Changes to the Visa Waiver Program To Implement the Electronic System for Travel Authorization (ESTA) Program, 32440-32453 [E8-12673]

Download as PDF 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. Interim final rule; solicitation of comments. jlentini on PROD1PC65 with RULES ACTION: 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 VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 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. Please submit comments, identified by docket number, by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments via docket number USCBP–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 https:// www.regulations.gov, including any personal information provided. • Docket: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552) and 19 CFR 103.11(b) on normal business days between the hours of 9 a.m. and 4:30 p.m. at the Border Security Regulations Branch, Office of International Trade, 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: ADDRESSES: PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 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 E:\FR\FM\09JNR1.SGM 09JNR1 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations jlentini on PROD1PC65 with RULES 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 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. VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 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 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). PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 32441 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 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. E:\FR\FM\09JNR1.SGM 09JNR1 32442 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 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. jlentini on PROD1PC65 with RULES 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 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. VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 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 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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 E:\FR\FM\09JNR1.SGM 09JNR1 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations jlentini on PROD1PC65 with RULES 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 VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 32443 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. 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. 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. 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. 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 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 7. Events Requiring New Travel Authorizations 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 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 https:// foia.state.gov/masterdocs/09fam/0941104X1.pdf. E:\FR\FM\09JNR1.SGM 09JNR1 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 jlentini on PROD1PC65 with RULES 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. VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 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– PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 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 E:\FR\FM\09JNR1.SGM 09JNR1 32445 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 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 U.S. High cost scenario Foreign U.S. Foreign Total jlentini on PROD1PC65 with RULES Air Carriers ..................... 2008 ......................... 2009 ......................... 2010 ......................... Sea 8 $4.0 1.0 1.0 Air 11 $5.5 1.4 1.4 7 See U.S. Customs and Border Protection final rule. ‘‘Advance Electronic Transmission of VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 35 $35.0 8.8 8.8 Total Sea 5 $5.0 1.3 1.3 Air 59 $49.5 12.5 12.5 8 $16.0 16.0 16.0 Passenger and Crew Member Manifests for PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 Sea Air 11 $22.0 22.0 22.0 35 $70.0 70.0 70.0 Sea 5 $10.0 10.0 10.0 59 $118.0 118.0 118.0 Commercial Aircraft and Vessels,’’ 72 FR 48320 (Aug. 23, 2007). E:\FR\FM\09JNR1.SGM 09JNR1 32446 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations EXHIBIT 1.—FIRST YEAR AND ANNUAL COSTS FOR CARRIERS TO ADDRESS ESTA REQUIREMENTS—Continued [$Millions, 2008–2018, undiscounted] Low cost scenario U.S. High cost scenario Foreign U.S. Foreign Total Air 2011 2012 2013 2014 2015 2016 2017 2018 ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... Sea 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 Air 1.4 1.4 1.4 1.4 1.4 1.4 1.4 1.4 As estimated, ESTA could cost the carriers about $137 million to $1.1 billion (present value) over the next 10 Total Sea 8.8 8.8 8.8 8.8 8.8 8.8 8.8 8.8 Air 1.3 1.3 1.3 1.3 1.3 1.3 1.3 1.3 12.5 12.5 12.5 12.5 12.5 12.5 12.5 12.5 Sea 16.0 16.0 16.0 16.0 16.0 16.0 16.0 16.0 years depending on how the carriers decide to assist passengers, how many passengers the carriers need to assist, Air 22.0 22.0 22.0 22.0 22.0 22.0 22.0 22.0 Sea 70.0 70.0 70.0 70.0 70.0 70.0 70.0 70.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 10.0 118.0 118.0 118.0 118.0 118.0 118.0 118.0 118.0 and the discount rate applied (3 or 7 percent). See Exhibit 2. EXHIBIT 2.—PRESENT VALUE COSTS FOR CARRIERS TO ADDRESS ESTA REQUIREMENTS [$Millions, 2008–2018] Low cost scenario U.S. Air High cost scenario Foreign Sea Air U.S. Sea Foreign Air Sea Air Sea $152.5 $209.7 $667.1 3 percent discount rate 10-year subtotal ............................................... $12.5 10-year total ..................................................... $17.2 $109.6 $29.7 10-year grand total ........................................... $15.7 $125.3 $362.2 $155.0 Annualized subtotal .......................................... $1.3 Annualized total ............................................... $1.8 Annualized grand total ..................................... $762.4 $1,124.6 $11.5 $3.1 $95.3 $1.6 $16.0 $13.1 $22.0 $38.0 $16.2 $70.0 $10.0 $80.0 $118.0 7 percent discount rate 10-year subtotal ............................................... $11.0 10-year total ..................................................... $1.4 Annualized total ............................................... jlentini on PROD1PC65 with RULES Jkt 214001 $128.4 $110.3 $1.9 $304.9 $1.7 $16.0 $13.7 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 short- Fmt 4700 $80.2 Sfmt 4700 $22.0 $70.0 $10.0 $80.0 $118.0 Impacts to Travelers Frm 00020 $561.7 $641.9 $38.0 $17.0 PO 00000 $176.5 $946.8 $12.0 $3.3 Annualized grand total ..................................... 16:11 Jun 06, 2008 $13.8 $136.5 Annualized subtotal .......................................... VerDate Aug<31>2005 $96.5 $26.2 10-year grand total ........................................... 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. $15.2 term 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 E:\FR\FM\09JNR1.SGM 09JNR1 32447 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 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 Method 1: VWP .......................................... Roadmap ................................... 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 17.4 1.2 18.0 1.2 18.7 1.3 19.4 1.3 20.0 1.4 20.7 1.4 21.3 1.5 21.9 1.5 22.4 1.5 23.0 1.6 23.5 1.6 Total ................................... Method 2: VWP .......................................... Roadmap ................................... 18.6 19.2 20.0 20.7 21.4 22.1 22.8 23.4 23.9 24.6 25.1 17.0 1.1 17.4 1.2 17.7 1.2 17.9 1.2 18.2 1.2 18.4 1.3 18.6 1.3 18.7 1.3 18.8 1.3 18.9 1.3 18.9 1.3 Total ................................... Method 3: VWP .......................................... Roadmap ................................... 18.1 18.6 18.9 19.1 19.4 19.7 19.9 20.0 20.1 20.2 20.2 17.4 1.2 18.0 1.2 18.7 1.3 19.4 1.3 17.7 1.2 20.7 1.4 24.1 1.7 27.4 2.0 26.0 2.3 30.1 2.9 34.1 2.7 Total ................................... Method 4: VWP .......................................... Roadmap ................................... 18.6 19.2 20.0 20.7 18.9 22.1 25.8 29.4 28.3 33.0 36.8 17.4 1.2 15.9 1.0 18.5 1.3 21.6 1.5 24.5 1.8 23.3 2.1 26.9 2.0 30.5 2.3 35.6 2.9 33.9 3.3 38.6 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 jlentini on PROD1PC65 with RULES 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 VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 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 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 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. E:\FR\FM\09JNR1.SGM 09JNR1 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 Method Method Method Method 1 2 3 4 .......................................................................................................................... .......................................................................................................................... .......................................................................................................................... .......................................................................................................................... As estimated, ESTA could cost travelers $700 million to over $2.6 billion (present value) over the next 10 High estimate $98 94 98 86 years depending on the projection method, the value of opportunity cost, and the discount rate applied (3 or 7 Low estimate $207 199 207 182 High estimate $127 102 184 210 $269 217 389 444 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) Low estimate Annualized benefits ($millions) High estimate 3% Method Method Method Method 1 2 3 4 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 3% 7% $0.957 0.844 1.071 1.216 .......................................................... .......................................................... .......................................................... .......................................................... 7% $0.781 0.693 0.862 0.972 $2.026 1.788 2.268 2.574 $1.653 1.468 1.825 2.058 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 Low estimate 3% High estimate 7% $100 89 112 128 $97 86 107 121 3% $213 188 238 270 7% $206 183 227 257 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) Low estimate Annualized benefits ($millions) High estimate jlentini on PROD1PC65 with RULES 3% Method Method Method Method 1 2 3 4 .......................................................... .......................................................... .......................................................... .......................................................... VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 PO 00000 7% 3% 7% $0.517 0.456 0.577 0.654 $0.421 0.374 0.465 0.523 $0.724 0.639 0.809 0.916 Low estimate $0.590 0.525 0.651 0.733 Frm 00022 Fmt 4700 Sfmt 4700 3% E:\FR\FM\09JNR1.SGM High estimate 7% $54 48 61 69 09JNR1 $53 47 58 65 3% $76 67 85 96 7% $74 65 81 91 32449 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 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) Low estimate Annualized benefits ($millions) High estimate 3% Method Method Method Method 1 2 3 4 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 3% 7% $1.474 1.300 1.648 1.870 .......................................................... .......................................................... .......................................................... .......................................................... 7% $1.202 1.067 1.327 1.495 $2.750 2.427 3.077 3.490 Low estimate $2.244 1.993 2.476 2.791 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. 3% High estimate 7% $154 137 173 197 3% $150 133 165 186 $289 255 323 366 7% $280 248 308 348 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 jlentini on PROD1PC65 with RULES Method Method Method Method 1 2 3 4 .. .. .. .. 3% discount rate Benefits to CBP 89,000 78,000 102,000 117,000 Benefits to carriers $118 104 133 151 VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 Total benefits $113 100 128 146 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 7% discount rate Annualized benefits $231 204 261 297 Benefits to CBP $23 21 26 29 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. PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 $96 85 107 121 Benefits to carriers $92 82 103 116 Total benefits $188 167 210 237 Annualized benefits $19 17 21 23 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 E:\FR\FM\09JNR1.SGM 09JNR1 32450 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 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) Low estimate Annualized benefits ($millions) High estimate 3% Method Method Method Method 1 2 3 4 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 3% 7% $0.856 0.755 1.053 1.293 .......................................................... .......................................................... .......................................................... .......................................................... 7% $0.697 0.619 0.838 1.019 $1.042 0.920 1.290 1.588 Low estimate $0.850 0.754 1.026 1.251 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. 3% High estimate 7% $90 79 111 136 $87 77 105 127 3% $109 96 135 167 7% $106 84 128 156 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) Low estimate Annualized benefits ($millions) High estimate 3% Method Method Method Method 1 2 3 4 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 3% 7% $0.636 0.557 0.706 0.801 .......................................................... .......................................................... .......................................................... .......................................................... 7% $0.519 0.457 0.568 0.641 $1.336 1.179 1.495 1.697 Low estimate $1.090 0.968 1.203 1.357 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. 3% High estimate 7% $67 58 74 84 $65 57 71 80 3% $140 124 157 178 7% $136 121 150 169 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) Low estimate Annualized benefits ($millions) High estimate jlentini on PROD1PC65 with RULES 3% Method Method Method Method 1 2 3 4 .......................................................... .......................................................... .......................................................... .......................................................... VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 PO 00000 7% 3% 7% $1.492 1.312 1.759 2.094 $1.216 1.076 1.406 1.660 $2.378 2.099 2.785 3.285 $1.940 1.722 2.229 2.608 Frm 00024 Fmt 4700 Sfmt 4700 Low estimate 3% 7% $157 137 185 220 E:\FR\FM\09JNR1.SGM 09JNR1 $152 134 176 207 High estimate 3% $249 220 292 345 7% $242 215 278 325 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 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 32451 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 Costs: Annualized monetized costs .............................. Annualized quantified, but un-monetized costs Qualitative (un-quantified) costs ........................ Benefits: Annualized monetized benefits .......................... Annualized quantified, but un-monetized benefits. Qualitative (un-quantified) benefits .................... jlentini on PROD1PC65 with RULES 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 8 See 7% discount rate $16 million to $118 million ............................... None quantified ................................................ Indirect costs to the travel and tourism industry. $17 million to $118 million. None quantified. Indirect costs to the travel and tourism industry. $21 million to $29 million ................................. None quantified ................................................ $17 million to $23 million. None quantified. Enhanced security and efficiency .................... Enhanced security and efficiency. 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. 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. 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 72 FR 48320, 48339. VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\09JNR1.SGM 09JNR1 32452 Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 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 ESTA burden .......................... Visa costs ............................... ESTA fee ................................ Benefit of no visa ................... Benefit of no I–94W ............... Net impact .............................. Comment ................................ Alternative 1 Alternative 2 $1.653 0.591 0 (0.850) (1.090) $0.304 ........................ $1.653 .................................... 0.591 ...................................... 0.231 ...................................... (0.850) .................................... (1.090) .................................... $0.535 .................................... Fee will not be charged at this time. $1.102 .................................... 0.591 ...................................... 0 ............................................. (0.850) .................................... (1.090) .................................... ($0.247) .................................. All data elements are required for proper screening. 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. jlentini on PROD1PC65 with RULES 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 VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 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. PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 Alternative 3 $0.045. 0. 0. (0.850). (0.030). ($0.835). Does not meet statutory requirements. 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. I PART 217—VISA WAIVER PROGRAM 1. The general authority citation for part 217 continues to read as follows: I Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2. * * * * * 2. A new § 217.5 is being added to read as follows: I § 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, E:\FR\FM\09JNR1.SGM 09JNR1 jlentini on PROD1PC65 with RULES Federal Register / Vol. 73, No. 111 / Monday, June 9, 2008 / Rules and Regulations 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. VerDate Aug<31>2005 16:11 Jun 06, 2008 Jkt 214001 (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. 32453 material status reports to the NMMSS. Also, the amendments modify the types and timing of submittals of some transaction reports to the NMMSS. The amendments also require licensees to reconcile any material inventory discrepancies that NRC identifies in the NMMSS database. The amendments reduce some regulatory burden by reducing the current reporting requirements related to the export of certain source material and SNM. However, the annual reporting requirements are new requirements for licensees who possess 350 grams or less of SNM. These amendments are needed to improve the accuracy of the material inventory information maintained in the NMMSS. DATES: This final rule is effective on January 1, 2009. FOR FURTHER INFORMATION CONTACT: Neelam Bhalla, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone (301) 415– 6843, e-mail, nxb@nrc.gov. SUPPLEMENTARY INFORMATION: AGENCY: I. Background II. Discussion A. Special Nuclear Material Transfer Reports B. Special Nuclear Material Status Reports C. Source Material Transfer Reports D. Source Material Status Reports E. Reconciliation of Submitted Inventories F. Reporting Identification Symbol and Holding Accounts G. Reduction in Reporting Requirements for Export of Material Shipments H. Who Would This Action Affect? I. How Would the Information Be Reported? III. Summary of Public Comments on the Proposed Rule IV. Summary of Amendments by Section V. Criminal Penalties VI. Agreement State Compatibility VII. Voluntary Consensus Standards VIII. Environmental Impact: Categorical Exclusion IX. Paperwork Reduction Act Statement X. Public Protection Notification XI. Regulatory Analysis XII. Regulatory Flexibility Certification XIII. Backfit Analysis XIV. Congressional Review Act SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its regulations related to licensee reporting requirements for source material and special nuclear material (SNM) to the Nuclear Materials Management and Safeguards System (NMMSS). The amendments lower the threshold of the quantities of SNM and certain source materials that require the submission of I. Background The Nuclear Materials Management and Safeguards System (NMMSS) is the national database used in the United States by Nuclear Regulatory Commission (NRC) licensees, the Agreement State licensees, and Department of Energy (DOE) contractors to report the possession of certain special nuclear material (SNM) and source material. The NMMSS was created as a result of comprehensive Dated: June 2, 2008. Michael Chertoff, Secretary. [FR Doc. E8–12673 Filed 6–6–08; 8:45 am] BILLING CODE 9111–14–P NUCLEAR REGULATORY COMMISSION 10 CFR Parts 40, 72, 73, 74 and 150 [NRC–2007–0002] RIN 3150–AH85 Regulatory Improvements to the Nuclear Materials Management and Safeguards System Nuclear Regulatory Commission. ACTION: Final rule. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\09JNR1.SGM 09JNR1

Agencies

[Federal Register Volume 73, Number 111 (Monday, June 9, 2008)]
[Rules and Regulations]
[Pages 32440-32453]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-12673]

[[Page 32440]]

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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.

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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: https://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 https://www.regulations.gov,
including any personal information provided.
Docket: For access to the docket to read background
documents or comments received, go to https://www.regulations.gov.
Comments submitted will be available for public inspection in
accordance with the Freedom of Information Act (5 U.S.C. 552) and 19
CFR 103.11(b) on normal business days between the hours of 9 a.m. and
4:30 p.m. at the Border Security Regulations Branch, Office of
International Trade, 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

[[Page 32441]]

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.
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\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.
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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.
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\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).
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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

[[Page 32442]]

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.
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\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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

[[Page 32443]]

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.
---------------------------------------------------------------------------

\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 https://foia.state.gov/
masterdocs/09fam/0941104X1.pdf.
---------------------------------------------------------------------------

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

[[Page 32444]]

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

[[Page 32445]]

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 carrier-
transmitted.
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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 start-up 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 U.S. Foreign
-------------------------------------------- Total -------------------------------------------- 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

[[Page 32446]]

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 short-term
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

[[Page 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.

[[Page 32448]]

Exhibit 4.--Total Opportunity Costs for Visitors to the United States Using Four Methodologies, 2009 and 2018
[In $millions]
----------------------------------------------------------------------------------------------------------------
2009 2018
---------------------------------------------------
Low High Low High
estimate estimate estimate 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)
------------------------------------------------------------

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