Electronic System for Travel Authorization (ESTA): Travel Promotion Fee and Fee for Use of the System, 47701-47709 [2010-19700]
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Federal Register / Vol. 75, No. 152 / Monday, August 9, 2010 / Rules and Regulations
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, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
G. Executive Order 12988: Civil Justice
Reform
This final rule meets the relevant
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988.
2. Section 214.2 is amended by:
a. Removing the ‘‘.’’ at the end of
paragraph (a)(2)(v) and adding ‘‘; or’’ in
its place;
■ b. Adding a new paragraph (a)(2)(vi);
■ c. Removing the word ‘‘and’’ at the end
of paragraph (g)(2)(iv);
■ d. Removing the ‘‘.’’ at the end of
paragraph (g)(2)(v) and adding ‘‘; or’’ in
its place; and by
■ e. Adding a new paragraph (g)(2)(vi).
The additions read as follows:
§ 214.2 Special requirements for
admission, extension, and maintenance of
status.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501 et seq., all
Departments are required to submit to
the Office of Management and Budget
(OMB), for review and approval, any
reporting requirements inherent in a
rule. This rule will require some minor
edits to the Form I–566, Inter-Agency
Record of Individual Requesting
Change/Adjustment to or From A or G
Status; or Requesting A, G, or NATO
Dependent Employment Authorization,
(currently approved OMB Control No.
1615–0027). Accordingly, USCIS has
submitted an OMB 83–C, Correction
Worksheet, to OMB for review and
approval for the minor edits to the form
and instructions.
List of Subjects
3. The authority citation for part 274a
continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a;
Title VII of Pub. L. 110–229; 8 CFR part 2
PART 214—NONIMMIGRANT CLASSES
1. The authority citation for part 214
continues to read as follows:
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4. Section 274a.12 is amended by
revising paragraphs (c)(1) and (c)(4) to
read as follows:
■
■
Authority: 8 U.S.C. 1101, 1102, 1103,
1182, 1184, 1186a, 1187, 1221, 1281, 1282,
1301–1305 and 1372; sec. 643, Pub. L. 104–
208, 110 Stat. 3009–708; Pub. L. 106–386,
114 Stat. 1477–1480; section 141 of the
Compacts of Free Association with the
Federated States of Micronesia and the
Republic of the Marshall Islands, and with
the Government of Palau, 48 U.S.C. 1901
note, and 1931 note, respectively; Title VII of
Public Law 110–229; 8 CFR part 2.
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(a) * * *
(2) * * *
(vi) An immediate family member of
an A–1 or A–2 principal alien described
in 22 CFR 41.21(a)(3)(i) to (iv) with A–
1 or A–2 nonimmigrant status, who falls
within a category of aliens recognized
by the Department of State as qualifying
dependents.
*
*
*
*
*
(g) * * *
(2) * * *
(vi) An immediate family member of
a G–1, G–3, or G–4 principal alien
described in 22 CFR 41.21(a)(3)(i) to (iv)
with G–1, G–3, or G–4 nonimmigrant
status who falls within a category of
aliens designated by the Department of
State as qualifying dependents.
*
*
*
*
*
■
8 CFR Part 274a
Administrative practice and
procedure, Aliens, Employment,
Penalties, and Reporting and
recordkeeping requirements.
■ Accordingly, chapter I of title 8 of the
Code of Federal Regulations is amended
as follows:
13:27 Aug 06, 2010
*
PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS
8 CFR Part 214
Administrative practice and
procedure, Aliens, Employment,
Foreign officials, Health professions,
Reporting and recordkeeping
requirements, Students.
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■
■
§ 274a.12 Classes of aliens authorized to
accept employment.
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(c) * * *
(1) An alien dependent of a foreign
government official A–1 or A–2
principal alien defined in 8 CFR
214.2(a)(2), and who presents a fully
executed Form I–566 bearing the
endorsement of an authorized
representative of the Department of
State;
*
*
*
*
*
(4) An alien dependent of an officer
of, representative to, or employee of an
international organization G–1, G–3, or
G–4 principal alien defined in 8 CFR
214.2(g)(2), and who presents a fully
executed Form I–566 bearing the
endorsement of an authorized
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representative of the Department of
State;
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Janet Napolitano,
Secretary.
[FR Doc. 2010–19620 Filed 8–6–10; 8:45 am]
BILLING CODE 9111–97–P
DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection
8 CFR Part 217
[USCBP–2010–0025; CBP Dec. No. 10–25]
RIN 1651–AA83
Electronic System for Travel
Authorization (ESTA): Travel
Promotion Fee and Fee for Use of the
System
U.S. Customs and Border
Protection, DHS.
ACTION: Interim final rule; solicitation of
comments.
AGENCY:
Nonimmigrant aliens who
wish to enter the United States under
the Visa Waiver Program at air or sea
ports of entry must obtain a travel
authorization electronically through the
Electronic System for Travel
Authorization (ESTA) from U.S.
Customs and Border Protection prior to
departing for the United States. This
rule requires ESTA applicants to pay a
congressionally mandated fee of $14.00,
which is the sum of two amounts: a $10
travel promotion fee for an approved
ESTA statutorily set by the Travel
Promotion Act and a $4.00 operational
fee for the use of ESTA as set by the
Secretary of Homeland Security to
ensure recovery of the full costs of
providing and administering the ESTA
system.
DATES: This interim final rule is
effective on September 8, 2010.
Comments must be received on or
before October 8, 2010.
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–2010-xxxx.
• Mail: Border Security Regulations
Branch, Office of International Trade,
U.S. 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.
SUMMARY:
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All comments will be posted without
change to https://www.regulations.gov,
including any personal information
provided.
• Docket: For access to the docket to
read background material or comments,
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, U.S. Customs and
Border Protection, 799 9th Street, NW.,
5th Floor, Washington, DC 20229.
Arrangements to inspect submitted
comments should be made in advance
by calling Mr. Joseph Clark at (202) 325–
0118.
• For additional information on
ESTA, visit the Web site: https://
www.cbp.gov/esta.
FOR FURTHER INFORMATION CONTACT:
Suzanne Shepherd, Office of Field
Operations, CBP.ESTA@dhs.gov or
(202)–344–2073.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Comments
II. Background
A. Travel Promotion Act of 2009
B. Operational Fee Amount
C. Fee Collection
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132
F. Executive Order 12988 Civil Justice
Reform
G. Paperwork Reduction Act
H. Privacy Interests
List of Subjects
Amendments to the Regulations
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I. Public Comments
Interested persons are invited to
submit written comments on all aspects
of this interim final rule, including the
amount of the fee. U.S. Customs and
Border Protection (CBP) also invites
comments on the economic,
environmental or federalism effects of
the rule, as well as comments related to
the Paperwork Reduction Act. We urge
commenters to explain the reason for
any recommended change, and include
data, information, or authorities that
support such recommended change.
II. Background
Pursuant to section 217 of the
Immigration and Nationality Act (INA),
8 U.S.C. 1187, the Secretary of
Homeland Security, in consultation
with the Secretary of State, may
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designate certain qualifying countries as
Visa Waiver Program (VWP) countries.1
Eligible travelers who are nationals of
VWP countries are not required to
obtain a visa to travel to the United
States. Other nonimmigrant alien
travelers generally must obtain a visa
from a U.S. embassy or consulate and
undergo an interview by consular
officials overseas, in advance of travel to
the United States.
On August 3, 2007, the President
signed into law the Implementing
Recommendations of the 9/11
Commission Act of 2007 (9/11 Act),
Public Law 110–53. Section 711 of the
9/11 Act required that the Secretary of
Homeland Security (the Secretary), in
consultation with the Secretary of State,
develop and implement a fully
automated electronic travel
authorization system to collect
biographical and other information as
the Secretary determines necessary to
evaluate, in advance of travel, the
eligibility of the applicant to travel to
the United States under the VWP, and
whether such travel poses a law
enforcement or security risk. On June 9,
2008, the Department of Homeland
Security (DHS) published an interim
final rule (IFR) in the Federal Register
(73 FR 32440) announcing the creation
of the Electronic System for Travel
Authorization (ESTA) program for
aliens traveling to the United States by
air or sea under the VWP. See 8 CFR
217.5.
The ESTA system now requires VWP
travelers arriving in the United States by
air or sea to provide certain biographical
and other information electronically to
CBP in advance of travel so that CBP
can determine eligibility for travel to the
United States under the VWP. Each
ESTA travel authorization generally is
valid for two years. Implementation of
ESTA as a mandatory requirement
initially was delayed to allow carriers
and the public to become ESTAcompliant. Since January 12, 2009, all
nonimmigrant aliens traveling to the
United States under the VWP on an air
or sea carrier must obtain travel
1 The list of countries currently eligible to
participate in the VWP is set forth at 8 CFR 217.2(a).
Under the VWP, 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 authority. Further details regarding the
VWP are contained in the background section of the
June 9, 2008 interim final rule, at 73 FR 32440, and
on the Web site https://www.cbp.gov/esta. As of the
date of publication of this interim final rule, the
current list of designated VWP countries can be
found at 75 FR 15991 (Mar. 31, 2010).
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authorization from the ESTA Web site.
73 FR 67354.
Travel authorization under ESTA
allows an alien from a VWP country to
travel to the United States, however, it
does not serve as a determination of
admissibility to the United States. If an
alien’s travel authorization application
is denied, the alien may still seek to
obtain a visa to travel to the United
States through a U.S. embassy or
consulate or may reapply through the
ESTA Web site at a later date if
circumstances change or an error was
made during the application process.
Although the 9/11 Act authorized the
Secretary to charge a fee for ESTA to
recover the costs of providing and
administering the System, the ESTA IFR
did not establish a fee. At the time the
IFR was issued, DHS was focused on the
successful development and
deployment of the ESTA system to
collect the relevant traveler data and to
properly vet applicants. DHS wanted to
ensure the efficient operation and
maintenance of the ESTA system before
establishing an operational fee to recoup
the costs of processing ESTA
applications and vetting individual
applicants. On January 12, 2009, when
the ESTA system became mandatory,
DHS began evaluating the costs
associated with operating and
maintaining the system in order to
establish a fee. DHS has completed this
evaluation and a detailed fee analysis
explaining how the ESTA operational
fee is calculated and the methodology
used can found in the public docket for
this rule at https://www.regulations.gov.
A. Travel Promotion Act of 2009
On March 4, 2010, the United States
Capitol Police Administrative Technical
Corrections Act of 2009, Public Law
111–145 was enacted. The Travel
Promotion Act of 2009 (TPA), which
was contained in section 9, mandates
that the Secretary establish a fee for the
use of the ESTA system and begin
assessing and collecting that fee no later
than 6 months after enactment of the
TPA. See section 217(h)(3)(B) of the
Immigration and Nationality Act, 8
U.S.C. 1187(h)(3)(B). Accordingly, to
comply with the TPA, the Secretary is
required to assess and collect the fee by
September 4, 2010.
The TPA expressly provides that the
required initial ESTA fee shall consist of
the sum of ‘‘$10 per travel
authorization’’ (travel promotion fee)
plus ‘‘an amount that will at least ensure
recovery of the full costs of providing
and administering the System, as
determined by the Secretary’’
(operational fee). The TPA provides that
the $10 per travel authorization is to be
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credited to the Travel Promotion Fund
established by the TPA and is to be used
by the Corporation for Travel
Promotion, also established by the TPA,
to promote international travel to the
United States. The operational fee is to
be transferred to the general fund of the
Treasury and made available to pay the
costs incurred to administer ESTA.
Under the TPA, the travel promotion fee
has a sunset provision and the Secretary
is authorized to collect this fee only
through September 30, 2015.2 The
operational fee, in contrast, does not
include a sunset provision but will be
reassessed on a regular basis to ensure
it is set at a level to fully recover ESTA
operating costs.
Based on the TPA, this rule
establishes an initial ESTA fee that
consists of the sum of ‘‘$10 per travel
authorization’’ (travel promotion fee)
plus ‘‘an amount that will at least ensure
recovery of the full costs of providing
and administering the [ESTA] System,
as determined by the Secretary’’
(operational fee) no later than 6 months
after enactment of the TPA. See 8 U.S.C.
1187(h)(3)(B)(i).
B. Operational Fee Amount
DHS has determined that a $4.00 fee
is necessary to ensure recovery of the
full costs of providing and
administering the system. This fee takes
into account the costs to develop,
implement, maintain, and make any
necessary updates to the ESTA system.
A full explanation of the methodology
used to determine the $4.00 operational
ESTA fee is contained in the ESTA Fee
Analysis (Explanation of the Electronic
System for Travel Authorization (ESTA)
Fee, April 2010), which can be found in
the public docket for this rulemaking at
https://www.regulations.gov. A brief
summary of the methodology is
provided below.
The following methodology was
employed to determine the $4.00 ESTA
fee for applications through FY 2015:
1. Determine the costs associated with
ESTA—initial investment, direct, and
indirect costs associated with ESTA
development, operation, and
maintenance. Costs are adjusted upward
annually to account for inflation.
2. Estimate the total number of ESTA
applicants—total VWP travelers
adjusted downward to account for
travelers who make multiple trips
during the 2-year period each ESTA is
valid. Travelers will remit the ESTA fee
upon initial application; they need not
pay the fee each time they visit the
United States during the authorization
period.
3. Determine the fee per applicant by
dividing the total costs, plus an
operating carryover amount, by the
number of projected ESTA applicants.
The carryover is included to assure
there is sufficient funding in the event
there is an unforeseen drop in ESTA
applicants.
The estimated costs associated with
ESTA from FY 2008 through FY 2015
are $312 million. Costs in FY 2008 and
FY 2009 totaled approximately $39.5
million. From FY 2010 through FY
2015, costs include the administration,
staffing, and operation of the system
(plus overhead costs), as well as
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information technology for other CBP
and non-CBP systems that permit
information sharing and services that
are necessary for ESTA to operate
effectively. An additional carryover sum
of $12.5 million, equal to one fiscal
quarter of operating costs, is added to
the total FY 2008 through FY 2015 costs
as a contingency in case travel volumes
fall below expected levels.
Using traveler projection data from
the Department of Commerce, Office of
Travel and Tourism Industries, CBP
estimated the future number of VWP
travelers for FY 2011 through FY 2015.
CBP then adjusted that estimate to
account for the estimated number of
‘‘repeat travelers’’ during that period.
These repeat travelers would, in most
cases, be required to apply for a travel
authorization only once over a 2-year
period, not each time they traveled to
the United States. Using data from
CBP’s Advance Passenger Information
System (APIS), CBP calculated an actual
percentage of past repeat travelers,
which was then applied as an estimated
percentage of ‘‘repeat travelers’’ during
the period from FY 2011 through FY
2015. With this adjustment for repeat
travelers, the cumulative total of ESTA
applicants FY 2011 through FY 2015 is
an estimated 86 million travelers.
The $4.00 fee was determined by
dividing the total estimated costs ($312
million in costs + $12.5 million for a
carryover reserve) by the total ESTA
applicants (86 million) through FY
2015, then rounding up to the nearest
whole dollar amount. Exhibit 1 shows
the calculation of the fee.
EXHIBIT 1—CALCULATION OF ESTA OPERATIONAL FEE
(A) Cumulative costs from FY 2008–2015 ......................................................................................................................................
(B) Carryover reserve funding .........................................................................................................................................................
$312,025,861
12,470,060
(C) Total (A + B) ..............................................................................................................................................................................
324,495,921
(D) Estimated number of ESTA applications from FY 2011–2015 .................................................................................................
(E) Calculated fee (C ÷ D) ...............................................................................................................................................................
Calculated fee, rounded up to the nearest whole dollar .................................................................................................................
86,180,659
3.77
4.00
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Any changes to the $4.00 ESTA
operational fee will be accomplished
through a future rulemaking consistent
with the Administrative Procedure Act.
C. Fee Collection
During the ESTA application process,
the ESTA user will be directed to
provide credit card information to pay
the non-refundable $4.00 operational fee
and authorize the $10 travel promotion
fee through the Federal Government’s
2 On July 2, 2010, the Homebuyer Assistance and
Improvement Act of 2010, in part, amended the
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online payment system, Pay.gov. The
$10 travel promotion fee will be charged
to the applicant’s credit card only when
the ESTA is granted. Pay.gov is a system
by which parties can make secure
electronic payments to many Federal
Government agencies. The Pay.gov Web
site is available 24 hours a day, 7 days
a week (holidays included) for users to
submit payments.
The operational fee discussed in this
notice is for processing the application
and vetting the individual applicant.
The operational fee is nonrefundable if
a traveler’s application is denied. In the
event that an ESTA application is
denied, the traveler may apply for a visa
through a U.S. embassy or consulate or
may reapply through the ESTA Web site
at a later date if circumstances change
or an error was made during the ESTA
TPA by extending the sunset provision of the travel
promotion fee and authorizing the Secretary to
collect this fee through September 30, 2015. See
Pub. L. 111–198.
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application process. Each ESTA
applicant will incur the $4.00
operational fee when he or she submits
an ESTA application. By contrast, an
applicant will incur the $10 travel
promotion fee only if he or she receives
travel authorization.
VWP travelers with a valid travel
authorization will be able to update
and/or correct certain information
provided on the ESTA application (such
as the destination address in the United
States) without having to pay another
operational or travel promotion fee.
However, as provided in the ESTA IFR,
certain events, such as the issuance of
a new passport, will require the VWP
traveler to apply for a new travel
authorization through ESTA. In that
case, the traveler would be required to
pay the operational fee as part of the
new application process. Travelers
receiving a new authorization before
September 30, 2015 would also be
required to pay the $10 travel promotion
fee. Detailed instructions are available
on the ESTA Web site regarding how to
make ESTA updates and corrections and
when a new travel authorization is
required.
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III. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
The APA generally requires agencies
to publish a notice of proposed
rulemaking in the Federal Register (5
U.S.C. 553(b)) and provide interested
persons the opportunity to submit
comments (5 U.S.C. 553(c)). However,
pursuant to 5 U.S.C. 553(b)(B), a notice
of proposed rulemaking is not required
when the agency determines, for good
cause, that notice and public
participation is impracticable,
unnecessary, or contrary to the public
interest.
In this case, the TPA requires the
Secretary of Homeland Security to begin
assessing and collecting a fee equal to
the sum of the travel promotion fee
($10) and the operational fee ($4.00)
within 6 months of the TPA’s
enactment, which is September 4, 2010.
See 8 U.S.C. 1187 (h)(3)(B)(i). The $10
travel promotion fee is intended to fund
the Corporation for Travel Promotion
(Corporation) and, once collected, the
$10 travel promotion fees are to be made
available by the Secretary of the
Treasury to the Corporation for start-up
expenses. Accordingly, the TPA
requires DHS to be able to collect the
ESTA fees to fund the Corporation. If
DHS is unable to collect the ESTA fee,
the Secretary of the Treasury would be
unable to appropriate funding to cover
the Corporation’s initial expenses and
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activities. Moreover, given the limited
duration of the travel promotion fee,
which expires on September 30, 2015, it
seems likely that Congress intended that
the ESTA fee would be collected as soon
as possible, but no later than six months
from enactment of the TPA, which is
September 4, 2010.
Considering the TPA’s time
constraints, implementing the new
ESTA fees through notice and comment
rulemaking process would prevent the
Corporation from promptly receiving
the funds necessary to serve its function
of promoting tourism to the United
States. As such, the statutory timeline
imposed by the TPA to collect the sum
of the travel promotion fee and the
operational fee by September 4, 2010,
when coupled with the sunset provision
for the travel promotion fee, makes it
impracticable for DHS to engage in the
notice and comment rulemaking
process. This IFR provides the
mechanism through which DHS is able
to assess and collect the ESTA fees in
a manner consistent with the statutory
provisions.
In sum, providing the public the
opportunity to comment on these
regulations prior to implementation
would hamper the ability of DHS to
collect the necessary fees as required
under the TPA by September 4, 2010.
Accordingly, DHS has determined that
there is good cause to publish this rule
without prior public notice and
comment procedures. The Department,
however, is interested in obtaining
public comments on this interim final
rule prior to the issuance of a final rule.
Therefore, DHS is providing the public
with the opportunity to comment after
publication of this interim final rule. All
comments received will become a
matter of the public record.
B. Executive Order 12866
Executive Order 12866 (Regulatory
Planning and Review; September 30,
1993) requires Federal agencies to
conduct economic analyses of
significant regulatory actions as a means
to improve regulatory decision-making.
Significant regulatory actions include
those that may ‘‘(1) [h]ave an annual
effect on the economy of $100 million
or more or adversely affect in a material
way the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local or tribal
governments or communities; (2)
[c]reate a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency; (3)
[m]aterially alter the budgetary impact
of entitlements, grants, user fees, or loan
programs or the rights and obligations of
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recipients thereof; or (4) [r]aise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in this Executive
Order.’’ This rule is a significant
regulatory action because the annual
effect on the economy is $100 million or
more in any one year. The annualized
cost to applicants, primarily in the form
of transfers from foreign citizens to the
U.S. government, is estimated between
$152 million and $258 million. As a
result, this rule has been reviewed by
the Office of Management and Budget
(OMB) under Executive Order 12866.
The following summary presents the
costs to applicants and benefits of the
rule.3
OMB Circular A–4 states the
following with regard to the scope of
Federal regulatory assessments: ‘‘Your
analysis should focus on benefits and
costs that accrue to citizens and
residents of the United States. Where
you choose to evaluate a regulation that
is likely to have effects beyond the
borders of the United States, these
effects should be reported separately.’’ 4
Additionally, Circular A–4 states: ‘‘You
should not include transfers in the
estimates of the benefits and costs of a
regulation. Instead, address them in a
separate discussion of the regulation’s
distributional effects.’’ 5 CBP notes that
the costs estimated in this analysis are
primarily transfers, in the form of fees,
from foreign visitors to the U.S.
government. As described in more detail
below, CBP has also estimated a charge
for currency conversion that ESTA users
will incur when they make their fee
payments in pay.gov. These currency
conversion costs are not transfers, but
they are incurred by foreign travelers
and are paid to foreign financial
institutions. Thus, the costs to
applicants presented in this section are
transfers or costs incurred by foreign
entities.
To determine the total cost to
applicants of ESTA, CBP used the
population of travelers identified in the
analysis for the ESTA IFR.6 For that
analysis, CBP developed four methods
to predict ESTA-affected travelers to the
3 The complete ‘‘Regulatory Assessment’’ can be
found in the docket for this rulemaking: https://
www.regulations.gov.
4 See U.S. Office of Management and Budget.
September 17, 2003. Circular A–4 ‘‘Regulatory
Analysis.’’ Page 15.
5 See OMB Circular A–4, Page 38.
6 See ‘‘The Regulatory Assessment for the Interim
Final Rule for Changes to the Visa Waiver Program
to Implement the Electronic System for Travel
Authorization.’’ U.S. Customs and Border
Protection, June 2008. This document is available
at https://www.regulations.gov under docket no.
USCBP—2008–0003, supporting and related
materials.
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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 the period of analysis
(OTTI projects travel only through 2013;
CBP calculates a simple extrapolation to
2020). 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 incorporate
periodic downturns (one late in the
period; one early), which are prevalent,
though not necessarily predictable, in
international travel. CBP used Method 1
for the fee calculation because it takes
into account the most recent OTTI
estimate, accounts for the 2008
downturn in air travel, and it is a
midrange estimate compared to the
other methods. The other methods are
presented here for further information.
Because a travel authorization
obtained through ESTA generally is
valid for 2 years, CBP adjusted the
populations in accordance with the
ESTA Fee Analysis to reflect only those
travelers who will be required to apply
for authorization in any given year. For
the purposes of this analysis and to
make the calculations more tractable,
CBP assumed the fee will be charged
beginning in January 2011. Exhibit 2
compares the estimated number of
travelers and the estimated number of
ESTA applicants (‘‘Applicants’’) per
year.
EXHIBIT 2—TOTAL TRAVELERS AND ESTA APPLICANTS
[2011–2020, in millions]
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
Method 1:
Total Travelers ......................
Applicants ..............................
19.40
15.97
20.19
16.62
20.92
17.23
21.68
17.85
22.47
18.50
23.29
19.18
24.15
19.88
25.04
20.62
25.97
21.38
26.94
22.18
Method 2:
Total Travelers ......................
Applicants ..............................
18.26
15.03
18.64
15.35
18.94
15.59
19.25
15.85
19.57
16.11
19.89
16.38
20.23
16.65
20.57
16.93
20.92
17.22
21.28
17.52
Method 3:
Total Travelers ......................
Applicants ..............................
19.40
15.97
17.72
14.59
20.63
16.99
24.03
19.79
27.29
22.48
26.36
21.71
29.93
24.67
33.94
27.98
39.65
32.69
38.38
31.65
Method 4:
Total Travelers ......................
Applicants ..............................
24.04
19.81
27.29
22.48
26.33
21.69
29.94
24.68
33.93
27.96
39.62
32.67
38.29
31.57
43.62
35.97
50.60
41.75
59.28
48.92
Costs to Travelers
CBP determined that the ESTA
operational fee will be $4.00 per
application. The methodology and
calculations used to determine this fee
can be found in the ESTA Fee Analysis
(Explanation of the Electronic System
for Travel Authorization (ESTA) Fee,
April 2010). The TPA also requires a
$10 travel promotion fee to be charged
through ESTA that will be credited to
the Travel Promotion Fund established
by the TPA and is to be used by the
Corporation for Travel Promotion, also
established by the TPA, to promote
international travel to the United States.
Per the legislation, this fee will be
effective through September 30, 2015.
In addition to the ESTA operational
and travel promotion fees, many credit
card issuers charge a fee for foreign
currency transactions, which is
generally a percentage of the total
transaction amount. Because the ESTA
fees must be paid by credit card in U.S.
dollars and not local currency, travelers
from VWP countries will likely incur a
transaction fee. For this analysis, CBP
assumes all travelers will incur a
transaction fee, whether they apply
using the ESTA website or are registered
by a carrier or travel agent who will
then pass the fee on to the traveler. CBP
calculated a weighted average of foreign
currency transaction fees based on
market share in order to take into
account not only the fee charged by
each issuer, but the volume of purchases
made using the cards of each issuer.
When the average foreign currency
transaction fee of 2.7 percent is applied
to the ESTA fees, the total charge will
be $14.37. Exhibit 3 displays the total
fees, including those charged by the
credit card companies, for visitors from
each country in 2011, the first full year
CBP estimates that the fee will be
charged. These totals are based on the
populations used by CBP to calculate
the fee and only reflect unique travelers
who would be required to apply in
2011.7
EXHIBIT 3—TOTAL ESTA FEES FOR ALL TRAVELERS IN 2011
[Undiscounted]
sroberts on DSKD5P82C1PROD with RULES
Method 1
Australia ...........................................................................................
Austria ..............................................................................................
Belgium ............................................................................................
Czech Republic ................................................................................
Denmark ..........................................................................................
7 Because Andorra, Brunei, Monaco, Lichtenstein,
and San Marino have limited historic data, no
predicted growth rates, or very few visitors (only
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Method 2
$ 9,435,603
2,224,768
3,317,849
782,466
3,441,443
about 1,000 each on an annual bases), they are
excluded from the analysis. Travelers from these
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
Method 3
$ 8,892,390
2,094,348
3,123,469
737,637
3,240,839
$ 9,435,603
2,224,768
3,317,849
782,466
3,441,443
Method 4
$ 10,091,673
2,800,120
4,011,893
773,296
4,009,018
countries will still be subject to the ESTA
application fee.
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EXHIBIT 3—TOTAL ESTA FEES FOR ALL TRAVELERS IN 2011—Continued
[Undiscounted]
Method 1
Method 2
Method 3
Method 4
Estonia .............................................................................................
Finland .............................................................................................
France ..............................................................................................
Germany ..........................................................................................
Greece .............................................................................................
Hungary ...........................................................................................
Iceland .............................................................................................
Ireland ..............................................................................................
Italy ..................................................................................................
Japan ...............................................................................................
Latvia ...............................................................................................
Lithuania ..........................................................................................
Luxembourg .....................................................................................
Malta ................................................................................................
Netherlands ......................................................................................
New Zealand ....................................................................................
Norway .............................................................................................
Portugal ............................................................................................
Singapore .........................................................................................
Slovakia ...........................................................................................
Slovenia ...........................................................................................
South Korea .....................................................................................
Spain ................................................................................................
Sweden ............................................................................................
Switzerland ......................................................................................
UK ....................................................................................................
132,189
1,527,821
17,975,811
22,406,375
842,330
612,894
474,855
7,114,881
11,195,318
44,835,862
130,794
167,330
137,535
69,105
9,043,867
2,699,106
2,611,488
1,511,077
1,367,203
349,336
261,574
8,728,408
8,829,048
5,141,050
3,561,371
58,650,315
123,881
1,438,263
16,915,414
21,077,979
793,361
576,300
444,672
6,690,302
10,529,662
42,216,569
122,602
157,298
129,371
64,966
8,513,431
2,544,999
2,459,019
1,422,122
1,287,189
329,832
246,195
8,224,994
8,303,456
4,839,519
3,352,158
55,176,504
132,189
1,527,821
17,975,811
22,406,375
842,330
612,894
474,855
7,114,881
11,195,318
44,835,862
130,794
167,330
137,535
69,105
9,043,867
2,699,106
2,611,488
1,511,077
1,367,203
349,336
261,574
8,728,408
8,829,048
5,141,050
3,561,371
58,650,315
199,972
1,839,227
21,624,714
28,683,080
941,230
708,057
755,962
9,835,632
13,987,260
58,384,185
184,118
177,061
147,108
61,186
10,595,705
2,790,044
2,924,101
1,818,487
1,667,412
291,686
283,967
11,154,010
11,715,276
6,103,610
4,320,266
71,806,658
Total ...................................................................................
$229,579,076
$216,068,741
$229,579,076
$284,686,015
CBP next totaled these costs to
applicants over the next 10 years at a 3
and 7 percent discount rate, per
guidance provided in OMB Circular A–
4. Total present value of the costs to
applicants over the period of analysis
estimate. Again, CBP notes that the bulk
of these costs to applicants are transfers
from foreign travelers to the U.S.
government. See Exhibit 4.
could total $1.2 billion to $2.2 billion.
Annualized costs to applicants are
estimated at $152 million to $258
million. Method 1 was the method used
to estimate the total costs and transfers
due to the fee and is our primary
EXHIBIT 4—TOTAL PRESENT VALUE AND ANNUALIZED COSTS TO APPLICANTS OF THE ESTA FEE, 2011–2020
Total present value
($millions)
3%
sroberts on DSKD5P82C1PROD with RULES
Method
Method
Method
Method
1
2
3
4
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
Travelers using ESTA will incur costs
in addition to the fee, including the time
burden of applying for authorization
and the time burden and cost to obtain
a visa if authorization is denied. These
costs were already addressed in the
Regulatory Assessment for the June
2008 ESTA IFR and should not be
considered here in order to avoid
double counting these costs.
Change in Travel Demand
While the ESTA operational and
travel promotion fees are very low
relative to the overall costs of
international travel, it is still possible
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7%
$1,510
1,338
1,672
2,208
that they could cause a reduction in the
number of travelers coming to the
United States from VWP countries. For
this reason, CBP uses an ‘‘elasticity of
demand’’ for long-haul international
leisure and long-haul international
business trips available from the
published travel literature to analyze the
impact of the change in cost (out-ofpocket expenses) for travelers using
ESTA. Using an elasticity of demand
allows CBP to get a sense of potential
changes in the number of travelers in
response to a change in the cost of a
trip. Elasticities should not be viewed as
the definitive level that demand could
PO 00000
Frm 00008
Fmt 4700
Annualized costs to
applicants
($millions)
Sfmt 4700
3%
$1,295
1,159
1,398
1,829
7%
$172
152
190
251
$179
159
195
258
decrease due to an increase in travel
price. In reality, a relatively minimal
charge of $14.37 is much more likely to
reduce the amount of money a traveler
spends on other portions of the trip than
to cause a traveler to cancel the trip
altogether.
Because the elasticity of demand
differs for business and leisure travelers,
we first identify the portion of travel to
the United States from VWP countries
that can be assigned to those purposes
using air traveler survey data from
OTTI. CBP then uses OTTI data to
identify the average cost per VWP
traveler for a flight to the United States.
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Airfare costs vary by purpose of travel,
but range from an average $1,406 per
flight for a leisure traveler on vacation
to $2,687 per flight for a business
traveler.8
To calculate the percent change in the
average cost per flight, CBP divided the
amount of the total charges by the
original average cost per flight. CBP
then multiplied the resulting percent
increase by the elasticity of demand for
air travel estimated in a study by the
Canadian Department of Finance, -0.265
for long-haul international business
travel and -1.040 for long-haul
international leisure travel, to calculate
the expected percent decrease in
47707
passenger volume.9 Exhibit 5 shows the
total estimated number of passengers
that could potentially be lost for each of
the four population projections. While
the impact varies for different categories
of travelers, CBP estimates that up to
0.85 percent of travelers could be lost in
a given year.
EXHIBIT 5—TOTAL CHANGE IN VISITORS BY YEAR, 2011–2020
[Excluding intended benefits to tourism from spending the TPA revenue]
Method 1
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
¥135,337
¥140,542
¥145,501
¥150,652
¥156,005
¥50,142
¥51,936
¥53,802
¥55,742
¥57,759
.................................................................................................
.................................................................................................
.................................................................................................
.................................................................................................
.................................................................................................
.................................................................................................
.................................................................................................
.................................................................................................
.................................................................................................
.................................................................................................
It is important to recognize, however,
the positive impacts that the Travel
Promotion Fund could have on
international travelers to the United
States. CBP is not able to estimate or
project these impacts with any degree of
confidence because the program and
fund are not yet in place and the details
of the administration of the fund to
promote travel is currently unknown.
Consequently, this analysis is not
making specific projections about the
overall net increase or decrease increase
in travel due to the Travel Promotion
Act.
Because there are many unknown
variables in this analysis, there are
potential costs that CBP cannot quantify
with any degree of confidence. Costs
Method 2
Method 3
¥127,363
¥129,715
¥131,698
¥133,728
¥135,807
¥42,808
¥43,484
¥44,177
¥44,888
¥45,615
that are important to consider, but that
CBP has not quantified include
potential decreases in visitor spending,
and possible reciprocity by VWP
countries (where these countries could
develop ESTA-like systems and charge
U.S. VWP travelers for applications of
admissibility).
Benefits of the Regulation
This rule allows CBP to comply with
the TPA’s express mandate that the
Secretary establish a fee for the use of
the ESTA system and also establish a
$10 travel promotion fee. The benefits of
ESTA include enhanced security, cost
savings associated with advanced
determination of inadmissibility, and
costs forgone by travelers, such as visa
fees. These are discussed in the ESTA
¥135,337
¥123,615
¥143,820
¥167,269
¥189,536
¥56,415
¥64,418
¥72,961
¥85,111
¥81,877
Method 4
¥167,978
¥190,212
¥182,306
¥208,382
¥235,856
¥85,365
¥81,972
¥93,111
¥108,127
¥126,441
IFR Regulatory Assessment and are not
considered here to avoid doublecounting.
As noted above, the United States
travel and tourism may benefit from
increased international travelers based
on promotion efforts made possible by
the Travel Promotion Fund.
A–4 Accounting Statement
Note that the transfers listed in the A–
4 Accounting Statement below are only
for the ESTA fees ($14.00), and do not
include the currency conversion charge
($0.37). This $0.37 charge is paid by
foreign entities to foreign entities and is
not included in this accounting
statement of impacts to the U.S.
economy.
CLASSIFICATION OF EXPENDITURES, 2011–2020
[$2010]
3% Discount rate
7% Discount rate
sroberts on DSKD5P82C1PROD with RULES
Costs:
Annualized monetized costs .......................
Annualized quantified, but un-monetized
costs.
Qualitative (un-quantified) costs ..................
Transfers .....................................................
Benefits:
Annualized monetized benefits ...................
Annualized quantified, but un-monetized
benefits.
8 U.S. Office of Travel and Tourism Industries.
2008. ‘‘Overseas Travelers to the United States.’’
Table 26.
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9 Gillen, David W., William G. Morrison and
Christopher Stewart. ‘‘Air Travel Demand
Elasticities: Concepts, Issues and Measurement.’’
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Fmt 4700
Sfmt 4700
Canada Department of Finance, October 6, 2008.
Available at https://www.fin.gc.ca/consultresp/
Airtravel/airtravStdy_-eng.asp.
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Federal Register / Vol. 75, No. 152 / Monday, August 9, 2010 / Rules and Regulations
CLASSIFICATION OF EXPENDITURES, 2011–2020—Continued
[$2010]
3% Discount rate
Qualitative (un-quantified) benefits .............
Transfers .....................................................
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 603(a)), 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.
Since a general notice of proposed
rulemaking is not necessary, a
regulatory flexibility analysis is not
required. Nonetheless, DHS has
considered the impact of this rule on
small entities. This rule directly
regulates individuals, and individuals
are not considered small entities. Some
small entities may be indirectly
impacted to the extent that business
travelers work for small businesses.
However, the combined charge (the
ESTA fees and the credit card
transaction fee) of $14.37 is only 0.3
percent of the average cost of a business
trip as estimated by OTTI ($5,231).10
Therefore, CBP certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities.
sroberts on DSKD5P82C1PROD with RULES
D. 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
U.S. private sector, of $100 million
(adjusted for inflation) 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 of the
Unfunded Mandates Reform Act of
1995.
E. Executive Order 13132
The rule will not have substantial
direct effects on the States, on the
10 U.S. Office of Travel and Tourism Industries.
2008. ‘‘Overseas Travelers to the United States.’’
Table 26.
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7% Discount rate
Allows compliance with the TPA’s express
mandate to establish a fee for the use of
the ESTA system and also establish a $10
travel promotion fee.
$168 million from foreign visitors to the U.S.
government.
Allows compliance with the TPA’s express
mandate to establish a fee for the use of
the ESTA system and also establish a $10
travel promotion fee.
$175 million from foreign visitors to the U.S.
government.
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, DHS has determined that
this interim final rule does not have
sufficient federalism implications to
warrant the preparation of a federalism
summary impact statement.
F. Executive Order 12988 Civil Justice
Reform
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
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.
These regulations are being issued
without prior public notice and
comment procedures pursuant to the
APA, as described above. For this
reason, CBP obtained temporary,
emergency approval from OMB, in
accordance with the requirements of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507) for the portion of OMB
clearance 1651–0111 that was affected
by this rule. CBP will solicit public
comments when CBP submits a request
for permanent OMB approval. The
estimated burden hours related to ESTA
for OMB Control Number 1651–0111 are
as follows:
Estimated Number of Respondents:
18,900,000.
Estimated Time per Response: 15
minutes (0.25 hours).
Estimated Total Annual Burden
Hours: 4,725,000 hours.
The burden hours in this collection
have been updated to reflect new
traveler levels predicted in 2011.
Additionally, a portion of these travelers
is new ESTA applicants, while a portion
is repeat travelers. Only the new
applicants or applicants whose
authorization has expired will be
required to pay the new fees. As noted
above, approximately 16 million
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Fmt 4700
Sfmt 4700
applicants will need to pay the fee
annually (Method 1), for a total cost of
$230 million. This is based on the
average estimated number of
respondents paying the combined
charge (the ESTA fees and the credit
card transaction fee) annually
(16,000,000) × $14.37 = $229,920,000.
H. Privacy Interests
DHS published an ESTA Privacy
Impact Assessment (PIA) for the Interim
Final Rule announcing ESTA on June 9,
2008. Additionally, at that time, DHS
prepared a separate System of Record
Notice (SORN) which was published in
conjunction with the IFR on June 9,
2008. DHS has updated the ESTA PIA
and SORN and both are available for
viewing on CBP’s Web site at https://
www.foia.cbp.gov/.
List of Subjects in 8 CFR Part 217
Air carriers, Aliens, Maritime carriers,
Passports and visas.
Amendments to Regulations
For the reasons stated in the preamble,
DHS is amending part 217 of title 8 of
the Code of Federal Regulations (8 CFR
part 217) as follows:
■
PART 217—VISA WAIVER PROGRAM
1. The authority citation for Part 217
continues to read as follows:
■
Authority: 8 U.S.C. 1103, 1187; 8 CFR part
2.
2. Section 217.5 is amended by
revising paragraph (a) and adding a new
paragraph (h) to read as follows:
■
§ 217.5 Electronic System for Travel
Authorization.
(a) Travel authorization required.
Each nonimmigrant alien intending to
travel by air or sea to the United States
under the Visa Waiver Program (VWP)
must, within the time specified in
paragraph (b) of this section, receive a
travel authorization, which is a positive
determination of eligibility to travel to
the United States under the VWP via the
Electronic System for Travel
Authorization (ESTA), from CBP. In
order to receive a travel authorization,
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Federal Register / Vol. 75, No. 152 / Monday, August 9, 2010 / 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, and must pay
a fee as described in paragraph (h) of
this section.
*
*
*
*
*
(h) Fee. (1) Until September 30, 2015,
the fee for an approved ESTA is $14.00,
which is the sum of two amounts: a $10
travel promotion fee to fund the
Corporation for Travel Promotion and a
$4.00 operational fee to at least ensure
recovery of the full costs of providing
and administering the system. In the
event the ESTA application is denied,
the fee is $4.00 to cover the operational
costs.
(2) Beginning October 1, 2015, the fee
for using ESTA is an operational fee of
$4.00 to at least ensure recovery of the
full costs of providing and
administering the system. ESTA
applicants must pay the ESTA fee
through the Treasury Department’s
Pay.gov financial management system.
Janet Napolitano,
Secretary.
[FR Doc. 2010–19700 Filed 8–6–10; 8:45 am]
BILLING CODE 9111–14–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–2010–0709; Airspace
Docket No. 09–AGL–28]
RIN 2120–AA66
Amendment of VOR Federal Airways
V–8, V–14, V–38, V–47, V–279, and V–
422 in the Vicinity of Findlay, OH
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
This action amends the legal
description of the VHF Omnidirectional
Range (VOR) Federal Airways V–8, V–
14, V–38, V–47, V–279, and V–422 in
the vicinity of Findlay, OH. The FAA is
taking this action because the Findlay
VHF Omnidirectional Range/Tactical
Air Navigation (VORTAC), included as
part of the V–8, V–14, V–38, V–47, V–
279, and V–422 route structure, is being
renamed the Flag City VORTAC.
DATES: Effective Date: 0901 UTC,
November 18, 2010. The Director of the
Federal Register approves this
incorporation by reference action under
1 CFR part 51, subject to the annual
sroberts on DSKD5P82C1PROD with RULES
SUMMARY:
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13:27 Aug 06, 2010
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revision of FAA Order 7400.9 and
publication of conforming amendments.
FOR FURTHER INFORMATION CONTACT:
Colby Abbott, Airspace and Rules
Group, Office of System Operations
Airspace and AIM, Federal Aviation
Administration, 800 Independence
Avenue, SW., Washington, DC 20591;
telephone: (202) 267–8783.
SUPPLEMENTARY INFORMATION:
The Rule
This action amends Title 14 Code of
Federal Regulations (14 CFR) part 71 by
amending the legal description of six
VOR Federal Airways in the vicinity of
Findlay, OH. Currently, V–8, V–14, V–
38, V–47, V–279, and V–422 have
Findlay, OH, [VORTAC] included as
part of their route structure. The Findlay
VORTAC and the Findlay Airport share
the same name and facility identifier
(FDY), but are not co-located and are
greater than 5 nautical miles apart. To
eliminate the possibility of confusion,
and a potential flight safety issue, the
Findlay VORTAC will be renamed the
Flag City VORTAC and assigned a new
facility identifier (FBC). All VOR
Federal Airways with Findlay, OH,
[VORTAC] included in their legal
description will be amended to reflect
the Flag City, OH, [VORTAC] name
change. The name change of the
VORTAC will coincide with the
effective date of this rulemaking action.
Additionally, this action makes
administrative corrections to the V–8
and V–14 legal descriptions.
Specifically, the V–8 description is
amended to reflect the termination point
‘‘DC’’ as ‘‘Washington, DC’’, and the V–
14 description is amended to reflect the
navigation aid ‘‘DRYER’’ as ‘‘Dryer’’.
These administrative corrections have
no operational impact to the existing
airways.
Since this action merely involves
editorial changes in the legal
descriptions of VOR Federal Airways,
and does not involve a change in the
dimensions or operating requirements of
that airspace, notice and public
procedures under 5 U.S.C. 553(b) are
unnecessary.
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current. Therefore, this regulation: (1) Is
not a ‘‘significant regulatory action’’
under Executive Order 12866; (2) is not
a ‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
Regulatory Evaluation as the anticipated
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
47709
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is certified that this rule, when
promulgated, will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority.
This rulemaking is promulgated
under the authority described in subtitle
VII, part A, subpart I, section 40103.
Under that section, the FAA is charged
with prescribing regulations to assign
the use of the airspace necessary to
ensure the safety of aircraft and the
efficient use of airspace. This regulation
is within the scope of that authority as
it amends the legal description of six
VOR Federal Airways in the vicinity of
Findlay, OH.
Domestic VOR Federal Airways are
published in paragraph 6010(a) of FAA
Order 7400.9T, signed August 27, 2009,
and effective September 15, 2009, which
is incorporated by reference in 14 CFR
71.1. The domestic VOR Federal
Airways listed in this document will be
published subsequently in the Order.
Environmental Review
There are no changes to the lateral
limits. Therefore, the FAA has
determined that this action is not
subject to environmental assessments
and procedures in accordance with FAA
Order 1050.1E, Policies and Procedures
for Considering Environmental Impacts,
and the National Environmental Policy
Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
■
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
E:\FR\FM\09AUR1.SGM
09AUR1
]]>Agencies
[Federal Register Volume 75, Number 152 (Monday, August 9, 2010)]
[Rules and Regulations]
[Pages 47701-47709]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-19700]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
8 CFR Part 217
[USCBP-2010-0025; CBP Dec. No. 10-25]
RIN 1651-AA83
Electronic System for Travel Authorization (ESTA): Travel
Promotion Fee and Fee for Use of the System
AGENCY: U.S. Customs and Border Protection, DHS.
ACTION: Interim final rule; solicitation of comments.
-----------------------------------------------------------------------
SUMMARY: Nonimmigrant aliens who wish to enter the United States under
the Visa Waiver Program at air or sea ports of entry must obtain a
travel authorization electronically through the Electronic System for
Travel Authorization (ESTA) from U.S. Customs and Border Protection
prior to departing for the United States. This rule requires ESTA
applicants to pay a congressionally mandated fee of $14.00, which is
the sum of two amounts: a $10 travel promotion fee for an approved ESTA
statutorily set by the Travel Promotion Act and a $4.00 operational fee
for the use of ESTA as set by the Secretary of Homeland Security to
ensure recovery of the full costs of providing and administering the
ESTA system.
DATES: This interim final rule is effective on September 8, 2010.
Comments must be received on or before October 8, 2010.
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-2010-xxxx.
Mail: Border Security Regulations Branch, Office of
International Trade, U.S. 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.
[[Page 47702]]
All comments will be posted without change to https://www.regulations.gov, including any personal information provided.
Docket: For access to the docket to read background
material or comments, 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, U.S.
Customs and Border Protection, 799 9th Street, NW., 5th Floor,
Washington, DC 20229. Arrangements to inspect submitted comments should
be made in advance by calling Mr. Joseph Clark at (202) 325-0118.
For additional information on ESTA, visit the Web site:
https://www.cbp.gov/esta.
FOR FURTHER INFORMATION CONTACT: Suzanne Shepherd, Office of Field
Operations, CBP.ESTA@dhs.gov or (202)-344-2073.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Comments
II. Background
A. Travel Promotion Act of 2009
B. Operational Fee Amount
C. Fee Collection
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132
F. Executive Order 12988 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, including the amount of the fee.
U.S. Customs and Border Protection (CBP) also invites comments on the
economic, environmental or federalism effects of the rule, as well as
comments related to the Paperwork Reduction Act. We urge commenters to
explain the reason for any recommended change, and include data,
information, or authorities that support such recommended change.
II. Background
Pursuant to section 217 of the Immigration and Nationality Act
(INA), 8 U.S.C. 1187, the Secretary of Homeland Security, in
consultation with the Secretary of State, may designate certain
qualifying countries as Visa Waiver Program (VWP) countries.\1\
Eligible travelers who are nationals of VWP countries are not required
to obtain a visa to travel to the United States. Other nonimmigrant
alien travelers generally must obtain a visa from a U.S. embassy or
consulate and undergo an interview by consular officials overseas, in
advance of travel to the United States.
---------------------------------------------------------------------------
\1\ The list of countries currently eligible to participate in
the VWP is set forth at 8 CFR 217.2(a). Under the VWP, 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
authority. Further details regarding the VWP are contained in the
background section of the June 9, 2008 interim final rule, at 73 FR
32440, and on the Web site https://www.cbp.gov/esta. As of the date
of publication of this interim final rule, the current list of
designated VWP countries can be found at 75 FR 15991 (Mar. 31,
2010).
---------------------------------------------------------------------------
On August 3, 2007, the President signed into law the Implementing
Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Public
Law 110-53. Section 711 of the 9/11 Act required that the Secretary of
Homeland Security (the Secretary), in consultation with the Secretary
of State, develop and implement a fully automated electronic travel
authorization system to collect biographical and other information as
the Secretary determines necessary to evaluate, in advance of travel,
the eligibility of the applicant to travel to the United States under
the VWP, and whether such travel poses a law enforcement or security
risk. On June 9, 2008, the Department of Homeland Security (DHS)
published an interim final rule (IFR) in the Federal Register (73 FR
32440) announcing the creation of the Electronic System for Travel
Authorization (ESTA) program for aliens traveling to the United States
by air or sea under the VWP. See 8 CFR 217.5.
The ESTA system now requires VWP travelers arriving in the United
States by air or sea to provide certain biographical and other
information electronically to CBP in advance of travel so that CBP can
determine eligibility for travel to the United States under the VWP.
Each ESTA travel authorization generally is valid for two years.
Implementation of ESTA as a mandatory requirement initially was delayed
to allow carriers and the public to become ESTA-compliant. Since
January 12, 2009, all nonimmigrant aliens traveling to the United
States under the VWP on an air or sea carrier must obtain travel
authorization from the ESTA Web site. 73 FR 67354.
Travel authorization under ESTA allows an alien from a VWP country
to travel to the United States, however, it does not serve as a
determination of admissibility to the United States. If an alien's
travel authorization application is denied, the alien may still seek to
obtain a visa to travel to the United States through a U.S. embassy or
consulate or may reapply through the ESTA Web site at a later date if
circumstances change or an error was made during the application
process.
Although the 9/11 Act authorized the Secretary to charge a fee for
ESTA to recover the costs of providing and administering the System,
the ESTA IFR did not establish a fee. At the time the IFR was issued,
DHS was focused on the successful development and deployment of the
ESTA system to collect the relevant traveler data and to properly vet
applicants. DHS wanted to ensure the efficient operation and
maintenance of the ESTA system before establishing an operational fee
to recoup the costs of processing ESTA applications and vetting
individual applicants. On January 12, 2009, when the ESTA system became
mandatory, DHS began evaluating the costs associated with operating and
maintaining the system in order to establish a fee. DHS has completed
this evaluation and a detailed fee analysis explaining how the ESTA
operational fee is calculated and the methodology used can found in the
public docket for this rule at https://www.regulations.gov.
A. Travel Promotion Act of 2009
On March 4, 2010, the United States Capitol Police Administrative
Technical Corrections Act of 2009, Public Law 111-145 was enacted. The
Travel Promotion Act of 2009 (TPA), which was contained in section 9,
mandates that the Secretary establish a fee for the use of the ESTA
system and begin assessing and collecting that fee no later than 6
months after enactment of the TPA. See section 217(h)(3)(B) of the
Immigration and Nationality Act, 8 U.S.C. 1187(h)(3)(B). Accordingly,
to comply with the TPA, the Secretary is required to assess and collect
the fee by September 4, 2010.
The TPA expressly provides that the required initial ESTA fee shall
consist of the sum of ``$10 per travel authorization'' (travel
promotion fee) plus ``an amount that will at least ensure recovery of
the full costs of providing and administering the System, as determined
by the Secretary'' (operational fee). The TPA provides that the $10 per
travel authorization is to be
[[Page 47703]]
credited to the Travel Promotion Fund established by the TPA and is to
be used by the Corporation for Travel Promotion, also established by
the TPA, to promote international travel to the United States. The
operational fee is to be transferred to the general fund of the
Treasury and made available to pay the costs incurred to administer
ESTA. Under the TPA, the travel promotion fee has a sunset provision
and the Secretary is authorized to collect this fee only through
September 30, 2015.\2\ The operational fee, in contrast, does not
include a sunset provision but will be reassessed on a regular basis to
ensure it is set at a level to fully recover ESTA operating costs.
---------------------------------------------------------------------------
\2\ On July 2, 2010, the Homebuyer Assistance and Improvement
Act of 2010, in part, amended the TPA by extending the sunset
provision of the travel promotion fee and authorizing the Secretary
to collect this fee through September 30, 2015. See Pub. L. 111-198.
---------------------------------------------------------------------------
Based on the TPA, this rule establishes an initial ESTA fee that
consists of the sum of ``$10 per travel authorization'' (travel
promotion fee) plus ``an amount that will at least ensure recovery of
the full costs of providing and administering the [ESTA] System, as
determined by the Secretary'' (operational fee) no later than 6 months
after enactment of the TPA. See 8 U.S.C. 1187(h)(3)(B)(i).
B. Operational Fee Amount
DHS has determined that a $4.00 fee is necessary to ensure recovery
of the full costs of providing and administering the system. This fee
takes into account the costs to develop, implement, maintain, and make
any necessary updates to the ESTA system. A full explanation of the
methodology used to determine the $4.00 operational ESTA fee is
contained in the ESTA Fee Analysis (Explanation of the Electronic
System for Travel Authorization (ESTA) Fee, April 2010), which can be
found in the public docket for this rulemaking at https://www.regulations.gov. A brief summary of the methodology is provided
below.
The following methodology was employed to determine the $4.00 ESTA
fee for applications through FY 2015:
1. Determine the costs associated with ESTA--initial investment,
direct, and indirect costs associated with ESTA development, operation,
and maintenance. Costs are adjusted upward annually to account for
inflation.
2. Estimate the total number of ESTA applicants--total VWP
travelers adjusted downward to account for travelers who make multiple
trips during the 2-year period each ESTA is valid. Travelers will remit
the ESTA fee upon initial application; they need not pay the fee each
time they visit the United States during the authorization period.
3. Determine the fee per applicant by dividing the total costs,
plus an operating carryover amount, by the number of projected ESTA
applicants. The carryover is included to assure there is sufficient
funding in the event there is an unforeseen drop in ESTA applicants.
The estimated costs associated with ESTA from FY 2008 through FY
2015 are $312 million. Costs in FY 2008 and FY 2009 totaled
approximately $39.5 million. From FY 2010 through FY 2015, costs
include the administration, staffing, and operation of the system (plus
overhead costs), as well as information technology for other CBP and
non-CBP systems that permit information sharing and services that are
necessary for ESTA to operate effectively. An additional carryover sum
of $12.5 million, equal to one fiscal quarter of operating costs, is
added to the total FY 2008 through FY 2015 costs as a contingency in
case travel volumes fall below expected levels.
Using traveler projection data from the Department of Commerce,
Office of Travel and Tourism Industries, CBP estimated the future
number of VWP travelers for FY 2011 through FY 2015. CBP then adjusted
that estimate to account for the estimated number of ``repeat
travelers'' during that period. These repeat travelers would, in most
cases, be required to apply for a travel authorization only once over a
2-year period, not each time they traveled to the United States. Using
data from CBP's Advance Passenger Information System (APIS), CBP
calculated an actual percentage of past repeat travelers, which was
then applied as an estimated percentage of ``repeat travelers'' during
the period from FY 2011 through FY 2015. With this adjustment for
repeat travelers, the cumulative total of ESTA applicants FY 2011
through FY 2015 is an estimated 86 million travelers.
The $4.00 fee was determined by dividing the total estimated costs
($312 million in costs + $12.5 million for a carryover reserve) by the
total ESTA applicants (86 million) through FY 2015, then rounding up to
the nearest whole dollar amount. Exhibit 1 shows the calculation of the
fee.
Exhibit 1--Calculation of ESTA Operational Fee
------------------------------------------------------------------------
------------------------------------------------------------------------
(A) Cumulative costs from FY 2008-2015................ $312,025,861
(B) Carryover reserve funding......................... 12,470,060
-----------------
(C) Total (A + B)..................................... 324,495,921
=================
(D) Estimated number of ESTA applications from FY 2011- 86,180,659
2015.................................................
(E) Calculated fee (C / D)............................ 3.77
Calculated fee, rounded up to the nearest whole dollar 4.00
------------------------------------------------------------------------
Any changes to the $4.00 ESTA operational fee will be accomplished
through a future rulemaking consistent with the Administrative
Procedure Act.
C. Fee Collection
During the ESTA application process, the ESTA user will be directed
to provide credit card information to pay the non-refundable $4.00
operational fee and authorize the $10 travel promotion fee through the
Federal Government's online payment system, Pay.gov. The $10 travel
promotion fee will be charged to the applicant's credit card only when
the ESTA is granted. Pay.gov is a system by which parties can make
secure electronic payments to many Federal Government agencies. The
Pay.gov Web site is available 24 hours a day, 7 days a week (holidays
included) for users to submit payments.
The operational fee discussed in this notice is for processing the
application and vetting the individual applicant. The operational fee
is nonrefundable if a traveler's application is denied. In the event
that an ESTA application is denied, the traveler may apply for a visa
through a U.S. embassy or consulate or may reapply through the ESTA Web
site at a later date if circumstances change or an error was made
during the ESTA
[[Page 47704]]
application process. Each ESTA applicant will incur the $4.00
operational fee when he or she submits an ESTA application. By
contrast, an applicant will incur the $10 travel promotion fee only if
he or she receives travel authorization.
VWP travelers with a valid travel authorization will be able to
update and/or correct certain information provided on the ESTA
application (such as the destination address in the United States)
without having to pay another operational or travel promotion fee.
However, as provided in the ESTA IFR, certain events, such as the
issuance of a new passport, will require the VWP traveler to apply for
a new travel authorization through ESTA. In that case, the traveler
would be required to pay the operational fee as part of the new
application process. Travelers receiving a new authorization before
September 30, 2015 would also be required to pay the $10 travel
promotion fee. Detailed instructions are available on the ESTA Web site
regarding how to make ESTA updates and corrections and when a new
travel authorization is required.
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The APA generally requires agencies to publish a notice of proposed
rulemaking in the Federal Register (5 U.S.C. 553(b)) and provide
interested persons the opportunity to submit comments (5 U.S.C.
553(c)). However, pursuant to 5 U.S.C. 553(b)(B), a notice of proposed
rulemaking is not required when the agency determines, for good cause,
that notice and public participation is impracticable, unnecessary, or
contrary to the public interest.
In this case, the TPA requires the Secretary of Homeland Security
to begin assessing and collecting a fee equal to the sum of the travel
promotion fee ($10) and the operational fee ($4.00) within 6 months of
the TPA's enactment, which is September 4, 2010. See 8 U.S.C. 1187
(h)(3)(B)(i). The $10 travel promotion fee is intended to fund the
Corporation for Travel Promotion (Corporation) and, once collected, the
$10 travel promotion fees are to be made available by the Secretary of
the Treasury to the Corporation for start-up expenses. Accordingly, the
TPA requires DHS to be able to collect the ESTA fees to fund the
Corporation. If DHS is unable to collect the ESTA fee, the Secretary of
the Treasury would be unable to appropriate funding to cover the
Corporation's initial expenses and activities. Moreover, given the
limited duration of the travel promotion fee, which expires on
September 30, 2015, it seems likely that Congress intended that the
ESTA fee would be collected as soon as possible, but no later than six
months from enactment of the TPA, which is September 4, 2010.
Considering the TPA's time constraints, implementing the new ESTA
fees through notice and comment rulemaking process would prevent the
Corporation from promptly receiving the funds necessary to serve its
function of promoting tourism to the United States. As such, the
statutory timeline imposed by the TPA to collect the sum of the travel
promotion fee and the operational fee by September 4, 2010, when
coupled with the sunset provision for the travel promotion fee, makes
it impracticable for DHS to engage in the notice and comment rulemaking
process. This IFR provides the mechanism through which DHS is able to
assess and collect the ESTA fees in a manner consistent with the
statutory provisions.
In sum, providing the public the opportunity to comment on these
regulations prior to implementation would hamper the ability of DHS to
collect the necessary fees as required under the TPA by September 4,
2010. Accordingly, DHS has determined that there is good cause to
publish this rule without prior public notice and comment procedures.
The Department, however, is interested in obtaining public comments on
this interim final rule prior to the issuance of a final rule.
Therefore, DHS is providing the public with the opportunity to comment
after publication of this interim final rule. All comments received
will become a matter of the public record.
B. Executive Order 12866
Executive Order 12866 (Regulatory Planning and Review; September
30, 1993) requires Federal agencies to conduct economic analyses of
significant regulatory actions as a means to improve regulatory
decision-making. Significant regulatory actions include those that may
``(1) [h]ave an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) [c]reate a serious inconsistency or otherwise interfere with an
action taken or planned by another agency; (3) [m]aterially alter the
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients thereof; or (4) [r]aise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in this Executive
Order.'' This rule is a significant regulatory action because the
annual effect on the economy is $100 million or more in any one year.
The annualized cost to applicants, primarily in the form of transfers
from foreign citizens to the U.S. government, is estimated between $152
million and $258 million. As a result, this rule has been reviewed by
the Office of Management and Budget (OMB) under Executive Order 12866.
The following summary presents the costs to applicants and benefits of
the rule.\3\
---------------------------------------------------------------------------
\3\ The complete ``Regulatory Assessment'' can be found in the
docket for this rulemaking: https://www.regulations.gov.
---------------------------------------------------------------------------
OMB Circular A-4 states the following with regard to the scope of
Federal regulatory assessments: ``Your analysis should focus on
benefits and costs that accrue to citizens and residents of the United
States. Where you choose to evaluate a regulation that is likely to
have effects beyond the borders of the United States, these effects
should be reported separately.'' \4\ Additionally, Circular A-4 states:
``You should not include transfers in the estimates of the benefits and
costs of a regulation. Instead, address them in a separate discussion
of the regulation's distributional effects.'' \5\ CBP notes that the
costs estimated in this analysis are primarily transfers, in the form
of fees, from foreign visitors to the U.S. government. As described in
more detail below, CBP has also estimated a charge for currency
conversion that ESTA users will incur when they make their fee payments
in pay.gov. These currency conversion costs are not transfers, but they
are incurred by foreign travelers and are paid to foreign financial
institutions. Thus, the costs to applicants presented in this section
are transfers or costs incurred by foreign entities.
---------------------------------------------------------------------------
\4\ See U.S. Office of Management and Budget. September 17,
2003. Circular A-4 ``Regulatory Analysis.'' Page 15.
\5\ See OMB Circular A-4, Page 38.
---------------------------------------------------------------------------
To determine the total cost to applicants of ESTA, CBP used the
population of travelers identified in the analysis for the ESTA IFR.\6\
For that analysis, CBP developed four methods to predict ESTA-affected
travelers to the
[[Page 47705]]
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 the period of analysis (OTTI projects
travel only through 2013; CBP calculates a simple extrapolation to
2020). 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
incorporate periodic downturns (one late in the period; one early),
which are prevalent, though not necessarily predictable, in
international travel. CBP used Method 1 for the fee calculation because
it takes into account the most recent OTTI estimate, accounts for the
2008 downturn in air travel, and it is a midrange estimate compared to
the other methods. The other methods are presented here for further
information.
---------------------------------------------------------------------------
\6\ See ``The Regulatory Assessment for the Interim Final Rule
for Changes to the Visa Waiver Program to Implement the Electronic
System for Travel Authorization.'' U.S. Customs and Border
Protection, June 2008. This document is available at https://www.regulations.gov under docket no. USCBP--2008-0003, supporting
and related materials.
---------------------------------------------------------------------------
Because a travel authorization obtained through ESTA generally is
valid for 2 years, CBP adjusted the populations in accordance with the
ESTA Fee Analysis to reflect only those travelers who will be required
to apply for authorization in any given year. For the purposes of this
analysis and to make the calculations more tractable, CBP assumed the
fee will be charged beginning in January 2011. Exhibit 2 compares the
estimated number of travelers and the estimated number of ESTA
applicants (``Applicants'') per year.
Exhibit 2--Total Travelers and ESTA Applicants
[2011-2020, in millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1: ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Total Travelers................................. 19.40 20.19 20.92 21.68 22.47 23.29 24.15 25.04 25.97 26.94
Applicants...................................... 15.97 16.62 17.23 17.85 18.50 19.18 19.88 20.62 21.38 22.18
........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Method 2: ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Total Travelers................................. 18.26 18.64 18.94 19.25 19.57 19.89 20.23 20.57 20.92 21.28
Applicants...................................... 15.03 15.35 15.59 15.85 16.11 16.38 16.65 16.93 17.22 17.52
........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Method 3: ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Total Travelers................................. 19.40 17.72 20.63 24.03 27.29 26.36 29.93 33.94 39.65 38.38
Applicants...................................... 15.97 14.59 16.99 19.79 22.48 21.71 24.67 27.98 32.69 31.65
........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Method 4: ........ ........ ........ ........ ........ ........ ........ ........ ........ ........
Total Travelers................................. 24.04 27.29 26.33 29.94 33.93 39.62 38.29 43.62 50.60 59.28
Applicants...................................... 19.81 22.48 21.69 24.68 27.96 32.67 31.57 35.97 41.75 48.92
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs to Travelers
CBP determined that the ESTA operational fee will be $4.00 per
application. The methodology and calculations used to determine this
fee can be found in the ESTA Fee Analysis (Explanation of the
Electronic System for Travel Authorization (ESTA) Fee, April 2010). The
TPA also requires a $10 travel promotion fee to be charged through ESTA
that will be credited to the Travel Promotion Fund established by the
TPA and is to be used by the Corporation for Travel Promotion, also
established by the TPA, to promote international travel to the United
States. Per the legislation, this fee will be effective through
September 30, 2015.
In addition to the ESTA operational and travel promotion fees, many
credit card issuers charge a fee for foreign currency transactions,
which is generally a percentage of the total transaction amount.
Because the ESTA fees must be paid by credit card in U.S. dollars and
not local currency, travelers from VWP countries will likely incur a
transaction fee. For this analysis, CBP assumes all travelers will
incur a transaction fee, whether they apply using the ESTA website or
are registered by a carrier or travel agent who will then pass the fee
on to the traveler. CBP calculated a weighted average of foreign
currency transaction fees based on market share in order to take into
account not only the fee charged by each issuer, but the volume of
purchases made using the cards of each issuer.
When the average foreign currency transaction fee of 2.7 percent is
applied to the ESTA fees, the total charge will be $14.37. Exhibit 3
displays the total fees, including those charged by the credit card
companies, for visitors from each country in 2011, the first full year
CBP estimates that the fee will be charged. These totals are based on
the populations used by CBP to calculate the fee and only reflect
unique travelers who would be required to apply in 2011.\7\
---------------------------------------------------------------------------
\7\ Because Andorra, Brunei, Monaco, Lichtenstein, and San
Marino have limited historic data, no predicted growth rates, or
very few visitors (only about 1,000 each on an annual bases), they
are excluded from the analysis. Travelers from these countries will
still be subject to the ESTA application fee.
Exhibit 3--Total ESTA Fees for All Travelers in 2011
[Undiscounted]
----------------------------------------------------------------------------------------------------------------
Method 1 Method 2 Method 3 Method 4
----------------------------------------------------------------------------------------------------------------
Australia............................... $ 9,435,603 $ 8,892,390 $ 9,435,603 $ 10,091,673
Austria................................. 2,224,768 2,094,348 2,224,768 2,800,120
Belgium................................. 3,317,849 3,123,469 3,317,849 4,011,893
Czech Republic.......................... 782,466 737,637 782,466 773,296
Denmark................................. 3,441,443 3,240,839 3,441,443 4,009,018
[[Page 47706]]
Estonia................................. 132,189 123,881 132,189 199,972
Finland................................. 1,527,821 1,438,263 1,527,821 1,839,227
France.................................. 17,975,811 16,915,414 17,975,811 21,624,714
Germany................................. 22,406,375 21,077,979 22,406,375 28,683,080
Greece.................................. 842,330 793,361 842,330 941,230
Hungary................................. 612,894 576,300 612,894 708,057
Iceland................................. 474,855 444,672 474,855 755,962
Ireland................................. 7,114,881 6,690,302 7,114,881 9,835,632
Italy................................... 11,195,318 10,529,662 11,195,318 13,987,260
Japan................................... 44,835,862 42,216,569 44,835,862 58,384,185
Latvia.................................. 130,794 122,602 130,794 184,118
Lithuania............................... 167,330 157,298 167,330 177,061
Luxembourg.............................. 137,535 129,371 137,535 147,108
Malta................................... 69,105 64,966 69,105 61,186
Netherlands............................. 9,043,867 8,513,431 9,043,867 10,595,705
New Zealand............................. 2,699,106 2,544,999 2,699,106 2,790,044
Norway.................................. 2,611,488 2,459,019 2,611,488 2,924,101
Portugal................................ 1,511,077 1,422,122 1,511,077 1,818,487
Singapore............................... 1,367,203 1,287,189 1,367,203 1,667,412
Slovakia................................ 349,336 329,832 349,336 291,686
Slovenia................................ 261,574 246,195 261,574 283,967
South Korea............................. 8,728,408 8,224,994 8,728,408 11,154,010
Spain................................... 8,829,048 8,303,456 8,829,048 11,715,276
Sweden.................................. 5,141,050 4,839,519 5,141,050 6,103,610
Switzerland............................. 3,561,371 3,352,158 3,561,371 4,320,266
UK...................................... 58,650,315 55,176,504 58,650,315 71,806,658
-----------------------------------------------------------------------
Total........................... $229,579,076 $216,068,741 $229,579,076 $284,686,015
----------------------------------------------------------------------------------------------------------------
CBP next totaled these costs to applicants over the next 10 years
at a 3 and 7 percent discount rate, per guidance provided in OMB
Circular A-4. Total present value of the costs to applicants over the
period of analysis could total $1.2 billion to $2.2 billion. Annualized
costs to applicants are estimated at $152 million to $258 million.
Method 1 was the method used to estimate the total costs and transfers
due to the fee and is our primary estimate. Again, CBP notes that the
bulk of these costs to applicants are transfers from foreign travelers
to the U.S. government. See Exhibit 4.
Exhibit 4--Total Present Value and Annualized Costs to Applicants of the ESTA Fee, 2011-2020
----------------------------------------------------------------------------------------------------------------
Total present value ($millions) Annualized costs to applicants
------------------------------------ ($millions)
-----------------------------------
3% 7% 3% 7%
----------------------------------------------------------------------------------------------------------------
Method 1................................ $1,510 $1,295 $172 $179
Method 2................................ 1,338 1,159 152 159
Method 3................................ 1,672 1,398 190 195
Method 4................................ 2,208 1,829 251 258
----------------------------------------------------------------------------------------------------------------
Travelers using ESTA will incur costs in addition to the fee,
including the time burden of applying for authorization and the time
burden and cost to obtain a visa if authorization is denied. These
costs were already addressed in the Regulatory Assessment for the June
2008 ESTA IFR and should not be considered here in order to avoid
double counting these costs.
Change in Travel Demand
While the ESTA operational and travel promotion fees are very low
relative to the overall costs of international travel, it is still
possible that they could cause a reduction in the number of travelers
coming to the United States from VWP countries. For this reason, CBP
uses an ``elasticity of demand'' for long-haul international leisure
and long-haul international business trips available from the published
travel literature to analyze the impact of the change in cost (out-of-
pocket expenses) for travelers using ESTA. Using an elasticity of
demand allows CBP to get a sense of potential changes in the number of
travelers in response to a change in the cost of a trip. Elasticities
should not be viewed as the definitive level that demand could decrease
due to an increase in travel price. In reality, a relatively minimal
charge of $14.37 is much more likely to reduce the amount of money a
traveler spends on other portions of the trip than to cause a traveler
to cancel the trip altogether.
Because the elasticity of demand differs for business and leisure
travelers, we first identify the portion of travel to the United States
from VWP countries that can be assigned to those purposes using air
traveler survey data from OTTI. CBP then uses OTTI data to identify the
average cost per VWP traveler for a flight to the United States.
[[Page 47707]]
Airfare costs vary by purpose of travel, but range from an average
$1,406 per flight for a leisure traveler on vacation to $2,687 per
flight for a business traveler.\8\
---------------------------------------------------------------------------
\8\ U.S. Office of Travel and Tourism Industries. 2008.
``Overseas Travelers to the United States.'' Table 26.
---------------------------------------------------------------------------
To calculate the percent change in the average cost per flight, CBP
divided the amount of the total charges by the original average cost
per flight. CBP then multiplied the resulting percent increase by the
elasticity of demand for air travel estimated in a study by the
Canadian Department of Finance, -0.265 for long-haul international
business travel and -1.040 for long-haul international leisure travel,
to calculate the expected percent decrease in passenger volume.\9\
Exhibit 5 shows the total estimated number of passengers that could
potentially be lost for each of the four population projections. While
the impact varies for different categories of travelers, CBP estimates
that up to 0.85 percent of travelers could be lost in a given year.
---------------------------------------------------------------------------
\9\ Gillen, David W., William G. Morrison and Christopher
Stewart. ``Air Travel Demand Elasticities: Concepts, Issues and
Measurement.'' Canada Department of Finance, October 6, 2008.
Available at https://www.fin.gc.ca/consultresp/Airtravel/airtravStdy_-eng.asp.
Exhibit 5--Total Change in Visitors by Year, 2011-2020
[Excluding intended benefits to tourism from spending the TPA revenue]
----------------------------------------------------------------------------------------------------------------
Method 1 Method 2 Method 3 Method 4
----------------------------------------------------------------------------------------------------------------
2011.................................... -135,337 -127,363 -135,337 -167,978
2012.................................... -140,542 -129,715 -123,615 -190,212
2013.................................... -145,501 -131,698 -143,820 -182,306
2014.................................... -150,652 -133,728 -167,269 -208,382
2015.................................... -156,005 -135,807 -189,536 -235,856
2016.................................... -50,142 -42,808 -56,415 -85,365
2017.................................... -51,936 -43,484 -64,418 -81,972
2018.................................... -53,802 -44,177 -72,961 -93,111
2019.................................... -55,742 -44,888 -85,111 -108,127
2020.................................... -57,759 -45,615 -81,877 -126,441
----------------------------------------------------------------------------------------------------------------
It is important to recognize, however, the positive impacts that
the Travel Promotion Fund could have on international travelers to the
United States. CBP is not able to estimate or project these impacts
with any degree of confidence because the program and fund are not yet
in place and the details of the administration of the fund to promote
travel is currently unknown. Consequently, this analysis is not making
specific projections about the overall net increase or decrease
increase in travel due to the Travel Promotion Act.
Because there are many unknown variables in this analysis, there
are potential costs that CBP cannot quantify with any degree of
confidence. Costs that are important to consider, but that CBP has not
quantified include potential decreases in visitor spending, and
possible reciprocity by VWP countries (where these countries could
develop ESTA-like systems and charge U.S. VWP travelers for
applications of admissibility).
Benefits of the Regulation
This rule allows CBP to comply with the TPA's express mandate that
the Secretary establish a fee for the use of the ESTA system and also
establish a $10 travel promotion fee. The benefits of ESTA include
enhanced security, cost savings associated with advanced determination
of inadmissibility, and costs forgone by travelers, such as visa fees.
These are discussed in the ESTA IFR Regulatory Assessment and are not
considered here to avoid double-counting.
As noted above, the United States travel and tourism may benefit
from increased international travelers based on promotion efforts made
possible by the Travel Promotion Fund.
A-4 Accounting Statement
Note that the transfers listed in the A-4 Accounting Statement
below are only for the ESTA fees ($14.00), and do not include the
currency conversion charge ($0.37). This $0.37 charge is paid by
foreign entities to foreign entities and is not included in this
accounting statement of impacts to the U.S. economy.
Classification of Expenditures, 2011-2020
[$2010]
------------------------------------------------------------------------
3% Discount rate 7% Discount rate
------------------------------------------------------------------------
Costs:
Annualized monetized ....................
costs.
Annualized quantified, ....................
but un-monetized costs.
Qualitative (un- ....................
quantified) costs.
Transfers...............
Benefits:
Annualized monetized ....................
benefits.
Annualized quantified, ....................
but un-monetized
benefits.
[[Page 47708]]
Qualitative (un- Allows compliance Allows compliance
quantified) benefits. with the TPA's with the TPA's
express mandate to express mandate to
establish a fee for establish a fee for
the use of the ESTA the use of the ESTA
system and also system and also
establish a $10 establish a $10
travel promotion travel promotion
fee. fee.
Transfers............... $168 million from $175 million from
foreign visitors to foreign visitors to
the U.S. government. the U.S.
government.
------------------------------------------------------------------------
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 603(a)), 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.
Since a general notice of proposed rulemaking is not necessary, a
regulatory flexibility analysis is not required. Nonetheless, DHS has
considered the impact of this rule on small entities. This rule
directly regulates individuals, and individuals are not considered
small entities. Some small entities may be indirectly impacted to the
extent that business travelers work for small businesses. However, the
combined charge (the ESTA fees and the credit card transaction fee) of
$14.37 is only 0.3 percent of the average cost of a business trip as
estimated by OTTI ($5,231).\10\ Therefore, CBP certifies that this rule
will not have a significant economic impact on a substantial number of
small entities.
---------------------------------------------------------------------------
\10\ U.S. Office of Travel and Tourism Industries. 2008.
``Overseas Travelers to the United States.'' Table 26.
---------------------------------------------------------------------------
D. 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 U.S. private sector, of
$100 million (adjusted for inflation) 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 of the Unfunded
Mandates Reform Act of 1995.
E. Executive Order 13132
The rule will not have substantial direct effects on the States, on
the relationship between the National Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with section 6 of Executive
Order 13132, DHS has determined that this interim final rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
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. These regulations are
being issued without prior public notice and comment procedures
pursuant to the APA, as described above. For this reason, CBP obtained
temporary, emergency approval from OMB, in accordance with the
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507)
for the portion of OMB clearance 1651-0111 that was affected by this
rule. CBP will solicit public comments when CBP submits a request for
permanent OMB approval. The estimated burden hours related to ESTA for
OMB Control Number 1651-0111 are as follows:
Estimated Number of Respondents: 18,900,000.
Estimated Time per Response: 15 minutes (0.25 hours).
Estimated Total Annual Burden Hours: 4,725,000 hours.
The burden hours in this collection have been updated to reflect
new traveler levels predicted in 2011. Additionally, a portion of these
travelers is new ESTA applicants, while a portion is repeat travelers.
Only the new applicants or applicants whose authorization has expired
will be required to pay the new fees. As noted above, approximately 16
million applicants will need to pay the fee annually (Method 1), for a
total cost of $230 million. This is based on the average estimated
number of respondents paying the combined charge (the ESTA fees and the
credit card transaction fee) annually (16,000,000) x $14.37 =
$229,920,000.
H. Privacy Interests
DHS published an ESTA Privacy Impact Assessment (PIA) for the
Interim Final Rule announcing ESTA on June 9, 2008. Additionally, at
that time, DHS prepared a separate System of Record Notice (SORN) which
was published in conjunction with the IFR on June 9, 2008. DHS has
updated the ESTA PIA and SORN and both are available for viewing on
CBP's Web site at https://www.foia.cbp.gov/.
List of Subjects in 8 CFR Part 217
Air carriers, Aliens, Maritime carriers, Passports and visas.
Amendments to Regulations
0
For the reasons stated in the preamble, DHS is amending part 217 of
title 8 of the Code of Federal Regulations (8 CFR part 217) as follows:
PART 217--VISA WAIVER PROGRAM
0
1. The authority citation for Part 217 continues to read as follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
0
2. Section 217.5 is amended by revising paragraph (a) and adding a new
paragraph (h) to read as follows:
Sec. 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,
[[Page 47709]]
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, and must pay a fee as described in paragraph (h) of
this section.
* * * * *
(h) Fee. (1) Until September 30, 2015, the fee for an approved ESTA
is $14.00, which is the sum of two amounts: a $10 travel promotion fee
to fund the Corporation for Travel Promotion and a $4.00 operational
fee to at least ensure recovery of the full costs of providing and
administering the system. In the event the ESTA application is denied,
the fee is $4.00 to cover the operational costs.
(2) Beginning October 1, 2015, the fee for using ESTA is an
operational fee of $4.00 to at least ensure recovery of the full costs
of providing and administering the system. ESTA applicants must pay the
ESTA fee through the Treasury Department's Pay.gov financial management
system.
Janet Napolitano,
Secretary.
[FR Doc. 2010-19700 Filed 8-6-10; 8:45 am]
BILLING CODE 9111-14-P
