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Rules and Regulations Federal Register Vol. 80, No. 109

Monday, June 8, 2015

This section of the FEDERAL REGISTER Table of Contents Executive Summary contains regulatory documents having general Prior to implementing the Electronic applicability and legal effect, most of which Executive Summary are keyed to and codified in the Code of I. Background and Purpose System for Travel Authorization Federal Regulations, which is published under A. The Visa Waiver Program (ESTA), international travelers from 50 titles pursuant to 44 U.S.C. 1510. B. The Electronic System for Travel Visa Waiver Program (VWP) countries 1 Authorization (ESTA) were not evaluated, in advance of travel, The Code of Federal Regulations is sold by C. The Fee for Use of ESTA and the Travel for eligibility to travel to the United the Superintendent of Documents. Prices of Promotion Act Fee States under the VWP. In the wake of new books are listed in the first FEDERAL II. Discussion of Comments Submitted in the tragedy of September 11, 2001, REGISTER issue of each week. Response to the Interim Final Rule Congress enacted the Implementing Establishing ESTA and Interim Final Recommendations of the 9/11 Rule Announcing the ESTA Fee Commission Act of 2007, Public Law DEPARTMENT OF HOMELAND A. Overview 110–53. To address this identified SECURITY B. Discussion of Comments 1. Impact on Travel vulnerability of the VWP, section 711 of 8 CFR Part 217 2. Impact on Short Notice Travelers the Implementing Recommendations of 3. Implementation of ESTA the 9/11 Commission Act of 2007 [Docket Nos. USCBP–2008–003 and 4. Plain Language and ESTA Web Site (section 711 of the 9/11 Act), was USCBP–2010–0025; CBP Dec. No. 15–08] Assistance enacted, requiring the Secretary of 5. Internet Concerns and Third Party Homeland Security to implement a RIN 1651–AA72 and RIN 1651–AA83 Applications system that would provide for the 6. The Role of ESTA for VWP Travelers advance screening of international Changes to the Visa Waiver Program 7. In-Transit Travel travelers by allowing DHS to identify To Implement the Electronic System 8. ESTA Enforcement subjects of potential interest before they for Travel Authorization (ESTA) 9. State Department Coordination board a conveyance destined for the Program and the Fee for Use of the 10. ESTA Expansion to Land Arrivals United States. System 11. Impact on Existing Laws and On June 9, 2008, the Department of Agreements Homeland Security (DHS) published an AGENCY: U.S. Customs and Border 12. I–94W Paper Form Protection; DHS. 13. Preclearance Ports and Internet Kiosks interim final rule in the Federal Register (73 FR 32440) announcing the ACTION: Final rule. 14. ESTA Applications at Airports 15. ESTA Validity Period creation of the ESTA program for SUMMARY: This rule adopts as final, with 16. Passport Issues nonimmigrant aliens traveling to the one substantive change, interim 17. Denied Travel Authorization United States by air or sea under the amendments to DHS regulations 18. Expedited Review VWP. On November 13, 2008, DHS published in the Federal Register on 19. ESTA Application Status Notifications published a notice in the Federal June 9, 2008 and August 9, 2010 for Travelers and Carriers Register (73 FR 67354) announcing that regarding the Electronic System for 20. Proof of Travel Authorization ESTA would be mandatory for all VWP 21. Mandatory and Optional Data Elements Travel Authorization (ESTA). ESTA is participants traveling to the United 22. ESTA Interaction With Other Systems the online system through which States at air or sea ports of entry 23. Method of Payment beginning January 12, 2009. nonimmigrant aliens intending to enter 24. ESTA Fee and the Travel Promotion the United States under the Visa Waiver On March 4, 2010, the United States Act (TPA) Fee Capitol Police Administrative Technical Program (VWP) must obtain a travel 25. APA Procedures Corrections Act of 2009, Public Law authorization in advance of travel to the 26. Effective Date United States. The June 9, 2008 interim 27. Privacy 111–145, was enacted. Section 9 of this final rule established ESTA and set the 28. Economic Analysis; Regulatory law, the Travel Promotion Act of 2009 requirements for use for travel through Flexibility Act; Paperwork Reduction (TPA), mandated the Secretary of air and sea ports of entry. The August Act Homeland Security to establish a fee for 9, 2010 interim final rule established the 29. Comments That Are Beyond the Scope the use of ESTA and begin assessing and fee for ESTA. This document addresses of the IFRs collecting the fee. comments received in response to both III. Conclusion 1 rules and some operational A. Regulatory Amendments With respect to all references to ‘‘country’’ or B. Operational Modifications ‘‘countries’’ in this document, it should be noted modifications affecting VWP applicants IV. Statutory and Regulatory Requirements that the Taiwan Relations Act of 1979, Public Law and travelers since the publication of A. Executive Order 13563 and Executive 96–8, Section 4(b)(1), provides that ‘‘[w]henever the the interim rules. laws of the United States refer or relate to foreign Order 12866 countries, nations, states, governments, or similar DATES: This rule is effective on July 8, B. Regulatory Flexibility Act entities, such terms shall include and such laws 2015. C. Unfunded Mandates Reform Act of 1995 shall apply with respect to Taiwan.’’ 22 U.S.C. FOR FURTHER INFORMATION CONTACT: D. Executive Order 13132 3303(b)(1). Accordingly, all references to ‘‘country’’ or ‘‘countries’’ in the Visa Waiver Program Suzanne Shepherd, U.S. Customs and E. Paperwork Reduction Act F. Executive Order 12988 Civil Justice authorizing legislation, Section 217 of the Border Protection, Office of Field Immigration and Nationality Act, 8 U.S.C. 1187, are Reform Operations, at suzanne.m.shepherd@ read to include Taiwan. This is consistent with the G. Privacy United States’ one-China policy, under which the dhs.gov and (202) 344–3710. List of Subjects United States has maintained unofficial relations SUPPLEMENTARY INFORMATION: Regulations with Taiwan since 1979.

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On August 9, 2010, DHS published an Form I–94W Nonimmigrant Visa Waiver ESTA application and paper Form interim final rule in the Federal Arrival/Departure paper form upon I–94W that will allow DHS to collect Register (75 FR 47701) announcing that, arrival in the United States at air and more detailed information about VWP beginning September 8, 2010, a $4 sea ports of entry. Also, VWP travelers travelers by making previously optional ESTA fee would be charged to each who provide an email address to DHS questions mandatory and by adding ESTA applicant to ensure recovery of when they submit their application will questions concerning aliases, the full costs of providing and receive an automated email notification employment, and emergency contact administering the system and an indicating that their ESTA travel information among other data elements. additional $10 TPA fee would be authorization will be expiring soon. These changes are necessary to improve charged to each applicant receiving DHS has also updated the information the screening of travelers before their travel authorization through September on the ESTA Web site to address some admittance into the U.S. All of the 30, 2015.2 of the comments. Additionally, DHS has changes in the referenced notices took DHS received a total of 39 made some changes to the required effect on November 3, 2014. submissions in response to the June 9, ESTA application and paper Form I– This rule is considered an 2008 and August 9, 2010 interim final 94W. rules. Most of these submissions On November 26, 2013, DHS economically significant regulatory contained comments providing support, published a 60-day notice and request action because it will have an annual voicing concerns, highlighting issues, or for comments in the Federal Register effect on the U.S. economy of $100 offering suggestions for modifications to (78 FR 70570) regarding the extension million or more in any one year. Costs the ESTA program. and revision of information collection to U.S. entities include the cost to After review of the comments, this 1651–0111. On February 14, 2014, DHS carriers to modify or develop systems to rule finalizes the June 9, 2008 interim published a 30-day notice and request transmit ESTA information to DHS. final rule regarding the ESTA program for comments in the Federal Register ESTA provides benefits to U.S. and the August 9, 2010 interim final (79 FR 8984) regarding the extension entities by reducing the number of rule regarding the ESTA fee for and revision of that information inadmissible aliens who would arrive in nonimmigrant aliens traveling to the collection. Both notices describe various the United States by more than 40,000 United States by air or sea under the proposed changes to the ESTA per year. This reduces the number of VWP with one substantive regulatory application and paper Form I–94W aliens DHS will have to process in the change allowing the Secretary of questions to make them more United States who would be found to be Homeland Security to adjust ESTA understandable to VWP travelers, inadmissible upon their arrival, reduces travel authorization validity periods on including revisions to the questions the number of inadmissible aliens a per country basis to the three year about communicable diseases, crimes carriers would need to transport back to maximum or to a lesser period of time. involving moral turpitude, engagement their points of origin, and reduces wait This final rule also contains one minor in terrorist activities, fraud, employment times for other international travelers technical change that removes the in the U.S., visa denials, and visa arriving at U.S. ports of entry. Though specific reference to the Pay.gov overstays. DHS also proposed to remove not a quantifiable benefit, this rule will payment system. In addition, based on a question about the custody of enhance security by providing DHS the experience gained from operating children. On December 9, 2014, DHS with information on travelers before the ESTA program since its inception published another 60-day notice and they board a conveyance destined for and the comments received, DHS has request for comments in the Federal the United States. Table ES–1 shows the made a few operational changes to Register (79 FR 73096) regarding the range of annualized costs and benefits of ESTA as it was described in the two extension and revision of information this rule to each U.S. entity from 2008– interim final rules. For example, VWP collection 1651–0111. This notice 2018, using 3 and 7 percent discount travelers no longer need to complete the concerns additional changes to the rates.

ES–1—ANNUALIZED COSTS AND BENEFITS OF THE RULE TO U.S. ENTITIES, 2008–2018 [$2013]

3% Discount rate 7% Discount rate

Costs

Carriers—Systems ...... $22 million ...... $24 million.

Benefits

Carriers—Inadmissibility Savings ...... 65 million to 69 million ...... 63 million to 66 million. CBP—Inadmissibility Savings ...... 6 million ...... 6 million. Total Inadmissibility Savings ...... 71 million to 75 million ...... 69 million to 72 million. Carriers—Forms Maintenance Savings ...... 2 million ...... 2 million. CBP—Forms Maintenance Savings ...... 0.2 million ...... 0.2 million. Total Forms Maintenance Savings ...... 2 million ...... 2 million.

2 The TPA authorized collection of the $10 TPA TPA by extending the sunset provision of the TPA extended by the Travel Promotion, Enhancement, fee through September 30, 2014. However, on July fee and authorizing the Secretary to collect this fee and Modernization Act of 2014 through September 2, 2010, the Homebuyer Assistance and through September 30, 2015. See Public Law 111– 30, 2020. Improvement Act of 2010, in part, amended the 198 at § 5. The sunset provision was further

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In addition to costs and benefits to travelers to obtain a B–1/B–2 visa if a I–94W or Form I–94. Table ES–2 shows U.S. entities, this rule will affect foreign travel authorization is denied. Benefits the range of annualized costs and entities. Costs to foreign entities include to foreign entities include the savings to benefits of this rule to each foreign the cost (the $14 fee and related foreign travelers in new VWP countries entity from 2008–2018, using 3 and 7 expenses) and time burden for foreign for no longer needing to apply for visas percent discount rates. travelers to obtain a travel authorization, and the savings to foreign travelers in no and the cost and time burden for foreign longer needing to fill out a paper Form

ES–2—ANNUALIZED COSTS AND BENEFITS OF THE RULE TO FOREIGN ENTITIES, 2008–2018 [$2013]

3% Discount rate 7% Discount rate

Costs

Travelers—Fee for Travel Authorization ...... $131 million to $138 million .... $127 million to $133 million. Travelers—Time Burden for Travel Authorization ...... 126 million to 282 million ...... 122 million to 271 million. Travelers—Visa Costs ...... 14 million to 21 million ...... 14 million to 21 million.

Benefits

Travelers—Visa Savings ...... 182 million to 244 million ...... 173 million to 231 million. Travelers—I–94/I–94W Savings ...... 67 million to 150 million ...... 65 million to 144 million.

I. Background and Purpose eligibility of the applicant to travel to law, the Travel Promotion Act of 2009 the United States under the VWP, and (TPA), mandated the Secretary of A. The Visa Waiver Program whether such travel poses a law Homeland Security to establish a fee for Pursuant to section 217 of the enforcement or security risk. See 8 the use of ESTA and begin assessing and Immigration and Nationality Act (INA), U.S.C. 1187(h)(3)(A). collecting the fee no later than six 8 U.S.C. 1187, the Secretary of On June 9, 2008, DHS published an months after enactment. See 8 U.S.C. Homeland Security, in consultation interim final rule in the Federal 1187(h)(3)(B). with the Secretary of State, may Register (73 FR 32440) announcing the The TPA provided that the required designate countries for participation in creation of the ESTA program for fee consist of the sum of $10 per travel the Visa Waiver Program (VWP) if nonimmigrant visitors traveling to the authorization (TPA fee) to fund the certain requirements are met.3 Eligible United States by air or sea under the newly authorized Corporation for Travel citizens and nationals of VWP countries VWP. See 8 CFR 217.5. ESTA provided Promotion and an amount that will at may apply for admission to the United for an automated collection of the least ensure recovery of the full costs of States at a U.S. port of entry as information required on the Form providing and administering the System nonimmigrant visitors for a period of I–94W Nonimmigrant Visa Waiver (ESTA fee), as determined by the ninety (90) days or less for business or Arrival/Departure paper form (Form Secretary. See 8 U.S.C. 1187(h)(3)(B). pleasure without first obtaining a I–94W) in advance of travel. ESTA is The TPA fee has a sunset provision and nonimmigrant visa, provided that they intended to fulfill the statutory the Secretary is authorized to collect are otherwise eligible for admission requirements described in Section 711 this fee only through September 30, under applicable statutory and of the 9/11 Act. For purposes of this 2020.4 The ESTA fee, in contrast, does regulatory requirements. Other document, the June 9, 2008 interim final not include a sunset provision, but will nonimmigrant visitors must obtain a rule is referred to as the ESTA IFR. be reassessed on a regular basis to visa from a U.S. embassy or consulate On November 13, 2008, DHS ensure it is set at a level to fully recover and generally must undergo an published a notice in the Federal ESTA operating costs. interview by consular officials overseas Register (73 FR 67354) announcing that On August 9, 2010, DHS published an in advance of travel to the United States. use of ESTA would be mandatory for all interim final rule in the Federal VWP travelers traveling to the United Register (75 FR 47701) announcing that, B. The Electronic System for Travel States seeking admission at air and sea Authorization (ESTA) beginning September 8, 2010, a $4 ports of entry beginning January 12, ESTA fee would be charged to each On August 3, 2007, the President 2009. Since that date, VWP travelers ESTA applicant to ensure recovery of signed into law the Implementing have been required to receive travel the full costs of providing and Recommendations of the 9/11 authorization through ESTA prior to administering the system and an Commission Act of 2007 (9/11 Act), boarding a conveyance destined for an additional $10 TPA fee would be Public Law 110–53. Section 711 of the air or sea port of entry in the United charged to each applicant receiving a 9/11 Act required that the Secretary of States. Travelers unable to receive travel authorization through September Homeland Security, in consultation authorization through ESTA may still 30, 2020. See 8 CFR 217.5(h). For with the Secretary of State, develop and apply for a visa to travel to the United purposes of this document, the August implement a fully automated electronic States. 9, 2010 interim final rule is referred to travel authorization system to collect C. The Fee for Use of ESTA and the as the ESTA Fee IFR. biographical and other information as Travel Promotion Act Fee For more details regarding ESTA, the Secretary determines necessary to please see the ESTA IFR (73 FR 32440). evaluate, in advance of travel, the On March 4, 2010, the United States Capitol Police Administrative Technical 4 See Footnote 3 above regarding the extension of 3 The current list of VWP countries is set forth in Corrections Act of 2009, Public Law the sunset provision of the Travel Promotion Act 8 CFR 217.2(a). 111–145, was enacted. Section 9 of this fee through September 30, 2020.

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For more details regarding the fees their eligibility to travel to the United commenter asked DHS to monitor the associated with ESTA, please see the States under the VWP before departing system for problems to determine if ESTA Fee IFR (75 FR 47701). Additional for the United States. Applicants who there are negative impacts on last information may also be found on the are not eligible to travel to the United minute business travelers and to ESTA Web site at https:// States through the VWP can attempt to provide guidance on what a last minute esta.cbp.dhs.gov. make alternative arrangements in traveler should do in the case where he advance, such as obtaining a visa from II. Discussion of Comments Submitted or she has not received an ESTA a U.S. embassy or consulate. For more in Response to the Interim Final Rule determination, but needs to depart for information about visa application Announcing ESTA and Interim Final the United States. Some commenters procedures, please visit http:// Rule Announcing the ESTA Fee said that DHS’ recommended timeline www.travel.state.gov. for applying for an ESTA travel A. Overview Comment: A few commenters authorization (no later than 72 hours DHS issued the ESTA IFR on June 8, expressed concern that the ESTA fee prior to departure) is not sufficient to 2008 and the ESTA Fee IFR on August and the TPA fee could negatively accommodate last minute business 9, 2010. Although DHS promulgated impact how the world views the United travelers. both IFRs without first soliciting public States and could be perceived as an Response: An ESTA travel notice and comment procedures, DHS obstacle to legitimate travel. The authorization is generally valid for two provided a sixty day post-promulgation commenters claimed this could result in years so concerns about last minute comment period for each rule. Each IFR some travelers avoiding the United travel will only be for those who have solicited public comments that DHS States, which would hurt tourism, not already received travel authorization would consider before adopting the business interests, and the travel through the ESTA Web site. Also, interim regulations as final. The ESTA industry. potential VWP travelers may apply for Response: There are a lot of variables IFR went into effect on January 12, 2009 an ESTA travel authorization even if that can influence the numbers of VWP and the ESTA Fee IFR became effective they do not have immediate plans to travelers who come to the United States. travel to the United States. This enables on September 8, 2010. DHS received DHS is confident that ESTA is not a VWP travelers to know whether they are twenty-two submissions in response to significant deterrent. Despite the eligible to travel to the United States the ESTA IFR and seventeen assertion that ESTA and the ESTA fee under the VWP even before purchasing submissions in response to the ESTA would negatively affect tourism to the tickets. Furthermore, ESTA was Fee IFR. Many of the submissions United States, DHS has seen no decrease designed to accommodate last minute or contained multiple comments. This in VWP travel coming to the United emergency travel. ESTA allows travelers final rule addresses all the comments States since ESTA was announced, even to apply for a travel authorization on the submitted within the comment periods after accounting for countries that have day of departure and provides almost an that are within the scope of the two joined the VWP since ESTA was immediate response to the applicant for interim final rules. implemented. Through the end of 2012, Of the twenty-two submissions for the the vast majority of applications. there have been over 50 million travel ESTA IFR, most included comments authorizations granted through ESTA. Applicants should be aware, however, seeking clarification on specific issues, Comment: Some commenters noted that they risk not having the required highlighting concerns or issues with that significant burdens could be placed authorization to travel to the United ESTA, or offering solutions to issues or on airlines due to passengers attempting States if their application requires alternatives to ESTA. Many of the to board without having first obtained additional processing beyond the time operational issues raised by commenters ESTA travel authorization. between when they submit their have already been addressed by DHS Response: Prior to implementation, application and when their voyage to during implementation of ESTA, which DHS conducted significant outreach to the United States begins. VWP travelers our responses reflect. Of the seventeen the travel industry and the traveling without a valid ESTA travel submissions to the ESTA Fee IFR, some public to ensure that they were aware of authorization cannot board conveyances commenters objected to the fees the ESTA requirements, including the destined for the United States. generally and others sought clarification need to have a valid ESTA travel In cases in which a determination is regarding the fees, such as why there authorization prior to boarding a not granted immediately, it may take were two components and when the conveyance destined for an air or sea anywhere from a few minutes to a few fees would be incurred. port in the United States. In addition to days for a decision to be made. In most Due to the evolution of ESTA and the outreach, DHS took various steps, cases, the applicant will receive an occasional overlap of comments including delaying implementation and ESTA decision within 72 hours. received in response to both interim establishing an informed-compliance However, additional time may be final rules, all of the following period, to enable the travel industry and necessary if manual vetting is required comments are grouped by category. the traveling public to adjust to the new or there is a system overload. An Except where necessary, comments to requirements. This is explained in more applicant may contact the ESTA the ESTA IFR and comments to the detail in Section II. B. 3 Telephone Help Desk at 202–344–3710 ESTA Fee IFR are not distinguished. (Implementation of ESTA). As a result between the hours of 8:00 a.m. to 4:00 B. Discussion of Comments of these steps and the outreach, the p.m. (ET) Monday through Friday for concerns raised in this comment never assistance in processing their pending 1. Impact on Travel materialized. application. However, there is no Comment: Some commenters guarantee that a determination will be expressed support for ESTA because it 2. Impact on Short Notice Travelers made in time to allow the traveler to will allow VWP travelers the Comment: A number of comments board a conveyance destined for the opportunity to learn of travel eligibility were received regarding the timeline for United States. This is why DHS problems in advance of arrival. ESTA approval and the impact on last recommends that travelers apply for an Response: DHS agrees that one benefit minute travelers applying at the airport ESTA travel authorization early in the of ESTA is that it informs travelers of on the day of scheduled travel. One planning process.

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3. Implementation of ESTA on this internet-accessible system, DHS believed that the most effective Comment: One commenter stated that please contact the ESTA Help Desk at way to implement ESTA was to inform if DHS were to maintain ESTA’s original 202–344–3710. all VWP travelers and the travel timetable, then cumbersome, manual Comment: Some commenters stated industry about the new requirements solutions would have to be developed that ESTA was announced too quickly and to implement them for all VWP and prevented the travel industry from and promulgated for those carriers who countries and carriers at the same time. assessing the required changes and cannot manage automated solutions. To facilitate a smooth transition, DHS evaluating the ramifications and costs. Another commenter stated that DHS also conducted significant public Other commenters asked DHS to should offer a discretionary period outreach and worked closely with the provide a transition period during during which airlines allow VWP carriers involved with the VWP. which DHS would not levy penalties on travelers without ESTA travel Implementing ESTA as a pilot carriers. authorization to travel to the United program, based on country of Response: As explained above, DHS embarkation, port of arrival, language, States under the condition that they provided a significant amount of notice complete the I–94W paperwork upon or by any other piecemeal approach before implementing ESTA as a would have meant multiple processes arrival and educate these passengers on mandatory requirement on January 12, how to use ESTA for future VWP travel. for carriers and DHS staff at ports of 2009. This was followed by entry. Moreover, DHS believes that such Response: In promulgating the ESTA approximately one year of an Informed IFR, DHS built in a delayed effective an approach would not have aided the Compliance period during which transition to the new requirements but date for the rule to allow air carriers and travelers and carriers were expected to VWP travelers to adjust to the new rather would have been confusing to the be ESTA-compliant but were not traveling public and travel industry. ESTA process. Specifically, the ESTA penalized for noncompliance. The IFR provided that ESTA would become Additionally, waiting until after a Informed Compliance period ended on certain percentage of VWP travelers mandatory sixty days after the Secretary January 20, 2010. As of that date, published notice in the Federal were compliant would have been individuals without an ESTA travel ineffective in strengthening the VWP in Register. See 72 FR 32440. On authorization would be refused November 13, 2008, DHS published a a timely manner. DHS believes that admission and, as allowed for under ESTA was implemented in a way that notice in the Federal Register, which § 217(e) of the INA (Carrier allowed for substantial analysis of the announced that ESTA would be Agreements), fines would be issued program and its impact, as well as mandatory for all VWP travelers against non-compliant carriers. DHS providing adequate notice to allow beginning January 12, 2009. See 73 FR also provided an additional 60-day affected travelers and the travel industry 67354. The January 12, 2009 date grace period after January 20, 2010 for to adjust to ESTA’s requirements provided five months advance notice carriers having difficulty with the comfortably. before DHS would implement the rule. systems modifications. It also was the beginning of what DHS From the date the ESTA IFR Comment: One commenter stated that termed the Informed Compliance published, the travel industry had more DHS should process ESTA applications period. This meant that while all than two years (and more than one year upon arrival for the small minority of travelers and carriers were expected to from the date it became mandatory) to passengers who arrive without ESTA be ESTA-compliant, DHS established a evaluate and adjust to the ESTA authorization. transition period to enable travelers and requirements and to assess the costs Response: The 9/11 Act specifically carriers to adjust to the new related to ESTA and implement required the Secretary to collect the requirements. During the Informed appropriate systems modifications. necessary biographical and other Compliance period, travelers arriving During the time between when ESTA information ‘‘to evaluate, in advance of without prior ESTA authorization were was announced and when it became travel,’’ the traveler’s eligibility to travel not refused admission on this basis. mandatory, DHS sought input and to the United States under the VWP. See Instead, they were permitted to worked with the travel industry to 8 U.S.C. 1187(h)(3)(A). Therefore, complete the paper form I–94W upon address operational issues. DHS allowing VWP travelers to obtain an arrival in the United States. Also, during believes that this program has been ESTA upon arrival in the United States this period, DHS did not levy fines on highly successful in large part due to the would contradict the language of the carriers for boarding travelers without cooperation between DHS and the travel 9/11 Act and undercut DHS’s ability to prior ESTA authorization. This enabled industry. evaluate the traveler’s eligibility to enter the carriers to make the necessary Comment: Many commenters had the United States under the VWP, in system-adjustments for ESTA. As a suggestions for the implementation of advance of travel. DHS believes that result of the advance notice and the ESTA, such as beginning ESTA as a such a process also could disincentivize informed compliance period, there was pilot program to adequately measure its VWP travelers from obtaining an ESTA no need for the manual solutions impact, phasing it in over time rather before departing for the United States. referenced in the above comment. than all at once, or waiting until a DHS provided VWP travelers with the Further, DHS set up an internet- certain percentage of VWP travelers are necessary information to comply with accessible system where certain carriers compliant before making ESTA ESTA requirements, as well as the could check the ESTA status for VWP mandatory. transitional periods described above travelers without having to make the Response: As explained above, DHS prior to requiring compliance. Currently extensive system modifications required implemented ESTA by using an all VWP travelers are responsible for for carriers regularly transporting VWP Informed Compliance period to obtaining ESTA authorization prior to travelers. For the most part, the internet- facilitate the transition to the new boarding an air carrier or sea vessel accessible system could be used by requirements. The ESTA IFR provided destined for the United States. As such, smaller or private carriers that transport travelers and the travel industry with a VWP traveler should not attempt to VWP travelers on an irregular basis, or the needed information about the new board and a carrier should not allow a for emergency situations that may arise requirements and provided ample VWP traveler to board without ESTA from time to time. For more information notice and time to prepare for ESTA. travel authorization.

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Comment: One commenter stated that majority of the VWP traveling public, Web sites attempting to gather DHS should have considered proposals the ESTA Web site has been translated information for criminal purposes by from the private sector to develop an into 23 languages. On November 3, imitating ESTA and asked how DHS ESTA-like system, rather than 2014, DHS revised the eligibility plans to address these types of issues. developing ESTA as a government questions on the ESTA Web site in order Response: All ESTA applicants designed online system. to make them clearer while still should apply for an ESTA travel Response: DHS considered many providing DHS with the information authorization at the following ESTA alternatives and possible solutions needed to make ESTA eligibility Web site: https://esta.cbp.dhs.gov. DHS during the ESTA planning, design, and determinations. The Web site also takes necessary measures to ensure the development process. DHS decided to features a ‘‘Help’’ section to assist safety and reliability of personal develop ESTA as a DHS system based applicants by providing definitions of identification information furnished to on a variety of factors, including the certain terms and clear answers to DHS through this Web site. The ESTA impact that the VWP has on national questions on a variety of subjects, Web site is a secure Web site under DHS security, the need to coordinate with including situations in which an protocol. Each approved application is other programs, and time constraints. applicant is required to reapply before assigned a unique identifier that Comment: Two commenters agreed the expiration date of their ESTA. As corresponds to the designated traveler. with the way that DHS implemented specified on the Web site, a traveler These unique identifiers directly ESTA. One commenter liked the fact must obtain a new travel authorization correspond to an approved traveler and that DHS moved aggressively to under any of the following verification is only done electronically implement new security measures circumstances: between the carriers and DHS. required to expand the VWP and in 1. The individual is issued a new Therefore, the confirmation cannot be concluding bilateral agreements with passport; copied or manipulated. qualified prospective VWP countries. 2. The individual’s name changes; DHS monitors Web sites that purport Another commenter stated that DHS is 3. The individual changes gender; to offer ESTA authorization and will fulfilling a critical role in 4. The individual changes their continue to provide outreach to the accommodating and responding to the country of citizenship; or VWP traveling public to ensure they needs of last minute travelers. 5. The circumstances underlying the know how to submit the ESTA Response: DHS appreciates the traveler’s previous responses to any of application. If an ESTA applicant comments expressing support for the the ESTA application questions receives emails claiming to be ESTA implementation and expansion of ESTA requiring a ‘‘yes’’ or ‘‘no’’ response have related that ask for personal and the VWP. changed. information, the applicant should report Comment: A few commenters asked Comment: One commenter notes that this to the ESTA Help Desk at 202–344– DHS to provide alternative means for the Frequently Asked Questions (FAQs) 3710. submitting an ESTA application such as posted on the ESTA Web site are very Comment: Many commenters stated integrating ESTA into the travel useful and asked DHS to post more of that the ESTA fee could create industry’s reservation system, providing them. opportunities for other Web sites to a staffed telephone hotline to permit Response: FAQs are posted on the charge users to complete the ESTA users to report their information to the ESTA Web site under the HELP section applications. ESTA system, or allowing carriers to at https://esta.cbp.dhs.gov/esta/ Response: DHS has no control over apply on behalf of travelers. WebHelp/ESTA_Screen-Level_Online_ third parties providing assistance in Response: In order to meet the Help_1.htm. Questions and answers are applying for travel authorization. statutory requirement that DHS create a posted on an ad hoc basis to address However, DHS has designed the system fully automated electronic travel issues as they arise. DHS will continue to be user friendly so as to minimize the authorization, DHS established the to monitor feedback and post need to seek assistance. For instance, online ESTA Web site for submitting the appropriate general information when it the ESTA Web site is available in 23 ESTA application. Other options, such is determined to be helpful to the languages and has information on the as allowing carriers to apply on behalf traveling public. ESTA home page about traveler of travelers using their reservation eligibility and passport requirements as 5. Internet Concerns and Third Party system or a telephone number where well as a HELP feature that includes Applications VWP travelers could call in and report answers to frequently asked questions. the information, would not have met the Comment: Several commenters raised Comment: Some commenters asked requirement to establish a fully concerns about whether the ESTA about alternatives for ESTA applicants automated electronic travel online system will be able to handle the without internet access. One commenter authorization system and would have Web traffic as more travelers fill out asked if an individual within the United raised security and privacy concerns. their ESTA applications online. States could apply for an ESTA on Response: ESTA is designed to behalf of the traveler. One commenter 4. Plain Language and ESTA Web Site accommodate a significant amount of asked if applicants who use a third Assistance Web traffic. DHS takes necessary party to complete an ESTA application Comment: A few commenters measures to ensure that the ESTA Web should provide the traveler’s email requested that DHS use plain language site is readily available throughout the address or that of the third party who on the ESTA Web site, including the day and to minimize any technical applies on the traveler’s behalf. eligibility questions, in order to avoid disruptions. To date, ESTA has Response: In order to accommodate confusion about eligibility requirements experienced no significant delays people who may not have familiarity or about when a new ESTA application stemming from an increase in Web with or access to computers or the is required. traffic. internet, DHS designed ESTA to allow Response: DHS has used plain Comment: Some commenters a third party, such as a relative, friend, language in the ESTA application and expressed concerns about fraudulent or travel agent, to submit an application on the ESTA Web site wherever possible ESTA emails designed to solicit on behalf of the traveler. The location of and, in an effort to accommodate the personal information and fraudulent the third party filling out the ESTA

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application is immaterial. The traveler 6. The Role of ESTA for VWP Travelers country must either obtain travel or third party can apply within or Comment: One commenter stated that authorization via ESTA to travel under outside the United States. In all cases, requiring VWP travelers to obtain ESTA the VWP or they must have a visa. This the traveler is responsible for the travel authorization is the functional is true even if the individual is leaving answers submitted on his or her behalf equivalent of a visa because passengers the United States on the same day or by a third party and the third party must do not need any documentation other even on the same plane. Travelers who check the box on the ESTA application than a valid passport before traveling to will transit through the United States en indicating that he or she completed the the United States. Another commenter route to another country can simply application on the traveler’s behalf. The stated that ESTA requires certain foreign enter the words ‘‘In Transit’’ in the email address provided should be the citizens to obtain an exit permit from address lines under the heading traveler’s email address. If the traveler the U.S. government before they may ‘‘Address While In The United States’’ does not have an email address, he or leave their own country. on the ESTA application. she may provide an alternative third- Response: These comments do not 8. ESTA Enforcement party email address belonging to a point accurately portray ESTA. Under the of contact (e.g. a family member, friend, VWP, eligible citizens, nationals and Comment: One commenter stated that or business associate). passport holders from designated VWP ESTA is impracticable and unenforceable because it does not Comment: One commenter stated that countries may apply for admission to specify any enforcement mechanisms. DHS should ascertain the percentage of the United States as nonimmigrant travelers entering the United States who visitors for a period of ninety days or Response: DHS disagrees. There are enforcement mechanisms that apply to will use the internet and other means less for business or pleasure without individuals and carriers involved in the (such as a travel agent) to make travel first obtaining a nonimmigrant visa. VWP. All VWP travelers are responsible arrangements to demonstrate how many ESTA, however, is not the functional for obtaining ESTA authorization prior travelers do not book travel through the equivalent of a visa because eligible to boarding an air or sea vessel destined internet and would thus have difficulty travelers from participating countries for the United States and may be obtaining authorization through the are exempt from the visa requirement. prevented from boarding and/or denied ESTA Web site. Application for a nonimmigrant visa to travel to the United States involves the admission to the United States upon Response: DHS has seen no evidence payment of a higher fee and generally arrival if they do not have ESTA travel that VWP travelers are having difficulty requires travel to a U.S. embassy or authorization. Carriers that transport obtaining ESTA authorization through consulate for an in person interview. VWP travelers are required to enter into the ESTA Web site. Additionally, in the Rather, ESTA is the functional agreements with the United States, economic analysis posted on the docket equivalent of the Form I–94W that VWP pursuant to §§ 103 and 217 of the INA, with the ESTA IFR (Regulatory travelers were previously required to to become VWP signatory carriers. Assessment for the Interim Final Rule: complete upon arrival in the United These agreements impose certain Changes to the Visa Waiver Program to States. As a result of the ESTA IFR, only obligations upon carriers and provide Implement the Electronic System for eligible travelers from VWP countries for the imposition of fines if certain Travel Authorization), DHS provided arriving by air and sea now present the obligations are not met. For example, extensive information on historic information collected on the Form I– VWP signatory carriers incur fines if booking patterns, internet penetration, 94W through ESTA in advance of their they transport travelers who require a and computer prevalence. This travel to the United States. VWP valid ESTA travel authorization but do information has been updated in the travelers arriving in the United States by not have one. economic analysis prepared for this land are still required to complete a Comment: One commenter stated that final rule (Regulatory Assessment for paper Form I–94W. VWP travelers who the phrase ‘‘prior to embarking on a the Final Rule: Changes to the Visa receive ESTA travel authorization are carrier for travel to the United States’’ is Waiver Program to Implement the not required to report to a State too vague and that it should define the Electronic System for Travel Department consular office and obtain a relevant terms. Another commenter Authorization and the Fee for Use of the visa before traveling to the United stated that the regulation should specify System), posted on the docket with this States. the manner of providing data to obtain final rule. To see detailed information ESTA is not equivalent to an exit an ESTA travel authorization. relevant to this comment, please refer to permit from the foreign country and Response: Based on the plain Chapter 2 (Regulatory Baseline: Historic does not require anyone to obtain an language meaning of the phrase ‘‘prior & Projected Traveler Levels) of this exit permit from a foreign country. to embarking on a carrier for travel to document. In summary, internet Rather, ESTA fulfills a requirement for the United States,’’ travelers must have penetration and computer access is high VWP travelers intending to enter the ESTA travel authorization prior to in VWP countries and has grown since United States by air and sea. boarding an air carrier or sea vessel the ESTA IFR published in 2008. destined for the United States. The term Twenty-four of the 37 countries in the 7. In-Transit Travel ‘‘United States’’ is defined at 8 U.S.C. VWP have internet penetration rates Comment: One commenter remarked 1101(a)(38). With regard to the manner above 75 percent and only one country that ESTA should provide clear of submitting the ESTA application, (Greece) has an internet penetration rate instructions to passengers who transit DHS has made substantial efforts to of less than 50 percent. As discussed through the United States onward to educate the public on how to obtain an above, VWP travelers who do not have other destinations as to whether they are ESTA travel authorization, and has also direct access to the internet may submit required to comply with ESTA provided such information in the ESTA the application through a third party. requirements. IFR and this document. Over 50 million DHS continues to believe that these Response: DHS does not currently ESTA travelers arrived in the United third parties, such as relatives, friends, operate a transit without visa program. States between 2009 and 2011, an and travel agents, will be key players in Travelers who transit through the indication that applicants are aware of the continued success of ESTA. United States en route to another how to submit an ESTA application.

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Comment: Some commenters stated Response: DHS agrees that the 9/11 alternatives to those that do not have a that ESTA will cause logistical problems Act requires certain individuals to travel authorization via ESTA. because carriers will have to determine obtain a travel authorization prior to Response: ESTA is required for VWP the visa class of travelers. traveling to the United States. However, travelers arriving in the United States at Response: This is not accurate. Only VWP signatory carriers are responsible air and sea ports of entry. As explained travelers coming to the United States for verifying that the traveler has a valid on the ESTA Web site, persons who do under the VWP are required to obtain an ESTA travel authorization prior to not have an ESTA travel authorization ESTA travel authorization and these allowing a VWP traveler to board a may apply for a visa issued by the State travelers are exempt from visa conveyance destined for the United Department. Individuals traveling to the requirements. Carriers will not have to States. This responsibility is set forth in United States with a passport and valid determine the visa class for these VWP the VWP carrier agreements described visa are not traveling under the VWP travelers. above. and these individuals would not need to Comment: One commenter claimed obtain an ESTA travel authorization. 9. State Department Coordination that airlines will incur significant 10. ESTA Expansion to Land Arrivals penalties and liabilities if they deny Comment: One commenter stated that boarding to passengers who arrive DHS and the State Department must Comment: One commenter stated that without an ESTA travel authorization or work together to ensure travelers are to be effective, ESTA should apply to all when a passenger arrives at the port of well-informed regarding their modes of transportation and asked how entry and must be returned to his point responsibilities under the ESTA ESTA will function at the land borders. Response: Currently, ESTA is of departure at the carrier’s expense. program. required only for VWP travelers arriving Response: For the purposes of ESTA, Response: DHS coordinated closely in the United States by air or sea. VWP a carrier’s responsibility is limited to the with the State Department during the travelers who arrive in the United States verification of the traveler’s ESTA development and implementation of at a land border port of entry are not application status. Carriers that wish to ESTA and this coordination was required to obtain ESTA authorization. transport travelers under the VWP are essential to the efficient implementation These travelers must submit a required to become VWP signatory of ESTA. DHS’s ongoing coordination completed paper Form I–94W at the carriers. VWP signatory carriers will with the State Department remains land border port of entry. However, DHS incur fines if they transport travelers essential to the ongoing administration is considering expanding ESTA to VWP who require a valid ESTA travel of the ESTA. DHS partnered with the travelers arriving at a land border by authorization but do not have one. It State Department to develop a strategic way of a separate rulemaking. should be noted that ESTA is not a communications and outreach plan determination of admissibility; it merely aimed at notifying VWP travelers of the 11. Impact on Existing Laws and authorizes the traveler to board a new ESTA requirements. DHS Agreements conveyance destined for the United personnel traveled extensively to VWP Comment: One commenter stated that States. Passengers determined to be countries, attended major international the ESTA rule exceeds the statutory inadmissible to the United States are travel conferences, distributed printed authority of Section 217 of the INA by required to return to their country of materials, and spoke with the travel imposing additional requirements origin and carriers are responsible to industry and the public regarding ESTA. beyond what is imposed by the statute. provide these passengers transportation DHS continues to conduct extensive The commenter claims the statute only back to their point of departure. The fact public outreach at U.S. ports of entry obliges travelers to ‘‘electronically that travel authorization was granted and overseas with the assistance of the provide information,’’ whereas the does not absolve the carrier from this State Department, to ensure that the ESTA IFR requires that the traveler responsibility. Carriers agree to the traveling public and the travel industry providing information also receive a following in the VWP carrier agreement: as a whole are sufficiently informed travel authorization. The carrier will remove from the United regarding ESTA. Response: DHS disagrees. Section States (on the first available means of Comment: Some commenters noted 217(a)(11) of the INA (8 U.S.C. transportation to the alien’s point of that a significant number of ESTA 1187(a)(11)), as amended, specifically departure to the United States) any alien denials could result in increased visa transported by the carrier to the United States requires the Secretary of Homeland for admission under the Visa Waiver Program demand, thereby causing significant Security to determine whether the in the event that the alien is determined by delays, and asked that DHS coordinate person submitting the electronic travel a U.S. Customs and Border Protection officer with the State Department as needed. authorization is eligible to travel to the at the Port of Entry to be not admissible to Response: Since January 12, 2009, United States under the VWP. It the United States or is determined by a U.S. when ESTA became mandatory for all provides that each alien traveling under Customs and Border Protection officer to VWP travelers traveling to the United the program shall, before applying for have remained unlawfully in the United States at air or sea ports of entry, DHS States beyond the 90-day period of admission admission to the United States, under the Visa Waiver Program. The carrier has processed over 50 million VWP electronically provide biographical will carry out the responsibilities under this traveler applications and denied information and such other information paragraph in a manner that does not impose approximately one-third of one percent as the Secretary of Homeland Security on the United States expenses related to the (0. 23%) of all applications. As such, determines necessary to determine the transportation of such alien from the point of there have not been a significant eligibility of, and whether there exists a arrival in the U.S. number of denials. Moreover, as stated law enforcement or security risk in Comment: One commenter indicated elsewhere in this document, DHS permitting, the alien to travel to the that there is no provision in the 9/11 continues to work with the State United States and that upon review of Act about the carrier’s role in Department to ensure the efficient such information, the Secretary of implementing and enforcing ESTA. As administration of ESTA. Homeland Security shall determine such, DHS is not authorized to compel Comment: One commenter stated that whether the alien is eligible to travel to carriers to assume a function which DHS and the State Department should the United States under the program. Congress mandated on individuals. offer clear direction and access to entry Moreover, section 217(h)(3)(C)(i) of the

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INA (8 U.S.C. 1187 (h)(3)(C)(i)) provides Response: DHS endeavors to take the eliminating the paper Form I–94W for for regulations ‘‘that provide for a necessary steps to ensure that persons air and sea VWP travelers, DHS period, not to exceed three years, during with disabilities can comply with the provided adequate time to allow carriers which a determination of eligibility to regulatory requirements. Persons that to make the necessary adjustments in travel under the program will be valid.’’ are unable to access the internet due to their systems to enable them to verify As such, the statutory provisions a disability may apply for an ESTA VWP traveler’s ESTA authorization anticipate a determination of eligibility travel authorization through a third status. As explained more fully in the to travel. Therefore requiring a VWP party. ESTA Application Status Notifications for Travelers and Carriers section below, traveler to receive ESTA travel 12. I–94W Paper Form authorization does not exceed the DHS worked closely with the affected statutory authority. Comment: One commenter stated that carriers to ensure that their systems ESTA duplicates the information Comment: Some commenters claimed were able to send and receive ESTA required by the paper Form I–94W that that ESTA limits the freedom of application status messages. DHS has to be completed upon arrival in the movement of individuals and that this decided not to eliminate the paper Form United States. Some commenters stated violates international agreements, I–94W on a carrier-by-carrier basis that ESTA will have a negative impact including Article 13 of the Universal because this would have created on travel to the United States because Declaration of Human Rights (UDHR) 5 confusion at the ports for carriers, obtaining an ESTA travel authorization and Articles 10, 12, and 21 of the travelers, and DHS personnel and could is an additional hurdle for VWP have increased wait or processing times International Covenant on Civil and travelers who must also answer the Political Rights (ICCPR).6 and resulted in missed connections for same questions on the paper Form travelers. Response: DHS disagrees that ESTA I–94W upon arrival. Other commenters Comment: One commenter stated that limits the freedom of movement of stated that DHS should eliminate the the Form I–94W should be eliminated individuals and that this violates paper Form I–94W to facilitate for non-VWP countries. international agreements. The improved processing of travelers. One Response: The Form I–94W is only referenced provisions do not pertain to commenter said that the elimination of required for nationals from VWP ESTA and they are outside the scope of the paper Form I–94W should not be countries. the ESTA rulemakings. Article 13 of the completed until all carriers are capable UDHR refers to freedom of movement of validating a traveler’s ESTA 13. Preclearance Ports and residence within the borders of authorization status. Another Comment: One commenter stated that each state as well as the right to leave commenter said that DHS should ESTA should not be required for a country or return to one’s own eliminate the paper Form I–94W on a passengers traveling from preclearance country. Article 10 of the ICCPR applies carrier-by-carrier basis to provide an ports in Canada to the United States, to persons deprived of their liberty in early incentive to carriers to comply at given that they have already been relation to the penitentiary system. an early stage. vetted. Article 12 of the ICCPR concerns the Response: ESTA was designed to Response: The 9/11 Act required the right to liberty of movement when automate the paper Form I–94W with Secretary of Homeland Security, in lawfully in the territory of a state, the the ultimate goal of replacing it, not consultation with the Secretary of State, freedom to leave a country including duplicating it. The ESTA IFR stated: to develop and implement a fully one’s own, and the right to reenter one’s ‘‘The development and implementation automated electronic travel own country. Article 21 of the ICCPR of the ESTA program will eventually authorization system to collect certain concerns the right to peaceful assembly. allow DHS to eliminate the requirement information in advance of travel to the ESTA does not limit an individual’s that VWP travelers complete an I–94W United States. ESTA fulfills this rights to leave a country, limit an prior to being admitted to the United statutory requirement. Therefore, ESTA individual’s right to reenter one’s own States. As DHS moves towards is required for all VWP travelers arriving country, relate to individuals in the elimination of the I–94W requirement, a in the United States at air or sea ports penitentiary system, or have any impact VWP traveler with valid ESTA of entry, regardless of their last foreign on an individual’s right to peaceful authorization will not be required to location prior to arriving at the United assembly. complete the paper form I–94W when States. Preclearance locations are Comment: Some commenters arriving on a carrier that is capable of locations outside the United States expressed concerns that the ESTA Web receiving and validating messages where travelers are inspected and site may contravene disability laws and pertaining to the traveler’s ESTA examined by DHS personnel to ensure raise discrimination issues because it application status as part of the compliance with U.S. customs, discriminates against those who are traveler’s boarding status.’’ See 73 FR immigration, and agriculture laws, as unable to access the internet due to a 32440 at 32443. well as other laws enforced at the U.S. disability. The requirement to complete the border. Such inspections and paper Form I–94W was eliminated for examinations prior to arrival in the 5 The UDHR, a United Nations General Assembly VWP travelers arriving in the United United States generally enable declaration, consists of 30 articles relating to the States at air or sea ports of entry on or passengers to exit the domestic terminal respect for and observance of human rights and after June 29, 2010. Eliminating the or connect directly to a U.S. domestic fundamental freedoms. For more information, paper Form I–94W for these VWP flight without undergoing further please see http://www.un.org/en/documents/udhr/ index.shtml. travelers ensured that there was no processing. However, travelers who are 7 6 The ICCPR, a United Nations General Assembly further duplication. Prior to inspected and examined at these covenant, commits its parties to respect the civil preclearance locations are still required and political rights of individuals. The United 7 The elimination of the paper Form I–94W for to have a visa, or if eligible, to comply States ratified the ICCPR with reservations not VWP travelers arriving at air and sea ports of entry applicable to the articles referenced in this was announced as a goal in the ESTA IFR and with the requirements of the VWP. comment (Articles 10, 12, and 21). For more communicated with the public and carriers through information, please see http://treaties.un.org/doc/ outreach. Secretary Napolitano also released a http://www.dhs.gov/ynews/releases/pr_ db/survey/CovenantCivPo.pdf. statement announcing the elimination as well: 1274366942074.shtm.

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14. ESTA Applications at Airports Security, in consultation with the an exception at 8 CFR 217.5(d)(2) for Comment: Some commenters stated Secretary of State, to prescribe travelers from certain countries who that DHS should provide Internet- regulations that provide for a period of have not entered into agreements with accessible kiosks for day of departure validity for a travel eligibility the United States regarding the applications because some foreign determination, not to exceed three expiration date of passports; airports lack Internet access. One years. See 8 U.S.C. 1187(h)(3)(C)(i); specifically, agreements providing that commenter asked DHS to install ESTA 8 CFR 217.5(d). DHS believes that, passports are recognized as valid for the kiosks in preclearance locations. generally, a two year validity period return of the bearer to the country of the Response: DHS does not have the provides DHS with a reasonable foreign-issuing authority for a period of authority or the resources to establish timeframe to reevaluate a VWP six months beyond the expiration date Internet-access kiosks in foreign applicant’s eligibility to travel without specified in the passport. For travelers airports, including preclearance overburdening VWP travelers. After from these countries, an ESTA travel locations. Nonetheless, travelers may be considering the comments and in light authorization is not valid beyond six able to apply for an ESTA travel of the statutorily authorized maximum months prior to the expiration date of authorization on the day of departure if validity of three years, DHS believes the passport. In addition, travelers from other Internet access is available. In fact, that it would be beneficial for the these countries whose passports will some global airports have kiosks or Secretary of Homeland Security to expire in six months or less will not dedicated links at Internet cafes in retain discretion to adjust validity receive ESTA travel authorization. international terminals available for use periods on a per country basis to the Moreover, as specified elsewhere in this by travelers. However, simply having three year maximum or to a lesser document and on the ESTA Web site, a Internet access, and thus the ability to period of time. Therefore, this final rule traveler must obtain a new travel apply for an ESTA travel authorization now provides that the ESTA validity authorization under any of the following does not guarantee an ESTA travel period is two years unless the Secretary circumstances: authorization will be granted or granted Homeland Security, in consultation with the Secretary of State, decides to 1. The individual is issued a new passport; in time. ESTA applicants who apply 2. The individual’s name changes; early and are denied a travel increase or decrease the validity period 3. The individual changes gender; authorization may still have time to for a designated VWP country on a case- 4. The individual changes their country of obtain a visa. by-case basis. Under this final rule, citizenship; or Comment: One commenter disagrees notice of any change to ESTA travel 5. The circumstances underlying the with DHS’s estimate (15 minutes) of the authorization periods will be published traveler’s previous responses to any of the time required for a VWP traveler to in the Federal Register and updated on ESTA application questions requiring a ‘‘yes’’ apply for an ESTA travel authorization. the ESTA Web site. DHS believes that or ‘‘no’’ response have changed. The commenter believes that oftentimes this change enhances the Secretary’s In order to make things clear, DHS passenger check-in times are longer and flexibility to recognize countries’ provides the exact ESTA expiration date access to public Internet facilities is bilateral information sharing and further on the ESTA Web site screen granting either unavailable or limited. promotes compliance standards for approval for travel authorization. In Response: The 15 minute estimate of member countries’ participation in the addition, as explained more fully in the the time required for the VWP traveler VWP. To effect this change, the ESTA Application Status Notification to apply for an ESTA authorization is regulations will be amended by adding for Travelers and Carriers section, DHS based on the traveler’s interaction with a new 8 CFR 217.5(d)(3). has updated the ESTA system to Regarding the claims that the two year the ESTA Web site. This time estimate provide email notification to validity period and accompanying fee did not consider factors such as a lack individuals approximately 30 days are burdensome and may lead some of computer or limited or unavailable before the expiration of their ESTA travelers to decide to obtain a visa, DHS Internet connectivity at passenger travel authorization, informing them believes that obtaining an ESTA travel check-in. DHS encourages VWP that their ESTA travel authorization will authorization is less burdensome than travelers to apply for an ESTA expire in approximately 30 days. obtaining a visa. In fact, DHS believes authorization well before arriving at the However, this feature is only available that the ease with which an ESTA travel airport. if the VWP traveler provided an email authorization can be obtained leads address through the ESTA Web site. 15. ESTA Validity Period most VWP-eligible travelers to obtain an Comment: Multiple comments were ESTA travel authorization rather than a Comment: One commenter stated that received regarding ESTA’s two year visa before traveling to the United passport validity should have no validity period. Some commenters States. VWP travelers who obtain an bearing on the validity of a travel noted that it is unnecessarily restrictive ESTA travel authorization do not have authorization via ESTA. or will result in more travelers applying to apply for a visa nor do they have to Response: A valid passport is for a visa. One commenter asked DHS to pay the costs associated with obtaining essential for travel to the United States. describe circumstances where the a visa to travel to the United States. Under the INA, any immigrant or validity period would be extended to nonimmigrant alien seeking admission three years, which is the upper limit 16. Passport Issues to the United States must have proper allowed under the 9/11 Act. One Comment: One commenter stated that documentation, including a valid and commenter stated that the two year the passport expiration date’s impact on unexpired passport. See 8 U.S.C. validity period and accompanying fee the ESTA validity period is 1182(a)(7). An ESTA travel creates a burden for European citizens complicated. authorization is not valid unless the wishing to travel to the United States Response: Generally, an ESTA travel traveler has a valid and unexpired because European citizens make up a authorization is valid for a period of passport. For those wishing to travel to significant portion of total travelers to either two years from the date of the United States under the VWP, an the United States. authorization or the date the traveler’s expired passport necessitates obtaining Response: Section 711 of the 9/11 Act passport expires—whichever is sooner. both a new passport and applying for a directs the Secretary of Homeland See 8 CFR 217.5(d)(1). However, there is new ESTA travel authorization.

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Comment: Some commenters may be corrected or updated by using Response: DHS does not share highlighted system limitations related to the ESTA update function, which can be information related to the denial of an the passport section of the ESTA Web done free of charge. ESTA travel authorization due to the site. For example, United Kingdom Comment: One commenter stated that complexities of the travel eligibility passports are valid for more than the the costs to the air carrier industry and decision-making process, which is maximum 10-year period allowed by travelers are high when compared to the based on a combination of factors, ESTA and the German passport contains small percentage of VWP travelers who including those related to security. 10 characters and ESTA only accepts 9 are denied travel authorization. Another However, an applicant who feels that characters. commenter stated that the cost to the denial was improper may contact Response: Based on commenter input, airlines of returning passengers found the ESTA Help Desk at 202–344–3710 or DHS has made the necessary inadmissible is significant. According to file a redress request through the DHS modifications to the ESTA Web site to the commenter, that cost is over $10 Travel Redress Inquiry Program (TRIP) ensure that passport information can be million per year (7,200 passengers at a Web site, http://www.dhs.gov/dhs-trip. properly entered in the ESTA cost of $1,500 each in fines). If the denial was based on a genuine application. With regard to the Response: The 9/11 Act directed DHS misunderstanding, for instance, where examples provided, DHS has modified to create an electronic system to collect the applicant misunderstood a question the ESTA Web site to allow passports certain biographical and other and provided an answer resulting in the that are valid for more than 10 years to information to evaluate, in advance of denial, then the application may be be entered and to allow more than 9 travel, the eligibility of the applicant to approved. However, DHS cannot characters for passport identification travel to the United States under the guarantee that contacting the ESTA numbers. VWP, and whether such travel poses a Help Desk or using the DHS TRIP Web 17. Denied Travel Authorization law enforcement or security risk. The site will result in an application being approved. As always, a traveler may Comment: One commenter stated that security benefits of ESTA cannot only be quantified based solely on the apply for a nonimmigrant visa at a U.S. approximately 85,000 travelers a year embassy or consulate. could be denied travel authorizations number of ESTA applicants refused based on errors when submitting travel authorization. The VWP was 18. Expedited Review created in recognition of the high information and that reapplying would Comment: Some commenters would percentage of travelers from the be costly and time consuming. like to be able to request an expedited specified countries that will be deemed Response: As stated above, on review through ESTA. eligible to travel to the United States average, a total of 0.23% of ESTA travel Response: As stated above, most without a visa. ESTA also provides authorization applications are denied applications receive an immediate other benefits to travelers and carriers. each year. This amounts to an average response. However, if necessary, an It saves VWP-eligible travelers time and of 52,000 denials per year. While it is individual may request an expedited effort upon arrival in the United States unknown what percentage of these review by calling the ESTA Help Desk and informs those who are not eligible denials are based on user error when at 202–344–3710. submitting information, DHS has taken before they board the carrier to the steps to minimize the number of United States. 19. ESTA Application Status applications denied based on keystroke Though the commenter’s calculations Notifications for Travelers and Carriers errors. For example, the ESTA Web site of the cost incurred by airlines to return Comment: Some commenters asked prompts each applicant to review the inadmissible travelers is correct based how travelers will be notified of their data submitted for the overall on the commenter’s assumptions, DHS approval for travel. application prior to submission. If the believes that ESTA presents additional Response: ESTA applicants are applicant finds an error, a correction cost saving opportunities to the carriers notified of their travel eligibility on the may be made. In addition, the ESTA that are responsible for returning screen at the ESTA Web site. In most Web site requires the applicant to inadmissible travelers to their points of cases, ESTA applicants are notified of reaffirm the passport number and family origin. Carriers transporting VWP their status within seconds of name prior to submission of the travelers always have been required to submitting their application, with travel application. DHS believes that the transport inadmissible travelers who authorization either being granted or opportunity to review data prior to arrive in the United States back to their denied. In other cases, the ESTA submission should minimize the point of origin. Therefore, ESTA does applicant may be in a ‘‘pending’’ status, incidences of keystroke errors. If an not impose additional costs in this where a final determination of travel applicant makes a mistake when filling regard. Moreover, because ESTA is eligibility has not been reached. For an out the passport information, designed to prevent inadmissible applicant who provides an email identifying biographic information, or travelers from arriving at U.S. ports of address during the application process, eligibility questions, and he or she entry, carriers will have fewer DHS sends an email indicating that realizes the mistake after the applicant inadmissible travelers to transport from there has been an update to the travel submits the ESTA application and the the United States, which should authorization status and that the application for travel authorization is decrease their transportation costs. As decision can be viewed at the ESTA denied, he or she will need to submit a stated in the Executive Order 12866 Web site. Applicants who did not new ESTA application and pay the section below, no longer needing to provide an email address will need to applicable fee. However, there is no transport and inspect inadmissible refer back to the ESTA Web site at a guarantee that the subsequent travelers will save carriers and DHS later time to check for changes in status. application will result in travel between $78 and $84 million annually. As of November 3, 2014, email authorization. Any other mistakes, Comment: Some commenters would addresses are a mandatory data element. including email address, telephone like DHS to advise applicants why Comment: Some commenters would number, carrier name, flight number, travel authorization was denied so that like DHS to send a notification about city where the applicant is boarding, the issue could be addressed to enable when an ESTA authorization will and address while in the United States, travel under the VWP. expire.

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Response: Based on feedback, DHS the United States. The response now 20. Proof of Travel Authorization updated the system to provide email reads as follows: Comment: Some commenters asked notification to individuals You are not authorized to travel to the DHS to provide a receipt to serve as approximately 30 days before the United States under the Visa Waiver proof of ESTA travel authorization and expiration of their ESTA travel Program. You may be able to obtain a visa asked what to do in airports that lack authorization, informing them that their from the Department of State for your travel. printers. Other commenters described ESTA travel authorization will expire in Please visit the Department of State Web site situations where travelers were not approximately 30 days. The email at www.travel.state.gov for additional allowed to board despite having ESTA notification advises recipients to go to information about applying for a visa. travel authorization and were asked to the official ESTA Web site to reapply as present a paper printout of their travel follows: Comment: One commenter stated that authorization. ESTA Expiration Warning: ATTENTION! instead of using the system-generated Response: ESTA travel authorization Your travel authorization submitted on (date 16-digit reference number, passengers only may be validated electronically. of application) (application number) via should be able to use a passport or other The air or sea carrier must receive an ESTA will expire within the next 30 days. It travel document number to access their electronic message directly from DHS is not possible to extend or renew a current ESTA application. ESTA travel authorization. You will need to stating that the traveler has a valid reapply at https://esta.cbp.dhs.gov if travel to Response: The 16-digit reference ESTA travel authorization prior to the United States is intended in the near number is a unique number generated allowing the individual to board the future. by ESTA that may be used to check the conveyance destined for the United status of an applicant’s status and to Comment: A few commenters stated States. A printout showing that ESTA update optional information, such as that applicants receiving a pending travel authorization was granted is not flight itinerary and address in the message, rather than an authorized or proper proof and DHS does not require United States. This number is linked to denied message, should be authorized to VWP travelers to present a paper travel to the United States because the each ESTA application and approval. A printout as evidence of having obtained traveler would still submit their travel document number cannot be used ESTA travel authorization. If travelers information on the Form I–94W and as a reference number for several are interested in having something will be inspected upon arrival. reasons. First, it may lack sufficient tangible for their own records, such as security to uniquely identify a person. a receipt, they may print the screen on Response: Generally, a decision on an Second, since passports are generally the ESTA Web site showing that travel individual’s ESTA application is issued issued for 10 years and an ESTA travel authorization has been granted, but this within seconds of submission. However, authorization is generally valid for two will not serve as proof for travel travelers with a ‘‘pending’’ status will years, DHS would be unable to purposes. have to wait until the pending status is distinguish between applications from Comment: Some commenters had resolved to ‘‘Authorization Approved’’ the same individual. Also, it would be concerns about the possibility of a prior to a carrier allowing a VWP confusing where a person possesses forged ESTA approval. traveler to board an aircraft or vessel more than one passport, such as those Response: As explained in the destined for the United States. DHS who have dual citizenship. previous response, ESTA travel cannot allow ESTA applicants without Comment: Some commenters wanted authorization can only be verified an approved authorization to travel to electronically with an electronic status the United States, as to do so would to know the specific content of the ESTA application status messages message from DHS and as such, cannot prevent DHS from being able to fully be forged. screen the applicant, and thus carriers will be shown on pre-departure contradict the Congressional mandates and if there will be a distinction 21. Mandatory and Optional Data under the 9/11 Act. Because an exact between flights departing the United Elements timeline for travel authorization States and arriving flights. Comment: Many comments were decisions cannot be provided in all Response: DHS sends a clear message received requesting clarification about cases, DHS encourages travelers to to carriers to inform them whether the which data elements are mandatory and apply early for an ESTA travel VWP traveler has the required travel which are optional. authorization, such as before they authorization prior to boarding. Carriers Response: On December 9, 2014, DHS purchase their tickets to the United will receive one of the following published a notice regarding changes to States. messages for travelers: A—ESTA on file the ESTA application and paper Form Comment: One commenter stated that OK to board; B—No ESTA on file; C— I–94W in the Federal Register (79 FR the ‘‘travel not authorized’’ message is ESTA denied; Z—ESTA not applicable 73096). These changes collect more vague and should be changed to inform OK to board. Carriers may board detailed information about a traveler by applicants that they were unsuccessful travelers associated with messages A making previously optional data and to inform them that they may still and Z. Carriers may not board travelers elements mandatory and by adding apply for a visa. associated with messages B and C. additional data elements concerning Response: DHS has amended the ESTA authorization is not required for other names or aliases, current or ‘‘travel not authorized’’ message to flights departing the United States so previous employment, and emergency inform the applicant about the next there is no need for ESTA messaging for contact information among other steps in the process of seeking travel to departing flights. questions.

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The mandatory data elements are system or the Global Entry trusted that this provided insufficient time for clearly indicated by a red asterisk on the traveler program. carriers to be compliant with the initial ESTA Web site. They are: Applicant’s Response: DHS is committed to January 2009 deadline for ESTA. Name (Family Name and First (Given) achieving high levels of efficiency Response: This comment was Name; Known other names or aliases through the integration of its programs submitted in response to the ESTA IFR. (Yes or No); Birth Date (Day, Month, and and policies. To this end, DHS At the time, DHS recognized the Year); City of Birth; Country of Birth; coordinated ESTA with other challenges facing the carriers to ensure Gender (Male or Female); Parents’ government systems and programs to that their systems were compatible with Names (Family Name, First (Given) the extent possible. However, some ESTA and APIS in order to receive and Name); Passport Number; Passport systems or programs, are not suitable for validate ESTA messages. To this end, Issuing Country (Country of linking with ESTA. For example, ESTA DHS established an ESTA testing Citizenship); Passport Issuance Date should not be linked with the State process for all VWP signatory carriers to (Day, Month, and Year); Passport Department’s visa issuance system demonstrate the carrier’s ability to Expiration Date (Day, Month, and Year); because an ESTA travel authorization successfully transmit and receive ESTA Country of Citizenship; Citizen of any enables VWP travelers to travel to the messages through APIS/AQQ. All VWP other country (Yes or No); Contact Email United States without a visa. Further, signatory carriers successfully Address; Contact Telephone Number ESTA should not be linked with Global completed the testing process. DHS (Type, Country Code, and Number); Entry because the two programs have worked closely with each carrier to Contact Home Address (Address Line 1, different purposes. ESTA travel enable them to make modifications to Apartment Number, Address Line 2, authorization is a determination of attain compliance with ESTA City, State/Province/Region, and suitability to travel to the United States, requirements in a timely manner. DHS Country); Emergency Contact (Family whereas Global Entry is intended to made a concerted effort to accommodate Name and First (Given) Name); expedite low risk travelers upon arrival carriers as time became an issue and Emergency Contact Telephone Number in the United States. allowed carriers to demonstrate a plan (Type, Country Code, and Number); Comment: One commenter believes and schedule to achieve compliance if that ESTA is unnecessary because it Emergency Contact Email Address; they were not on schedule to be duplicates APIS/AQQ and is costly to Travel to U.S. occurring in transit to compliant by the stated date. As the another country (Yes or No); and the airline industry. Response: ESTA does not duplicate results showed, the joint effort between Current or previous employer (Yes or DHS and the carriers was highly No). Applicants must also answer eight APIS/AQQ. While both programs promote the security of the United successful despite concerns at the time eligibility questions regarding, for that the necessary user guide example: Questions about physical and States and some data elements may overlap, the programs are distinct. information was late when provided in mental disorders, drug abuse and July 2008. addiction, and communicable diseases, Advance Passenger Information System Comment: One commenter stated that arrests and convictions for certain (APIS) data consists of certain there may be passenger processing crimes, and past history of visa biographical information and delays caused by travelers who confuse revocation or deportation, and they conveyance details collected via the APIS data requirements with ESTA must complete the Certification field (or passenger reservation and check-in requirements. They may believe that the third-parties field, if applicable). The processes. This information is submission of the APIS data elements to above mandatory information is the transmitted to DHS in advance of arrival the travel agent or carrier in advance of information the Secretary deems through the Quick Query system. This is travel fulfills the ESTA requirement or necessary to evaluate whether an alien known to carriers as APIS/AQQ. APIS/ is admissible to the United States under AQQ does not include an eligibility vice versa and thus arrive at the airport VWP and whether such travel poses a screening process and applies to all on the day of departure without an law enforcement or security risk. flights beginning or ending in the ESTA travel authorization. Optional data elements, which should United States. In contrast, ESTA is Additionally, the commenter stated that be provided if known, are as follows: specific to the VWP and includes basic DHS should make it clear in public Address while in the United States biographical questions as well as outreach that ESTA’s requirements are (Address Lines 1 and 2, City, and State); questions to determine a person’s distinct from the APIS requirements, employer’s telephone number (country eligibility to travel under the VWP. and that providing information for one code and number); and job title. Upon Although DHS is mindful of the costs to program does not cover the other. submission, ESTA will automatically the travel industry to implement ESTA, Response: VWP travelers are not collect the Internet Protocol address (IP DHS has tried to implement ESTA in a responsible for providing DHS with address) associated with the application way that minimizes costs while at the APIS data. The carriers provide this for vetting purposes, as explained in the same time adhering to the Congressional information to DHS. It is the Privacy Impact Assessment Update for mandate to develop ESTA within responsibility of the VWP traveler to the Electronic System for Travel certain timeframes. apply for and obtain ESTA travel Authorization—Internet Protocol Comment: Some commenters stated authorization prior to boarding an air or Address and System of Records Notice that ESTA complicates carriers’ efforts sea carrier destined for the United Update, dated July 18, 2012, available at to meet the pre-departure APIS States. DHS has conducted outreach to http://www.dhs.gov/privacy-documents- requirements as they adapt their ensure VWP travelers are aware of their us-customs-and-border-protection. systems. Other commenters asked responsibilities regarding the need to whether a carrier that has received have a valid ESTA travel authorization 22. ESTA Interaction With Other APIS/AQQ accreditation is required to prior to boarding a conveyance destined Systems go through a future accreditation for the United States and is confident Comment: Some commenters asked process once ESTA messages have been that there will be no passenger DHS to link ESTA with other incorporated. Some commenters noted processing delays arising due to government systems or programs, such that the Consolidated User Guide, UN/ confusion regarding APIS requirements as the State Department’s visa issuance EDIFACT, arrived in late July 2008 and and ESTA requirements.

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Comment: One commenter asked if States and that some prospective System, as determined by the Secretary APIS data would suffice as an travelers may not have credit cards. (ESTA fee). DHS has determined that alternative to having a valid ESTA travel Response: DHS currently uses the the $4 ESTA fee is necessary to ensure authorization and another asked if APIS system Pay.gov to process payment the full costs of providing and submissions would suffice for updates information. This system collects and administering the System. The statute to information on the ESTA Web site. processes payments from credit cards does not permit DHS to consider Response: There is no alternative to and credit/debit cards from the benefits to the travel industry that result having ESTA travel authorization for following institutions: MasterCard, from VWP travelers coming to the VWP travel. Each VWP traveler must VISA, American Express, Discover, United States in determining the ESTA receive travel authorization through the Japan Credit Bureau, and Diners Club. fee. ESTA Web site prior to boarding a However, based on the feedback Comment: One commenter stated that conveyance destined for an air or sea received, DHS is currently investigating a $.050 administrative fee would be port of entry in the United States. the option of allowing payments to be more appropriate than a $4 Additionally, APIS data is not an made from additional sources. If DHS administrative charge for collecting the acceptable means for updating changes decides to expand the allowable $10 TPA fee. to any of the mandatory data elements. methods of payment, DHS will Response: The $4 ESTA fee is As noted above in the Mandatory and announce this to the public through unrelated to the $10 TPA fee. The $4 Optional Data Elements section, changes outreach programs, travel Web sites, and ESTA fee goes to DHS to pay the costs to any of the mandatory data elements postings on the ESTA Web site. An associated with operating ESTA. The require a new travel authorization. applicant who does not have a credit $10 TPA fee goes to a fund in the Comment: One commenter stated that card may arrange for a third party, such Department of the Treasury established by the Travel Promotion Act of 2009 to the address and passport information as a relative or travel agent, to submit fund the activities of the Corporation for collected through ESTA should be the payment. Additionally, DHS has made changes Travel Promotion. defaulted to read, ‘‘Refer to APIS Entry’’ to the payment functionality on the Comment: One commenter supports to avoid the need for the carrier to adapt ESTA Web site to allow for groups of up the $10 TPA fee in order to provide a their APIS system to accommodate to 50 applications to be paid with a well-funded mechanism to reach out to ESTA. Several commenters stated that single transaction. This functionality actual and prospective travelers to ESTA should be harmonized with APIS/ was added to accommodate those explain the rationale and details of AQQ. applications filed in group situations, ESTA. Response: Though the two systems such as a travel agent working on behalf Response: The TPA established the are distinct, ESTA does work in of a group of travelers or a family Corporation for Travel Promotion as a conjunction with APIS/AQQ. For applying together. A group is formed nonprofit corporation for the purpose of carriers that transport VWP travelers, when a user adds an application to an promoting foreign leisure, business, and the APIS/AQQ system was configured to existing application at which time a scholarly travel to the U.S. and selectively activate inclusion of ESTA group of two applications is formed. At maximizing the economic and social application status in the message that time, the system will request benefits of that travel for communities response to the carrier, thereby allowing information on the Group Point of across the country. The purpose of the carriers to know if the traveler has ESTA Contact (POC) who will be paying for $10 TPA fee is to provide funds for the travel authorization and is eligible to the applications. The Group POC can Corporation for Travel Promotion to board without a visa. As such, a ‘‘Refer add to that initial group of two by attract visitors to the United States. The to APIS Entry’’ message is unnecessary. creating new applications or retrieving $10 TPA Fee does not fund any Comment: Some commenters had existing ones. The system will monitor outreach regarding ESTA. concerns regarding travel eligibility or the number of applications in a group Comment: Some commenters oppose carrier penalties if a VWP traveler failed and will not allow the group to exceed the $10 TPA fee because they believe to update his or her information, such 50 applications. After the creation of the that VWP travelers would receive no as flight itinerary, or if this information group is complete, the system will ask benefit from such fee. They indicate that differed from the APIS transmission the Group POC to submit payment. The the $10 TPA fee should not be paid by made by carriers. ESTA fee will be charged for each visitors already coming to the United Response: As communicated through application submitted and the TPA fee States. Some commenters believe that public outreach, carriers will not be will be charged for each travel the $10 TPA fee is a hidden subsidy for penalized in situations where an ESTA authorization granted. the commercial tourism sector and that application does not reflect the current the travel industry should advertise on address or flight details for the traveler’s 24. ESTA Fee and the TPA Fee its own to entice potential visitors. trip to the United States. Should the Comment: A few commenters oppose Response: Eligible travelers from VWP travelers wish to update their address the ESTA fee stating that there are too countries who receive an ESTA travel and flight itinerary details, they are able many fees already. One commenter authorization may benefit from the $10 to do so by accessing their application acknowledged the need to offset the cost TPA fee, as these fees fund the on the ESTA Web site and updating the of maintaining a program such as ESTA Corporation for Travel Promotion that is information, free of charge. with a fee, but thought that the $4 mandated to help communicate travel charge would more than be made up by requirements to travelers to the United 23. Method of Payment what these travelers spend in the United States. In addition, they do not have to Comment: One commenter stated that States. pay to obtain a visa and do not need to DHS should permit different forms of Response: The TPA directed DHS to report for an interview at a U.S. embassy payment in addition to credit cards for establish a fee for ESTA that consists of or consulate. In addition, the $10 TPA paying the ESTA fees. Some the sum of $10 per travel authorization fee is only required with the initial commenters pointed out that credit card (TPA fee) and an amount that will at application or renewal of the ESTA, and use is not as widespread in the least ensure recovery of the full costs of will cover as many trips as the traveler European Union as it is in the United providing and administering the takes to the United States during the

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ESTA travel authorization’s validity 25. APA Procedures before mandatory implementation. period. Comment: A few commenters state Consistent with this, DHS published a The $10 TPA fee amount was set by that DHS should have implemented notice in the Federal Register on the TPA to fund the Corporation for ESTA through prior notice and November 13, 2008, and announced that Travel Promotion, which was comment procedures instead of as an mandatory compliance would be established by the TPA as a partnership interim final rule. required for VWP travelers on January between the travel industry and the Response: DHS is committed to 12, 2009. See 73 FR 67354. The time federal government to create a ensuring that the public has an period between the ESTA IFR’s effective marketing and promotion program to opportunity to comment on rulemakings date and the date it became mandatory compete for international visitors and to and publishes proposed rules for public allowed DHS to address the numerous create jobs and economic growth. notice and comment whenever possible. operational issues inherent in designing and building an electronic system. It Comment: Some commenters were In order to mitigate the security vulnerabilities of the VWP and fulfill also enabled DHS to request and receive concerned that other countries could public comments. Even though ESTA the mandates of the 9/11 Act, consistent reciprocate with a travel promotion fee did not become mandatory right away, with the Administrative Procedure Act, of their own which would harm U.S. the system was established at the time DHS implemented ESTA as an interim travelers. of implementation and could be used by final rule under the ‘‘procedural,’’ ‘‘good VWP travelers to submit advance Response: DHS has no control over cause,’’ and ‘‘foreign affairs’’ exceptions information. Therefore, it did provide foreign governments charging travel to the APA’s rulemaking requirements. promotion fees of their own. Some some immediate security benefits. See 5 U.S.C. 553. Discussion by DHS on Comment: Some commenters stated countries, including Visa Waiver how the ESTA IFR met these exceptions Program countries, have established that DHS’s use of the APA’s procedural is set forth at 73 FR 32440 at 32444. In exception in the ESTA IFR was their own version of a travel promotion addition, DHS sought feedback from fee. improper because the procedures interested persons and provided 60 days established by the ESTA IFR are Comment: A few commenters asked for the public to submit comments on substantively different from what they whether the $4 ESTA fee and the $10 both the ESTA IFR and the ESTA Fee were previously and because it imposes TPA fee would be charged for updating IFR. DHS has reviewed these comments expensive burdens on carriers and information. thoroughly and as discussed in this travelers. Response: The $4 ESTA fee is charged document, has implemented many of Response: DHS believes the each time a new ESTA application is the commenters’ suggestions. procedural exception in 5 U.S.C. submitted. The $10 TPA fee will be Comment: One commenter stated that 553(b)(A) was appropriately used in the charged whenever a new ESTA travel the ESTA IFR’s good cause exception ESTA IFR. As explained in the ESTA authorization is granted. For example, if does not apply because the national IFR, ESTA merely automated an existing an applicant applies for an ESTA travel security justification is not fully reporting requirement for nonimmigrant authorization but the ESTA application explained and that the ESTA IFR’s aliens, as captured in the Nonimmigrant is denied, the applicant will be charged Regulatory Analysis found no new Alien Arrival/Departure (I–94W) paper the $4 ESTA fee but not the $10 TPA security benefits. form. See 73 FR 32440 at 32444. fee. Updates to non-mandatory fields of Response: The ESTA IFR was Although ESTA altered the method and information, such as flight number or properly implemented under the APA’s time for VWP travelers to provide DHS address in the United States, will not good cause exception as provided in 5 with required information, it did not require a new travel authorization and U.S.C. 553(b)(B). DHS determined that substantively affect nonimmigrant as such, will not require a new ESTA prior notice and comment rulemaking aliens’ rights to apply for admission application. However, changes to one of was impracticable and contrary to the under the VWP; nor did it alter the the required data fields will necessitate public interest because it would hinder criteria aliens must meet to be admitted a new ESTA application. In order to DHS’s ability to address security to the United States under the VWP. obtain travel authorization, the vulnerabilities of the VWP that Congress Additionally, there were no applicant will have to pay the $4 ESTA asked DHS to address in the 9/11 Act. substantive changes affecting carriers. fee and the $10 TPA fee if travel As stated in the ESTA IFR, The INA already required carriers to authorization is granted. implementation of this rule prior to ensure that passengers have appropriate notice and comment was necessary to documentation to travel to the United Comment: Some commenters stated protect the national security of the States. In addition, carriers were already that they understand the need to charge United States and to prevent potential required to electronically verify and the $4 ESTA fee for a new ESTA travel terrorists from exploiting VWP. See 73 transmit passenger information to DHS authorization due to changes such as FR 32440 at 32444. through APIS/AQQ. name, gender, or country of citizenship Comment: One commenter stated that DHS is mindful of the fact that ESTA within the two year validity period, but the economic analysis in the Executive imposed some external costs on the feel that charging the additional $10 Order 12866 section of the ESTA IFR travel industry and some TPA fee is not consistent with the contradicted DHS’s national security inconveniences to the traveler. issuance of an ESTA travel justification because an effective date However, as described elsewhere in this authorization that is valid for two years. was established six months after document, ESTA also facilitates travel Response: The Travel Promotion Act publication of the ESTA IFR. and provides cost savings. In any case, of 2009 explicitly stated that the fee Response: The ESTA IFR became the fact that an agency’s rule imposes a would be ‘‘$10 per travel effective on August 8, 2008, 30 days burden, even a substantial burden, does authorization.’’ Therefore, until after the date of publication. See 73 FR not automatically mean that prior notice September 30, 2020 when the TPA fee 32440. However, in the ESTA IFR, DHS and comment rulemaking is required. provision expires, the $10 TPA fee must stated that it would provide a 60 day Comment: One commenter stated that be collected whenever a new travel prior notice to the public via the foreign affairs exception to the APA authorization is granted. publication in the Federal Register requirements was not justified because

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the IFR failed to cite to undesirable information. Personal information archived for twelve years to allow international consequences. submitted through the ESTA Web site is retrieval of the information for law Response: DHS believes the foreign protected in accordance with U.S. law enforcement, national security, or affairs exception in 5 U.S.C. 553(a)(1) and DHS Privacy Policy. The ESTA Web investigatory purposes. Once the was justified. The foreign affairs site employs software programs to information is archived, the number of function applies because ESTA identify unauthorized attempts to officials with access to it will be further ‘‘advances the President’s foreign policy upload or change information, or limited. These retention periods are goals, involves bilateral agreements that otherwise cause damage. consistent both with border search the United States has entered into with The credit card information that is authority and with the border security participating VWP countries, and entered in the ESTA Web site is not mission mandated by Congress. Data directly involves relationships between retained in the ESTA database. linked to active law enforcement the United States and its alien visitors.’’ Currently, the data entered on the ESTA lookout records, enforcement activities, See 73 FR 32440 at 32444. Web site is forwarded to Pay.gov for and/or investigations or cases, including payment processing and Pay.gov 26. Effective Date ESTA applications that are denied, will forwards the traveler’s name and an remain accessible for the life of the law Comment: Several commenters had ESTA tracking number to DHS’s Credit/ enforcement activities to which they are questions regarding the six month Debit Card Data System (CDCDS) for related. implementation requirement of the TPA payment reconciliation. Pay.gov sends a In those instances when a VWP and asked DHS to explain how the nightly activity file, including the last traveler’s ESTA application data is used September 8, 2010 effective date for the four digits of the credit card, for purposes of processing their ESTA Fee IFR was reached. authorization number, billing name, application for admission to the United Response: The TPA was signed March address, ESTA tracking number, and States, the ESTA application data will 4, 2010. The ESTA Fee IFR published in Pay.gov tracking numbers, to CDCDS. be used to create a corresponding the Federal Register on August 9, 2010. Pay.gov also sends a daily batch file admission record in DHS’s Non- DHS decided to provide a full 30 days with the necessary payment information Immigrant Information System (NIIS). of notice post-publication in order to to a commercial bank for settlement This corresponding admission record give the public sufficient time to adjust processing. After processing, the will be retained in accordance with the to the changes. This resulted in the commercial bank sends a settlement file, NIIS retention schedule, which is 75 September 8, 2010 effective date. including the full credit card number, years. authorization number, card type, 27. Privacy Payment information is not stored in transaction date, amount, and ESTA ESTA, but is forwarded to Pay.gov and Comment: Some commenters claimed tracking number to CDCDS. CDCDS stored in DHS’s financial processing that requiring carriers to submit ESTA retains the data from these transactions system, CDCDS. Records are retained applications on behalf of travelers on different tables. there for nine months in an active state would violate European Union data CDCDS matches the data transmitted to reconcile accounts and six years and privacy regulations or lead to other from ESTA, Pay.gov, and the three months in an archived state in difficult situations, such as applications commercial bank by the ESTA tracking conformance with National Archives submitted on the day of departure in number and posts payments to DHS’s and Records Administration (NARA) crowded airports. account. DHS uses the data in CDCDS General Schedule 6 Item 1 Financial Response: DHS does not require to manually research and reconcile Records management requirements, carriers or any other third party to unmatched transactions to the proper which may be found online at: http:// submit ESTA applications on behalf of account, and to research and respond to www.archives.gov/records-mgmt/grs/ travelers. ESTA allows VWP travelers charge-backs by the applicant, if grs06.html. The nine month active the option of seeking assistance from a necessary. status is necessary to handle third party in submitting an ESTA ESTA fee procedures, including reconciliation issues (including application. Travelers who do not wish collection, use, and retention of credit chargeback requests and retrievals). to use ESTA may apply to the U.S. State card information, are detailed in the PIA Comment: One commenter stated that Department for a visa. Update for the ESTA Fee, which can be the agreement between the United DHS addresses privacy concerns found at http://www.dhs.gov/privacy- States and the European Union on associated with ESTA in the ESTA documents-us-customs-and-border- Passenger Name Records (PNR) data Privacy Impact Assessment (PIA) and protection. does not adequately cover the security subsequent ESTA PIA updates which Comment: One commenter asked DHS questions posed in ESTA. may be found at: http://www.dhs.gov/ to clarify data retention periods that Response: This comment was privacy-documents-us-customs-and- were referenced in the ESTA IFR. received in response to the ESTA IFR border-protection. Response: ESTA data retention Comment: Some commenters were periods are detailed in the ESTA PIA and as such, is likely referring to the concerned that the credit card and subsequent updates found at 2007 agreement between the United information submitted by the ESTA http://www.dhs.gov/privacy-documents- States of America and the European applicant could be used improperly. us-customs-and-border-protection. Union on the Use and Transfer of They would like DHS to clarify which ESTA application data remains active Passenger Name Records to the United credit card details, if any, are retained for the period of time that the ESTA States Department of Homeland or used for purposes other than those for travel authorization is valid, which, as Security’’ (PNR Agreement). An updated which they were collected and to explained above, is generally two years version of this agreement was signed on or until the traveler’s passport expires, December 14, 2011, and went into effect provide information about how DHS 8 safeguards this information. unless one of the situations listed at 8 on July 1, 2012. Although there are no Response: The ESTA Web site is CFR 217.5(e) occurs requiring a new 8 For more information on the 2011 PNR operated by the United States travel authorization. DHS will then agreement, please see http://www.dhs.gov/sites/ Government and employs technology to maintain this information for an default/files/publications/privacy/Reports/ prevent unauthorized access to additional year, after which it will be dhsprivacy_PNR%20Agreement_12_14_2011.pdf.

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material differences between the 2007 Notice and request for comments; denied. Nevertheless, some travelers version and the updated PNR Extension of an existing information may not receive their travel Agreement, this response applies to the collection: 1651–0111 in the Federal authorization or visa in time to make version that went into effect on July 1, Register on December 12, 2008, their scheduled trip. Through the end of 2012. specifically requesting comments on the 2012, over 99% of ESTA applicants PNR data is submitted by airlines to information collection requirement have been approved; therefore, the DHS and contains a variety of traveler concerning ESTA. See 73 FR 75730. impact of potential denied travel information including the passenger’s DHS published a subsequent 30-Day authorizations is limited. name, contact details, travel itinerary, notice requesting comments concerning Additionally, the economic analysis and other reservation details, as the information collection requirements did not quantify the impacts of potential described in the DHS Automated of ESTA on February 13, 2009. See 74 ‘‘reciprocity’’ from other governments Targeting System (ATS) Privacy Impact FR 7243. On July 25, 2011, DHS requiring information from U.S. citizens Assessment. The PNR Agreement published a 30-Day notice and request in advance of travel; however, DHS addresses the privacy and security of for comments regarding the addition of acknowledged this potential in the PNR data transferred from the EU and ‘‘Country of Birth’’ as a required data chapter of the analysis devoted to the does not pertain to ESTA. A Privacy element. See 76 FR 44349. Also, on cost impacts of ESTA. As stated, other Impact Assessment of ESTA, which November 26, 2013, DHS published a VWP countries may choose to collect includes a discussion of related security 60-day notice and request for comments advance admissibility data from U.S. issues, can be found at http:// concerning changes to the ESTA citizens prior to entering their country www.dhs.gov/privacy-documents-us- application and paper Form I–94W in as a consequence of this rule (and customs-and-border-protection. the Federal Register. See 78 FR 70570. Australia currently does as part of their ETA program). The European Union, for 28. Economic analysis; Regulatory On February 14, 2014, DHS published a example, reportedly is considering a Flexibility Act; Paperwork Reduction 30-day notice and request for comments system similar to ESTA. DHS does not Act concerning changes to the ESTA application and paper Form I–94W in know which countries, if any, could Comment: One commenter stated that the Federal Register. See 79 FR 8984. establish similar requirements to ESTA, a Regulatory Flexibility Act analysis These notices concerned revised but any such requirements would affect was required for the ESTA IFR. questions to make the ESTA application U.S. citizens and U.S. carriers. However, Response: The commenter is more easily understandable to the the purpose of the economic analysis is incorrect. The Regulatory Flexibility Act traveling public. DHS continues to to estimate the costs and benefits of the (RFA) (5 U.S.C. 603(b)), as amended by provide the public with the opportunity U.S. regulation under consideration, not the Small Business Regulatory to comment on information collections other travel requirements that may or Enforcement and Fairness Act of 1996 concerning ESTA and has done so as may not be implemented in the future (SBREFA), requires an agency to prepare recently as December 9, 2014, when in other countries. and make available to the public a DHS published a 60-day notice The cost to obtain an ESTA travel regulatory flexibility analysis that regarding additional changes to the authorization places a minimal burden describes the effect of a proposed rule ESTA application and paper Form I– on the traveler. DHS does not know if on small entities (i.e., small businesses, 94W in the Federal Register. See 79 FR ESTA created a monetary disincentive small organizations, and small 73096. to travel to the United States, but notes governmental jurisdictions) when the Comment: A few comments were that travel to the United States has agency is required ‘‘to publish a general received regarding the information grown under the VWP after the notice of proposed rulemaking for any contained in the economic analysis. establishment of ESTA. Although DHS proposed rule.’’ Because this rule was Some commenters stated that the does not explicitly estimate a decrease issued as an interim final rule under the economic analysis did not consider in travel as a result of the rule, such procedural, good cause, and foreign things such as the economic impact of effects were presumably captured in the affairs function exceptions of the missed flights, lost tourism, lost sensitivity analysis available in the Administrative Procedure Act, a commercial opportunities, and the appendix to the regulatory assessment, regulatory flexibility analysis was not impact of foreign governments imposing which is available in the docket of this required. See 5 U.S.C. 553; 73 FR 32440 ESTA-like requirements on U.S. citizens rule. at 32444. traveling to VWP countries. Comment: One commenter stated that Comment: One commenter stated that Response: The commenters are correct the cost of ESTA would be $10,000 per a review under the Paperwork that the economic analysis did not business traveler (minimum mean per Reduction Act (PRA) is warranted quantify the impacts of missed flights person impact of the rule) if lost clients because there was no OMB Information and lost tourism as a result of ESTA and lost business from a denied travel Collection Request review and chance implementation; however, DHS authorization are factored into the for public comment. discussed this potential qualitatively in analysis. The commenter estimates that Response: This data collection was the chapter of the analysis devoted to for leisure travelers, the costs would be reviewed by OMB under Control the cost impacts of ESTA. As stated in less but still substantial (average cost of Number 1651–0111, in accordance with the economic analysis, some travelers $500). the Paperwork Reduction Act of 1995 may not be able to travel to the United Response: Although the commenter (PRA), Public Law 104–113. See 73 FR States even when they apply for a visa may believe that $10,000 and $500 are 32440 at 32452. Additionally, the public at a U.S. embassy or consulate. DHS reasonable estimates of the average per- had multiple opportunities to comment does not know how many travelers this traveler impacts of ESTA, the on the information collection represents, but the percentage is likely commenter provides only limited requirements concerning ESTA. The very small. The State Department may explanation on how those figures were ESTA IFR requested comments on all make accommodations for certain last- estimated. This estimate seems to aspects of this rule, including PRA- minute travelers who are scheduled to include costs such as the time and related comments. See 72 FR 32440. travel in the next 72 hours, have applied expense to get a visa (which is estimated Additionally, DHS published a 60-Day for an authorization, and have been in the economic analysis below), but it

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is mostly the cost of lost business for For the ESTA IFR, DHS consulted the Assessment that can be found in the travelers who are unable to travel to the International Air Transport Association public docket for this rule. United States if their ESTA is denied (IATA) Web site for member details. 29. Comments That Are Beyond the and they are unable to obtain a visa. DHS then accessed individual carrier Scope of the IFRs DHS notes that only 0.23 percent of Web sites to determine if the carriers ESTA applications are denied and, flew to or from the United States and if Comment: One commenter stated that absent the rule, these people would the carrier country was an original VWP the DHS does not address the lack of likely be denied entry to the United country, a new VWP country,9 or the system database integration of ESTA States upon arrival anyway. Since United States. DHS determined that 8 with the legacy INS IDENT and the FBI/ travelers normally apply for an ESTA U.S.-based carriers and 35 foreign-based IAFIS databases. when they purchase their ticket, there is carriers would likely have to develop Response: Questions regarding other ample time for most denied applicants ESTA capabilities. Based on further systems unrelated to ESTA (e.g. IDENT to apply for a visa. The State research of U.S. airports and airlines and IAFIS) are beyond the scope of this Department may make accommodations servicing these airports, it was rulemaking. ESTA is a system that for last minute travelers who are determined that there are an additional collects biographic information and scheduled to travel in the next 72 hours 10 foreign carriers that should be IDENT and IAFIS are biometric systems and have been denied an ESTA. DHS included in the analysis that are based capturing fingerprints for identification does not have data on the number of in original VWP or new VWP countries purposes. Please refer to the ESTA travelers who are denied an ESTA and but are not members of IATA. Privacy Impact Assessments for more information on system integration, are subsequently denied a visa. Furthermore, there are foreign carriers which may be found online at: http:// However, DHS notes that these travelers that are not based in original or new www.dhs.gov/privacy-documents-us- are likely to have been deemed VWP countries that offer direct flights customs-and-border-protection. inadmissible upon arrival in the United from VWP countries to the United Comment: One commenter remarked States absent this rule. DHS, therefore, States. It is likely that these airlines will that VWP countries should monitor and believes that the losses to business and be carrying a significant number of limit the fees that third party vendors leisure travelers who, absent this rule, VWP-eligible passengers and will thus may charge a passenger for filling out would have been admitted to the United wish to develop ESTA capabilities in ESTA applications on the passenger’s States are small. We discuss these costs order to best serve their customers. behalf. qualitatively in the economic analysis. Based on further research of U.S. Response: It would be inappropriate Comment: One commenter stated that airports and airlines servicing these for DHS to comment on how foreign the economic analysis did not analyze airports, it was determined that there governments regulate businesses or to the number of passengers who will are an additional eight foreign carriers dictate what fees a third party vendor arrive at foreign airports without a travel that should be included in the analysis. charges for passengers to have an ESTA authorization in place. These airlines are from the Middle East application filled out. DHS is aware that Response: This commenter is correct. and Asia and offer direct flights to the there have been several sites that were This is because DHS does not track how United States from Japan, Singapore, charging inordinate fees for information many travelers arrive without first and the United Kingdom. As a result of on the program and to apply for an having obtained travel authorization. this further research, the analysis now ESTA travel authorization. DHS issued However, DHS does estimate the cost to includes cost estimates for 8 U.S.-based an Advisory about these Web sites in carriers to implement ESTA. Since the air carriers and 53 foreign-based air November 2008 to inform the traveling publication of the interim rule, DHS has carriers. This analysis is summarized public that these sites are not affiliated done outreach to carriers to determine below in the section for Executive Order with the United States government and the true magnitude of their costs in 12866 and 13563. travelers who accidentally go to those implementing ESTA, including their DHS disagrees that every airline sites should exit and go to the official costs in assisting passengers who arrive around the world would be ‘‘affected ESTA Web site at https:// at foreign airports without a travel significantly’’ by ESTA. Air carriers are esta.cbp.dhs.gov. DHS also has claimed authorization in place. We estimate that not required to develop ESTA rights for ESTA via an application carriers spent $108 million to capabilities; the 9/11 Act has put the submitted to the U.S. Patent and Trade implement ESTA in the first year and burden squarely on traveling Office to protect against unauthorized $12 million in subsequent years. These individuals to obtain authorizations in use of the ESTA symbol and name. DHS costs are discussed in the economic advance of travel. Carriers who do not continues to work on outreach and analysis below. fly to the United States or who carry few communications to the public to Comment: One commenter stated that VWP-eligible travelers are not likely to provide the most up to date information using 62 as the number of air carriers develop ESTA capabilities to assist to assist travelers in complying with the potentially affected by the systems and those customers who arrive at the requirement. As such, this comment is processes modifications required for airport without a travel authorization. beyond the scope of these rulemakings. ESTA was an underestimation in the DHS has conducted a sensitivity Comment: One commenter stated that economic analysis. This commenter analysis that includes all foreign-based ESTA should be implemented at a later claimed that virtually every carrier in airlines with flights to the United States date because there are too many current the world would incur costs to develop but that most likely only carry a few visa holders who are overstaying in the ESTA capabilities. VWP passengers. This analysis is United States, thus burdening American Response: Based on this comment, included in the full Regulatory taxpayers with the costs of deporting DHS has conducted further research and overstaying visa holders. agrees that the number of air carriers 9 For the purpose of this document, we will use Response: Although DHS recognizes potentially affected by the IFR was the term ‘‘original VWP countries’’ to refer to the that there may be cases where visa 27 countries that were part of the VWP prior to the underestimated. DHS has modified its establishment of ESTA, and the term ‘‘new VWP holders are overstaying their allowed cost estimates to include additional countries’’ to refer to the 10 countries that were time period for visiting the United carriers. added to the VWP after that date, including Taiwan. States, the purpose of ESTA is to allow

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DHS to determine travel eligibility and future, DHS is removing the sentence notifying the public that DHS would enhance the security of the United that refers to Pay.gov. begin collecting the Internet Protocol States and the VWP, and not to identify address (IP address) associated with a B. Operational Modifications possible enforcement actions against submitted ESTA application. The IP visa holders or VWP travelers who have As discussed in this document, DHS address will be used along with other overstayed their authorized period of has made various minor changes to application data for vetting purposes. admission. As such, this comment is ESTA in response to comments 4. Multiple Application Payment beyond the scope of these rulemakings. received, such as the creation of the Function Comment: Some commenters claimed email notification regarding a traveler’s that the ESTA rule violated the Airline impending ESTA travel authorization As discussed above, DHS modified Deregulation Act because it is an expiration and various changes made to the payment functionality to allow for a ‘‘attempt to restrict the obligation of the language used on the ESTA Web site single credit card transaction to pay for airlines to transport all passengers to ensure clarity. Despite making only up to 50 ESTA applications. A group complying with their published tariffs’’ one substantive and one technical point of contact must submit payment and that DHS failed to consider ‘‘the changes to the regulations in this final after inputting or retrieving the relevant public right of freedom of transit of the rule, DHS would like to highlight five applications. This modification will navigable airspace’’ as required by the operational modifications affecting allow groups such as businesses or a Airline Deregulation Act. ESTA applicants and VWP travelers family to submit ESTA applications since the publication of the interim final without having to submit payment Response: The main purpose of the rules: information for each individual Airline Deregulation Act (Public Law application. 95–504), signed into law on October 24, 1. Elimination of the Paper Form I–94W 1978, was to remove government control The requirement to complete the 5. Modification of the Eligibility over fares, routes, and market entry (of Nonimmigrant Alien Arrival/Departure Questions on the Form I–94W and new airlines) from commercial aviation. (I–94W) paper form was eliminated for ESTA Application ESTA does not impose any restrictions VWP travelers arriving in the United On November 26, 2013 and February on fares, routes, or market entry from States at air or sea ports of entry on or 14, 2014, DHS published notices in the commercial aviation and as such, this after June 29, 2010. For these travelers, Federal Register proposing to revise the comment is beyond the scope of these ESTA satisfies the requirement to Form I–94W collection of information rulemakings. complete and submit a paper Form I– by amending the eligibility questions to III. Conclusion 94W upon arrival in the United States. the ESTA application and to the paper DHS worked extensively with carriers to Form I–94W to make the questions A. Regulatory Amendments bring about an orderly transition to clearer and easier to understand while The amendments to title 8 of the Code remove the paper Form I–94W from still providing DHS with the of Federal Regulations, as set forth in circulation and to ensure that all information needed to make eligibility the ESTA IFR, published June 8, 2008, affected parties were aware of the determinations. See 78 FR 70570 and 79 and the ESTA Fee IFR, published updated requirements. Currently, only FR 8984. These notices also solicited August 9, 2010, are adopted as final VWP travelers arriving at the United comments regarding the proposed with the following changes: States at land ports of entry are required revisions. No comments were received. to complete the paper Form I–94W. The ESTA regulations are being On December 9, 2014, DHS published a modified by adding a new § 217.5(d)(3) 2. Addition of Country of Birth to the 60-day notice regarding additional to allow for flexibility to adjust the Form I–94W changes to the ESTA application and paper Form I–94W in the Federal validity period for a designated VWP On May 16, 2011 and July 25, 2011, country and to state that notice of any Register. See 79 FR 73096. These DHS published notices in the Federal changes collect more detailed such change will be published in the Register proposing to revise the Form I– Federal Register and reflected on the information about a traveler by making 94W collection of information by adding previously optional questions ESTA Web site. In addition to a data field for ‘‘Country of Birth’’ to addressing comments regarding the mandatory and by adding additional ESTA and to the paper Form I–94W. questions concerning other names or extension of the validity period These notices also solicited comments discussed above, DHS’s decision to aliases, current or previous regarding the proposed revision. No employment, and emergency contact include this new section providing the comments were received. As of Secretary with the flexibility to extend information among other questions. December 11, 2011, country of birth is These changes are necessary to improve or shorten the ESTA travel authorization a required data element on all ESTA validity period for a designated VWP the screening of travelers before their applications. Individuals who obtained admittance into the U.S. On November country is being done under the travel authorizations prior to this date authority of the foreign affairs function 3, 2014, DHS amended the questions do not need to provide ‘‘Country of accordingly. of the United States to administer the Birth’’ to maintain travel authorization; VWP and is exempt from notice and however, such individuals must provide IV. Statutory and Regulatory comment rulemaking and delayed ‘‘Country of Birth’’ information if and Requirements effective date requirements generally when applying for a new travel required under 5 U.S.C. 553. See 5 A. Executive Order 13563 and Executive authorization after their current ESTA Order 12866 U.S.C. 553(a)(1). Additionally, section travel authorization expires. 217.5(h)(2) of the ESTA regulations Executive Orders 13563 and 12866 contains a reference to the Treasury 3. Collection of Internet Protocol direct agencies to assess the costs and Department’s Pay.gov financial system Address benefits of available regulatory (Pay.gov). In light of the possibility that On July 30, 2012, DHS published an alternatives and, if regulation is DHS may want to offer alternative updated System of Records Notice in necessary, to select regulatory methods of submitting payment in the the Federal Register (77 FR 44642) approaches that maximize net benefits

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(including potential economic, • The period of analysis is 2008 to for her flight, the passport is swiped and environmental, public health and safety 2018. the APIS process begins. DHS provides effects, distributive impacts, and • For the purpose of this analysis, the passenger’s ESTA application or equity). Executive Order 13563 DHS assumes that travelers from all authorization status to the carrier in the emphasizes the importance of VWP countries began complying with return APIS message. If a passenger has quantifying both costs and benefits, of the ESTA requirements on January 1, not applied for and received a travel reducing costs, of harmonizing rules, 2009, except for Greece and Taiwan, authorization prior to check-in, the and of promoting flexibility. This rule is which DHS assumes began complying carrier will be able to submit the an economically significant regulatory with the ESTA requirements on January required information and obtain the action under section 3(f) of Executive 1, 2010 and January 1, 2013, authorization on behalf of the passenger. Order 12866 as it has an annual effect respectively.12 It is unknown how many passengers on the economy of $100 million or more • Air and sea carriers that transport rely on their carrier to apply for an in any one year. As a result, this rule these VWP travelers are not directly ESTA travel authorization on their has been reviewed by the Office of regulated under this rule; therefore, they behalf. Management and Budget. The following are not responsible for completing ESTA At the time of the publication of the summary presents the costs and benefits applications on behalf of their ESTA Interim Final Rule, it was to applicant carriers and DHS.10 passengers. However, carriers have unknown how much it would cost carriers to modify their existing systems. The purpose of ESTA is to allow DHS chosen to either modify their existing DHS therefore developed a range of to establish, in advance of travel, the systems or potentially develop new costs for the analysis in the Interim eligibility of certain foreign travelers to systems to submit ESTA applications for Final Rule. Since the publication of the enter the United States and whether the their customers. For this analysis, DHS assumes that carriers incurred system Interim Final Rule, CBP has done alien’s proposed travel to the U.S. poses development costs in 2008 and incur outreach to carriers to determine the a law enforcement or security risk. operation and maintenance costs every true magnitude of their costs in Upon review of such information, DHS year thereafter (2009–2018). DHS notes implementing ESTA. Based on will determine whether the alien is that it transmits travelers’ authorization communications with carriers, we now eligible to travel to the United States. status through its existing Advance estimate that carriers spend an average There are currently 37 countries in the Passenger Information System (APIS), of $1,350,000 in the first year and VWP.11 Furthermore, as additional and therefore carriers did not have to $150,000 in subsequent years. Each countries are brought into the VWP, make significant changes to their subsequent year estimate is intended to their citizens are also required to existing systems in response to this rule. account not only for annual operation comply with ESTA. Additionally, and maintenance of the system but also because the information provided by the Impacts to Air & Sea Carriers for the burden incurred by the carriers traveler through ESTA is the same DHS estimates that 8 U.S.-based air to assist passengers. information that was previously carriers and 13 sea carriers are Given this range, costs for U.S. based collected on the I–94W form (Arrival indirectly affected by the rule. An carriers are about $28.4 million in the and Departure Record), travelers who additional 53 foreign-based air carriers first year and $3.2 million in subsequent receive a travel authorization through and 6 sea carriers are indirectly affected. years (undiscounted). Costs for foreign- ESTA do not have to complete this form As noted previously, DHS transmits a based carriers are about $79.7 million in while en route to the United States. passenger’s ESTA application or the first year and $8.9 million in The primary parameters for this authorization status to the air carriers subsequent years (undiscounted). See analysis are as follows— using APIS. When a passenger checks in Exhibit 1.

EXHIBIT 1—FIRST YEAR AND ANNUAL COSTS FOR CARRIERS TO ADDRESS ESTA REQUIREMENTS [$Millions, 2008–2018, Undiscounted]

U.S. Foreign Air Sea Air Sea Total

Carriers ...... 8 13 53 6 80 2008 ...... $10.8 $17.6 $71.6 $8.1 $108.0 2009 ...... 1.2 2.0 8.0 0.9 12.0 2010 ...... 1.2 2.0 8.0 0.9 12.0 2011 ...... 1.2 2.0 8.0 0.9 12.0 2012 ...... 1.2 2.0 8.0 0.9 12.0 2013 ...... 1.2 2.0 8.0 0.9 12.0 2014 ...... 1.2 2.0 8.0 0.9 12.0 2015 ...... 1.2 2.0 8.0 0.9 12.0 2016 ...... 1.2 2.0 8.0 0.9 12.0 2017 ...... 1.2 2.0 8.0 0.9 12.0

10 The complete Regulatory Assessment can be Malta, Monaco, the Netherlands, New Zealand, in the VWP effective November 1, 2012, these found in the docket for this rulemaking: http:// Norway, Portugal, San Marino, Singapore, Slovakia, countries were previously designated as www.regulations.gov. Slovenia, South Korea, Spain, Sweden, ‘‘Roadmap’’ countries. Switzerland, Taiwan, and the U.K. Since the June 11 The current VWP countries are Andorra, 12 DHS notes that Taiwan entered the VWP on 9, 2008, publication of the interim final rule, the Australia, Austria, Belgium, Brunei, the Czech Czech Republic, Estonia, Greece, Hungary, Latvia, November 1, 2012. However, DHS uses January 1, Republic, Estonia, Denmark, Finland, France, Lithuania, Malta, Slovakia, South Korea, and 2013 as Taiwan’s ESTA start date for the analysis Germany, Greece, Hungary, Iceland, Ireland, Italy, Taiwan have entered the VWP. With the exception because data on I–94/I–94W arrivals by country are Japan, Latvia, Lichtenstein, Lithuania, Luxembourg, of Taiwan, which was designated for participation only available on an annual basis.

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EXHIBIT 1—FIRST YEAR AND ANNUAL COSTS FOR CARRIERS TO ADDRESS ESTA REQUIREMENTS—Continued [$Millions, 2008–2018, Undiscounted]

U.S. Foreign Air Sea Air Sea Total

2018 ...... 1.2 2.0 8.0 0.9 12.0 Detail may not calculate to total due to independent rounding.

As estimated, ESTA will cost the million (2013 dollars) over the 11 year discount rate applied (3 or 7 percent). carriers about $244 million to $270 period of analysis depending on the See Exhibit 2.

EXHIBIT 2—PRESENT VALUE COSTS FOR CARRIERS TO ADDRESS ESTA REQUIREMENTS [Millions, 2008–2018]

U.S. Foreign Air Sea Air Sea

3 percent discount rate

11-year modal total ...... $24.4 $39.6 $161.6 $18.3

11-year subtotal ...... $64.0 $179.9

11-year grand total ...... $243.9

Annualized modal total ...... $2.2 $3.6 $14.6 $1.7

Annualized subtotal ...... $5.8 $16.3

Annualized grand total ...... $22.1

7 percent discount rate

11-year modal total ...... $27.0 $43.8 $178.7 $20.2

11-year subtotal ...... $70.8 $198.9

11-year grand total ...... $269.7

Annualized modal total ...... $2.4 $3.9 $15.9 $1.8

Annualized subtotal ...... $6.3 $17.7

Annualized grand total ...... $24.0 Detail may not calculate to total due to independent rounding.

Travel agents and other service advance of travel to the United States. existing process for obtaining a visa, providers may incur costs to assist their Travelers from new VWP countries also DHS estimates the cost to obtain that clients in obtaining travel incur costs and burdens, though these document in the event that a travel authorizations. Affected travel agents are much less than obtaining a authorization is denied and the traveler are mostly foreign businesses located in nonimmigrant visa (category B–1/B–2), is directed to go to a U.S. embassy or the VWP countries. DHS has worked to which is currently required for short- consulate to obtain permission to travel minimize the costs for travel agents, term business and leisure travel to the to the United States. building functionality into the ESTA United States, absent eligibility for visa- For this analysis, DHS predicts ESTA- Web site that allows travel agents to free travel. affected travelers to the United States upload ESTA applications for up to 50 For the primary analysis, DHS over the period of analysis using individuals at a time. Thanks to this explores the following categories of information available from the upgrade, travel agents have not needed costs— Department of Commerce, National to obtain software modules to allow • Cost and time burden to obtain a Travel and Tourism Office (NTTO), them to apply for authorizations for travel authorization—DHS estimates the documenting historic travel levels and their clients. cost of applying for the authorization, future projections. We use the travel- Impacts on Travelers the time that will be required to obtain projection percentages through 2018 an authorization, and the value of that provided by NTTO. In addition to total ESTA presents new costs and time time (opportunity cost) to the traveler. travelers, DHS estimates the number of burdens to travelers in original VWP • Cost and time burden to obtain a applicants based on an analysis of early countries who were not previously nonimmigrant (B–1/B–2) visa if travel ESTA applications. An ESTA travel required to submit any information in authorization is denied—based on the authorization is valid for two years, so

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the number of applicants for an ESTA number of arrivals under the VWP. See travel authorization is lower than the Exhibit 3.

EXHIBIT 3—TOTAL VISITORS TO THE UNITED STATES, 2009–2018 [Millions]

2009 2010 2011 2012 2013 * 2014 * 2015 * 2016 * 2017 * 2018 *

Total Travelers...... 17.66 18.74 19.82 20.60 21.54 22.44 23.01 23.52 24.09 24.66 Applicants ...... 14.54 15.44 16.31 16.96 17.74 18.47 18.93 19.35 19.83 20.30 Asterisk denotes projected values.

Cost To Obtain a Travel Authorization 2020. For the purposes of this analysis, Exhibit 4 presents the total and DHS assumes the ESTA operational fee annualized costs to applicants over the The TPA mandates that DHS establish and the travel promotion fee are in period of analysis using 3 and 7 percent a fee for the use of ESTA. In 2010, DHS effect from 2011 to 2018, the last year discount rates. Total costs to applicants published an interim final rule setting of our period of analysis. In addition, over the period of analysis are estimated this fee at $4 per application. The Travel DHS estimates the cost of credit card at $1.9 billion to $2.0 billion. Promotion Act also established a fees for foreign transactions. In total, the Annualized costs to applicants are temporary $10 travel promotion fee to cost per traveler will be $14.35 from estimated at $171 million to $183 be collected through September 30, 2011–2018. million.

EXHIBIT 4—TOTAL PRESENT VALUE AND ANNUALIZED COSTS OF THE ESTA FEE TO APPLICANTS, 2008–2018

Total present value costs Annualized costs ($billions) ($millions) 3% 7% 3% 7%

2.025 1.920 183 171

Time Burden To Obtain a Travel DHS estimates that it takes 15 minutes it almost certainly does not take 15 Authorization of time (0.25 hours) to apply for a travel minutes of time because these entities authorization. Note that this is 7 have most of the information To estimate the value of a non-U.S. minutes more than the time estimated to electronically gathered during the citizen’s time (opportunity cost), DHS complete the I–94W (8 minutes). DHS booking process, and travel and ticket has conducted a brief analysis that takes estimates additional time burden for an agents are certainly comfortable using into account wage rates for each country ESTA application because even though computer applications. Because DHS that will be affected by ESTA the data elements and admissibility does not know how many travelers requirements. Based on this analysis, questions are identical, travelers must apply independently through the ESTA DHS found that Japan, Australia, New now register with ESTA, familiarize Web site versus through a third party, Zealand, and countries in Western themselves with the system, and gather DHS assigns a 15-minute burden to all Europe generally have a higher value of and enter the data. For those applicants travelers. time than the less developed countries who are computer savvy and have little of Eastern Europe and Asia. DHS also difficulty navigating an electronic Based on these values and found that air travelers have a higher system, this may be a high estimate. For assumptions, DHS estimates that total value of time than the general those applicants who are not as opportunity costs in 2009 (the first year population. DHS developed a range of comfortable using computers and that travelers comply with the ESTA cost estimates for the value of an interfacing with Web sites, this may be requirements in this analysis) range individual’s time. For the low cost a low estimate. DHS believes the time from $118 million (low) to $250 million estimate, the hourly value of time ranges burden estimate of 15 minutes is a (high) depending on the value of time from $4.70 to $49.08 depending on the reasonable average. Furthermore, if used. By the end of the period of country. For the high cost estimate, the airlines, cruise lines, travel agents, and analysis (2018), costs range from $163 hourly value of time ranges from $9.95 other service providers are entering the million to $345 million. These estimates to $103.99. information on behalf of the passenger, are all undiscounted. See Exhibit 5.

EXHIBIT 5—TOTAL OPPORTUNITY COSTS FOR VISITORS TO THE UNITED STATES, 2009 AND 2018 (MILLIONS, UNDISCOUNTED)

2009 2018 Low estimate High estimate Low estimate High estimate

$118 $250 $163 $345

As estimated, ESTA could have an billion to $3.0 billion (present value) the value of opportunity cost and the opportunity cost to travelers of $1.4 over the period of analysis depending, discount rate applied (3 or 7 percent).

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Annualized costs are an estimated $123 million to $270 million. See Exhibit 6.

EXHIBIT 6—TOTAL PRESENT VALUE AND ANNUALIZED OPPORTUNITY COSTS TO TRAVELERS, 2008–2018

Total present value costs Annualized costs ($billions) ($millions) Low estimate High estimate Low estimate High estimate 3% 7% 3% 7% 3% 7% 3% 7%

1.409 1.389 2.985 2.941 128 123 270 261

Cost and Burden To Obtain a Visa If a There are also other incidental costs to considered the baseline condition). DHS Travel Authorization Is Denied consider, such as bank and courier fees, does, however, subtract out ESTA photographs, transportation, and other refusals in our benefits calculations Using the values of time noted above, miscellaneous expenses. DHS estimates because these travelers do not accrue DHS estimates the costs if an that these out-of-pocket costs will be any benefit from ESTA. authorization is denied and the traveler $216. DHS multiplies 0.23 percent of the is referred to the nearest U.S. embassy The number of travel authorizations annual travelers for each country by the or consulate to apply for a that are denied for each country is burden (5 hours), the out-of-pocket nonimmigrant visa (B–1/B–2). Absent unknown. Based on the results of ESTA expenses, and the value of time, either country-specific information, DHS implementation since January 2009, high or low. Total present value visa assumes that it requires 5 hours of time DHS uses the overall ESTA denial rate costs over the period of analysis could to obtain a visa including time to of 0.23 percent for each original VWP total $156 million to $227 billion over complete the application, travel time, country (the travelers from the new the period of analysis. Annualized costs waiting at the embassy or consulate for VWP countries are so new to the VWP are an estimated $14 million to $21 the interview, and the interview itself. that obtaining a visa would still be million. See Exhibit 7.

EXHIBIT 7—TOTAL PRESENT VALUE AND ANNUALIZED VISA COSTS TO TRAVELERS, 2008–2018

Total present value costs Annualized costs ($billions) ($millions) Low estimate High estimate Low estimate High estimate 3% 7% 3% 7% 3% 7% 3% 7%

0.158 0.156 0.227 0.224 14 14 21 20

Total Costs to Travelers to travelers will range from $3.5 billion Annualized costs are estimated to range to $5.2 billion depending on the number from $308 million to $474 million. See Based on the above calculations, DHS of travelers, the value of time, and the Exhibit 8. estimates that the total quantified costs discount rate (3 or 7 percent).

EXHIBIT 8—TOTAL PRESENT VALUE AND ANNUALIZED COSTS TO TRAVELERS, 2008–2018

Total present value costs Annualized costs ($billions) ($millions) Low estimate High estimate Low estimate High estimate 3% 7% 3% 7% 3% 7% 3% 7%

3.592 3.464 5.237 5.085 325 308 474 452

DHS has shown that costs to air and is unable to quantify with any degree of governments; and, impacts on queues in sea carriers to support the requirements confidence but should be considered. airports and seaports. of the ESTA program could cost $244 These include: Costs to travel agents million to $270 million over the period and other third-parties applying for Benefits of analysis depending on the discount ESTA travel authorizations on their Benefits of ESTA Advance Screening rate applied to annual costs. Costs to clients’ behalf; losses due to denied foreign travelers could total $3.3 billion travel authorizations and visas (some In addition to fulfilling a statutory to $5.2 billion depending on traveler travelers may not be able to travel to the mandate, the rule serves the twin goals levels, their value of time, and the United States even when they apply for of promoting border security and discount rate applied. a visa at a U.S. embassy or consulate); legitimate travel to the United States. By In addition to the costs quantified trips forgone due to cost, attitude, or modernizing the VWP, ESTA is here, there are other impacts that DHS confusion; reciprocity by foreign intended to both increase national

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security and provide for greater other information available, and authorization to travel to the United efficiencies in the screening of personal judgment, the CBP officer States annually as a result of the ESTA international travelers by allowing for would then make the determination to requirements and must obtain a visa in screening of subjects of potential admit the person to the United States or order to travel. interest well before boarding, thereby refer the traveler to secondary When inadmissible travelers are reducing traveler delays based on inspection for further processing. brought to the United States, they are potentially lengthy processes at U.S. A travel authorization provided referred to secondary inspection where ports of entry. through ESTA permits travel to the a CBP or other law enforcement officer Before ESTA implementation, a very United States but does not guarantee questions them and processes them for small percentage of visitors to the admissibility. Thus, even with ESTA, return to their country of origin. DHS United States are inadmissible for a certain travelers are found inadmissible estimates that it costs $136 per variety of reasons, including but not once they arrive in the United States. A limited to certain health problems and crucial element to determining individual for questioning and certain criminal activity. These aliens admissibility is the face-to-face processing. DHS estimates that may be returned to their country of interaction between the CBP officer and returning inadmissible travelers to their origin at the commercial carrier’s the potential entrant after arrival at the country of origin costs carriers $1,500 expense, and the carrier may be fined United States. Thus, carriers are still per individual, which includes the air for transporting an alien visitor not in responsible for returning passengers to fare and any lodging and meal expenses possession of proper documentation. their last foreign point of departure at incurred while the individual is One of the stated purposes of this rule the carriers’ expense if travelers cannot awaiting transportation out of the is to prevent inadmissible travelers and overcome the inadmissibility United States. travelers not eligible for VWP travel determination of the CBP officer during Based on these estimates, DHS from arriving in the United States. Prior secondary processing. calculates that benefits to DHS will total to ESTA, VWP visitors answered ESTA allows for advance screening of $65 million to $66 million over the questions concerning admissibility by VWP travelers against databases for lost period of analysis depending on the completing their Form I–94Ws as they and stolen passports, visa revocations, discount rate applied. Benefits to were en route to the United States (non- terrorists and by asking admissibility carriers could total $721 million to $732 VWP visitors answer the admissibility questions. Based on actual ESTA denial million. Annualized benefits range from questions on their visa applications). data, DHS estimates that 0.23 percent of $70 million to $72 million. See Exhibit Based on the answers to these questions, affected individuals are denied an ESTA 9.

EXHIBIT 9—BENEFITS OF ADMISSIONS DENIED ATTRIBUTABLE TO ESTA, 2008–2018 [in $millions]

Total 3% Discount rate 7% Discount rate admissions Benefits to Benefits to Total Annualized Benefits to Benefits to Total Annualized denied DHS carriers benefits benefits DHS carriers benefits benefits

496,960 66.2 732.1 798.4 72.3 65.2 721.1 786.3 69.9 Detail may not calculate to total due to independent rounding.

Benefits of Not Having To Obtain Visas they were not part of the VWP. Then subtracts out those who are denied a for Travelers From New VWP Countries DHS estimates a percentage of repeat travel authorization and must apply for a visa instead. The benefits of not having to obtain a travelers who would also need to have B–1/B–2 visa, but rather obtaining a visas because their old visa would Benefits of forgoing visas are expected travel authorization, are also expire during the next 10 years. Most to range from about $2.0 billion to $2.6 quantifiable. These benefits are realized VWP visitors are eligible for 10-year B– billion (present value) from 2008 to only by travelers from new VWP 1/B–2 visas, so on average, one tenth of 2018 depending on the travel level, the countries, i.e., countries that became these visas expire every year. DHS thus value of time used, and the discount part of the VWP after publication of the assumes that 10 percent of repeat rate applied (3 or 7 percent). ESTA IFR. DHS must first determine visitors would have to reapply for visas Annualized benefits range from $180 13 how many travelers are repeat versus were it not for the rule. Finally, DHS million to $238 million. See Exhibit 10. first-time travelers in order not to 13 DHS notes that Taiwan has a 5-year validity of VWP travelers, so assuming a 10-year validity double-count benefits from not having period for B–1/B–2 visas. Travelers from Taiwan period for Taiwan does not materially affect the to obtain a visa. Prior to this rule, these make up only about 1 percent of the total number analysis. visitors would all have needed visas if

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EXHIBIT 10—TOTAL PRESENT VALUE AND ANNUALIZED BENEFITS OF FORGOING VISAS, 2008–2018

Total present value benefits Annualized benefits ($billions) ($millions) Low estimate High estimate Low estimate High estimate 3% 7% 3% 7% 3% 7% 3% 7%

2.089 2.022 2.632 2.549 189 180 238 227

Benefits of Not Having To Complete the estimated time to complete either the Benefits of not having to complete the Form I–94W and Form I–94 Form I–94W or Form I–94 is 8 minutes paper forms are expected to range from DHS can also quantify the benefits of (0.13 hours). DHS subtracts out those $739 million to $1.6 billion from 2008 not having to complete the Form I–94W travelers who are not able to obtain a to 2018 depending on the value of time (for travelers from the original VWP travel authorization through ESTA (see used and the discount rate applied (3 or countries) and paper Form I–94 (for previous section on costs) and then 7 percent). Annualized benefits range travelers from new VWP countries). apply a low and high value of time to from $66 million to $144 million. See These benefits will accrue to all the burden to estimate total savings Exhibit 11. travelers covered by ESTA. The expected as a result of this rule.

EXHIBIT 11—TOTAL PRESENT VALUE AND ANNUALIZED BENEFITS OF FORGOING THE I–94/I–94W, 2008–2018

Total present value benefits Annualized benefits ($billions) ($millions) Low estimate High estimate Low estimate High estimate 3% 7% 3% 7% 3% 7% 3% 7%

0.750 0.739 1.588 1.565 68 66 144 139

In addition to these benefits to similar to the Form I–94W. In this rule, passengers aboard the aircraft and travelers, DHS and the carriers should DHS estimated that automating vessel. also experience the benefit of not having 16,586,753 Forms I–94 in the air and sea Benefits of not having to administer to print and store the Form I–94W. In environments would save CBP $153,306 paper forms are expected to range from March, 2013, DHS published an interim and carriers $1,344,450 in 2011. To $1.9 million to $2.0 million for DHS and final rule entitled, ‘‘Definition of Form apply these cost savings to the ESTA I–94 to Include Electronic Format.’’ As Final Rule, DHS scales these costs from $16.9 million to $17.2 million for part of the regulatory analysis for this proportionally with the number of carriers from 2009 to 2018 depending on rule, DHS estimated the cost savings to Forms I–94W being eliminated each the value of time used and the discount DHS and carriers attributed to the year as part of this rule. DHS notes that rate applied (3 or 7 percent). automation of the Form I–94 in the air carriers will still have to administer the Annualized benefits are $1.7 million. and sea environments, which is very Customs Declaration forms for all See Exhibit 12.

EXHIBIT 12—FORM MANAGEMENT BENEFITS FOR DHS AND CARRIERS, 2008–2018 [in $millions]

3% Discount rate 7% Discount rate Benefits to Annualized Benefits to Annualized Benefits to DHS carriers Total benefits benefits Benefits to DHS carriers Total benefits benefits

1.957 17.168 19.125 1.7 1.928 16.908 18.836 1.7 Detail may not calculate to total due to independent rounding.

Total Benefits to Travelers period of analysis. Annualized benefits could range from $246 million to $382 Total benefits to travelers could total million. See Exhibit 13. $2.8 billion to $4.2 billion over the

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EXHIBIT 13—TOTAL PRESENT VALUE AND ANNUALIZED BENEFITS TO TRAVELERS, 2008–2018

Total present value benefits Annualized benefits ($billions) ($millions) Low estimate High estimate Low estimate High estimate 3% 7% 3% 7% 3% 7% 3% 7%

2.846 2.770 4.220 4.114 258 246 382 366

Benefits of Enhanced Security resources on unknown threats rather promotion fee. The U.S. travel and As set forth in section 711 of the 9/ than known threats (those on a watch tourism industry may benefit to the 11 Act, it was the intent of Congress to list). Since the publication of the extent that travel promotion efforts modernize and strengthen the security Interim Final Rule, DHS has added made possible by the Travel Promotion of the VWP under section 217 of the questions to ESTA to further improve Fund are successful in increasing travel Immigration and Nationality Act (INA), security. The addition of these data to the United States. Likewise, the TPA 8 U.S.C. 1187) by enhancing program elements improves the Department’s has a mandate to provide information to security requirements. ability to screen prospective VWP communicate travel requirements, This rule and the APIS 30/AQQ rule travelers while more accurately and including ESTA, to travelers. To the published on August 23, 2007 14 have effectively identifying those who pose a extent that this outreach increases the similar security objectives: To prevent a security risk to the United States. We travelers’ understanding of U.S. travel traveler who has been matched to an note that since the publication of the requirements, they will benefit. individual on a government watch list Interim Final Rule, ESTA has been The total net benefits of the rule are from boarding an aircraft or cruise ship successful in denying travel presented in Exhibit 14. Net benefits bound for the United States. As these authorizations to known or suspected range from a net loss of $158 million to benefits have already been accounted terrorists. In 2014, 817 known or a net loss of $443 million, depending on for in the regulatory assessment for the suspected terrorists were denied ESTA the value of time and discount rate APIS rule, we do not repeat them here. authorizations.15 used. We note that, though the ESTA has the additional security benefit This rule allows CBP to comply with monetized net benefits of this rule are of preventing those on a government the TPA’s mandate that the Secretary negative, the non-monetized security watch list from purchasing a ticket. This establish a fee for the use of the ESTA benefits are large enough to for this allows CBP to focus its targeting system and also establish a $10 travel rule’s benefits to exceed the costs.

EXHIBIT 14—TOTAL NET BENEFITS, 2009–2018

Total present values Annualized values ($billions) ($millions) Low estimate High estimate Low estimate High estimate 3% 7% 3% 7% 3% 7% 3% 7% discount discount discount discount discount discount discount discount rate rate rate rate rate rate rate rate

Costs ...... (3.836) (3.734) (5.481) (5.355) (347) (332) (496) (476) Benefits ...... 3.664 3.575 5.037 4.919 332 318 456 437

Net Benefit...... (0.172) (0.158) (0.443) (0.435) (16) (14) (40) (39) Detail may not calculate to total due to independent rounding. Parentheses indicate a negative value. Note that annualized values are not additive.

Annualized costs and benefits to U.S. accounting statement, as required by entities are presented in the following OMB Circular A–4.

ACCOUNTING STATEMENT: CLASSIFICATION OF EXPENDITURES TO U.S. ENTITIES, 2008–2018 [$2013]

3% discount rate 7% discount rate

Costs: Annualized monetized costs ...... $22 million ...... $24 million. Annualized quantified, but non-monetized None quantified ...... None quantified. costs. Qualitative (non-quantified) costs ...... Indirect costs to the travel and tourism indus- Indirect costs to the travel and tourism indus- try. try. Benefits:

14 FR 48320. U.S. Customs and Border Protection. Crew Member Manifests for Commercial Aircraft 15 Source: Internal tracking system maintained by Advance Electronic Transmission of Passenger and and Vessels; final rule. August 23, 2007. CBP’s Office of Field Operations.

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ACCOUNTING STATEMENT: CLASSIFICATION OF EXPENDITURES TO U.S. ENTITIES, 2008–2018—Continued [$2013]

3% discount rate 7% discount rate

Annualized monetized benefits ...... $71 million to $74 million ...... $69 million to $72 million. Annualized quantified, but non-monetized None quantified ...... None quantified. benefits. Qualitative (non-quantified) benefits...... Enhanced security and efficiency, indirect Enhanced security and efficiency, indirect benefits to the travel and tourism industry. benefits to the travel and tourism industry.

DHS estimates that the carrier costs of rule. Conversely, there are non- the name of the passenger and the this rule are approximately $22 million quantified benefits to the travel and admissibility questions on the Form I– to $24 million annualized. Quantified tourism industry if this rule results in 94W (less burdensome for the traveler) benefits of $69 million to $74 million to more visitors. Additional non-quantified • Alternative 3: The ESTA U.S. entities (carriers and DHS) are for benefits are enhanced security and requirements in the rule, but only for forgone costs associated with processing efficiency. the 10 new VWP countries (no new and transporting inadmissible travelers requirements for travelers from the and forgone form administration costs. Regulatory Alternatives original VWP countries, reduced burden There are also quantified costs and DHS considers three alternatives to benefits for travelers; however, because this rule— for new VWP travelers) these are attributable solely to foreign • Alternative 1: The ESTA For the sake of brevity, DHS presents individuals, DHS does not include them requirements in the rule, but with no the high value estimates at the 7 percent in the accounting statement. There are application fee (more costly for DHS, discount rate only. Costs are expressed non-quantified costs to the travel and less burdensome for traveler) as negative values (denoted by tourism industry if the United States • Alternative 2: The ESTA parentheses) in this presentation of receives fewer visitors as a result of this requirements in the rule, but with only impacts. See Exhibit 15.

EXHIBIT 15—COMPARISON OF 11-YEAR IMPACTS OF THE RULE AND REGULATORY ALTERNATIVES, 2008–2018, IN $BILLIONS, HIGH ESTIMATE, 7 PERCENT DISCOUNT RATE

Rule Alternative 1 Alternative 2 Alternative 3

Carrier costs ...... $(0.270) ...... $(0.270) ...... $(0.270) ...... $(0.270). ESTA time burden ...... (2.941) ...... (2.941) ...... (1.961) ...... (0.127). Visa costs ...... (0.224) ...... (0.224) ...... (0.224) ...... 0. ESTA fee ...... (1.920) ...... 0 ...... (1.920) ...... (0.187). CBP costs ...... 0 ...... (1.920) ...... 0 ...... (1.733). Inadmissibility savings ...... 0.810 ...... 0.810 ...... 0.810 ...... 0.068. Benefit of no visa ...... 2.549 ...... 2.549 ...... 2.549 ...... 2.549. Benefit of no I–94/94W ...... 1.565 ...... 1.565 ...... 1.565 ...... 0.068. Benefit of no form administration ... 0.019 ...... 0.019 ...... 0.019 ...... 0.019.

Net impact ...... $(0.412) ...... $(0.412) ...... $0.568 ...... 0.387.

Comment ...... Does not meet statutory All data elements are re- Does not meet statutory requirements. quired for effective requirements. screening. Detail may not calculate to total due to independent rounding. Parentheses indicate a negative value. Note that annualized values are not additive.

DHS has determined that this rule Small Business Regulatory Enforcement regulatory flexibility analysis was not provides the greatest level of enhanced and Fairness Act of 1996, requires an required. Nonetheless, DHS has security and efficiency at an acceptable agency to prepare a regulatory flexibility considered the impact of this rule on cost to the traveling public and analysis that describes the effect of a small entities. The individuals to whom potentially affected air and sea carriers. proposed rule on small entities when this rule applies are not small entities as Alternative 2 would provide less the agency is required to publish a that term is defined in 5 U.S.C. 601(6). security as it does not include the general notice of proposed rulemaking. C. Unfunded Mandates Reform Act of additional questions on the ESTA A small entity may be a small business 1995 application that CBP uses for targeting (defined as any independently owned purposes. Alternative 3 would provide and operated business not dominant in This rule will not result in the less security because we would only get its field that qualifies as a small expenditure by State, local, and tribal advance information from a relatively business per the Small Business Act); a governments, in the aggregate, or by the small subset of the VWP population. small not-for-profit organization; or a private sector, of $100 million or more B. Regulatory Flexibility Act small governmental jurisdiction in any one year, and it will not (locality with fewer than 50,000 people). significantly or uniquely affect small The Regulatory Flexibility Act (5 Since a general notice of proposed governments. Therefore, no actions are U.S.C. 601 et seq.), as amended by the rulemaking was not necessary, a necessary under the provisions of the

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Unfunded Mandates Reform Act of ■ 2. Section 217.5 is amended by adding 22102–5090, (703) 883–4071, TTY (703) 1995. paragraph (d)(3) and revising paragraph 883–4056. (h)(2) to read as follows: D. Executive Order 13132 SUPPLEMENTARY INFORMATION: The Farm Credit Administration issued a final rule The rule will not have substantial § 217.5 Electronic System for Travel Authorization. to reflect the change of address for two direct effects on the States, on the FCA field office locations. The Freedom * * * * * relationship between the National of Information Act, 5 U.S.C. 552, Government and the States, or on the (d) * * * (3) The Secretary, in consultation requires, in part, that each Federal distribution of power and agency publish in the Federal Register responsibilities among the various with the Secretary of State, may increase or decrease ESTA travel authorization for the guidance of the public a levels of government. Therefore, in description and the location of its accordance with section 6 of Executive validity period otherwise authorized by subparagraph (1) for a designated VWP central and field organizations. As two Order 13132, this rule does not have of FCA’s field offices recently changed sufficient federalism implications to country. Notice of any change to ESTA travel authorization validity periods locations, the final rule amended our warrant the preparation of a federalism regulation to include the new addresses, summary impact statement. will be published in the Federal Register. The ESTA Web site will be in accordance with the Freedom of E. Executive Order 12988 Civil Justice updated to reflect the specific ESTA Information Act. In accordance with 12 Reform travel authorization validity period for U.S.C. 2252, the effective date of the each VWP country. interim rule is 30 days from the date of This rule meets the applicable publication in the Federal Register standards set forth in sections 3(a) and * * * * * during which either or both Houses of 3(b)(2) of Executive Order 12988. (h) * * * Congress are in session. Based on the (2) Beginning October 1, 2020, the fee records of the sessions of Congress, the F. Paperwork Reduction Act for using ESTA is an operational fee of effective date of the regulations is May An agency may not conduct, and a $4.00 to at least ensure recovery of the 22, 2015. person is not required to respond to, a full costs of providing and collection of information unless the administering the system. (12 U.S.C. 2252(a)(9) and (10)) collection of information displays a Dated: June 3, 2015. Dated: June 1, 2015. valid control number assigned by OMB. Jeh Charles Johnson, Dale L. Aultman, OMB has already approved the Secretary. Secretary, Farm Credit Administration Board. collection of the ESTA information in [FR Doc. 2015–13880 Filed 6–5–15; 8:45 am] accordance with the Paperwork [FR Doc. 2015–13919 Filed 6–5–15; 8:45 am] BILLING CODE 6705–01–P Reduction Act of 1995 (44 U.S.C. 3507) BILLING CODE 9111–14–P under OMB Control Number 1651–0111. G. Privacy FARM CREDIT ADMINISTRATION DEPARTMENT OF TRANSPORTATION DHS published an ESTA Privacy Federal Aviation Administration Impact Assessment (PIA) for the Interim 12 CFR Part 600 Final Rule announcing ESTA on June 9, RIN 3052–AD05 14 CFR Part 39 2008. Additionally, at that time, DHS prepared a separate System of Records Organization and Functions; Field [Docket No. FAA–2014–0464; Directorate Notice (SORN) which was published in Office Locations Identifier 2014–SW–002–AD; Amendment conjunction with the ESTA IFR on June 39–18169; AD 2015–11–06] AGENCY: Farm Credit Administration. 9, 2008. DHS has updated these RIN 2120–AA64 documents since that time and the most ACTION: Notice of effective date. current ESTA PIA and SORN are SUMMARY: The Farm Credit Airworthiness Directives; Airbus available for viewing at http:// Administration (FCA, we, or our) issued Helicopters (Previously Eurocopter www.dhs.gov/privacy-documents-us- a final rule amending our regulation in France) Helicopters customs-and-border-protection. order to change the addresses for two AGENCY: Federal Aviation List of Subjects in 8 CFR Part 217 field offices as a result of recent office Administration (FAA), DOT. relocations. In accordance with the law, Air carriers, Aliens, Maritime carriers, ACTION: Final rule. the effective date of the rule is 30 days Passports and visas. from the date of publication in the SUMMARY: We are superseding Amendments to Regulations Federal Register during which either or Airworthiness Directive (AD) 2013–18– Accordingly, the interim rules both Houses of Congress are in session. 01 for Eurocopter France Model EC amending part 217 of the CBP DATES: Under the authority of 12 U.S.C. 155B, EC155B1, SA–365N, SA–365N1, regulations (8 CFR part 217), which 2252, the regulation amending 12 CFR AS–365N2, AS 365 N3, and SA–366G1 were published at 73 FR 32440 on June part 600 published on March 25, 2015 helicopters. AD 2013–18–01 required 9, 2008 and 75 FR 47701 on August 9, (80 FR 15680) is effective May 22, 2015. inspecting the collective pitch lever for 2010, are adopted as final with the FOR FURTHER INFORMATION CONTACT: correct locking and unlocking following changes: Michael T. Wilson, Policy Analyst, conditions. As published, AD 2013–18– Office of Regulatory Policy, Farm Credit 01 contained certain errors. This new PART 217—VISA WAIVER PROGRAM Administration, McLean, VA 22102– AD retains the requirements of AD 5090, (703) 883–4124, TTY (703) 883– 2013–18–01, corrects the errors, and ■ 1. The authority citation for part 217 4056; or updates the type certificate holder’s continues to read as follows: Jane Virga, Senior Counsel, Office of name. The actions in this AD are Authority: 8 U.S.C. 1103, 1187, 8 CFR part General Counsel, Farm Credit intended to detect an incorrectly 2. Administration, McLean, Virginia adjusted collective pitch lever, which

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