provides the passenger's ESTA application or authorization
status to the carrier in the return APIS message. If a passenger has
not applied for and received a travel authorization prior to check-in,
the carrier will be able to submit the required information and obtain
the authorization on behalf of the passenger. It is unknown how many
passengers rely on their carrier to apply for an ESTA travel
authorization on their behalf.
At the time of the publication of the ESTA Interim Final Rule, it
was unknown how much it would cost carriers to modify their existing
systems. DHS therefore developed a range of costs for the analysis in
the Interim Final Rule. Since the publication of the Interim Final
Rule, CBP has done outreach to carriers to determine the true magnitude
of their costs in implementing ESTA. Based on communications with
carriers, we now estimate that carriers spend an average of $1,350,000
in the first year and $150,000 in subsequent years. Each subsequent
year estimate is intended to account not only for annual operation and
maintenance of the system but also for the burden incurred by the
carriers to assist passengers.
Given this range, costs for U.S. based carriers are about $28.4
million in the first year and $3.2 million in subsequent years
(undiscounted). Costs for foreign-based carriers are about $79.7
million in the first year and $8.9 million in subsequent years
(undiscounted). See Exhibit 1.
Exhibit 1--First Year and Annual Costs for Carriers To Address ESTA Requirements
[$Millions, 2008-2018, Undiscounted]
----------------------------------------------------------------------------------------------------------------
U.S. Foreign
-------------------------------------------------------------------------------
Air Sea Air Sea Total
----------------------------------------------------------------------------------------------------------------
Carriers........................ 8 13 53 6 80
2008............................ $10.8 $17.6 $71.6 $8.1 $108.0
2009............................ 1.2 2.0 8.0 0.9 12.0
2010............................ 1.2 2.0 8.0 0.9 12.0
2011............................ 1.2 2.0 8.0 0.9 12.0
2012............................ 1.2 2.0 8.0 0.9 12.0
2013............................ 1.2 2.0 8.0 0.9 12.0
2014............................ 1.2 2.0 8.0 0.9 12.0
2015............................ 1.2 2.0 8.0 0.9 12.0
2016............................ 1.2 2.0 8.0 0.9 12.0
2017............................ 1.2 2.0 8.0 0.9 12.0
[[Page 32287]]
2018............................ 1.2 2.0 8.0 0.9 12.0
----------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.
As estimated, ESTA will cost the carriers about $244 million to
$270 million (2013 dollars) over the 11 year period of analysis
depending on the discount rate applied (3 or 7 percent). See Exhibit 2.
Exhibit 2--Present Value Costs for Carriers To Address ESTA Requirements
[Millions, 2008-2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
U.S. Foreign
---------------------------------------------------
Air Sea Air Sea
-----------------------------------------------------------------------------------------------------------------------
3 percent discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
11-year modal total................................................ $24.4 $39.6 $161.6 $18.3
------------------------------------------------------------------------------------
11-year subtotal................................................... $64.0
$179.9
------------------------------------------------------------------------------------
11-year grand total................................................ $243.9
------------------------------------------------------------------------------------
Annualized modal total............................................. $2.2 $3.6 $14.6 $1.7
------------------------------------------------------------------------------------
Annualized subtotal................................................ $5.8
$16.3
------------------------------------------------------------------------------------
Annualized grand total............................................. $22.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
7 percent discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
11-year modal total................................................ $27.0 $43.8 $178.7 $20.2
------------------------------------------------------------------------------------
11-year subtotal................................................... $70.8
$198.9
------------------------------------------------------------------------------------
11-year grand total................................................ $269.7
------------------------------------------------------------------------------------
Annualized modal total............................................. $2.4 $3.9 $15.9 $1.8
------------------------------------------------------------------------------------
Annualized subtotal................................................ $6.3
$17.7
------------------------------------------------------------------------------------
Annualized grand total............................................. $24.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.
Travel agents and other service providers may incur costs to assist
their clients in obtaining travel authorizations. Affected travel
agents are mostly foreign businesses located in the VWP countries. DHS
has worked to minimize the costs for travel agents, building
functionality into the ESTA Web site that allows travel agents to
upload ESTA applications for up to 50 individuals at a time. Thanks to
this upgrade, travel agents have not needed to obtain software modules
to allow them to apply for authorizations for their clients.
Impacts on Travelers
ESTA presents new costs and time burdens to travelers in original
VWP countries who were not previously required to submit any
information in advance of travel to the United States. Travelers from
new VWP countries also incur costs and burdens, though these are much
less than obtaining a nonimmigrant visa (category B-1/B-2), which is
currently required for short-term business and leisure travel to the
United States, absent eligibility for visa-free travel.
For the primary analysis, DHS explores the following categories of
costs--
Cost and time burden to obtain a travel authorization--DHS
estimates the cost of applying for the authorization, the time that
will be required to obtain an authorization, and the value of that time
(opportunity cost) to the traveler.
Cost and time burden to obtain a nonimmigrant (B-1/B-2)
visa if travel authorization is denied--based on the existing process
for obtaining a visa, DHS estimates the cost to obtain that document in
the event that a travel authorization is denied and the traveler is
directed to go to a U.S. embassy or consulate to obtain permission to
travel to the United States.
For this analysis, DHS predicts ESTA-affected travelers to the
United States over the period of analysis using information available
from the Department of Commerce, National Travel and Tourism Office
(NTTO), documenting historic travel levels and future projections. We
use the travel-projection percentages through 2018 provided by NTTO. In
addition to total travelers, DHS estimates the number of applicants
based on an analysis of early ESTA applications. An ESTA travel
authorization is valid for two years, so
[[Page 32288]]
the number of applicants for an ESTA travel authorization is lower than
the number of arrivals under the VWP. See Exhibit 3.
Exhibit 3--Total Visitors to the United States, 2009-2018
[Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
2009 2010 2011 2012 2013 * 2014 * 2015 * 2016 * 2017 * 2018 *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Travelers............................................... 17.66 18.74 19.82 20.60 21.54 22.44 23.01 23.52 24.09 24.66
Applicants.................................................... 14.54 15.44 16.31 16.96 17.74 18.47 18.93 19.35 19.83 20.30
--------------------------------------------------------------------------------------------------------------------------------------------------------
Asterisk denotes projected values.
Cost To Obtain a Travel Authorization
The TPA mandates that DHS establish a fee for the use of ESTA. In
2010, DHS published an interim final rule setting this fee at $4 per
application. The Travel Promotion Act also established a temporary $10
travel promotion fee to be collected through September 30, 2020. For
the purposes of this analysis, DHS assumes the ESTA operational fee and
the travel promotion fee are in effect from 2011 to 2018, the last year
of our period of analysis. In addition, DHS estimates the cost of
credit card fees for foreign transactions. In total, the cost per
traveler will be $14.35 from 2011-2018.
Exhibit 4 presents the total and annualized costs to applicants
over the period of analysis using 3 and 7 percent discount rates. Total
costs to applicants over the period of analysis are estimated at $1.9
billion to $2.0 billion. Annualized costs to applicants are estimated
at $171 million to $183 million.
Exhibit 4--Total Present Value and Annualized Costs of the ESTA Fee to
Applicants, 2008-2018
------------------------------------------------------------------------
Total present value costs Annualized costs ($millions)
($billions) -----------------------------------
-------------------------------------
3% 7% 3% 7%
------------------------------------------------------------------------
2.025 1.920 183 171
------------------------------------------------------------------------
Time Burden To Obtain a Travel Authorization
To estimate the value of a non-U.S. citizen's time (opportunity
cost), DHS has conducted a brief analysis that takes into account wage
rates for each country that will be affected by ESTA requirements.
Based on this analysis, DHS found that Japan, Australia, New Zealand,
and countries in Western Europe generally have a higher value of time
than the less developed countries of Eastern Europe and Asia. DHS also
found that air travelers have a higher value of time than the general
population. DHS developed a range of cost estimates for the value of an
individual's time. For the low cost estimate, the hourly value of time
ranges from $4.70 to $49.08 depending on the country. For the high cost
estimate, the hourly value of time ranges from $9.95 to $103.99.
DHS estimates that it takes 15 minutes of time (0.25 hours) to
apply for a travel authorization. Note that this is 7 minutes more than
the time estimated to complete the I-94W (8 minutes). DHS estimates
additional time burden for an ESTA application because even though the
data elements and admissibility questions are identical, travelers must
now register with ESTA, familiarize themselves with the system, and
gather and enter the data. For those applicants who are computer savvy
and have little difficulty navigating an electronic system, this may be
a high estimate. For those applicants who are not as comfortable using
computers and interfacing with Web sites, this may be a low estimate.
DHS believes the time burden estimate of 15 minutes is a reasonable
average. Furthermore, if airlines, cruise lines, travel agents, and
other service providers are entering the information on behalf of the
passenger, it almost certainly does not take 15 minutes of time because
these entities have most of the information electronically gathered
during the booking process, and travel and ticket agents are certainly
comfortable using computer applications. Because DHS does not know how
many travelers apply independently through the ESTA Web site versus
through a third party, DHS assigns a 15-minute burden to all travelers.
Based on these values and assumptions, DHS estimates that total
opportunity costs in 2009 (the first year that travelers comply with
the ESTA requirements in this analysis) range from $118 million (low)
to $250 million (high) depending on the value of time used. By the end
of the period of analysis (2018), costs range from $163 million to $345
million. These estimates are all undiscounted. See Exhibit 5.
Exhibit 5--Total Opportunity Costs for Visitors to the United States,
2009 and 2018 (Millions, Undiscounted)
------------------------------------------------------------------------
2009 2018
------------------------------------------------------------------------
Low estimate High estimate Low estimate High estimate
------------------------------------------------------------------------
$118 $250 $163 $345
------------------------------------------------------------------------
As estimated, ESTA could have an opportunity cost to travelers of
$1.4 billion to $3.0 billion (present value) over the period of
analysis depending, the value of opportunity cost and the discount rate
applied (3 or 7 percent).
[[Page 32289]]
Annualized costs are an estimated $123 million to $270 million. See
Exhibit 6.
Exhibit 6--Total Present Value and Annualized Opportunity Costs to Travelers, 2008-2018
----------------------------------------------------------------------------------------------------------------
Total present value costs ($billions) Annualized costs ($millions)
----------------------------------------------------------------------------------------------------------------
Low estimate High estimate Low estimate High estimate
----------------------------------------------------------------------------------------------------------------
3% 7% 3% 7% 3% 7% 3% 7%
----------------------------------------------------------------------------------------------------------------
1.409 1.389 2.985 2.941 128 123 270 261
----------------------------------------------------------------------------------------------------------------
Cost and Burden To Obtain a Visa If a Travel Authorization Is Denied
Using the values of time noted above, DHS estimates the costs if an
authorization is denied and the traveler is referred to the nearest
U.S. embassy or consulate to apply for a nonimmigrant visa (B-1/B-2).
Absent country-specific information, DHS assumes that it requires 5
hours of time to obtain a visa including time to complete the
application, travel time, waiting at the embassy or consulate for the
interview, and the interview itself. There are also other incidental
costs to consider, such as bank and courier fees, photographs,
transportation, and other miscellaneous expenses. DHS estimates that
these out-of-pocket costs will be $216.
The number of travel authorizations that are denied for each
country is unknown. Based on the results of ESTA implementation since
January 2009, DHS uses the overall ESTA denial rate of 0.23 percent for
each original VWP country (the travelers from the new VWP countries are
so new to the VWP that obtaining a visa would still be considered the
baseline condition). DHS does, however, subtract out ESTA refusals in
our benefits calculations because these travelers do not accrue any
benefit from ESTA.
DHS multiplies 0.23 percent of the annual travelers for each
country by the burden (5 hours), the out-of-pocket expenses, and the
value of time, either high or low. Total present value visa costs over
the period of analysis could total $156 million to $227 billion over
the period of analysis. Annualized costs are an estimated $14 million
to $21 million. See Exhibit 7.
Exhibit 7--Total Present Value and Annualized Visa Costs to Travelers, 2008-2018
----------------------------------------------------------------------------------------------------------------
Total present value costs ($billions) Annualized costs ($millions)
----------------------------------------------------------------------------------------------------------------
Low estimate High estimate Low estimate High estimate
----------------------------------------------------------------------------------------------------------------
3% 7% 3% 7% 3% 7% 3% 7%
----------------------------------------------------------------------------------------------------------------
0.158 0.156 0.227 0.224 14 14 21 20
----------------------------------------------------------------------------------------------------------------
Total Costs to Travelers
Based on the above calculations, DHS estimates that the total
quantified costs to travelers will range from $3.5 billion to $5.2
billion depending on the number of travelers, the value of time, and
the discount rate (3 or 7 percent). Annualized costs are estimated to
range from $308 million to $474 million. See Exhibit 8.
Exhibit 8--Total Present Value and Annualized Costs to Travelers, 2008-2018
----------------------------------------------------------------------------------------------------------------
Total present value costs ($billions) Annualized costs ($millions)
----------------------------------------------------------------------------------------------------------------
Low estimate High estimate Low estimate High estimate
----------------------------------------------------------------------------------------------------------------
3% 7% 3% 7% 3% 7% 3% 7%
----------------------------------------------------------------------------------------------------------------
3.592 3.464 5.237 5.085 325 308 474 452
----------------------------------------------------------------------------------------------------------------
DHS has shown that costs to air and sea carriers to support the
requirements of the ESTA program could cost $244 million to $270
million over the period of analysis depending on the discount rate
applied to annual costs. Costs to foreign travelers could total $3.3
billion to $5.2 billion depending on traveler levels, their value of
time, and the discount rate applied.
In addition to the costs quantified here, there are other impacts
that DHS is unable to quantify with any degree of confidence but should
be considered. These include: Costs to travel agents and other third-
parties applying for ESTA travel authorizations on their clients'
behalf; losses due to denied travel authorizations and visas (some
travelers may not be able to travel to the United States even when they
apply for a visa at a U.S. embassy or consulate); trips forgone due to
cost, attitude, or confusion; reciprocity by foreign governments; and,
impacts on queues in airports and seaports.
Benefits
Benefits of ESTA Advance Screening
In addition to fulfilling a statutory mandate, the rule serves the
twin goals of promoting border security and legitimate travel to the
United States. By modernizing the VWP, ESTA is intended to both
increase national
[[Page 32290]]
security and provide for greater efficiencies in the screening of
international travelers by allowing for screening of subjects of
potential interest well before boarding, thereby reducing traveler
delays based on potentially lengthy processes at U.S. ports of entry.
Before ESTA implementation, a very small percentage of visitors to
the United States are inadmissible for a variety of reasons, including
but not limited to certain health problems and certain criminal
activity. These aliens may be returned to their country of origin at
the commercial carrier's expense, and the carrier may be fined for
transporting an alien visitor not in possession of proper
documentation.
One of the stated purposes of this rule is to prevent inadmissible
travelers and travelers not eligible for VWP travel from arriving in
the United States. Prior to ESTA, VWP visitors answered questions
concerning admissibility by completing their Form I-94Ws as they were
en route to the United States (non-VWP visitors answer the
admissibility questions on their visa applications). Based on the
answers to these questions, other information available, and personal
judgment, the CBP officer would then make the determination to admit
the person to the United States or refer the traveler to secondary
inspection for further processing.
A travel authorization provided through ESTA permits travel to the
United States but does not guarantee admissibility. Thus, even with
ESTA, certain travelers are found inadmissible once they arrive in the
United States. A crucial element to determining admissibility is the
face-to-face interaction between the CBP officer and the potential
entrant after arrival at the United States. Thus, carriers are still
responsible for returning passengers to their last foreign point of
departure at the carriers' expense if travelers cannot overcome the
inadmissibility determination of the CBP officer during secondary
processing.
ESTA allows for advance screening of VWP travelers against
databases for lost and stolen passports, visa revocations, terrorists
and by asking admissibility questions. Based on actual ESTA denial
data, DHS estimates that 0.23 percent of affected individuals are
denied an ESTA authorization to travel to the United States annually as
a result of the ESTA requirements and must obtain a visa in order to
travel.
When inadmissible travelers are brought to the United States, they
are referred to secondary inspection where a CBP or other law
enforcement officer questions them and processes them for return to
their country of origin. DHS estimates that it costs $136 per
individual for questioning and processing. DHS estimates that returning
inadmissible travelers to their country of origin costs carriers $1,500
per individual, which includes the air fare and any lodging and meal
expenses incurred while the individual is awaiting transportation out
of the United States.
Based on these estimates, DHS calculates that benefits to DHS will
total $65 million to $66 million over the period of analysis depending
on the discount rate applied. Benefits to carriers could total $721
million to $732 million. Annualized benefits range from $70 million to
$72 million. See Exhibit 9.
Exhibit 9--Benefits of Admissions Denied Attributable to ESTA, 2008-2018
[in $millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
Total ---------------------------------------------------------------------------------------------------------------------------------------
admissions Benefits to Annualized Benefits to Annualized
denied Benefits to DHS carriers Total benefits benefits Benefits to DHS carriers Total benefits benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
496,960 66.2 732.1 798.4 72.3 65.2 721.1 786.3 69.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.
.Benefits of Not Having To Obtain Visas for Travelers From New VWP
Countries
The benefits of not having to obtain a B-1/B-2 visa, but rather
obtaining a travel authorization, are also quantifiable. These benefits
are realized only by travelers from new VWP countries, i.e., countries
that became part of the VWP after publication of the ESTA IFR. DHS must
first determine how many travelers are repeat versus first-time
travelers in order not to double-count benefits from not having to
obtain a visa. Prior to this rule, these visitors would all have needed
visas if they were not part of the VWP. Then DHS estimates a percentage
of repeat travelers who would also need to have visas because their old
visa would expire during the next 10 years. Most VWP visitors are
eligible for 10-year B-1/B-2 visas, so on average, one tenth of these
visas expire every year. DHS thus assumes that 10 percent of repeat
visitors would have to reapply for visas were it not for the rule.\13\
Finally, DHS subtracts out those who are denied a travel authorization
and must apply for a visa instead.
---------------------------------------------------------------------------
\13\ DHS notes that Taiwan has a 5-year validity period for B-1/
B-2 visas. Travelers from Taiwan make up only about 1 percent of the
total number of VWP travelers, so assuming a 10-year validity period
for Taiwan does not materially affect the analysis.
---------------------------------------------------------------------------
Benefits of forgoing visas are expected to range from about $2.0
billion to $2.6 billion (present value) from 2008 to 2018 depending on
the travel level, the value of time used, and the discount rate applied
(3 or 7 percent). Annualized benefits range from $180 million to $238
million. See Exhibit 10.
[[Page 32291]]
Exhibit 10--Total Present Value and Annualized Benefits of Forgoing Visas, 2008-2018
----------------------------------------------------------------------------------------------------------------
Total present value benefits ($billions) Annualized benefits ($millions)
----------------------------------------------------------------------------------------------------------------
Low estimate High estimate Low estimate High estimate
----------------------------------------------------------------------------------------------------------------
3% 7% 3% 7% 3% 7% 3% 7%
----------------------------------------------------------------------------------------------------------------
2.089 2.022 2.632 2.549 189 180 238 227
----------------------------------------------------------------------------------------------------------------
Benefits of Not Having To Complete the Form I-94W and Form I-94
DHS can also quantify the benefits of not having to complete the
Form I-94W (for travelers from the original VWP countries) and paper
Form I-94 (for travelers from new VWP countries). These benefits will
accrue to all travelers covered by ESTA. The estimated time to complete
either the Form I-94W or Form I-94 is 8 minutes (0.13 hours). DHS
subtracts out those travelers who are not able to obtain a travel
authorization through ESTA (see previous section on costs) and then
apply a low and high value of time to the burden to estimate total
savings expected as a result of this rule.
Benefits of not having to complete the paper forms are expected to
range from $739 million to $1.6 billion from 2008 to 2018 depending on
the value of time used and the discount rate applied (3 or 7 percent).
Annualized benefits range from $66 million to $144 million. See Exhibit
11.
Exhibit 11--Total Present Value and Annualized Benefits of Forgoing the I-94/I-94W, 2008-2018
----------------------------------------------------------------------------------------------------------------
Total present value benefits ($billions) Annualized benefits ($millions)
----------------------------------------------------------------------------------------------------------------
Low estimate High estimate Low estimate High estimate
----------------------------------------------------------------------------------------------------------------
3% 7% 3% 7% 3% 7% 3% 7%
----------------------------------------------------------------------------------------------------------------
0.750 0.739 1.588 1.565 68 66 144 139
----------------------------------------------------------------------------------------------------------------
In addition to these benefits to travelers, DHS and the carriers
should also experience the benefit of not having to print and store the
Form I-94W. In March, 2013, DHS published an interim final rule
entitled, ``Definition of Form I-94 to Include Electronic Format.'' As
part of the regulatory analysis for this rule, DHS estimated the cost
savings to DHS and carriers attributed to the automation of the Form I-
94 in the air and sea environments, which is very similar to the Form
I-94W. In this rule, DHS estimated that automating 16,586,753 Forms I-
94 in the air and sea environments would save CBP $153,306 and carriers
$1,344,450 in 2011. To apply these cost savings to the ESTA Final Rule,
DHS scales these costs proportionally with the number of Forms I-94W
being eliminated each year as part of this rule. DHS notes that
carriers will still have to administer the Customs Declaration forms
for all passengers aboard the aircraft and vessel.
Benefits of not having to administer paper forms are expected to
range from $1.9 million to $2.0 million for DHS and from $16.9 million
to $17.2 million for carriers from 2009 to 2018 depending on the value
of time used and the discount rate applied (3 or 7 percent). Annualized
benefits are $1.7 million. See Exhibit 12.
Exhibit 12--Form Management Benefits for DHS and Carriers, 2008-2018
[in $millions]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
----------------------------------------------------------------------------------------------------------------
Benefits to Benefits to Total Annualized Benefits to Benefits to Total Annualized
DHS carriers benefits benefits DHS carriers benefits benefits
----------------------------------------------------------------------------------------------------------------
1.957 17.168 19.125 1.7 1.928 16.908 18.836 1.7
----------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.
Total Benefits to Travelers
Total benefits to travelers could total $2.8 billion to $4.2
billion over the period of analysis. Annualized benefits could range
from $246 million to $382 million. See Exhibit 13.
[[Page 32292]]
Exhibit 13--Total Present Value and Annualized Benefits to Travelers, 2008-2018
----------------------------------------------------------------------------------------------------------------
Total present value benefits ($billions) Annualized benefits ($millions)
----------------------------------------------------------------------------------------------------------------
Low estimate High estimate Low estimate High estimate
----------------------------------------------------------------------------------------------------------------
3% 7% 3% 7% 3% 7% 3% 7%
----------------------------------------------------------------------------------------------------------------
2.846 2.770 4.220 4.114 258 246 382 366
----------------------------------------------------------------------------------------------------------------
Benefits of Enhanced Security
As set forth in section 711 of the 9/11 Act, it was the intent of
Congress to modernize and strengthen the security of the VWP under
section 217 of the Immigration and Nationality Act (INA), 8 U.S.C.
1187) by enhancing program security requirements.
This rule and the APIS 30/AQQ rule published on August 23, 2007
\14\ have similar security objectives: To prevent a traveler who has
been matched to an individual on a government watch list from boarding
an aircraft or cruise ship bound for the United States. As these
benefits have already been accounted for in the regulatory assessment
for the APIS rule, we do not repeat them here. ESTA has the additional
security benefit of preventing those on a government watch list from
purchasing a ticket. This allows CBP to focus its targeting resources
on unknown threats rather than known threats (those on a watch list).
Since the publication of the Interim Final Rule, DHS has added
questions to ESTA to further improve security. The addition of these
data elements improves the Department's ability to screen prospective
VWP travelers while more accurately and effectively identifying those
who pose a security risk to the United States. We note that since the
publication of the Interim Final Rule, ESTA has been successful in
denying travel authorizations to known or suspected terrorists. In
2014, 817 known or suspected terrorists were denied ESTA
authorizations.\15\
---------------------------------------------------------------------------
\14\ FR 48320. U.S. Customs and Border Protection. Advance
Electronic Transmission of Passenger and Crew Member Manifests for
Commercial Aircraft and Vessels; final rule. August 23, 2007.
\15\ Source: Internal tracking system maintained by CBP's Office
of Field Operations.
---------------------------------------------------------------------------
This rule allows CBP to comply with the TPA's mandate that the
Secretary establish a fee for the use of the ESTA system and also
establish a $10 travel promotion fee. The U.S. travel and tourism
industry may benefit to the extent that travel promotion efforts made
possible by the Travel Promotion Fund are successful in increasing
travel to the United States. Likewise, the TPA has a mandate to provide
information to communicate travel requirements, including ESTA, to
travelers. To the extent that this outreach increases the travelers'
understanding of U.S. travel requirements, they will benefit.
The total net benefits of the rule are presented in Exhibit 14. Net
benefits range from a net loss of $158 million to a net loss of $443
million, depending on the value of time and discount rate used. We note
that, though the monetized net benefits of this rule are negative, the
non-monetized security benefits are large enough to for this rule's
benefits to exceed the costs.
Exhibit 14--Total Net Benefits, 2009-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total present values ($billions) Annualized values ($millions)
-------------------------------------------------------------------------------------------------------
Low estimate High estimate Low estimate High estimate
-------------------------------------------------------------------------------------------------------
3% discount 7% discount 3% discount 7% discount 3% discount 7% discount 3% discount 7% discount
rate rate rate rate rate rate rate rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs........................................... (3.836) (3.734) (5.481) (5.355) (347) (332) (496) (476)
Benefits........................................ 3.664 3.575 5.037 4.919 332 318 456 437
-------------------------------------------------------------------------------------------------------
Net Benefit................................. (0.172) (0.158) (0.443) (0.435) (16) (14) (40) (39)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding. Parentheses indicate a negative value. Note that annualized values are not additive.
Annualized costs and benefits to U.S. entities are presented in the
following accounting statement, as required by OMB Circular A-4.
Accounting statement: Classification of Expenditures to U.S. Entities,
2008-2018
[$2013]
------------------------------------------------------------------------
3% discount rate 7% discount rate
------------------------------------------------------------------------
Costs:
Annualized monetized costs.. $22 million....... $24 million.
Annualized quantified, but None quantified... None quantified.
non-monetized costs.
Qualitative (non-quantified) Indirect costs to Indirect costs to
costs. the travel and the travel and
tourism industry. tourism industry.
Benefits:
[[Page 32293]]
Annualized monetized $71 million to $74 $69 million to $72
benefits. million. million.
Annualized quantified, but None quantified... None quantified.
non-monetized benefits.
Qualitative (non-quantified) Enhanced security Enhanced security
benefits. and efficiency, and efficiency,
indirect benefits indirect benefits
to the travel and to the travel and
tourism industry. tourism industry.
------------------------------------------------------------------------
DHS estimates that the carrier costs of this rule are approximately
$22 million to $24 million annualized. Quantified benefits of $69
million to $74 million to U.S. entities (carriers and DHS) are for
forgone costs associated with processing and transporting inadmissible
travelers and forgone form administration costs. There are also
quantified costs and benefits for travelers; however, because these are
attributable solely to foreign individuals, DHS does not include them
in the accounting statement. There are non-quantified costs to the
travel and tourism industry if the United States receives fewer
visitors as a result of this rule. Conversely, there are non-quantified
benefits to the travel and tourism industry if this rule results in
more visitors. Additional non-quantified benefits are enhanced security
and efficiency.
Regulatory Alternatives
DHS considers three alternatives to this rule--
Alternative 1: The ESTA requirements in the rule, but with
no application fee (more costly for DHS, less burdensome for traveler)
Alternative 2: The ESTA requirements in the rule, but with
only the name of the passenger and the admissibility questions on the
Form I-94W (less burdensome for the traveler)
Alternative 3: The ESTA requirements in the rule, but only
for the 10 new VWP countries (no new requirements for travelers from
the original VWP countries, reduced burden for new VWP travelers)
For the sake of brevity, DHS presents the high value estimates at
the 7 percent discount rate only. Costs are expressed as negative
values (denoted by parentheses) in this presentation of impacts. See
Exhibit 15.
Exhibit 15--Comparison of 11-Year Impacts of the Rule and Regulatory Alternatives, 2008-2018, in $Billions, High Estimate, 7 Percent Discount Rate
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Rule Alternative 1 Alternative 2 Alternative 3
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Carrier costs....................... $(0.270)............................. $(0.270)............................. $(0.270)............................. $(0.270).
ESTA time burden.................... (2.941).............................. (2.941).............................. (1.961).............................. (0.127).
Visa costs.......................... (0.224).............................. (0.224).............................. (0.224).............................. 0.
ESTA fee............................ (1.920).............................. 0.................................... (1.920).............................. (0.187).
CBP costs........................... 0.................................... (1.920).............................. 0.................................... (1.733).
Inadmissibility savings............. 0.810................................ 0.810................................ 0.810................................ 0.068.
Benefit of no visa.................. 2.549................................ 2.549................................ 2.549................................ 2.549.
Benefit of no I-94/94W.............. 1.565................................ 1.565................................ 1.565................................ 0.068.
Benefit of no form administration... 0.019................................ 0.019................................ 0.019................................ 0.019.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Net impact...................... $(0.412)............................. $(0.412)............................. $0.568............................... 0.387.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Comment............................. ..................................... Does not meet statutory requirements. All data elements are required for Does not meet statutory requirements.
effective screening.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding. Parentheses indicate a negative value. Note that annualized values are not additive.
DHS has determined that this rule provides the greatest level of
enhanced security and efficiency at an acceptable cost to the traveling
public and potentially affected air and sea carriers. Alternative 2
would provide less security as it does not include the additional
questions on the ESTA application that CBP uses for targeting purposes.
Alternative 3 would provide less security because we would only get
advance information from a relatively small subset of the VWP
population.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires an agency to prepare a regulatory flexibility analysis that
describes the effect of a proposed rule on small entities when the
agency is required to publish a general notice of proposed rulemaking.
A small entity may be a small business (defined as any independently
owned and operated business not dominant in its field that qualifies as
a small business per the Small Business Act); a small not-for-profit
organization; or a small governmental jurisdiction (locality with fewer
than 50,000 people). Since a general notice of proposed rulemaking was
not necessary, a regulatory flexibility analysis was not required.
Nonetheless, DHS has considered the impact of this rule on small
entities. The individuals to whom this rule applies are not small
entities as that term is defined in 5 U.S.C. 601(6).
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 are necessary
under the provisions of the
[[Page 32294]]
Unfunded Mandates Reform Act of 1995.
D. 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, this rule does not have sufficient federalism implications
to warrant the preparation of a federalism summary impact statement.
E. 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.
F. Paperwork Reduction Act
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. OMB has already
approved the collection of the ESTA information in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507) under OMB Control
Number 1651-0111.
G. Privacy
DHS published an ESTA Privacy Impact Assessment (PIA) for the
Interim Final Rule announcing ESTA on June 9, 2008. Additionally, at
that time, DHS prepared a separate System of Records Notice (SORN)
which was published in conjunction with the ESTA IFR on June 9, 2008.
DHS has updated these documents since that time and the most current
ESTA PIA and SORN are available for viewing at http://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
List of Subjects in 8 CFR Part 217
Air carriers, Aliens, Maritime carriers, Passports and visas.
Amendments to Regulations
Accordingly, the interim rules amending part 217 of the CBP
regulations (8 CFR part 217), which were published at 73 FR 32440 on
June 9, 2008 and 75 FR 47701 on August 9, 2010, are adopted as final
with the following changes:
PART 217--VISA WAIVER PROGRAM
0
1. The authority citation for part 217 continues to read as follows:
Authority: 8 U.S.C. 1103, 1187, 8 CFR part 2.
0
2. Section 217.5 is amended by adding paragraph (d)(3) and revising
paragraph (h)(2) to read as follows:
Sec. 217.5 Electronic System for Travel Authorization.
* * * * *
(d) * * *
(3) The Secretary, in consultation with the Secretary of State, may
increase or decrease ESTA travel authorization validity period
otherwise authorized by subparagraph (1) for a designated VWP country.
Notice of any change to ESTA travel authorization validity periods will
be published in the Federal Register. The ESTA Web site will be updated
to reflect the specific ESTA travel authorization validity period for
each VWP country.
* * * * *
(h) * * *
(2) Beginning October 1, 2020, the fee for using ESTA is an
operational fee of $4.00 to at least ensure recovery of the full costs
of providing and administering the system.
Dated: June 3, 2015.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-13919 Filed 6-5-15; 8:45 am]
BILLING CODE 9111-14-P
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