esta

32440 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Bureau of Customs and Border
Protection
8 CFR Part 217
[USCBP–2008–0003; CBP Dec. No. 08–18]
RIN 1651–AA72
Changes to the Visa Waiver Program
To Implement the Electronic System
for Travel Authorization (ESTA)
Program
AGENCY: Customs and Border Protection,
DHS.
ACTION: Interim final rule; solicitation of
comments.
SUMMARY: This rule amends Department
of Homeland Security (DHS) regulations
to implement the Electronic System for
Travel Authorization (ESTA)
requirements under section 711 of the
Implementing Recommendations of the
9/11 Commission Act of 2007, for aliens
who wish to enter the United States
under the Visa Waiver Program (VWP)
at air or sea ports of entry. This rule
establishes ESTA and delineates the
data fields DHS has determined will be
collected by the system.
As required under section 711 of the
Implementing Recommendations of the
9/11 Commission Act of 2007, the
Secretary of Homeland Security will
announce implementation of a
mandatory ESTA system by publication
of a notice in the Federal Register no
less than 60 days before the date on
which ESTA becomes mandatory for all
VWP travelers. Once ESTA is
mandatory, all VWP travelers must
either obtain travel authorization in
advance of travel under ESTA or obtain
a visa prior to traveling to the United
States.
Currently, aliens from VWP countries
must provide certain biographical
information to U.S. Customs and Border
Protection (CBP) Officers at air and sea
ports of entry on a paper form
Nonimmigrant Alien Arrival/Departure
(Form I–94W). Under this interim final
rule, VWP travelers will provide the
same information to CBP electronically
before departing for the United States.
Once ESTA is mandatory and all
carriers are capable of receiving and
validating messages pertaining to the
traveler’s ESTA status as part of the
traveler’s boarding status, DHS will
eliminate the I–94W requirement. By
automating the I–94W process and
establishing a system to provide VWP
traveler data in advance of travel, CBP
will be able to determine the eligibility
of citizens and eligible nationals from
VWP countries to travel to the United
States and whether such travel poses a
law enforcement or security risk, before
such individuals begin travel to the
United States. ESTA will provide for
greater efficiencies in the screening of
international travelers by allowing CBP
to identify subjects of potential interest
before they depart for the United States,
thereby increasing security and
reducing traveler delays upon arrival at
U.S. ports of entry.
DATES: This interim final rule is
effective on August 8, 2008. Comments
must be received on or before August 8,
2008. ESTA will be implemented as a
mandatory program 60 days after
publication of a notice in the Federal
Register. DHS anticipates that the
Secretary of Homeland Security will
issue that notice in November 2008, for
implementation of the mandatory ESTA
requirements on or before January 12,
2009.
ADDRESSES: Please submit comments,
identified by docket number, by one of
the following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments
via docket number USCBP–2008–0003.
• Mail: Border Security Regulations
Branch, Office of International Trade,
Customs and Border Protection, 1300
Pennsylvania Avenue, NW. (Mint
Annex), Washington, DC 20229.
• Instructions: All submissions
received must include the agency name
and docket number for this rulemaking.
All comments received will be posted
without change to http://
www.regulations.gov, including any
personal information provided.
• Docket: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov. Comments
submitted will be available for public
inspection in accordance with the
Freedom of Information Act (5 U.S.C.
552) and 19 CFR 103.11(b) on normal
business days between the hours of 9
a.m. and 4:30 p.m. at the Border
Security Regulations Branch, Office of
International Trade, United States
Customs and Border Protection, 799 9th
Street, NW., 5th Floor, Washington, DC.
Arrangements to inspect submitted
comments should be made in advance
by calling Mr. Joseph Clark at (202) 572–
8768.
FOR FURTHER INFORMATION CONTACT:
Beverly Good, Office of Field
Operations, CBP.ESTA@dhs.gov or
(202)–344–3710.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Comments
II. Background
A. The Visa Waiver Program
B. Enhancing VWP Screening
C. Implementing the Recommendations of
the 9/11 Act of 2007
D. Electronic System for Travel
Authorization
1. Obtaining Travel Authorization
2. Implementation Notice
3. Timeline for Submitting Travel
Authorization Data
4. Required Travel Authorization Data
Elements
5. Scope of ESTA
6. Duration
a. General Rule
b. Exception
7. Events Requiring New Travel
Authorizations
8. Fee
9. Judicial Review
10. Privacy
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
1. Procedural Rule Exception
2. Good Cause Exception
3. Foreign Affairs Function Exception
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 12866
E. Executive Order 13132
F. Executive Order 12988 Civil Justice
Reform
G. Paperwork Reduction Act
H. Privacy Interests
List of Subjects
Amendments to the Regulations
I. Public Comments
Interested persons are invited to
submit written comments on all aspects
of this interim final rule. U.S. Customs
and Border Protection (CBP) also invites
comments on the economic,
environmental, or federalism effects of
this rule. We urge commenters to
reference a specific portion of the rule,
explain the reason for any
recommended change, and include data,
information, or authorities that support
such recommended change.
II. Background
A. The Visa Waiver Program
Pursuant to section 217 of the
Immigration and Nationality Act (INA),
8 U.S.C. 1187, the Secretary of
Homeland Security (the Secretary), in
consultation with the Secretary of State,
may designate certain countries as Visa
Waiver Program (VWP) countries if
certain requirements are met. Those
requirements include, without
limitation, (i) meeting the statutory rate
of nonimmigrant visa refusal for citizens
and nationals of the country, (ii) a
government certification that it has a
program to issue machine readable,
tamper-resistant passports that comply
with International Civil Aviation
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Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 32441
1 For current VWP member countries only,
passports issued before October 26, 2006, need not
contain the electronic chip that includes the
biographic and biometric information of the
passport holder provided the passports comply
with International Civil Aviation Organization
machine readable standards.
2 The Government Accountability Office (GAO)
has issued a series of reports on how the visa
issuance process serves as an antiterrorism tool,
including: GAO, Border Security: Strengthened Visa
Process Would Benefit from Improvements in
Staffing and Information Sharing, GAO–05–859
(Washington, DC: Sept. 13, 2005); Border Security:
Actions Needed to Strengthen Management of
Department of Homeland Security’s Visa Security
Program, GAO–05–801 (Washington, DC: July 29,
2005); and, Border Security: Visa Process Should be
Strengthened as an Antiterrorism Tool, GAO–03–
132NI (Washington, DC: Oct. 21, 2002).
3 Under the Advance Passenger Information
System (APIS) regulations, commercial aircraft
carriers bound for the United States from a foreign
port must transmit passenger and crew manifest
information to CBP no later than 30 minutes prior
to departure to allow CBP to vet such information
against government databases, including the
terrorist watchlist, prior to departure of the aircraft.
Vessel carriers departing for the United States from
a foreign port must transmit a passenger and crew
manifest no later than 60 minutes prior to
departure. See 19 CFR 122.49a.
4 The US–VISIT program is a government-wide
program to collect, maintain, and share information
on foreign nationals and better control and monitor
the entry, visa status, and exit of visitors. Under the
program, foreign visitors are required to submit to
fingerprint scans of their right and left index finger
and have a digital photograph taken upon arrival at
U.S. ports of entry. (DHS recently has initiated a
transition to collect scans of all ten fingers from
travelers enrolling in the US–VISIT program.)
Foreign nationals entering the United States
through VWP are required to enroll in the US–
VISIT program upon arrival at U.S. ports of entry.
Organization (ICAO) standards, (iii) a
U.S. government determination that the
country’s designation would not
negatively affect U.S. law enforcement
and security interests, and (iv)
government agreement to report, or
make available to the U.S. government
information about the theft or loss of
passports. The INA also sets forth
requirements for continued eligibility
and, where appropriate, emergency
termination of program countries.
Citizens and eligible nationals of VWP
countries may apply for admission to
the United States at a U.S. port of entry
as nonimmigrant aliens 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. The list of
countries which currently are eligible to
participate in VWP is set forth in section
217.2(a) of Title 8 of the Code of Federal
Regulations (CFR).
To travel to the United States under
VWP, an alien currently must (1)
present an electronic passport or a
machine readable passport issued by a
designated VWP participant country to
the air or vessel carrier before
departure; 1 (2) possess a round trip
ticket; and (3) upon arrival at a U.S. port
of entry, submit to a CBP Officer a
signed and completed I–94W
Nonimmigrant Alien Arrival/Departure
Form (I–94W). Additionally, the alien
must comply with the inspection
process at the U.S. port of entry and
must not have violated the requirements
of a prior VWP admission to the United
States. See Section 217(a) of the
Immigration and Nationality Act (INA),
8 U.S.C. 1187(a). See also 8 CFR part
217.
Under VWP, nonimmigrant alien
visitors currently are required to
complete and sign an I–94W form prior
to arriving at a U.S. port of entry and
present it to the CBP Officer at the U.S.
port of entry where they undergo
admissibility screening. In signing the I–
94W form, the traveler waives any right
to review or appeal of a CBP Officer’s
determination as to his admissibility, or
to contest, except on the basis of an
application for asylum, any action in
removal. The form instructs the alien to
apply for a visa at the appropriate U.S.
embassy or consulate if he or she
responds in the affirmative to questions
on the reverse side of the I–94W. For
example, a traveler may be refused
admission to the United States under
VWP based upon an affirmative
response on the I–94W regarding prior
criminal activity, deportation, or visa
revocation. Upon arrival at the U.S. port
of entry, if the CBP Officer determines
that the traveler seeking admission
under VWP is ineligible to enter the
United States, or is inadmissible based
on the information submitted via the I–
94W form, or information ascertained
during an admissibility interview, then
the person must then be returned to the
country from which they departed at the
carrier’s expense. Pursuant to section
217 of the Immigration and Nationality
Act (INA, 8 U.S.C. 1187), a VWP alien
traveling to the United States by air or
sea must arrive in the United States on
a carrier that has signed an agreement
with DHS guaranteeing to transport
inadmissible or deportable VWP
travelers out of the United States at no
expense to the United States. This may
create significant delays for the VWP
traveler who may not have been on
notice that he or she is not admissible
to the United States until he or she has
arrived at a U.S. port of entry.
B. Enhancing VWP Screening
While VWP encourages travel with
participating countries, aspects of the
program may be exploited by
individuals seeking to circumvent
immigration or other laws of the United
States. Currently, VWP travelers are not
subject to the same degree of screening
as those travelers who must first obtain
a visa before arriving in the United
States. Since September 11, 2001, the
visa issuance process has taken on
greater significance as an antiterrorism
tool.2 Non-VWP travelers must obtain a
visa from a U.S. embassy or consulate
and undergo an interview by consular
officials overseas who conduct a
rigorous screening process in deciding
whether to approve or deny a visa. At
the U.S. consulate, the application is
reviewed, fingerprints are collected, and
the applicant’s name is checked against
various government watchlists. The
consular officer reviews name check
results and determines if additional
security checks are required. The
consular officer then interviews the visa
applicant and reviews his or her
supporting documents. During the visa
application process, consular officers
have ample time to interview applicants
and examine the authenticity of their
passports, and may also speak the visa
applicant’s native language. Every visa
applicant undergoes extensive security
checks before a visa can be issued,
including name-based checks against
the Department of State’s (State
Department’s) Consular Lookout and
Support System (CLASS). When a
consular officer determines that an
applicant is a positive match to a
CLASS record, or if the applicant meets
other established criteria, the case is
referred for an interagency security
review. If denied a visa, the individual
cannot lawfully board a plane or vessel
destined for the United States.
In contrast to travelers who require a
visa and are screened by State
Department consular officers through
the visa issuance process, VWP travelers
are not screened in person until they
arrive at a U.S. port of entry.3 Only after
arrival at a U.S. port of entry are VWP
travelers subject to an admissibility
interview in which CBP Officers observe
the applicant, examine his or her
passport, collect the applicant’s
fingerprints as part of the U.S. Visitor
and Immigrant Status Indicator
Technology (US–VISIT) program,4 and
check his or her name against
automated databases and watchlists
(which contain information regarding
the admissibility of aliens, including
known terrorists, criminals, and
immigration law violators). Thus, only
after a VWP traveler has arrived at a
U.S. port of entry is a CBP Officer able
to determine whether the traveler is
admissible to the United States, or
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32442 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations
5 The Secretary will provide separate certification
to Congress and neither this interim final rule nor
its effective and compliance dates serve as that
certification.
ineligible for admission, based on the
information submitted via the form I–
94W and information ascertained during
an admissibility interview. Annually,
several thousand VWP travelers arrive
in the United States and are deemed
inadmissible for VWP entry at the port
of entry, causing significant expense,
delay, and inconvenience for those
aliens, other travelers, the airlines, and
the U.S. government.
DHS has taken a number of steps to
mitigate VWP security vulnerabilities in
recent years, including instituting a
biometric collection requirement for
VWP travelers at U.S. ports of entry
through US–VISIT. See 8 CFR part 235.
The procedural and timing changes
implemented under this interim final
rule, as described below, represent
crucial additional improvements to
VWP security.
C. Implementing the Recommendations
of the 9/11 Commission Act of 2007
On August 3, 2007, the President
signed into law the Implementing the
Recommendations of the 9/11
Commission Act of 2007 (9/11 Act),
Public Law 110–53. Section 711 of the
9/11 Act requires that the Secretary of
Homeland Security, in consultation
with the Secretary of State, develop and
implement a fully automated electronic
travel authorization system which will
collect such biographical and other
information as the Secretary determines
necessary to evaluate, in advance of
travel, the eligibility of the alien to
travel to the United States, and whether
such travel poses a law enforcement or
security risk. ESTA is intended to fulfill
the statutory requirements as described
in Section 711 of the 9/11 Act. Section
711 of the 9/11 Act also provides the
Secretary with discretion to expand
VWP to additional countries by waiving
the nonimmigrant visa refusal rate
requirements in section 217 of the INA
for countries that do not satisfy the
required threshold. See Public Law 110–
53, Section 711(c). To waive those
requirements, the Secretary must certify
to Congress that ESTA is ‘‘fully
operational,’’ and that an air exit system
(a separate requirement from ESTA) is
in place that can verify the departure of
not less than 97 percent of foreign
nationals who exit through U.S.
airports.5 Additionally, according to the
statute, the Secretary’s waiver authority
may be temporarily suspended if the
Secretary does not notify Congress that
a biometric air exit system is in place by
June 30, 2009.
D. Electronic System for Travel
Authorization
To satisfy the requirements of section
711 of the 9/11 Act, this interim final
rule establishes ESTA to allow VWP
travelers to obtain authorization to
travel to the United States by air or sea
prior to embarking on such travel.
Under ESTA, CBP also will be able to
screen travelers seeking to enter the
United States under VWP prior to their
arrival in the United States. Aliens
intending to travel under the VWP will
be able to obtain travel authorization in
advance of travel to the United States.
DHS notes that an authorization to
travel to the United States under ESTA
is not a determination that the alien
ultimately is admissible to the United
States. That determination is made by a
CBP Officer only after an applicant for
admission is inspected by the CBP
officer at a U.S. port of entry. In
addition, ESTA is not a visa or a process
that acts in lieu of any visa issuance
determination made by the Department
of State. Travel authorization under
ESTA allows a VWP participant to
travel to the United States, and does not
confer admissibility to the United
States. ESTA, therefore, allows DHS to
identify potential grounds of
ineligibility for admission before the
VWP traveler embarks on a carrier
destined for the United States.
ESTA will reduce the number of
travelers who are determined to be
inadmissible to the United States during
inspection at a port of entry, thereby
saving, among other things, the cost of
return travel to the carrier, inspection
time, and delays and inconvenience for
the traveler. ESTA also will enable the
U.S. government to better allocate
existing resources towards screening
passengers at U.S. ports of entry,
thereby facilitating legitimate travel.
ESTA increases the amount of
information available to DHS regarding
VWP travelers before such travelers
arrive at U.S. ports of entry; and, by
recommending that travelers submit
such information a minimum of 72
hours in advance of departure, provides
DHS with additional time to screen
VWP travelers destined for the United
States, thus enhancing security.
1. Obtaining Travel Authorization
This interim final rule establishes
data fields by which VWP travelers may
electronically submit to CBP, in advance
of travel to the United States, biographic
and other information specified by the
Secretary. The information specified by
the Secretary is necessary to determine
the eligibility of the alien to travel to the
United States under the VWP, and
whether such travel poses a law
enforcement or security risk. This is the
same information currently required on
the form I–94W, which VWP travelers
must present to a CBP officer at a port
of entry. This interim final rule does not
impose any new data collection
requirements on air or vessel carriers.
For example, this rule does not require
air carriers to transmit any ESTA data
elements on behalf of travelers to CBP,
nor does it require carriers to submit
any additional data.
In determining a traveler’s eligibility
for ESTA authorization, CBP will assess
each application to determine whether
the alien is eligible to travel to the
United States and whether there exists
any law enforcement or security risk in
permitting such travel under VWP. The
information submitted by the alien in
his/her travel authorization application
will be checked by CBP against all
appropriate databases, including, but
not limited to, lost and stolen passport
databases and appropriate watchlists.
Additionally, if an alien does not
provide the information required or
provides false information in his travel
authorization application or if any
evidence exists indicating that an alien
is ineligible to travel to the United
States under VWP or that permitting
such travel poses a law enforcement or
security risk, CBP may deny the alien’s
application for a travel authorization.
Consistent with section 711 of the 9/11
Act, the Secretary, acting through CBP,
retains discretion to revoke a travel
authorization determination at any time
and for any reason. 8 U.S.C.
1187(h)(3)(C)(i). If an alien’s travel
authorization application is denied, the
alien may still seek to obtain a visa to
travel to the United States from the
appropriate U.S. embassy or consulate.
2. Implementation Notice
Under section 711 of the 9/11 Act, the
Secretary also must publish a notice in
the Federal Register, no less than 60
days before ESTA requirements are
implemented. The Secretary will
publish a notice in the Federal Register
60 days before ESTA is implemented as
a mandatory requirement. DHS
anticipates that the Secretary of
Homeland Security will issue that
notice in November 2008, for
implementation of the mandatory ESTA
requirements on or before January 12,
2009.
3. Timeline for Submitting Travel
Authorization Data
Once ESTA is implemented as a
mandatory program, 60 days following
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6 At this time, Brunei is the only VWP country
that has not entered into such an agreement with
the United States. The list of countries which have
entered into such an agreement is available on the
Department of State Web site at http://
foia.state.gov/masterdocs/09fam/0941104X1.pdf.
publication of a notice in the Federal
Register, each nonimmigrant alien
wishing to travel to the United States
under the VWP must have a travel
authorization prior to embarking on a
carrier. DHS, however, recommends that
VWP travelers obtain travel
authorizations at the time of reservation
or purchase of the ticket, or at least 72
hours before departure to the United
States, in order to facilitate timely
departures. This timeline will allow
accommodation of last minute and
emergency travelers.
4. Required Travel Authorization Data
Elements
ESTA will collect the same
information currently required on the
Form I–94W that is presented to a CBP
officer at a port of entry. See 8 U.S.C.
1187(h)(3). This is the information that
the Secretary has deemed necessary to
evaluate whether an alien is eligible to
travel to the United States under VWP
and whether such travel poses a law
enforcement or security risk. This
information is already collected through
the I–94W form, which is presented to
CBP when the alien arrives in the
United States. On the I–94W form,
aliens must provide biographical data
such as name, birth date, and passport
information, as well as travel
information such as flight information
and the address of the traveler in the
United States. Travelers must also
answer eligibility questions regarding,
for example: communicable diseases,
arrests and convictions for certain
crimes, and past history of visa
revocation or deportation. The
information provided in the I–94W form
is sufficient for CBP to initially
determine if the applicant is eligible to
travel under VWP before the alien
commences travel to the United States.
Therefore, DHS has decided to utilize
the I–94W data elements by requiring
them to be submitted in advance of
travel under ESTA.
In conjunction with CBP’s final rule
‘‘Advance Electronic Transmission of
Passenger and Crew Member Manifests
for Commercial Aircraft and Vessels,’’
which was published in the Federal
Register on August 23, 2007 (and
became effective on February 19, 2008),
DHS has been coordinating with
commercial aircraft and commercial
vessel carriers on the development and
implementation of messaging
capabilities for passenger data
transmissions that will enable DHS to
provide the carriers with messages
pertaining to a passenger’s boarding
status. A prospective VWP traveler’s
ESTA status is a component of a
passenger’s boarding status that has
been introduced into the plans for
implementing messaging capabilities
between DHS and the carriers.
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 status
as part of the traveler’s boarding status.
Once all carriers are capable of receiving
and validating messages pertaining to
the traveler’s ESTA status as part of the
traveler’s boarding status, DHS will
eliminate the I–94W requirement.
5. Scope of ESTA
Consistent with the 9–11 Act, an
approved travel authorization only
allows an alien to board a conveyance
for travel to a U.S. port of entry and
does not restrict, limit, or otherwise
affect the authority of CBP to determine
an alien’s admissibility to the United
States during inspection at a port of
entry.
6. Duration
a. General Rule
Each travel authorization will be valid
for a period of no more than two years.
An alien may travel to the United States
repeatedly within the validity period of
the travel authorization using the same
travel authorization. Travelers whose
ESTA applications are approved, but
whose passports will expire in less than
two years, will receive travel
authorization that is valid only until the
expiration date on the passport.
b. Exception
Pursuant to 8 U.S.C. 1182(a)(7)(B)(i)(I)
and implementing regulations at 8 CFR
214.1(a)(3)(i), the passport of an alien
applying for admission must be valid for
a minimum of six months from the
expiration date of the contemplated
period of stay. Certain foreign
governments have entered into
agreements with the United States
whereby their 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. These agreements have the
effect of extending the validity period of
the foreign passport an additional six
months notwithstanding the expiration
date indicated in the passport. The
general rule applies to aliens who are
citizens of countries that have entered
into such an agreement.
For aliens from countries that have
not entered into such an agreement,6
travel authorizations will be valid for a
period of two years under ESTA.
However, travel authorizations for
aliens from countries that have not
entered into such an agreement will not
be approved beyond the six months
prior to the expiration date of the alien’s
passport. Travelers from these countries
whose passports will expire in six
months or less will not receive an
approved ESTA.
The Secretary, in his discretion, may
issue a travel authorization for a
different period of validity, not to
exceed a period of three years.
7. Events Requiring New Travel
Authorizations
A VWP traveler must obtain a new
travel authorization under ESTA in
advance of travel to the United States if
any of the following occur:
(1) The alien is issued a new passport;
(2) The alien changes his or her name;
(3) The alien changes his or her
gender;
(4) The alien changes his or her
country of citizenship; or
(5) The circumstances underlying the
alien’s previous responses to any of the
ESTA application questions requiring a
‘‘yes’’ or ‘‘no’’ response (eligibility
questions) have changed.
8. Fee
As provided under section
711(h)(3)(B) of the 9/11 Act, the
Secretary may charge aliens a fee to use
ESTA. The fee is intended to cover the
full costs of developing and
administering the system. At this time,
payment of a fee will not be required to
obtain a travel authorization. If DHS
determines at a later time, however, that
collection of a fee is necessary for the
efficient administration of ESTA, DHS
will implement a fee through a separate
rulemaking action or such other manner
as is consistent with the Administrative
Procedure Act and applicable statutory
authorities.
9. Judicial Review
Section 711 of the 9/11 Act expressly
provides that ‘‘no court shall have
jurisdiction to review an eligibility
determination under the System.’’
Accordingly, a determination by DHS to
not provide a traveler a travel
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32444 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations
authorization under ESTA will be final
and, notwithstanding any other
provision of the law, is not subject to
judicial review. See 8 U.S.C.
217(h)(3)(C)(iv).
10. Privacy
DHS will ensure that all Privacy Act
requirements and policies are adhered
to in the implementation of this rule
and will be issuing a Privacy Act Impact
Assessment that will fully outline
processes that will ensure compliance
with Privacy Act protections.
III. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
1. Procedural Rule Exception
This interim final rule addresses
requirements that are procedural in
nature and does not alter the substantive
rights of aliens from VWP countries
seeking admission to the United States.
This interim final rule, therefore, is
exempt from notice and comment
requirements under 5 U.S.C. 553(b)(A).
This rule is procedural because it
merely automates an existing reporting
requirement for nonimmigrant aliens, as
captured in the ‘‘I–94W Nonimmigrant
Alien Arrival/Departure Form’’
pursuant to existing statutes and
regulations. See 8 U.S.C. 1103, 1184 and
1187. See also 8 CFR 212.1, 299.1, 299.5
and Parts 2 and 217. By procedurally
shifting the paper I–94W form to an
electronic form and changing the timing
of submission of such information to
require travelers to submit the data to
CBP in advance of travel, CBP will be
able to determine, before the alien
departs for the United States, the
eligibility of citizens and eligible
nationals from VWP countries to travel
to the United States under VWP and
whether such travel poses a law
enforcement or security risk. This
procedural change also benefits
travelers as it allows CBP to identify
potential grounds of ineligibility for
admission before the traveler embarks
on a carrier destined for the United
States.
2. Good Cause Exception
This interim final rule is also exempt
from APA rulemaking requirements
under the ‘‘good cause’’ exception set
forth at 5 U.S.C. 553(b)(3)(B). By
requiring VWP travelers, who currently
are not screened in person until they
arrive at a U.S. port of entry, to submit
I–94W screening information in advance
of their departure for the United States,
DHS is better positioned to screen VWP
aliens before they board carriers or
vessels en route to the United States.
This rule, therefore, improves the
security of the VWP by addressing
vulnerabilities in the program identified
by GAO and implementing security
enhancements included in section 711
of the 9/11 Act.
Specifically, certain inadmissible
travelers who need visas to enter the
United States may attempt to acquire a
passport from a VWP country to avoid
the normal visa issuance procedures.
Potential terrorists also may use VWP
exemption from the visa screening
process as a means to gain access to the
United States or an aircraft en route to
the United States to cause serious
damage, injury, or death in the United
States. Thus, implementation of this
rule prior to notice and comment is
necessary to protect the national
security of the United States and to
prevent potential terrorists from
exploiting VWP.
Prolonging the implementation of
these regulations could hamper the
ability of DHS to address the security
vulnerabilities in the VWP and to take
effective action to keep persons found
by DHS to pose a security threat from
entering the country under the VWP.
Accordingly, DHS has determined that
delaying implementing of this interim
final rule to consider public comment
rule would be impracticable,
unnecessary and contrary to the public
interest.
3. Foreign Affairs Function Exception
This interim final rule is also
excluded from the rulemaking
provisions of 5 U.S.C. 553 as a foreign
affairs function of the United States
because it advances the President’s
foreign policy goals, 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. Accordingly, DHS
is not required to provide public notice
and an opportunity to comment before
implementing the requirements under
this final rule. The Department,
however, is interested in public
comments on this interim final rule and
ESTA and, therefore, is providing the
public with the opportunity to comment
without delaying implementation of this
rule.
Additionally, the public will continue
to be provided opportunity to comment
on changes to the Arrival and Departure
Record, Forms I–94 and I–94W. These
forms are in the process of being
updated under the Paperwork
Reduction Act. A Federal Register
notice entitled ‘‘Proposed Collection;
Comment Request; Arrival and
Departure Record (Forms I–94 and I–
94W),’’ was published in the Federal
Register on November 9, 2007 (72 FR
63622). The 60-day comment period
expired on January 8, 2008, and CBP has
analyzed and responded to those
comments received. Pursuant to the
requirements of the Paperwork
Reduction Act of 1995, CBP advised the
public in this notice of its intention to
revise its existing collection of
information by adding an e-mail address
and phone number to the I–94 and the
I–94W forms under OMB Control
Number 1651–0111. CBP published this
30-day notice document on February 4,
2008, in the Federal Register (73 FR
6522) and the comment period expired
on March 5, 2008. We note that, upon
publication for OMB approval,
interested persons had an additional
opportunity to provide comments to
OMB on CBP’s request for the addition
of e-mail address and phone number
and other data elements to update the I–
94W form. All comments received will
become a matter of the public record.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 603(b)), as amended by the
Small Business Regulatory Enforcement
and Fairness Act of 1996 (SBREFA),
requires an agency to prepare and make
available to the public a regulatory
flexibility analysis that describes the
effect of a proposed rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions) when the agency is
required ‘‘to publish a general notice of
proposed rulemaking for any proposed
rule.’’ Because this rule is being issued
as an interim rule, on the grounds set
forth above, a regulatory flexibility
analysis is not required under the RFA.
Nonetheless, DHS has considered the
impact of this rule on small entities and
had determined that this rule will not
have a significant economic impact on
a substantial number of small entities.
The individual aliens to whom this rule
applies are not small entities as that
term is defined in 5 U.S.C. 601(6).
Accordingly, there is no change
expected in any process as a result of
this rule that would have a direct effect,
either positive or negative, on a small
entity.
C. Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
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Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 32445
7 See U.S. Customs and Border Protection final
rule. ‘‘Advance Electronic Transmission of
Passenger and Crew Member Manifests for Commercial Aircraft and Vessels,’’ 72 FR 48320
(Aug. 23, 2007).
of the Unfunded Mandates Reform Act
of 1995.
D. Executive Order 12866
This interim final rule is considered
to be a ‘‘significant regulatory action’’
under Executive Order 12866, section
3(f), Regulatory Planning and Review.
Accordingly, OMB has reviewed this
regulation under that Executive Order.
The purpose of ESTA is to allow DHS
and CBP to establish the eligibility of
certain foreign travelers to travel to the
United States under the VWP, and
whether the alien’s proposed travel to
the United States 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 under the
VWP. Once ESTA is implemented as a
mandatory program, 60 days following
publication of a notice in the Federal
Register, citizens and eligible nationals
of the 27 countries in the current VWP
must comply with this rule. The
primary parameters for this analysis are
as follows—
• The period of analysis is 2008 to
2018.
• Because the order in which
countries will potentially be brought
into VWP, and thus into ESTA, is
unknown, we make the simplifying
assumption for this analysis only that
all affected travelers will comply with
this rule beginning in 2009.
• 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 may
choose to either modify their existing
systems or potentially develop new
systems to submit ESTA applications for
their customers. For this analysis, we
assume that carriers will incur system
development costs in 2008 and will
incur operation and maintenance costs
every year thereafter. We note that CBP
will transmit travelers’ authorization
status through CBP’s existing Advance
Passenger Information System (APIS),
and therefore carriers may not have to
make significant changes to their
existing systems in response to this rule.
Additionally, to minimize the potential
impacts to air and sea carriers, CBP is
developing a system that carriers will be
able to use to submit applications on
behalf of their passengers.
• Under this rule, an initial travel
authorization is valid for two years. We
anticipate that travelers and carriers will
update information via CBP’s APIS
requirements rather than requiring
updated ESTA information on each
entry during the two-year period.
However, for purposes of this analysis,
we assume that a travel authorization
update would be required for each trip
to the United States so as not to
underestimate the potential economic
impacts of this rule.
Impacts to Air & Sea Carriers
We estimate that eight U.S.-based air
carriers and eleven sea carriers will be
affected by the rule. An additional 35
foreign-based air carriers and five sea
carriers will be affected.
CBP intends to transmit each
passenger’s travel authorization status to
the air carriers using CBP’s Advance
Passenger Information System
(APIS).7 When a passenger checks in for
his/her flight, the passport is swiped
and the APIS process begins. CBP will
provide the passenger’s travel
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 a travel
authorization on behalf of the passenger.
It is unknown how many passengers
annually may request that their carrier
apply for a travel authorization on their
behalf or how much it will cost carriers
to modify their existing systems to
accommodate such requests. During the
first years of implementation when
passengers are not quite as familiar with
the new process, the carriers could face
a notable burden if most of their non-
U.S. passengers require travel
authorization applications to be carriertransmitted.
Given these unknowns, we have
developed a range of costs. For the low
end of the range, we assume that
carriers will modify their existing
systems, interface with CBP’s system,
and will help few passengers apply for
travel authorizations annually. For the
high end of the range, we assume that
carriers will develop a new system
(similar to APIS Quick Query, AQQ)
and will assist many passengers
annually. We assume that for an air
carrier modifying its existing systems
the cost would be $500,000 in the first
year and $125,000 (25 percent of startup
costs) in subsequent years (low cost).
The 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. For
an air carrier developing a new system,
the cost would be $2 million in the first
year and $2 million (100 percent of
start-up costs) in subsequent years (high
cost). Sea carriers have not previously
developed an AQQ-like system, as they
have been able to submit advance
passenger data through the U.S. Coast
Guard’s Notice of Arrival/Departure
system (called ‘‘eNOA/D’’). For the low
cost estimate, we assume that modifying
systems would cost $1 million in the
first year and $250,000 in subsequent
years. For a sea carrier developing a new
system, the cost would be $2 million in
the first year and $2 million (100
percent of start-up costs) in subsequent
years, as with air carriers.
Given this range, should carriers
undertake this effort, costs for U.S.-
based carriers at the low end of the
range would be about $9 million in the
first year and $2 million in subsequent
years (undiscounted). Costs for U.S.-
based carriers at the high end of the
range will be about $36 million in the
first year and subsequent years
(undiscounted). See Exhibit 1.
EXHIBIT 1.—FIRST YEAR AND ANNUAL COSTS FOR CARRIERS TO ADDRESS ESTA REQUIREMENTS
[$Millions, 2008–2018, undiscounted]
Low cost scenario High cost scenario
U.S. Foreign
Total
U.S. Foreign
Total
Air Sea Air Sea Air Sea Air Sea
Carriers ..................... 8 11 35 5 59 8 11 35 5 59
2008 ......................... $4.0 $5.5 $35.0 $5.0 $49.5 $16.0 $22.0 $70.0 $10.0 $118.0
2009 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
2010 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
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32446 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations
EXHIBIT 1.—FIRST YEAR AND ANNUAL COSTS FOR CARRIERS TO ADDRESS ESTA REQUIREMENTS—Continued
[$Millions, 2008–2018, undiscounted]
Low cost scenario High cost scenario
U.S. Foreign
Total
U.S. Foreign
Total
Air Sea Air Sea Air Sea Air Sea
2011 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
2012 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
2013 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
2014 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
2015 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
2016 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
2017 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
2018 ......................... 1.0 1.4 8.8 1.3 12.5 16.0 22.0 70.0 10.0 118.0
As estimated, ESTA could cost the
carriers about $137 million to $1.1
billion (present value) over the next 10
years depending on how the carriers
decide to assist passengers, how many
passengers the carriers need to assist,
and the discount rate applied (3 or 7
percent). See Exhibit 2.
EXHIBIT 2.—PRESENT VALUE COSTS FOR CARRIERS TO ADDRESS ESTA REQUIREMENTS
[$Millions, 2008–2018]
Low cost scenario High cost scenario
U.S. Foreign U.S. Foreign
Air Sea Air Sea Air Sea Air Sea
3 percent discount rate
10-year subtotal ............................................... $12.5 $17.2 $109.6 $15.7 $152.5 $209.7 $667.1 $95.3
10-year total ..................................................... $29.7 $125.3 $362.2 $762.4
10-year grand total ........................................... $155.0 $1,124.6
Annualized subtotal .......................................... $1.3 $1.8 $11.5 $1.6 $16.0 $22.0 $70.0 $10.0
Annualized total ............................................... $3.1 $13.1 $38.0 $80.0
Annualized grand total ..................................... $16.2 $118.0
7 percent discount rate
10-year subtotal ............................................... $11.0 $15.2 $96.5 $13.8 $128.4 $176.5 $561.7 $80.2
10-year total ..................................................... $26.2 $110.3 $304.9 $641.9
10-year grand total ........................................... $136.5 $946.8
Annualized subtotal .......................................... $1.4 $1.9 $12.0 $1.7 $16.0 $22.0 $70.0 $10.0
Annualized total ............................................... $3.3 $13.7 $38.0 $80.0
Annualized grand total ..................................... $17.0 $118.0
Travel agents and other service
providers may incur costs to assist their
clients in obtaining travel
authorizations. We do not know how
many such service providers would be
affected, but they would likely need to
obtain a software module that allowed
them to apply for travel authorizations
during the booking process. Affected
travel agents are most likely foreign
businesses located in the affected
countries.
Impacts to Travelers
ESTA will present new costs and
burdens to travelers in VWP countries
who were not previously required to
submit any information to the U.S.
Government in advance of travel to the
United States. Travelers from Roadmap
countries who become VWP will also
incur costs and burdens, though these
are much less than obtaining a
nonimmigrant visa (category B1/B2),
which is currently required for shortterm
pleasure or business to travel to the
United States.
For the primary analysis, we explore
the following categories of costs.
• Burden to obtain a travel
authorization—the time that will be
required to obtain a travel authorization
and the value of that time (opportunity
cost) to the traveler.
• Cost and burden to obtain a visa if
a travel authorization is denied—based
on the existing process for obtaining a
visa, the cost to obtain that document in
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Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 32447
the event that a travel authorization is
denied and the traveler is referred to a
U.S. Embassy.
For this analysis, we have developed
four methods to predict ESTA-affected
travelers to the United States over the
next 10 years using information
available from the Department of
Commerce, Office of Travel and
Tourism Industries (OTTI),
documenting historic travel levels and
future projections. Method 1 employs
the travel-projection percentages
provided by OTTI and extrapolates
them to the end of our period of analysis
(OTTI projects travel only through 2010;
we calculate a simple, straight-line
extrapolation to 2018). Method 2
(modified OTTI projections) presents a
more pessimistic outlook on travel: all
projected percentages from Method 1
are reduced by 2 percent throughout the
period of analysis. Methods 3 and 4
present more optimistic projections than
Methods 1 and 2, but incorporated
periodic downturns, which are
prevalent (though not necessarily
predictable) in international travel. See
Exhibit 3.
EXHIBIT 3.—TOTAL VISITORS TO THE UNITED STATES USING FOUR METHODOLOGIES, 2008–2018
[Millions]
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
Method 1:
VWP .......................................... 17.4 18.0 18.7 19.4 20.0 20.7 21.3 21.9 22.4 23.0 23.5
Roadmap ................................... 1.2 1.2 1.3 1.3 1.4 1.4 1.5 1.5 1.5 1.6 1.6
Total ................................... 18.6 19.2 20.0 20.7 21.4 22.1 22.8 23.4 23.9 24.6 25.1
Method 2:
VWP .......................................... 17.0 17.4 17.7 17.9 18.2 18.4 18.6 18.7 18.8 18.9 18.9
Roadmap ................................... 1.1 1.2 1.2 1.2 1.2 1.3 1.3 1.3 1.3 1.3 1.3
Total ................................... 18.1 18.6 18.9 19.1 19.4 19.7 19.9 20.0 20.1 20.2 20.2
Method 3:
VWP .......................................... 17.4 18.0 18.7 19.4 17.7 20.7 24.1 27.4 26.0 30.1 34.1
Roadmap ................................... 1.2 1.2 1.3 1.3 1.2 1.4 1.7 2.0 2.3 2.9 2.7
Total ................................... 18.6 19.2 20.0 20.7 18.9 22.1 25.8 29.4 28.3 33.0 36.8
Method 4:
VWP .......................................... 17.4 15.9 18.5 21.6 24.5 23.3 26.9 30.5 35.6 33.9 38.6
Roadmap ................................... 1.2 1.0 1.3 1.5 1.8 2.1 2.0 2.3 2.9 3.3 4.0
Total ................................... 18.6 16.9 19.8 23.1 26.3 25.4 28.9 32.8 38.5 37.2 42.6
Burden To Obtain Travel Authorization
Through ESTA
To estimate the value of a non-U.S.
citizen’s time (opportunity cost), we
have conducted a brief analysis that
takes into account differing wage rates
for countries that will be affected by the
ESTA requirements. Based on this
analysis, we found that countries in
Western Europe, Oceania, and Japan
generally have a higher value of time
than the less developed countries of
Eastern Europe and Asia. We also found
that air travelers have a higher value of
time than the general population. As we
did previously for carriers, we develop
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 $1.42 to $30.78 depending on the
country. For the high cost estimate, the
hourly value of time ranges from $3.00
to $65.19.
We estimate that it will take 15
minutes of time (0.25 hours) to apply for
a travel authorization. Note that this is
approximately 5 minutes more than the
time currently estimated to complete the
I–94W (10 minutes). We estimate
additional burden for a travel
authorization application because even
though the data elements and
admissibility questions are identical, the
traveler must now register with ESTA,
familiarize himself/herself with the
system, gather and enter the data, and
access an e-mail account to check the
status of his/ her travel authorization
application. 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. We believe the 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 would
almost certainly not take 15 minutes of
time because these entities will have
most of the information electronically as
gathered during the booking process,
and travel and ticket agents are certainly
comfortable using computer
applications. Because we do not know
how many travelers will apply
independently through the ESTA Web
site versus through a third party, we
assign a 15-minute burden to all
travelers.
Based on these values and
assumptions, we estimate that total
opportunity costs in 2009 (the first year
that all travelers comply with the ESTA
requirements in this analysis) will range
from $86 million (low) to $207 million
(high) depending on the number of
travelers projected and the value of time
used. By the end of the period of
analysis, costs range from $102 million
to $444 million. These estimates are all
undiscounted. The range between the
estimates broadens as differences in the
projection methods are more
discernable at the end of the period of
analysis. See Exhibit 4.
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32448 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations
EXHIBIT 4.—TOTAL OPPORTUNITY COSTS FOR VISITORS TO THE UNITED STATES USING FOUR METHODOLOGIES, 2009
AND 2018
[In $millions]
2009 2018
Low
estimate
High
estimate
Low
estimate
High
estimate
Method 1 .......................................................................................................................... $98 $207 $127 $269
Method 2 .......................................................................................................................... 94 199 102 217
Method 3 .......................................................................................................................... 98 207 184 389
Method 4 .......................................................................................................................... 86 182 210 444
As estimated, ESTA could cost
travelers $700 million to over $2.6
billion (present value) over the next 10
years depending on the projection
method, the value of opportunity cost,
and the discount rate applied (3 or 7
percent). Annualized costs are an
estimated $86 million to $270 million.
See Exhibit 5.
EXHIBIT 5.—TOTAL PRESENT VALUE AND ANNUALIZED OPPORTUNITY COSTS TO TRAVELERS, 2008–2018
Total present value benefits
($billions)
Annualized benefits
($millions)
Low estimate High estimate Low estimate High estimate
3% 7% 3% 7% 3% 7% 3% 7%
Method 1 .......................................................... $0.957 $0.781 $2.026 $1.653 $100 $97 $213 $206
Method 2 .......................................................... 0.844 0.693 1.788 1.468 89 86 188 183
Method 3 .......................................................... 1.071 0.862 2.268 1.825 112 107 238 227
Method 4 .......................................................... 1.216 0.972 2.574 2.058 128 121 270 257
Cost and Burden To Obtain a Visa if a
Travel Authorization Is Denied
Using the value of time estimates
calculated above, we estimate the costs
if a travel authorization is denied and
the traveler is referred to the nearest
U.S. Consulate to apply for a
nonimmigrant visa (B1/B2). Absent
country-specific information, we
assume that it will require 5 hours of
time to obtain a visa including time to
complete the application, travel time,
waiting at the Embassy 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. We estimate
that these out-of-pocket costs will be
$187.
The number of travel authorizations
that will be denied is unknown. For a
country to have become part of the VWP
originally, the visa refusal rate must
have been no higher than 3 percent.
Currently, the number of VWP travelers
found inadmissible upon application for
admission is low, only about 1 percent.
ESTA, however, will likely affect a
relatively small number of the current
inadmissible individuals (see next
section on benefits) because many
individuals are denied entry for reasons
that ESTA will not affect. For this
analysis, we assume that 1 percent of
ESTA applicants from current VWP
travelers will subsequently need to
apply for a visa. We do not account for
visas that must be obtained in the event
of an ESTA refusal for new VWP
travelers because obtaining a visa is the
baseline condition under which those
travelers must currently operate in order
to travel to the United States. We do,
however, subtract out ESTA refusals in
our benefits calculations (see next
section) because these travelers do not
accrue any benefit from ESTA.
We multiply 1 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 $374
million to $916 million over the period
of analysis. Annualized costs are an
estimated $47 million to $96 million.
See Exhibit 6.
EXHIBIT 6.—TOTAL PRESENT VALUE AND ANNUALIZED VISA COSTS TO TRAVELERS, 2008–2018
Total present value benefits
($billions)
Annualized benefits
($millions)
Low estimate High estimate Low estimate High estimate
3% 7% 3% 7% 3% 7% 3% 7%
Method 1 .......................................................... $0.517 $0.421 $0.724 $0.590 $54 $53 $76 $74
Method 2 .......................................................... 0.456 0.374 0.639 0.525 48 47 67 65
Method 3 .......................................................... 0.577 0.465 0.809 0.651 61 58 85 81
Method 4 .......................................................... 0.654 0.523 0.916 0.733 69 65 96 91
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Total Costs to Travelers
Based on the above calculations, we
estimate that the total quantified costs to
travelers will range from $1.1 billion to
$3.5 billion depending on the number of
travelers, the value of time, and the
discount rate. Annualized costs are
estimated to range from $133 million to
$366 million. See Exhibit 7.
EXHIBIT 7.—TOTAL PRESENT VALUE AND ANNUALIZED COSTS TO TRAVELERS, 2008–2018
Total present value benefits
($billions)
Annualized benefits
($millions)
Low estimate High estimate Low estimate High estimate
3% 7% 3% 7% 3% 7% 3% 7%
Method 1 .......................................................... $1.474 $1.202 $2.750 $2.244 $154 $150 $289 $280
Method 2 .......................................................... 1.300 1.067 2.427 1.993 137 133 255 248
Method 3 .......................................................... 1.648 1.327 3.077 2.476 173 165 323 308
Method 4 .......................................................... 1.870 1.495 3.490 2.791 197 186 366 348
Conclusions
We have shown that costs to air and
sea carriers to support the requirements
of the ESTA program could cost $137
million to $1.1 billion over the next 10
years depending on the level of effort
required to integrate their systems with
ESTA, how many passengers they need
to assist in applying for travel
authorizations, and the discount rate
applied to annual costs. Costs to foreign
travelers could total $1.1 billion to $3.5
billion depending on traveler volume,
their value of time, and the discount
rate applied.
Benefits
Inadmissibility
By requiring passenger data in
advance of travel, CBP may be able to
determine, before the alien departs for
the United States, the eligibility of
citizens and eligible nationals from
VWP countries to travel to the United
States under the VWP, and whether
such travel poses a law enforcement or
security risk. 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
security and provide for greater
efficiencies in the screening of
international travelers by allowing for
the screening of subjects of potential
interest well before boarding, thereby
reducing traveler delays based on
potentially lengthy processes at U.S.
ports of entry.
ESTA will allow for advance
screening of VWP travelers against all
appropriate databases, including, but
not limited to, lost and stolen passport
databases and appropriate watchlists.
Based on data from CBP, we estimate
that 0.04 percent of affected individuals
will be prevented from traveling to the
United States as a result of the ESTA
requirements.
Currently, when ineligible 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. CBP estimates that it requires 2
hours of time for questioning and
processing at a cost of approximately
$1,560 per individual. We estimate that
removing an ineligible traveler 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, we calculate
that benefits to CBP would total $85
million to $151 million over the period
of analysis depending on the traveler
projection method and the discount rate
applied. Benefits to carriers could total
$82 million to $146 million. Annualized
benefits range from $17 million to $29
million. See Exhibit 8.
EXHIBIT 8.—BENEFITS OF ANNUAL ADMISSIONS DENIED ATTRIBUTABLE TO ESTA, 2008–2018
[In $millions]
Total
admissions
denied
3% discount rate 7% discount rate
Benefits to
CBP
Benefits to
carriers
Total
benefits
Annualized
benefits
Benefits to
CBP
Benefits to
carriers
Total
benefits
Annualized
benefits
Method 1 .. 89,000 $118 $113 $231 $23 $96 $92 $188 $19
Method 2 .. 78,000 104 100 204 21 85 82 167 17
Method 3 .. 102,000 133 128 261 26 107 103 210 21
Method 4 .. 117,000 151 146 297 29 121 116 237 23
Additionally, asking questions
regarding eligibility for admission prior
to travel to the United States may keep
some VWP travelers from arriving at a
United States port of entry only to then
be deemed inadmissible. This rule
would provide benefits to CBP and the
carriers for those travelers who answer
‘‘yes’’ to any of the eligibility questions
who are then deemed inadmissible and
must be transported back to their
country of origin. It is not known how
many entries like this occur on an
annual basis, and we are thus unable to
quantify the benefits to CBP or the
carriers of forgoing such occurrences.
Benefits of Not Having To Obtain Visas
The benefits of not having to obtain a
B1/B2 visa, but rather obtaining a travel
authorization are also quantifiable.
These benefits will be realized only by
travelers who are citizens of countries
that enter the Visa Waiver Program in
the future. We must first determine how
many travelers are repeat versus firsttime
travelers in order not to double
count benefits from not having to obtain
a visa. We estimate the number of firsttime
visitors under each of the four
methods of projecting travelers. Then
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we estimate a percentage of repeat
travelers who would also need to have
visas because their old visa will expire
during the next 10 years. All of the
Roadmap visitors are eligible for 10-year
B1/B2 visas, and we thus assume that 10
percent of repeat visitors would have to
reapply for visas were it not for the rule.
Finally, we subtract out those who are
denied a travel authorization and must
apply for a visa instead (see previous
section on costs).
Benefits of forgoing visa are expected
to range from about $619 million to $1.6
billion (present value) over 10 years
depending on the travel level, the value
of time used, and the discount rate
applied. Annualized benefits range from
$77 million to $167 million. See Exhibit
9.
EXHIBIT 9.—TOTAL PRESENT VALUE AND ANNUALIZED BENEFITS OF FORGOING VISAS, 2008–2018
Total present value benefits
($billions)
Annualized benefits
($millions)
Low estimate High estimate Low estimate High estimate
3% 7% 3% 7% 3% 7% 3% 7%
Method 1 .......................................................... $0.856 $0.697 $1.042 $0.850 $90 $87 $109 $106
Method 2 .......................................................... 0.755 0.619 0.920 0.754 79 77 96 84
Method 3 .......................................................... 1.053 0.838 1.290 1.026 111 105 135 128
Method 4 .......................................................... 1.293 1.019 1.588 1.251 136 127 167 156
Benefits of Not Having To Complete the
I–94W and I–94 Forms
We can also quantify the benefits of
not having to complete the I–94W paper
form. These benefits will accrue to all
travelers eventually covered by ESTA as
the requirement to present a paper I–
94W is eliminated. The estimated time
to complete either the I–94W or I–94 is
10 minutes (0.17 hours). We then
subtract 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 that are expected to be
accrued as a result of this rule.
Benefits of not having to complete the
paper forms are expected to range from
$457 million to $1.7 billion over 10
years depending on the value of time
used and the discount rate applied.
Annualized benefits range from $57
million to $178 million. See Exhibit 10.
EXHIBIT 10.—TOTAL PRESENT VALUE AND ANNUALIZED BENEFITS OF FORGOING THE I–94W, 2008–2018
Total present value benefits
($billions)
Annualized benefits
($millions)
Low estimate High estimate Low estimate High estimate
3% 7% 3% 7% 3% 7% 3% 7%
Method 1 .......................................................... $0.636 $0.519 $1.336 $1.090 $67 $65 $140 $136
Method 2 .......................................................... 0.557 0.457 1.179 0.968 58 57 124 121
Method 3 .......................................................... 0.706 0.568 1.495 1.203 74 71 157 150
Method 4 .......................................................... 0.801 0.641 1.697 1.357 84 80 178 169
In addition to these benefits to
travelers, CBP and the carriers should
also experience the benefit of not having
to administer the I–94W. While CBP has
not conducted an analysis of the
potential savings, it should accrue
benefits from not having to produce,
ship, and store blank forms. CBP should
also be able to accrue savings related to
data entry and archiving. Carriers
should realize some savings as well,
though carriers will still have to
administer the I–94 for those passengers
not traveling under the VWP and the
Customs Declaration forms for all
passengers aboard the aircraft and
vessel.
Total Benefits to Travelers
Total benefits to travelers could total
$1.1 billion to $3.3 billion over the
period of analysis. Annualized benefits
could range from $134 million to $345
million. See Exhibit 11.
EXHIBIT 11.—TOTAL PRESENT VALUE AND ANNUALIZED BENEFITS TO TRAVELERS, 2008–2018
[10-year costs in $billions; annualized costs in $millions]
Total present value benefits
($billions)
Annualized benefits
($millions)
Low estimate High estimate Low estimate High estimate
3% 7% 3% 7% 3% 7% 3% 7%
Method 1 .......................................................... $1.492 $1.216 $2.378 $1.940 $157 $152 $249 $242
Method 2 .......................................................... 1.312 1.076 2.099 1.722 137 134 220 215
Method 3 .......................................................... 1.759 1.406 2.785 2.229 185 176 292 278
Method 4 .......................................................... 2.094 1.660 3.285 2.608 220 207 345 325
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Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 32451
8 See 72 FR 48320, 48339.
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 simultaneously
enhancing program security
requirements and extending visa-free
travel privileges to citizens and eligible
nationals of eligible foreign countries
that are partners in the war on terrorism.
In previous DHS analyses, a
‘‘breakeven’’ analysis has been
conducted in the absence of information
regarding baseline risks of terrorist
attacks and risk reduced as the result of
a regulatory action. Such an analysis
was conducted for CBP’s final rule
implementing enhancements to APIS
(this rule is familiarly referred to as
APIS 30/AQQ).8 The APIS 30/AQQ and
the ESTA rules essentially have the
same objective: Prevent a traveler who
has been matched to an individual on a
government watchlist from boarding an
aircraft or passenger vessel bound for
the United States. This layered
approach is a key component of the
DHS and CBP goal of safe and secure
travel. However, if we were to conduct
a breakeven analysis for ESTA without
taking into account the breakeven
analysis for APIS 30/AQQ, we would be
double-counting security benefits,
though the extent is unknown. The
APIS 30/AQQ analysis accounted for
identifying a traveler of concern prior to
the issuance of a boarding pass. Thus,
we must not take credit for preventing
a traveler from boarding an aircraft as a
result of ESTA because that benefit has
already been counted. We have not
conducted a breakeven analysis for this
rule because CBP has already accounted
for preventing a traveler on a watchlist
from boarding an aircraft and coming to
the United States. This does not mean,
however, that there are no security
benefits of this rule—we simply have
not quantitatively accounted for them
here.
Annualized costs and benefits are
presented in the following accounting
statement, as required by OMB Circular
A–4.
ACCOUNTING STATEMENT: CLASSIFICATION OF EXPENDITURES, 2008–2018
[$2008]
3% discount rate 7% discount rate
Costs:
Annualized monetized costs .............................. $16 million to $118 million ............................... $17 million to $118 million.
Annualized quantified, but un-monetized costs None quantified ................................................ None quantified.
Qualitative (un-quantified) costs ........................ Indirect costs to the travel and tourism industry.
Indirect costs to the travel and tourism industry.
Benefits:
Annualized monetized benefits .......................... $21 million to $29 million ................................. $17 million to $23 million.
Annualized quantified, but un-monetized benefits.
None quantified ................................................ None quantified.
Qualitative (un-quantified) benefits .................... Enhanced security and efficiency .................... Enhanced security and efficiency.
We estimate that the annualized costs
of this rule will be $16 million to $118
million. These costs are for U.S. and
foreign-based air and sea carriers.
Quantified benefits of $17 million to
$29 million to carriers and CBP are for
annual travel authorizations denied by
ESTA that prevent inadmissible persons
from applying for admission under the
VWP at a United States port of entry.
Firms participating in the U.S. economy
may also face unquantified or indirect
burdens if, for example, U.S. travel
agents invest in resources to assist their
foreign clients in obtaining a travel
authorization, if the requirements lead
to trips forgone, or if the requirements
lead to increased queues in airports or
seaports. Under the simplifying
assumption for this analysis only that
all affected travelers, including those
from roadmap countries, will comply
with this rule beginning in 2009, there
are quantified benefits to those travelers
from Roadmap countries who no longer
need to obtain a visa to visit the United
States. In addition, there are quantified
benefits for all ESTA participants who
no longer need to complete I–94W
forms. Because these benefits accrue to
foreign entities, however, we do not
include them in the accounting
statement. Non-quantified benefits are
enhanced security and efficiency.
Regulatory Alternatives
We consider three alternatives to this
rule—
• The ESTA requirements in the rule,
but with a $1.50 fee per each travel
authorization (more costly)
• The ESTA requirements in the rule,
but with only the name of the passenger
and the admissibility questions on the
I–94W form (less burdensome)
• The ESTA requirements in the rule,
but only for the countries entering the
VWP after 2009 (no new requirements
for VWP, reduced burden for newly
entering countries)
Because this rule only directly affects
travelers, these alternatives only directly
affect travelers, not air and sea carriers.
The first alternative would create
additional burden for carriers, who
would potentially need to collect credit
card information and the fee to cover
the costs of the ESTA application. The
second alternative would create less
burden for the carriers because the
biographic information would not be
included. The third alternative would
be less costly and burdensome for the
carriers who would now not need to
handle as many ESTA participants.
Because the range of high and low cost
estimates for carriers presented is so
broad in the primary analysis (see
previous section), we do not estimate
carrier costs for these alternatives. The
comparison of alternatives, therefore, is
just for affected travelers.
For the sake of brevity, we present the
10-year present value cost of the rule
and these alternatives for the high value
estimates, Method 1 traveler projection,
at the 7 percent discount rate only.
Benefits are expressed as negative
values in this presentation See Exhibit
12.
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EXHIBIT 12.—COMPARISON OF 10-YEAR IMPACTS OF THE RULE AND REGULATORY ALTERNATIVES, 2008–2018, IN
$BILLIONS, METHOD 1, HIGH ESTIMATE, 7 PERCENT DISCOUNT RATE
Rule Alternative 1 Alternative 2 Alternative 3
ESTA burden .......................... $1.653 $1.653 .................................... $1.102 .................................... $0.045.
Visa costs ............................... 0.591 0.591 ...................................... 0.591 ...................................... 0.
ESTA fee ................................ 0 0.231 ...................................... 0 ............................................. 0.
Benefit of no visa ................... (0.850) (0.850) .................................... (0.850) .................................... (0.850).
Benefit of no I–94W ............... (1.090) (1.090) .................................... (1.090) .................................... (0.030).
Net impact .............................. $0.304 $0.535 .................................... ($0.247) .................................. ($0.835).
Comment ................................ ........................ Fee will not be charged at
this time.
All data elements are required
for proper screening.
Does not meet statutory requirements.
DHS has determined that the rule
provides the greatest level of enhanced
security and efficiency at an acceptable
cost to the traveling public and
potentially affected air carriers.
E. Executive Order 13132
The rule will not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, DHS has determined that
this interim final rule does not have
sufficient federalism implications to
warrant the preparation of a federalism
summary impact statement.
F. Executive Order 12988 Civil Justice
Reform
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
These regulations are being issued
without prior notice and public
procedure pursuant to the
Administrative Procedure Act (5 U.S.C.
553). For this reason, the collection of
information contained in these
regulations has been reviewed and,
pending receipt and evaluation of
public comments, approved by the
Office of Management and Budget
(OMB) in accordance with the
Paperwork Reduction Act of 1995,
Public Law 104–13, under Control
Number 1651–0111.
The information collection provisions
of this regulation are in §§ 212.1 and
217.5 of the CFR. CBP will use the
information collected under this rule to
determine the eligibility of
nonimmigrant aliens to travel to the
United States under the VWP so as to
enhance border security and streamline
entry processes at U.S. ports of entry.
The respondents to this collection are
non-U.S. citizen travelers to the United
States. When the Secretary publishes
notice in the Federal Register that each
alien wishing to travel to the United
States by air or sea must apply for and
obtain ESTA authorization prior to such
travel, under 8 CFR 217.5, any
nonimmigrant alien wishing to travel to
the United States by air or sea under
VWP would be required in advance to
have a travel authorization before
embarking on a carrier for travel to the
United States. To obtain a travel
authorization, travelers must provide to
CBP via a CBP Web site an application
consisting of biographic and other
information specified by the Secretary
of Homeland Security as necessary to
determine the eligibility of the alien to
travel to the United States under the
VWP, and whether such travel poses a
law enforcement or security risk.
The collection of information
regarding the I–94W Form procedures
was previously reviewed and approved
by OMB in accordance with the
requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507)
under OMB Control Number 1651–0111,
and its renewal is currently being vetted
through Federal Register notice as
discussed in the document. An agency
may not conduct, and a person is not
required to respond to, a collection of
information unless the collection of
information displays a valid control
number assigned by OMB.
The additional respondents and
burden estimates for this collection are
as follows:
Estimated annual reporting and/or
recordkeeping burden: 4,225,000 hours.
Estimated average annual burden per
respondent/recordkeeper: 15 minutes
(0.25 hours).
Estimated number of respondents
and/or recordkeepers: 17,000,000.
Estimated annual frequency of
responses: Once per year.
The estimated annual public cost for
ESTA is $63.8 million. This is based on
the number of responses (17,000,000) ×
a response time of 15 minutes × an
average hourly rate of $15 = $63.8
million.
Comments concerning the accuracy of
this burden estimate and suggestions for
reducing this burden should be directed
to the Office of Management and
Budget, Attention: Desk Officer for the
Department of Homeland Security,
Office of Information and Regulatory
Affairs, Washington, DC 20503. A copy
should also be sent to the Border
Security Regulations Branch, Bureau of
Customs and Border Protection, 1300
Pennsylvania Avenue, NW. (Mint
Annex), Washington, DC 20229.
H. Privacy Interests
DHS will be publishing a Privacy
Impact Assessment (PIA) on its Web
site. DHS also is preparing a separate
SORN for publication in conjunction
with this interim final rule.
List of Subjects in 8 CFR Part 217
Air carriers, Aliens, Maritime carriers,
Passports and visas.
Amendments to the Regulations

For the reasons stated in the preamble,
DHS amends part 217 of title 8 of the
Code of Federal Regulations (8 CFR part
217), as set forth below.
PART 217—VISA WAIVER PROGRAM

1. The general authority citation for
part 217 continues to read as follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part
2.
* * * * *

2. A new § 217.5 is being added to
read as follows:
§ 217.5 Electronic System for Travel
Authorization.
(a) Travel authorization required.
Each nonimmigrant alien intending to
travel by air or sea to the United States
under the Visa Waiver Program (VWP)
must, within the time specified in
paragraph (b) of this section, receive a
travel authorization, which is a positive
determination of eligibility to travel to
the United States under the VWP via the
Electronic System for Travel
Authorization (ESTA), from CBP. In
order to receive a travel authorization,
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each nonimmigrant alien intending to
travel to the United States by air or sea
under the VWP must provide the data
elements set forth in paragraph (c) of
this section to CBP, in English, in the
manner specified herein.
(b) Time. Each alien falling within the
provisions of paragraph (a) of this
section must receive a travel
authorization prior to embarking on a
carrier for travel to the United States.
(c) Required elements. ESTA will
collect such information as the
Secretary deems necessary to issue a
travel authorization, as reflected by the
I–94W Nonimmigrant Alien Arrival/
Departure Form (I–94W).
(d) Duration. (1) General Rule. A
travel authorization issued under ESTA
will be valid for a period of two years
from the date of issuance, unless the
passport of the authorized alien will
expire in less than two years, in which
case the authorization will be valid until
the date of expiration of the passport.
(2) Exception. For travelers from
countries which have not entered into
agreements with the United States
whereby their 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, a travel authorization
issued under ESTA is not valid beyond
the six months prior to the expiration
date of the passport. Travelers from
these countries whose passports will
expire in six months or less will not
receive a travel authorization.
(e) New travel authorization required.
A new travel authorization is required if
any of the following occur:
(1) The alien is issued a new passport;
(2) The alien changes his or her name;
(3) The alien changes his or her
gender;
(4) The alien’s country of citizenship
changes; or
(5) The circumstances underlying the
alien’s previous responses to any of the
ESTA application questions requiring a
‘‘yes’’ or ‘‘no’’ response (eligibility
questions) have changed.
(f) Limitations. (1) Current
authorization period. An authorization
under ESTA is a positive determination
that an alien is eligible, and grants the
alien permission, to travel to the United
States under the VWP and to apply for
admission under the VWP during the
period of time the travel authorization is
valid. An authorization under ESTA is
not a determination that the alien is
admissible to the United States. A
determination of admissibility is made
only after an applicant for admission is
inspected by a CBP Officer at a U.S. port
of entry.
(2) Not a determination of visa
eligibility. A determination under ESTA
that an alien is not eligible to travel to
the United States under the VWP is not
a determination that the alien is
ineligible for a visa to travel to the
United States and does not preclude the
alien from applying for a visa before a
United States consular officer.
(3) Judicial review. Notwithstanding
any other provision of law, a
determination under ESTA is not
subject to judicial review pursuant to 8
U.S.C. 217(h)(3)(C)(iv).
(4) Revocation. A determination
under ESTA that an alien is eligible to
travel to the United States to apply for
admission under the VWP may be
revoked at the discretion of the
Secretary.
(g) Compliance date. Once ESTA is
implemented as a mandatory program,
60 days following publication by the
Secretary of a notice in the Federal
Register, citizens and eligible nationals
of countries that participate in the VWP
planning to travel to the United States
under the VWP must comply with the
requirements of this section. As new
countries are added to the VWP, citizens
and eligible nationals of those countries
will be required to obtain a travel
authorization via ESTA prior to
traveling to the United States under the
VWP.
Dated: June 2, 2008.
Michael Chertoff,
Secretary.