Federal Register, Volume 80 Issue 109 (Monday, June 8, 2015)
[Federal Register Volume 80, Number 109 (Monday, June 8, 2015)]
[Rules and Regulations]
[Pages 32267-32294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13919]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 80, No. 109 / Monday, June 8, 2015 / Rules 
and Regulations

[[Page 32267]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 217

[Docket Nos. USCBP-2008-003 and USCBP-2010-0025; CBP Dec. No. 15-08]
RIN 1651-AA72 and RIN 1651-AA83


Changes to the Visa Waiver Program To Implement the Electronic 
System for Travel Authorization (ESTA) Program and the Fee for Use of 
the System

AGENCY: U.S. Customs and Border Protection; DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule adopts as final, with one substantive change, 
interim amendments to DHS regulations published in the Federal Register 
on June 9, 2008 and August 9, 2010 regarding the Electronic System for 
Travel Authorization (ESTA). ESTA is the online system through which 
nonimmigrant aliens intending to enter the United States under the Visa 
Waiver Program (VWP) must obtain a travel authorization in advance of 
travel to the United States. The June 9, 2008 interim final rule 
established ESTA and set the requirements for use for travel through 
air and sea ports of entry. The August 9, 2010 interim final rule 
established the fee for ESTA. This document addresses comments received 
in response to both rules and some operational modifications affecting 
VWP applicants and travelers since the publication of the interim 
rules.

DATES: This rule is effective on July 8, 2015.

FOR FURTHER INFORMATION CONTACT: Suzanne Shepherd, U.S. Customs and 
Border Protection, Office of Field Operations, at 
suzanne.m.shepherd@dhs.gov and (202) 344-3710.

SUPPLEMENTARY INFORMATION:

Table of Contents

Executive Summary
I. Background and Purpose
    A. The Visa Waiver Program
    B. The Electronic System for Travel Authorization (ESTA)
    C. The Fee for Use of ESTA and the Travel Promotion Act Fee
II. Discussion of Comments Submitted in Response to the Interim 
Final Rule Establishing ESTA and Interim Final Rule Announcing the 
ESTA Fee
    A. Overview
    B. Discussion of Comments
    1. Impact on Travel
    2. Impact on Short Notice Travelers
    3. Implementation of ESTA
    4. Plain Language and ESTA Web Site Assistance
    5. Internet Concerns and Third Party Applications
    6. The Role of ESTA for VWP Travelers
    7. In-Transit Travel
    8. ESTA Enforcement
    9. State Department Coordination
    10. ESTA Expansion to Land Arrivals
    11. Impact on Existing Laws and Agreements
    12. I-94W Paper Form
    13. Preclearance Ports and Internet Kiosks
    14. ESTA Applications at Airports
    15. ESTA Validity Period
    16. Passport Issues
    17. Denied Travel Authorization
    18. Expedited Review
    19. ESTA Application Status Notifications for Travelers and 
Carriers
    20. Proof of Travel Authorization
    21. Mandatory and Optional Data Elements
    22. ESTA Interaction With Other Systems
    23. Method of Payment
    24. ESTA Fee and the Travel Promotion Act (TPA) Fee
    25. APA Procedures
    26. Effective Date
    27. Privacy
    28. Economic Analysis; Regulatory Flexibility Act; Paperwork 
Reduction Act
    29. Comments That Are Beyond the Scope of the IFRs
III. Conclusion
    A. Regulatory Amendments
    B. Operational Modifications
IV. Statutory and Regulatory Requirements
    A. Executive Order 13563 and Executive Order 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Executive Order 13132
    E. Paperwork Reduction Act
    F. Executive Order 12988 Civil Justice Reform
    G. Privacy
List of Subjects
Regulations

Executive Summary

    Prior to implementing the Electronic System for Travel 
Authorization (ESTA), international travelers from Visa Waiver Program 
(VWP) countries \1\ were not evaluated, in advance of travel, for 
eligibility to travel to the United States under the VWP. In the wake 
of the tragedy of September 11, 2001, Congress enacted the Implementing 
Recommendations of the 9/11 Commission Act of 2007, Public Law 110-53. 
To address this identified vulnerability of the VWP, section 711 of the 
Implementing Recommendations of the 9/11 Commission Act of 2007 
(section 711 of the 9/11 Act), was enacted, requiring the Secretary of 
Homeland Security to implement a system that would provide for the 
advance screening of international travelers by allowing DHS to 
identify subjects of potential interest before they board a conveyance 
destined for the United States.
---------------------------------------------------------------------------

    \1\ With respect to all references to ``country'' or 
``countries'' in this document, it should be noted that the Taiwan 
Relations Act of 1979, Public Law 96-8, Section 4(b)(1), provides 
that ``[w]henever the laws of the United States refer or relate to 
foreign countries, nations, states, governments, or similar 
entities, such terms shall include and such laws shall apply with 
respect to Taiwan.'' 22 U.S.C. 3303(b)(1). Accordingly, all 
references to ``country'' or ``countries'' in the Visa Waiver 
Program authorizing legislation, Section 217 of the Immigration and 
Nationality Act, 8 U.S.C. 1187, are read to include Taiwan. This is 
consistent with the United States' one-China policy, under which the 
United States has maintained unofficial relations with Taiwan since 
1979.
---------------------------------------------------------------------------

    On June 9, 2008, the Department of Homeland Security (DHS) 
published an interim final rule in the Federal Register (73 FR 32440) 
announcing the creation of the ESTA program for nonimmigrant aliens 
traveling to the United States by air or sea under the VWP. On November 
13, 2008, DHS published a notice in the Federal Register (73 FR 67354) 
announcing that ESTA would be mandatory for all VWP participants 
traveling to the United States at air or sea ports of entry beginning 
January 12, 2009.
    On March 4, 2010, the United States Capitol Police Administrative 
Technical Corrections Act of 2009, Public Law 111-145, was enacted. 
Section 9 of this law, the Travel Promotion Act of 2009 (TPA), mandated 
the Secretary of Homeland Security to establish a fee for the use of 
ESTA and begin assessing and collecting the fee.

[[Page 32268]]

    On August 9, 2010, DHS published an interim final rule in the 
Federal Register (75 FR 47701) announcing that, beginning September 8, 
2010, a $4 ESTA fee would be charged to each ESTA applicant to ensure 
recovery of the full costs of providing and administering the system 
and an additional $10 TPA fee would be charged to each applicant 
receiving travel authorization through September 30, 2015.\2\
---------------------------------------------------------------------------

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

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

                   ES-1--Annualized Costs and Benefits of the Rule to U.S. Entities, 2008-2018
                                                     [$2013]
----------------------------------------------------------------------------------------------------------------
                                             3% Discount rate                        7% Discount rate
----------------------------------------------------------------------------------------------------------------
                                                      Costs
----------------------------------------------------------------------------------------------------------------
Carriers--Systems..............  $22 million............................  $24 million.
----------------------------------------------------------------------------------------------------------------
                                                    Benefits
----------------------------------------------------------------------------------------------------------------
Carriers--Inadmissibility        65 million to 69 million...............  63 million to 66 million.
 Savings.
CBP--Inadmissibility Savings...  6 million..............................  6 million.
Total Inadmissibility Savings..  71 million to 75 million...............  69 million to 72 million.
Carriers--Forms Maintenance      2 million..............................  2 million.
 Savings.
CBP--Forms Maintenance Savings.  0.2 million............................  0.2 million.
Total Forms Maintenance Savings  2 million..............................  2 million.
----------------------------------------------------------------------------------------------------------------


[[Page 32269]]

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

                 ES-2--Annualized Costs and Benefits of the Rule to Foreign Entities, 2008-2018
                                                     [$2013]
----------------------------------------------------------------------------------------------------------------
                                             3% Discount rate                        7% Discount rate
----------------------------------------------------------------------------------------------------------------
                                                      Costs
----------------------------------------------------------------------------------------------------------------
Travelers--Fee for Travel        $131 million to $138 million...........  $127 million to $133 million.
 Authorization.
Travelers--Time Burden for       126 million to 282 million.............  122 million to 271 million.
 Travel Authorization.
Travelers--Visa Costs..........  14 million to 21 million...............  14 million to 21 million.
----------------------------------------------------------------------------------------------------------------
                                                    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

A. The Visa Waiver Program

    Pursuant to section 217 of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1187, the Secretary of Homeland Security, in 
consultation with the Secretary of State, may designate countries for 
participation in the Visa Waiver Program (VWP) if certain requirements 
are met.\3\ Eligible citizens and nationals of VWP countries may apply 
for admission to the United States at a U.S. port of entry as 
nonimmigrant visitors for a period of ninety (90) days or less for 
business or pleasure without first obtaining a nonimmigrant visa, 
provided that they are otherwise eligible for admission under 
applicable statutory and regulatory requirements. Other nonimmigrant 
visitors must obtain a visa from a U.S. embassy or consulate and 
generally must undergo an interview by consular officials overseas in 
advance of travel to the United States.
---------------------------------------------------------------------------

    \3\ The current list of VWP countries is set forth in 8 CFR 
217.2(a).
---------------------------------------------------------------------------

B. The Electronic System for Travel Authorization (ESTA)

    On August 3, 2007, the President signed into law the Implementing 
Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Public 
Law 110-53. Section 711 of the 9/11 Act required that the Secretary of 
Homeland Security, in consultation with the Secretary of State, develop 
and implement a fully automated electronic travel authorization system 
to collect biographical and other information as the Secretary 
determines necessary to evaluate, in advance of travel, the eligibility 
of the applicant to travel to the United States under the VWP, and 
whether such travel poses a law enforcement or security risk. See 8 
U.S.C. 1187(h)(3)(A).
    On June 9, 2008, DHS published an interim final rule in the Federal 
Register (73 FR 32440) announcing the creation of the ESTA program for 
nonimmigrant visitors traveling to the United States by air or sea 
under the VWP. See 8 CFR 217.5. ESTA provided for an automated 
collection of the information required on the Form I-94W Nonimmigrant 
Visa Waiver Arrival/Departure paper form (Form I-94W) in advance of 
travel. ESTA is intended to fulfill the statutory requirements 
described in Section 711 of the 9/11 Act. For purposes of this 
document, the June 9, 2008 interim final rule is referred to as the 
ESTA IFR.
    On November 13, 2008, DHS published a notice in the Federal 
Register (73 FR 67354) announcing that use of ESTA would be mandatory 
for all VWP travelers traveling to the United States seeking admission 
at air and sea ports of entry beginning January 12, 2009. Since that 
date, VWP travelers have been required to receive travel authorization 
through ESTA prior to boarding a conveyance destined for an air or sea 
port of entry in the United States. Travelers unable to receive 
authorization through ESTA may still apply for a visa to travel to the 
United States.

C. The Fee for Use of ESTA and the Travel Promotion Act Fee

    On March 4, 2010, the United States Capitol Police Administrative 
Technical Corrections Act of 2009, Public Law 111-145, was enacted. 
Section 9 of this law, the Travel Promotion Act of 2009 (TPA), mandated 
the Secretary of Homeland Security to establish a fee for the use of 
ESTA and begin assessing and collecting the fee no later than six 
months after enactment. See 8 U.S.C. 1187(h)(3)(B).
    The TPA provided that the required fee consist of the sum of $10 
per travel authorization (TPA fee) to fund the newly authorized 
Corporation for Travel Promotion and an amount that will at least 
ensure recovery of the full costs of providing and administering the 
System (ESTA fee), as determined by the Secretary. See 8 U.S.C. 
1187(h)(3)(B). The TPA fee has a sunset provision and the Secretary is 
authorized to collect this fee only through September 30, 2020.\4\ The 
ESTA fee, in contrast, does not include a sunset provision, but will be 
reassessed on a regular basis to ensure it is set at a level to fully 
recover ESTA operating costs.
---------------------------------------------------------------------------

    \4\ See Footnote 3 above regarding the extension of the sunset 
provision of the Travel Promotion Act fee through September 30, 
2020.
---------------------------------------------------------------------------

    On August 9, 2010, DHS published an interim final rule in the 
Federal Register (75 FR 47701) announcing that, beginning September 8, 
2010, a $4 ESTA fee would be charged to each ESTA applicant to ensure 
recovery of the full costs of providing and administering the system 
and an additional $10 TPA fee would be charged to each applicant 
receiving a travel authorization through September 30, 2020. See 8 CFR 
217.5(h). For purposes of this document, the August 9, 2010 interim 
final rule is referred to as the ESTA Fee IFR.
    For more details regarding ESTA, please see the ESTA IFR (73 FR 
32440).

[[Page 32270]]

For more details regarding the fees associated with ESTA, please see 
the ESTA Fee IFR (75 FR 47701). Additional information may also be 
found on the ESTA Web site at https://esta.cbp.dhs.gov.

II. Discussion of Comments Submitted in Response to the Interim Final 
Rule Announcing ESTA and Interim Final Rule Announcing the ESTA Fee

A. Overview

    DHS issued the ESTA IFR on June 8, 2008 and the ESTA Fee IFR on 
August 9, 2010. Although DHS promulgated both IFRs without first 
soliciting public notice and comment procedures, DHS provided a sixty 
day post-promulgation comment period for each rule. Each IFR solicited 
public comments that DHS would consider before adopting the interim 
regulations as final. The ESTA IFR went into effect on January 12, 2009 
and the ESTA Fee IFR became effective on September 8, 2010. DHS 
received twenty-two submissions in response to the ESTA IFR and 
seventeen submissions in response to the ESTA Fee IFR. Many of the 
submissions contained multiple comments. This final rule addresses all 
the comments submitted within the comment periods that are within the 
scope of the two interim final rules.
    Of the twenty-two submissions for the ESTA IFR, most included 
comments seeking clarification on specific issues, highlighting 
concerns or issues with ESTA, or offering solutions to issues or 
alternatives to ESTA. Many of the operational issues raised by 
commenters have already been addressed by DHS during implementation of 
ESTA, which our responses reflect. Of the seventeen submissions to the 
ESTA Fee IFR, some commenters objected to the fees generally and others 
sought clarification regarding the fees, such as why there were two 
components and when the fees would be incurred.
    Due to the evolution of ESTA and the occasional overlap of comments 
received in response to both interim final rules, all of the following 
comments are grouped by category. Except where necessary, comments to 
the ESTA IFR and comments to the ESTA Fee IFR are not distinguished.

B. Discussion of Comments

1. Impact on Travel
    Comment: Some commenters expressed support for ESTA because it will 
allow VWP travelers the opportunity to learn of travel eligibility 
problems in advance of arrival.
    Response: DHS agrees that one benefit of ESTA is that it informs 
travelers of their eligibility to travel to the United States under the 
VWP before departing for the United States. Applicants who are not 
eligible to travel to the United States through the VWP can attempt to 
make alternative arrangements in advance, such as obtaining a visa from 
a U.S. embassy or consulate. For more information about visa 
application procedures, please visit http://www.travel.state.gov.
    Comment: A few commenters expressed concern that the ESTA fee and 
the TPA fee could negatively impact how the world views the United 
States and could be perceived as an obstacle to legitimate travel. The 
commenters claimed this could result in some travelers avoiding the 
United States, which would hurt tourism, business interests, and the 
travel industry.
    Response: There are a lot of variables that can influence the 
numbers of VWP travelers who come to the United States. DHS is 
confident that ESTA is not a significant deterrent. Despite the 
assertion that ESTA and the ESTA fee would negatively affect tourism to 
the United States, DHS has seen no decrease in VWP travel coming to the 
United States since ESTA was announced, even after accounting for 
countries that have joined the VWP since ESTA was implemented. Through 
the end of 2012, there have been over 50 million travel authorizations 
granted through ESTA.
    Comment: Some commenters noted that significant burdens could be 
placed on airlines due to passengers attempting to board without having 
first obtained ESTA travel authorization.
    Response: Prior to implementation, DHS conducted significant 
outreach to the travel industry and the traveling public to ensure that 
they were aware of the ESTA requirements, including the need to have a 
valid ESTA travel authorization prior to boarding a conveyance destined 
for an air or sea port in the United States. In addition to outreach, 
DHS took various steps, including delaying implementation and 
establishing an informed-compliance period, to enable the travel 
industry and the traveling public to adjust to the new requirements. 
This is explained in more detail in Section II. B. 3 (Implementation of 
ESTA). As a result of these steps and the outreach, the concerns raised 
in this comment never materialized.
2. Impact on Short Notice Travelers
    Comment: A number of comments were received regarding the timeline 
for ESTA approval and the impact on last minute travelers applying at 
the airport on the day of scheduled travel. One commenter asked DHS to 
monitor the system for problems to determine if there are negative 
impacts on last minute business travelers and to provide guidance on 
what a last minute traveler should do in the case where he or she has 
not received an ESTA determination, but needs to depart for the United 
States. Some commenters said that DHS' recommended timeline for 
applying for an ESTA travel authorization (no later than 72 hours prior 
to departure) is not sufficient to accommodate last minute business 
travelers.
    Response: An ESTA travel authorization is generally valid for two 
years so concerns about last minute travel will only be for those who 
have not already received travel authorization through the ESTA Web 
site. Also, potential VWP travelers may apply for an ESTA travel 
authorization even if they do not have immediate plans to travel to the 
United States. This enables VWP travelers to know whether they are 
eligible to travel to the United States under the VWP even before 
purchasing tickets. Furthermore, ESTA was designed to accommodate last 
minute or emergency travel. ESTA allows travelers to apply for a travel 
authorization on the day of departure and provides almost an immediate 
response to the applicant for the vast majority of applications.
    Applicants should be aware, however, that they risk not having the 
required authorization to travel to the United States if their 
application requires additional processing beyond the time between when 
they submit their application and when their voyage to the United 
States begins. VWP travelers without a valid ESTA travel authorization 
cannot board conveyances destined for the United States.
    In cases in which a determination is not granted immediately, it 
may take anywhere from a few minutes to a few days for a decision to be 
made. In most cases, the applicant will receive an ESTA decision within 
72 hours. However, additional time may be necessary if manual vetting 
is required or there is a system overload. An applicant may contact the 
ESTA Telephone Help Desk at 202-344-3710 between the hours of 8:00 a.m. 
to 4:00 p.m. (ET) Monday through Friday for assistance in processing 
their pending application. However, there is no guarantee that a 
determination will be made in time to allow the traveler to board a 
conveyance destined for the United States. This is why DHS recommends 
that travelers apply for an ESTA travel authorization early in the 
planning process.

[[Page 32271]]

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

[[Page 32272]]

    Comment: One commenter stated that DHS should have considered 
proposals from the private sector to develop an ESTA-like system, 
rather than developing ESTA as a government designed online system.
    Response: DHS considered many alternatives and possible solutions 
during the ESTA planning, design, and development process. DHS decided 
to develop ESTA as a DHS system based on a variety of factors, 
including the impact that the VWP has on national security, the need to 
coordinate with other programs, and time constraints.
    Comment: Two commenters agreed with the way that DHS implemented 
ESTA. One commenter liked the fact that DHS moved aggressively to 
implement new security measures required to expand the VWP and in 
concluding bilateral agreements with qualified prospective VWP 
countries. Another commenter stated that DHS is fulfilling a critical 
role in accommodating and responding to the needs of last minute 
travelers.
    Response: DHS appreciates the comments expressing support for the 
implementation and expansion of ESTA and the VWP.
    Comment: A few commenters asked DHS to provide alternative means 
for submitting an ESTA application such as integrating ESTA into the 
travel industry's reservation system, providing a staffed telephone 
hotline to permit users to report their information to the ESTA system, 
or allowing carriers to apply on behalf of travelers.
    Response: In order to meet the statutory requirement that DHS 
create a fully automated electronic travel authorization, DHS 
established the online ESTA Web site for submitting the ESTA 
application. Other options, such as allowing carriers to apply on 
behalf of travelers using their reservation system or a telephone 
number where VWP travelers could call in and report the information, 
would not have met the requirement to establish a fully automated 
electronic travel authorization system and would have raised security 
and privacy concerns.
4. Plain Language and ESTA Web Site Assistance
    Comment: A few commenters requested that DHS use plain language on 
the ESTA Web site, including the eligibility questions, in order to 
avoid confusion about eligibility requirements or about when a new ESTA 
application is required.
    Response: DHS has used plain language in the ESTA application and 
on the ESTA Web site wherever possible and, in an effort to accommodate 
the majority of the VWP traveling public, the ESTA Web site has been 
translated into 23 languages. On November 3, 2014, DHS revised the 
eligibility questions on the ESTA Web site in order to make them 
clearer while still providing DHS with the information needed to make 
ESTA eligibility determinations. The Web site also features a ``Help'' 
section to assist applicants by providing definitions of certain terms 
and clear answers to questions on a variety of subjects, including 
situations in which an applicant is required to reapply before the 
expiration date of their ESTA. As specified on the Web site, a traveler 
must obtain a new travel authorization under any of the following 
circumstances:
    1. The individual is issued a new passport;
    2. The individual's name changes;
    3. The individual changes gender;
    4. The individual changes their country of citizenship; or
    5. The circumstances underlying the traveler's previous responses 
to any of the ESTA application questions requiring a ``yes'' or ``no'' 
response have changed.
    Comment: One commenter notes that the Frequently Asked Questions 
(FAQs) posted on the ESTA Web site are very useful and asked DHS to 
post more of them.
    Response: FAQs are posted on the ESTA Web site under the HELP 
section at https://esta.cbp.dhs.gov/esta/WebHelp/ESTA_Screen-Level_Online_Help_1.htm. Questions and answers are posted on an ad hoc 
basis to address issues as they arise. DHS will continue to monitor 
feedback and post appropriate general information when it is determined 
to be helpful to the traveling public.
5. Internet Concerns and Third Party Applications
    Comment: Several commenters raised concerns about whether the ESTA 
online system will be able to handle the Web traffic as more travelers 
fill out their ESTA applications online.
    Response: ESTA is designed to accommodate a significant amount of 
Web traffic. DHS takes necessary measures to ensure that the ESTA Web 
site is readily available throughout the day and to minimize any 
technical disruptions. To date, ESTA has experienced no significant 
delays stemming from an increase in Web traffic.
    Comment: Some commenters expressed concerns about fraudulent ESTA 
emails designed to solicit personal information and fraudulent Web 
sites attempting to gather information for criminal purposes by 
imitating ESTA and asked how DHS plans to address these types of 
issues.
    Response: All ESTA applicants should apply for an ESTA travel 
authorization at the following ESTA Web site: https://esta.cbp.dhs.gov. 
DHS takes necessary measures to ensure the safety and reliability of 
personal identification information furnished to DHS through this Web 
site. The ESTA Web site is a secure Web site under DHS protocol. Each 
approved application is assigned a unique identifier that corresponds 
to the designated traveler. These unique identifiers directly 
correspond to an approved traveler and verification is only done 
electronically between the carriers and DHS. Therefore, the 
confirmation cannot be copied or manipulated.
    DHS monitors Web sites that purport to offer ESTA authorization and 
will continue to provide outreach to the VWP traveling public to ensure 
they know how to submit the ESTA application. If an ESTA applicant 
receives emails claiming to be ESTA related that ask for personal 
information, the applicant should report this to the ESTA Help Desk at 
202-344-3710.
    Comment: Many commenters stated that the ESTA fee could create 
opportunities for other Web sites to charge users to complete the ESTA 
applications.
    Response: DHS has no control over third parties providing 
assistance in applying for travel authorization. However, DHS has 
designed the system to be user friendly so as to minimize the need to 
seek assistance. For instance, the ESTA Web site is available in 23 
languages and has information on the ESTA home page about traveler 
eligibility and passport requirements as well as a HELP feature that 
includes answers to frequently asked questions.
    Comment: Some commenters asked about alternatives for ESTA 
applicants without internet access. One commenter asked if an 
individual within the United States could apply for an ESTA on behalf 
of the traveler. One commenter asked if applicants who use a third 
party to complete an ESTA application should provide the traveler's 
email address or that of the third party who applies on the traveler's 
behalf.
    Response: In order to accommodate people who may not have 
familiarity with or access to computers or the internet, DHS designed 
ESTA to allow a third party, such as a relative, friend, or travel 
agent, to submit an application on behalf of the traveler. The location 
of the third party filling out the ESTA

[[Page 32273]]

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

[[Page 32274]]

    Comment: Some commenters stated that ESTA will cause logistical 
problems because carriers will have to determine the visa class of 
travelers.
    Response: This is not accurate. Only travelers coming to the United 
States under the VWP are required to obtain an ESTA travel 
authorization and these travelers are exempt from visa requirements. 
Carriers will not have to determine the visa class for these VWP 
travelers.
    Comment: One commenter claimed that airlines will incur significant 
penalties and liabilities if they deny boarding to passengers who 
arrive without an ESTA travel authorization or when a passenger arrives 
at the port of entry and must be returned to his point of departure at 
the carrier's expense.
    Response: For the purposes of ESTA, a carrier's responsibility is 
limited to the verification of the traveler's ESTA application status. 
Carriers that wish to transport travelers under the VWP are required to 
become VWP signatory carriers. VWP signatory carriers will incur fines 
if they transport travelers who require a valid ESTA travel 
authorization but do not have one. It should be noted that ESTA is not 
a determination of admissibility; it merely authorizes the traveler to 
board a conveyance destined for the United States. Passengers 
determined to be inadmissible to the United States are required to 
return to their country of origin and carriers are responsible to 
provide these passengers transportation back to their point of 
departure. The fact that travel authorization was granted does not 
absolve the carrier from this responsibility. Carriers agree to the 
following in the VWP carrier agreement:

    The carrier will remove from the United States (on the first 
available means of transportation to the alien's point of departure 
to the United States) any alien transported by the carrier to the 
United States for admission under the Visa Waiver Program in the 
event that the alien is determined by a U.S. Customs and Border 
Protection officer at the Port of Entry to be not admissible to the 
United States or is determined by a U.S. Customs and Border 
Protection officer to have remained unlawfully in the United States 
beyond the 90-day period of admission under the Visa Waiver Program. 
The carrier will carry out the responsibilities under this paragraph 
in a manner that does not impose on the United States expenses 
related to the transportation of such alien from the point of 
arrival in the U.S.

    Comment: One commenter indicated that there is no provision in the 
9/11 Act about the carrier's role in implementing and enforcing ESTA. 
As such, DHS is not authorized to compel carriers to assume a function 
which Congress mandated on individuals.
    Response: DHS agrees that the 9/11 Act requires certain individuals 
to obtain a travel authorization prior to traveling to the United 
States. However, VWP signatory carriers are responsible for verifying 
that the traveler has a valid ESTA travel authorization prior to 
allowing a VWP traveler to board a conveyance destined for the United 
States. This responsibility is set forth in the VWP carrier agreements 
described above.
9. State Department Coordination
    Comment: One commenter stated that DHS and the State Department 
must work together to ensure travelers are well-informed regarding 
their responsibilities under the ESTA program.
    Response: DHS coordinated closely with the State Department during 
the development and implementation of ESTA and this coordination was 
essential to the efficient implementation of ESTA. DHS's ongoing 
coordination with the State Department remains essential to the ongoing 
administration of the ESTA. DHS partnered with the State Department to 
develop a strategic communications and outreach plan aimed at notifying 
VWP travelers of the new ESTA requirements. DHS personnel traveled 
extensively to VWP countries, attended major international travel 
conferences, distributed printed materials, and spoke with the travel 
industry and the public regarding ESTA. DHS continues to conduct 
extensive public outreach at U.S. ports of entry and overseas with the 
assistance of the State Department, to ensure that the traveling public 
and the travel industry as a whole are sufficiently informed regarding 
ESTA.
    Comment: Some commenters noted that a significant number of ESTA 
denials could result in increased visa demand, thereby causing 
significant delays, and asked that DHS coordinate with the State 
Department as needed.
    Response: Since January 12, 2009, when ESTA became mandatory for 
all VWP travelers traveling to the United States at air or sea ports of 
entry, DHS has processed over 50 million VWP traveler applications and 
denied approximately one-third of one percent (0. 23%) of all 
applications. As such, there have not been a significant number of 
denials. Moreover, as stated elsewhere in this document, DHS continues 
to work with the State Department to ensure the efficient 
administration of ESTA.
    Comment: One commenter stated that DHS and the State Department 
should offer clear direction and access to entry alternatives to those 
that do not have a travel authorization via ESTA.
    Response: ESTA is required for VWP travelers arriving in the United 
States at air and sea ports of entry. As explained on the ESTA Web 
site, persons who do not have an ESTA travel authorization may apply 
for a visa issued by the State Department. Individuals traveling to the 
United States with a passport and valid visa are not traveling under 
the VWP and these individuals would not need to obtain an ESTA travel 
authorization.
10. ESTA Expansion to Land Arrivals
    Comment: One commenter stated that to be effective, ESTA should 
apply to all modes of transportation and asked how ESTA will function 
at the land borders.
    Response: Currently, ESTA is required only for VWP travelers 
arriving in the United States by air or sea. VWP travelers who arrive 
in the United States at a land border port of entry are not required to 
obtain ESTA authorization. These travelers must submit a completed 
paper Form I-94W at the land border port of entry. However, DHS is 
considering expanding ESTA to VWP travelers arriving at a land border 
by way of a separate rulemaking.
11. Impact on Existing Laws and Agreements
    Comment: One commenter stated that the ESTA rule exceeds the 
statutory authority of Section 217 of the INA by imposing additional 
requirements beyond what is imposed by the statute. The commenter 
claims the statute only obliges travelers to ``electronically provide 
information,'' whereas the ESTA IFR requires that the traveler 
providing information also receive a travel authorization.
    Response: DHS disagrees. Section 217(a)(11) of the INA (8 U.S.C. 
1187(a)(11)), as amended, specifically requires the Secretary of 
Homeland Security to determine whether the person submitting the 
electronic travel authorization is eligible to travel to the United 
States under the VWP. It provides that each alien traveling under the 
program shall, before applying for admission to the United States, 
electronically provide biographical information and such other 
information as the Secretary of Homeland Security determines necessary 
to determine the eligibility of, and whether there exists a law 
enforcement or security risk in permitting, the alien to travel to the 
United States and that upon review of such information, the Secretary 
of Homeland Security shall determine whether the alien is eligible to 
travel to the United States under the program. Moreover, section 
217(h)(3)(C)(i) of the

[[Page 32275]]

INA (8 U.S.C. 1187 (h)(3)(C)(i)) provides for regulations ``that 
provide for a period, not to exceed three years, during which a 
determination of eligibility to travel under the program will be 
valid.'' As such, the statutory provisions anticipate a determination 
of eligibility to travel. Therefore requiring a VWP traveler to receive 
ESTA travel authorization does not exceed the statutory authority.
    Comment: Some commenters claimed that ESTA limits the freedom of 
movement of individuals and that this violates international 
agreements, including Article 13 of the Universal Declaration of Human 
Rights (UDHR) \5\ and Articles 10, 12, and 21 of the International 
Covenant on Civil and Political Rights (ICCPR).\6\
---------------------------------------------------------------------------

    \5\ The UDHR, a United Nations General Assembly declaration, 
consists of 30 articles relating to the respect for and observance 
of human rights and fundamental freedoms. For more information, 
please see http://www.un.org/en/documents/udhr/index.shtml.
    \6\ The ICCPR, a United Nations General Assembly covenant, 
commits its parties to respect the civil and political rights of 
individuals. The United States ratified the ICCPR with reservations 
not applicable to the articles referenced in this comment (Articles 
10, 12, and 21). For more information, please see http://treaties.un.org/doc/db/survey/CovenantCivPo.pdf.
---------------------------------------------------------------------------

    Response: DHS disagrees that ESTA limits the freedom of movement of 
individuals and that this violates international agreements. The 
referenced provisions do not pertain to ESTA and they are outside the 
scope of the ESTA rulemakings. Article 13 of the UDHR refers to freedom 
of movement and residence within the borders of each state as well as 
the right to leave a country or return to one's own country. Article 10 
of the ICCPR applies to persons deprived of their liberty in relation 
to the penitentiary system. Article 12 of the ICCPR concerns the right 
to liberty of movement when lawfully in the territory of a state, the 
freedom to leave a country including one's own, and the right to 
reenter one's own country. Article 21 of the ICCPR concerns the right 
to peaceful assembly. ESTA does not limit an individual's rights to 
leave a country, limit an individual's right to reenter one's own 
country, relate to individuals in the penitentiary system, or have any 
impact on an individual's right to peaceful assembly.
    Comment: Some commenters expressed concerns that the ESTA Web site 
may contravene disability laws and raise discrimination issues because 
it discriminates against those who are unable to access the internet 
due to a disability.
    Response: DHS endeavors to take the necessary steps to ensure that 
persons with disabilities can comply with the regulatory requirements. 
Persons that are unable to access the internet due to a disability may 
apply for an ESTA travel authorization through a third party.
12. I-94W Paper Form
    Comment: One commenter stated that ESTA duplicates the information 
required by the paper Form I-94W that has to be completed upon arrival 
in the United States. Some commenters stated that ESTA will have a 
negative impact on travel to the United States because obtaining an 
ESTA travel authorization is an additional hurdle for VWP travelers who 
must also answer the same questions on the paper Form I-94W upon 
arrival. Other commenters stated that DHS should eliminate the paper 
Form I-94W to facilitate improved processing of travelers. One 
commenter said that the elimination of the paper Form I-94W should not 
be completed until all carriers are capable of validating a traveler's 
ESTA authorization status. Another commenter said that DHS should 
eliminate the paper Form I-94W on a carrier-by-carrier basis to provide 
an early incentive to carriers to comply at an early stage.
    Response: ESTA was designed to automate the paper Form I-94W with 
the ultimate goal of replacing it, not duplicating it. The ESTA IFR 
stated: ``The development and implementation of the ESTA program will 
eventually allow DHS to eliminate the requirement that VWP travelers 
complete an I-94W prior to being admitted to the United States. As DHS 
moves towards elimination of the I-94W requirement, a VWP traveler with 
valid ESTA authorization will not be required to complete the paper 
form I-94W when arriving on a carrier that is capable of receiving and 
validating messages pertaining to the traveler's ESTA application 
status as part of the traveler's boarding status.'' See 73 FR 32440 at 
32443.
    The requirement to complete the paper Form I-94W was eliminated for 
VWP travelers arriving in the United States at air or sea ports of 
entry on or after June 29, 2010. Eliminating the paper Form I-94W for 
these VWP travelers ensured that there was no further duplication.\7\ 
Prior to eliminating the paper Form I-94W for air and sea VWP 
travelers, DHS provided adequate time to allow carriers to make the 
necessary adjustments in their systems to enable them to verify VWP 
traveler's ESTA authorization status. As explained more fully in the 
ESTA Application Status Notifications for Travelers and Carriers 
section below, DHS worked closely with the affected carriers to ensure 
that their systems were able to send and receive ESTA application 
status messages. DHS decided not to eliminate the paper Form I-94W on a 
carrier-by-carrier basis because this would have created confusion at 
the ports for carriers, travelers, and DHS personnel and could have 
increased wait or processing times and resulted in missed connections 
for travelers.
---------------------------------------------------------------------------

    \7\ The elimination of the paper Form I-94W for VWP travelers 
arriving at air and sea ports of entry was announced as a goal in 
the ESTA IFR and communicated with the public and carriers through 
outreach. Secretary Napolitano also released a statement announcing 
the elimination as well: http://www.dhs.gov/ynews/releases/pr_1274366942074.shtm.
---------------------------------------------------------------------------

    Comment: One commenter stated that the Form I-94W should be 
eliminated for non-VWP countries.
    Response: The Form I-94W is only required for nationals from VWP 
countries.
13. Preclearance Ports
    Comment: One commenter stated that ESTA should not be required for 
passengers traveling from preclearance ports in Canada to the United 
States, given that they have already been vetted.
    Response: The 9/11 Act required the Secretary of Homeland Security, 
in consultation with the Secretary of State, to develop and implement a 
fully automated electronic travel authorization system to collect 
certain information in advance of travel to the United States. ESTA 
fulfills this statutory requirement. Therefore, ESTA is required for 
all VWP travelers arriving in the United States at air or sea ports of 
entry, regardless of their last foreign location prior to arriving at 
the United States. Preclearance locations are locations outside the 
United States where travelers are inspected and examined by DHS 
personnel to ensure compliance with U.S. customs, immigration, and 
agriculture laws, as well as other laws enforced at the U.S. border. 
Such inspections and examinations prior to arrival in the United States 
generally enable passengers to exit the domestic terminal or connect 
directly to a U.S. domestic flight without undergoing further 
processing. However, travelers who are inspected and examined at these 
preclearance locations are still required to have a visa, or if 
eligible, to comply with the requirements of the VWP.

[[Page 32276]]

14. ESTA Applications at Airports
    Comment: Some commenters stated that DHS should provide Internet-
accessible kiosks for day of departure applications because some 
foreign airports lack Internet access. One commenter asked DHS to 
install ESTA kiosks in preclearance locations.
    Response: DHS does not have the authority or the resources to 
establish Internet-access kiosks in foreign airports, including 
preclearance locations. Nonetheless, travelers may be able to apply for 
an ESTA travel authorization on the day of departure if other Internet 
access is available. In fact, some global airports have kiosks or 
dedicated links at Internet cafes in international terminals available 
for use by travelers. However, simply having Internet access, and thus 
the ability to apply for an ESTA travel authorization does not 
guarantee an ESTA travel authorization will be granted or granted in 
time. ESTA applicants who apply early and are denied a travel 
authorization may still have time to obtain a visa.
    Comment: One commenter disagrees with DHS's estimate (15 minutes) 
of the time required for a VWP traveler to apply for an ESTA travel 
authorization. The commenter believes that oftentimes passenger check-
in times are longer and access to public Internet facilities is either 
unavailable or limited.
    Response: The 15 minute estimate of the time required for the VWP 
traveler to apply for an ESTA authorization is based on the traveler's 
interaction with the ESTA Web site. This time estimate did not consider 
factors such as a lack of computer or limited or unavailable Internet 
connectivity at passenger check-in. DHS encourages VWP travelers to 
apply for an ESTA authorization well before arriving at the airport.
15. ESTA Validity Period
    Comment: Multiple comments were received regarding ESTA's two year 
validity period. Some commenters noted that it is unnecessarily 
restrictive or will result in more travelers applying for a visa. One 
commenter asked DHS to describe circumstances where the validity period 
would be extended to three years, which is the upper limit allowed 
under the 9/11 Act. One commenter stated that the two year validity 
period and accompanying fee creates a burden for European citizens 
wishing to travel to the United States because European citizens make 
up a significant portion of total travelers to the United States.
    Response: Section 711 of the 9/11 Act directs the Secretary of 
Homeland Security, in consultation with the Secretary of State, to 
prescribe regulations that provide for a period of validity for a 
travel eligibility determination, not to exceed three years. See 8 
U.S.C. 1187(h)(3)(C)(i); 8 CFR 217.5(d). DHS believes that, generally, 
a two year validity period provides DHS with a reasonable timeframe to 
reevaluate a VWP applicant's eligibility to travel without 
overburdening VWP travelers. After considering the comments and in 
light of the statutorily authorized maximum validity of three years, 
DHS believes that it would be beneficial for the Secretary of Homeland 
Security to retain discretion to adjust validity periods on a per 
country basis to the three year maximum or to a lesser period of time. 
Therefore, this final rule now provides that the ESTA validity period 
is two years unless the Secretary Homeland Security, in consultation 
with the Secretary of State, decides to increase or decrease the 
validity period for a designated VWP country on a case-by-case basis. 
Under this final rule, notice of any change to ESTA travel 
authorization periods will be published in the Federal Register and 
updated on the ESTA Web site. DHS believes that this change enhances 
the Secretary's flexibility to recognize countries' bilateral 
information sharing and further promotes compliance standards for 
member countries' participation in the VWP. To effect this change, the 
regulations will be amended by adding a new 8 CFR 217.5(d)(3).
    Regarding the claims that the two year validity period and 
accompanying fee are burdensome and may lead some travelers to decide 
to obtain a visa, DHS believes that obtaining an ESTA travel 
authorization is less burdensome than obtaining a visa. In fact, DHS 
believes that the ease with which an ESTA travel authorization can be 
obtained leads most VWP-eligible travelers to obtain an ESTA travel 
authorization rather than a visa before traveling to the United States. 
VWP travelers who obtain an ESTA travel authorization do not have to 
apply for a visa nor do they have to pay the costs associated with 
obtaining a visa to travel to the United States.
16. Passport Issues
    Comment: One commenter stated that the passport expiration date's 
impact on the ESTA validity period is complicated.
    Response: Generally, an ESTA travel authorization is valid for a 
period of either two years from the date of authorization or the date 
the traveler's passport expires--whichever is sooner. See 8 CFR 
217.5(d)(1). However, there is an exception at 8 CFR 217.5(d)(2) for 
travelers from certain countries who have not entered into agreements 
with the United States regarding the expiration date of passports; 
specifically, agreements providing that passports are recognized as 
valid for the return of the bearer to the country of the foreign-
issuing authority for a period of six months beyond the expiration date 
specified in the passport. For travelers from these countries, an ESTA 
travel authorization is not valid beyond six months prior to the 
expiration date of the passport. In addition, travelers from these 
countries whose passports will expire in six months or less will not 
receive ESTA travel authorization. Moreover, as specified elsewhere in 
this document and on the ESTA Web site, a traveler must obtain a new 
travel authorization under any of the following circumstances:

    1. The individual is issued a new passport;
    2. The individual's name changes;
    3. The individual changes gender;
    4. The individual changes their country of citizenship; or
    5. The circumstances underlying the traveler's previous 
responses to any of the ESTA application questions requiring a 
``yes'' or ``no'' response have changed.

    In order to make things clear, DHS provides the exact ESTA 
expiration date on the ESTA Web site screen granting approval for 
travel authorization. In addition, as explained more fully in the ESTA 
Application Status Notification for Travelers and Carriers section, DHS 
has updated the ESTA system to provide email notification to 
individuals approximately 30 days before the expiration of their ESTA 
travel authorization, informing them that their ESTA travel 
authorization will expire in approximately 30 days. However, this 
feature is only available if the VWP traveler provided an email address 
through the ESTA Web site.
    Comment: One commenter stated that passport validity should have no 
bearing on the validity of a travel authorization via ESTA.
    Response: A valid passport is essential for travel to the United 
States. Under the INA, any immigrant or nonimmigrant alien seeking 
admission to the United States must have proper documentation, 
including a valid and unexpired passport. See 8 U.S.C. 1182(a)(7). An 
ESTA travel authorization is not valid unless the traveler has a valid 
and unexpired passport. For those wishing to travel to the United 
States under the VWP, an expired passport necessitates obtaining both a 
new passport and applying for a new ESTA travel authorization.

[[Page 32277]]

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

[[Page 32278]]

    Response: Based on feedback, DHS updated the system to provide 
email notification to individuals approximately 30 days before the 
expiration of their ESTA travel authorization, informing them that 
their ESTA travel authorization will expire in approximately 30 days. 
The email notification advises recipients to go to the official ESTA 
Web site to reapply as follows:

    ESTA Expiration Warning: ATTENTION! Your travel authorization 
submitted on (date of application) (application number) via ESTA 
will expire within the next 30 days. It is not possible to extend or 
renew a current ESTA travel authorization. You will need to reapply 
at https://esta.cbp.dhs.gov if travel to the United States is 
intended in the near future.

    Comment: A few commenters stated that applicants receiving a 
pending message, rather than an authorized or denied message, should be 
authorized to travel to the United States because the traveler would 
still submit their information on the Form I-94W and will be inspected 
upon arrival.
    Response: Generally, a decision on an individual's ESTA application 
is issued within seconds of submission. However, travelers with a 
``pending'' status will have to wait until the pending status is 
resolved to ``Authorization Approved'' prior to a carrier allowing a 
VWP traveler to board an aircraft or vessel destined for the United 
States. DHS cannot allow ESTA applicants without an approved 
authorization to travel to the United States, as to do so would prevent 
DHS from being able to fully screen the applicant, and thus contradict 
the Congressional mandates under the 9/11 Act. Because an exact 
timeline for travel authorization decisions cannot be provided in all 
cases, DHS encourages travelers to apply early for an ESTA travel 
authorization, such as before they purchase their tickets to the United 
States.
    Comment: One commenter stated that the ``travel not authorized'' 
message is vague and should be changed to inform applicants that they 
were unsuccessful and to inform them that they may still apply for a 
visa.
    Response: DHS has amended the ``travel not authorized'' message to 
inform the applicant about the next steps in the process of seeking 
travel to the United States. The response now reads as follows:

    You are not authorized to travel to the United States under the 
Visa Waiver Program. You may be able to obtain a visa from the 
Department of State for your travel. Please visit the Department of 
State Web site at www.travel.state.gov for additional information 
about applying for a visa.

    Comment: One commenter stated that instead of using the system-
generated 16-digit reference number, passengers should be able to use a 
passport or other travel document number to access their ESTA 
application.
    Response: The 16-digit reference number is a unique number 
generated by ESTA that may be used to check the status of an 
applicant's status and to update optional information, such as flight 
itinerary and address in the United States. This number is linked to 
each ESTA application and approval. A travel document number cannot be 
used as a reference number for several reasons. First, it may lack 
sufficient security to uniquely identify a person. Second, since 
passports are generally issued for 10 years and an ESTA travel 
authorization is generally valid for two years, DHS would be unable to 
distinguish between applications from the same individual. Also, it 
would be confusing where a person possesses more than one passport, 
such as those who have dual citizenship.
    Comment: Some commenters wanted to know the specific content of the 
ESTA application status messages carriers will be shown on pre-
departure and if there will be a distinction between flights departing 
the United States and arriving flights.
    Response: DHS sends a clear message to carriers to inform them 
whether the VWP traveler has the required travel authorization prior to 
boarding. Carriers will receive one of the following messages for 
travelers: A--ESTA on file OK to board; B--No ESTA on file; C--ESTA 
denied; Z--ESTA not applicable OK to board. Carriers may board 
travelers associated with messages A and Z. Carriers may not board 
travelers associated with messages B and C. ESTA authorization is not 
required for flights departing the United States so there is no need 
for ESTA messaging for departing flights.
20. Proof of Travel Authorization
    Comment: Some commenters asked DHS to provide a receipt to serve as 
proof of ESTA travel authorization and asked what to do in airports 
that lack printers. Other commenters described situations where 
travelers were not allowed to board despite having ESTA travel 
authorization and were asked to present a paper printout of their 
travel authorization.
    Response: ESTA travel authorization only may be validated 
electronically. The air or sea carrier must receive an electronic 
message directly from DHS stating that the traveler has a valid ESTA 
travel authorization prior to allowing the individual to board the 
conveyance destined for the United States. A printout showing that ESTA 
travel authorization was granted is not proper proof and DHS does not 
require VWP travelers to present a paper printout as evidence of having 
obtained ESTA travel authorization. If travelers are interested in 
having something tangible for their own records, such as a receipt, 
they may print the screen on the ESTA Web site showing that travel 
authorization has been granted, but this will not serve as proof for 
travel purposes.
    Comment: Some commenters had concerns about the possibility of a 
forged ESTA approval.
    Response: As explained in the previous response, ESTA travel 
authorization can only be verified electronically with an electronic 
status message from DHS and as such, cannot be forged.
21. Mandatory and Optional Data Elements
    Comment: Many comments were received requesting clarification about 
which data elements are mandatory and which are optional.
    Response: On December 9, 2014, DHS published a notice regarding 
changes to the ESTA application and paper Form I-94W in the Federal 
Register (79 FR 73096). These changes collect more detailed information 
about a traveler by making previously optional data elements mandatory 
and by adding additional data elements concerning other names or 
aliases, current or previous employment, and emergency contact 
information among other questions.

[[Page 32279]]

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

[[Page 32280]]

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

[[Page 32281]]

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

[[Page 32282]]

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

[[Page 32283]]

material differences between the 2007 version and the updated PNR 
Agreement, this response applies to the version that went into effect 
on July 1, 2012.
---------------------------------------------------------------------------

    \8\ For more information on the 2011 PNR agreement, please see 
http://www.dhs.gov/sites/default/files/publications/privacy/Reports/dhsprivacy_PNR%20Agreement_12_14_2011.pdf.
---------------------------------------------------------------------------

    PNR data is submitted by airlines to DHS and contains a variety of 
traveler information including the passenger's name, contact details, 
travel itinerary, and other reservation details, as described in the 
DHS Automated Targeting System (ATS) Privacy Impact Assessment. The PNR 
Agreement addresses the privacy and security of PNR data transferred 
from the EU and does not pertain to ESTA. A Privacy Impact Assessment 
of ESTA, which includes a discussion of related security issues, can be 
found at http://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
    Comment: One commenter remarked that VWP countries should monitor 
and limit the fees that third party vendors may charge a passenger for 
filling out ESTA applications on the passenger's behalf.
    Response: It would be inappropriate for DHS to comment on how 
foreign governments regulate businesses or to dictate what fees a third 
party vendor charges for passengers to have an ESTA application filled 
out. DHS is aware that there have been several sites that were charging 
inordinate fees for information on the program and to apply for an ESTA 
travel authorization. DHS issued an Advisory about these Web sites in 
November 2008 to inform the traveling public that these sites are not 
affiliated with the United States government and travelers who 
accidentally go to those sites should exit and go to the official ESTA 
Web site at https://esta.cbp.dhs.gov. DHS also has claimed rights for 
ESTA via an application submitted to the U.S. Patent and Trade Office 
to protect against unauthorized use of the ESTA symbol and name. DHS 
continues to work on outreach and communications to the public to 
provide the most up to date information to assist travelers in 
complying with the requirement. As such, this comment is beyond the 
scope of these rulemakings.
    Comment: One commenter stated that ESTA should be implemented at a 
later date because there are too many current visa holders who are 
overstaying in the United States, thus burdening American taxpayers 
with the costs of deporting overstaying visa holders.
    Response: Although DHS recognizes that there may be cases where 
visa holders are overstaying their allowed time period for visiting the 
United States, the purpose of ESTA is to allow

[[Page 32285]]

DHS to determine travel eligibility and enhance the security of the 
United States and the VWP, and not to identify possible enforcement 
actions against visa holders or VWP travelers who have overstayed their 
authorized period of admission. As such, this comment is beyond the 
scope of these rulemakings.
    Comment: Some commenters claimed that the ESTA rule violated the 
Airline Deregulation Act because it is an ``attempt to restrict the 
obligation of airlines to transport all passengers complying with their 
published tariffs'' and that DHS failed to consider ``the public right 
of freedom of transit of the navigable airspace'' as required by the 
Airline Deregulation Act.
    Response: The main purpose of the Airline Deregulation Act (Public 
Law 95-504), signed into law on October 24, 1978, was to remove 
government control over fares, routes, and market entry (of new 
airlines) from commercial aviation. ESTA does not impose any 
restrictions on fares, routes, or market entry from commercial aviation 
and as such, this comment is beyond the scope of these rulemakings.

III. Conclusion

A. Regulatory Amendments

    The amendments to title 8 of the Code of Federal Regulations, as 
set forth in the ESTA IFR, published June 8, 2008, and the ESTA Fee 
IFR, published August 9, 2010, are adopted as final with the following 
changes:
    The ESTA regulations are being modified by adding a new Sec.  
217.5(d)(3) to allow for flexibility to adjust the validity period for 
a designated VWP country and to state that notice of any such change 
will be published in the Federal Register and reflected on the ESTA Web 
site. In addition to addressing comments regarding the extension of the 
validity period discussed above, DHS's decision to include this new 
section providing the Secretary with the flexibility to extend or 
shorten the ESTA travel authorization validity period for a designated 
VWP country is being done under the authority of the foreign affairs 
function of the United States to administer the VWP and is exempt from 
notice and comment rulemaking and delayed effective date requirements 
generally required under 5 U.S.C. 553. See 5 U.S.C. 553(a)(1). 
Additionally, section 217.5(h)(2) of the ESTA regulations contains a 
reference to the Treasury Department's Pay.gov financial system 
(Pay.gov). In light of the possibility that DHS may want to offer 
alternative methods of submitting payment in the future, DHS is 
removing the sentence that refers to Pay.gov.

B. Operational Modifications

    As discussed in this document, DHS has made various minor changes 
to ESTA in response to comments received, such as the creation of the 
email notification regarding a traveler's impending ESTA travel 
authorization expiration and various changes made to the language used 
on the ESTA Web site to ensure clarity. Despite making only one 
substantive and one technical changes to the regulations in this final 
rule, DHS would like to highlight five operational modifications 
affecting ESTA applicants and VWP travelers since the publication of 
the interim final rules:
1. Elimination of the Paper Form I-94W
    The requirement to complete the Nonimmigrant Alien Arrival/
Departure (I-94W) paper form was eliminated for VWP travelers arriving 
in the United States at air or sea ports of entry on or after June 29, 
2010. For these travelers, ESTA satisfies the requirement to complete 
and submit a paper Form I-94W upon arrival in the United States. DHS 
worked extensively with carriers to bring about an orderly transition 
to remove the paper Form I-94W from circulation and to ensure that all 
affected parties were aware of the updated requirements. Currently, 
only VWP travelers arriving at the United States at land ports of entry 
are required to complete the paper Form I-94W.
2. Addition of Country of Birth to the Form I-94W
    On May 16, 2011 and July 25, 2011, DHS published notices in the 
Federal Register proposing to revise the Form I-94W collection of 
information by adding a data field for ``Country of Birth'' to ESTA and 
to the paper Form I-94W. These notices also solicited comments 
regarding the proposed revision. No comments were received. As of 
December 11, 2011, country of birth is a required data element on all 
ESTA applications. Individuals who obtained travel authorizations prior 
to this date do not need to provide ``Country of Birth'' to maintain 
travel authorization; however, such individuals must provide ``Country 
of Birth'' information if and when applying for a new travel 
authorization after their current ESTA travel authorization expires.
3. Collection of Internet Protocol Address
    On July 30, 2012, DHS published an updated System of Records Notice 
in the Federal Register (77 FR 44642) notifying the public that DHS 
would begin collecting the Internet Protocol address (IP address) 
associated with a submitted ESTA application. The IP address will be 
used along with other application data for vetting purposes.
4. Multiple Application Payment Function
    As discussed above, DHS modified the payment functionality to allow 
for a single credit card transaction to pay for up to 50 ESTA 
applications. A group point of contact must submit payment after 
inputting or retrieving the relevant applications. This modification 
will allow groups such as businesses or a family to submit ESTA 
applications without having to submit payment information for each 
individual application.
5. Modification of the Eligibility Questions on the Form I-94W and ESTA 
Application
    On November 26, 2013 and February 14, 2014, DHS published notices 
in the Federal Register proposing to revise the Form I-94W collection 
of information by amending the eligibility questions to the ESTA 
application and to the paper Form I-94W to make the questions clearer 
and easier to understand while still providing DHS with the information 
needed to make eligibility determinations. See 78 FR 70570 and 79 FR 
8984. These notices also solicited comments regarding the proposed 
revisions. No comments were received. On December 9, 2014, DHS 
published a 60-day notice regarding additional changes to the ESTA 
application and paper Form I-94W in the Federal Register. See 79 FR 
73096. These changes collect more detailed information about a traveler 
by making previously optional questions mandatory and by adding 
additional questions concerning other names or aliases, current or 
previous employment, and emergency contact information among other 
questions. These changes are necessary to improve the screening of 
travelers before their admittance into the U.S. On November 3, 2014, 
DHS amended the questions accordingly.

IV. Statutory and Regulatory Requirements

A. Executive Order 13563 and Executive Order 12866

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits

[[Page 32286]]

(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule is an economically significant regulatory action under 
section 3(f) of Executive Order 12866 as it has an annual effect on the 
economy of $100 million or more in any one year. As a result, this rule 
has been reviewed by the Office of Management and Budget. The following 
summary presents the costs and benefits to applicant carriers and 
DHS.\10\
---------------------------------------------------------------------------

    \10\ The complete Regulatory Assessment can be found in the 
docket for this rulemaking: http://www.regulations.gov.
---------------------------------------------------------------------------

    The purpose of ESTA is to allow DHS to establish, in advance of 
travel, the eligibility of certain foreign travelers to enter the 
United States and whether the alien's proposed travel to the U.S. poses 
a law enforcement or security risk. Upon review of such information, 
DHS will determine whether the alien is eligible to travel to the 
United States. There are currently 37 countries in the VWP.\11\ 
Furthermore, as additional countries are brought into the VWP, their 
citizens are also required to comply with ESTA. Additionally, because 
the information provided by the traveler through ESTA is the same 
information that was previously collected on the I-94W form (Arrival 
and Departure Record), travelers who receive a travel authorization 
through ESTA do not have to complete this form while en route to the 
United States.
---------------------------------------------------------------------------

    \11\ The current VWP countries are Andorra, Australia, Austria, 
Belgium, Brunei, the Czech Republic, Estonia, Denmark, Finland, 
France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, 
Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Monaco, the 
Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, 
Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, 
and the U.K. Since the June 9, 2008, publication of the interim 
final rule, the Czech Republic, Estonia, Greece, Hungary, Latvia, 
Lithuania, Malta, Slovakia, South Korea, and Taiwan have entered the 
VWP. With the exception of Taiwan, which was designated for 
participation in the VWP effective November 1, 2012, these countries 
were previously designated as ``Roadmap'' countries.
---------------------------------------------------------------------------

    The primary parameters for this analysis are as follows--
     The period of analysis is 2008 to 2018.
     For the purpose of this analysis, DHS assumes that 
travelers from all VWP countries began complying with the ESTA 
requirements on January 1, 2009, except for Greece and Taiwan, which 
DHS assumes began complying with the ESTA requirements on January 1, 
2010 and January 1, 2013, respectively.\12\
---------------------------------------------------------------------------

    \12\ DHS notes that Taiwan entered the VWP on November 1, 2012. 
However, DHS uses January 1, 2013 as Taiwan's ESTA start date for 
the analysis because data on I-94/I-94W arrivals by country are only 
available on an annual basis.
---------------------------------------------------------------------------

     Air and sea carriers that transport these VWP travelers 
are not directly regulated under this rule; therefore, they are not 
responsible for completing ESTA applications on behalf of their 
passengers. However, carriers have chosen to either modify their 
existing systems or potentially develop new systems to submit ESTA 
applications for their customers. For this analysis, DHS assumes that 
carriers incurred system development costs in 2008 and incur operation 
and maintenance costs every year thereafter (2009-2018). DHS notes that 
it transmits travelers' authorization status through its existing 
Advance Passenger Information System (APIS), and therefore carriers did 
not have to make significant changes to their existing systems in 
response to this rule.

Impacts to Air & Sea Carriers

    DHS estimates that 8 U.S.-based air carriers and 13 sea carriers 
are indirectly affected by the rule. An additional 53 foreign-based air 
carriers and 6 sea carriers are indirectly affected. As noted 
previously, DHS transmits a passenger's ESTA application or 
authorization status to the air carriers using APIS. When a passenger 
checks in for her flight, the passport is swiped and the APIS process 
begins. DHS provides the passenger's ESTA application or authorization 
status to the carrier in the return APIS message. If a passenger has 
not applied for and received a travel authorization prior to check-in, 
the carrier will be able to submit the required information and obtain 
the authorization on behalf of the passenger. It is unknown how many 
passengers rely on their carrier to apply for an ESTA travel 
authorization on their behalf.
    At the time of the publication of the ESTA Interim Final Rule, it 
was unknown how much it would cost carriers to modify their existing 
systems. DHS therefore developed a range of costs for the analysis in 
the Interim Final Rule. Since the publication of the Interim Final 
Rule, CBP has done outreach to carriers to determine the true magnitude 
of their costs in implementing ESTA. Based on communications with 
carriers, we now estimate that carriers spend an average of $1,350,000 
in the first year and $150,000 in subsequent years. Each subsequent 
year estimate is intended to account not only for annual operation and 
maintenance of the system but also for the burden incurred by the 
carriers to assist passengers.
    Given this range, costs for U.S. based carriers are about $28.4 
million in the first year and $3.2 million in subsequent years 
(undiscounted). Costs for foreign-based carriers are about $79.7 
million in the first year and $8.9 million in subsequent years 
(undiscounted). See Exhibit 1.

                Exhibit 1--First Year and Annual Costs for Carriers To Address ESTA Requirements
                                      [$Millions, 2008-2018, Undiscounted]
----------------------------------------------------------------------------------------------------------------
                                               U.S.                                   Foreign
                                 -------------------------------------------------------------------------------
                                        Air             Sea             Air             Sea            Total
----------------------------------------------------------------------------------------------------------------
Carriers........................               8              13              53               6              80
2008............................           $10.8           $17.6           $71.6            $8.1          $108.0
2009............................             1.2             2.0             8.0             0.9            12.0
2010............................             1.2             2.0             8.0             0.9            12.0
2011............................             1.2             2.0             8.0             0.9            12.0
2012............................             1.2             2.0             8.0             0.9            12.0
2013............................             1.2             2.0             8.0             0.9            12.0
2014............................             1.2             2.0             8.0             0.9            12.0
2015............................             1.2             2.0             8.0             0.9            12.0
2016............................             1.2             2.0             8.0             0.9            12.0
2017............................             1.2             2.0             8.0             0.9            12.0

[[Page 32287]]

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

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

                                        Exhibit 2--Present Value Costs for Carriers To Address ESTA Requirements
                                                                  [Millions, 2008-2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               U.S.                     Foreign
                                                                    ---------------------------------------------------
                                                                         Air          Sea          Air          Sea
-----------------------------------------------------------------------------------------------------------------------
                                                3 percent discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
11-year modal total................................................        $24.4        $39.6       $161.6        $18.3
                                                                    ------------------------------------------------------------------------------------
11-year subtotal...................................................            $64.0
                                                                              $179.9
                                                                    ------------------------------------------------------------------------------------
11-year grand total................................................                        $243.9
                                                                    ------------------------------------------------------------------------------------
Annualized modal total.............................................         $2.2         $3.6        $14.6         $1.7
                                                                    ------------------------------------------------------------------------------------
Annualized subtotal................................................            $5.8
                                                                               $16.3
                                                                    ------------------------------------------------------------------------------------
Annualized grand total.............................................                         $22.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                7 percent discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
11-year modal total................................................        $27.0        $43.8       $178.7        $20.2
                                                                    ------------------------------------------------------------------------------------
11-year subtotal...................................................            $70.8
                                                                              $198.9
                                                                    ------------------------------------------------------------------------------------
11-year grand total................................................                        $269.7
                                                                    ------------------------------------------------------------------------------------
Annualized modal total.............................................         $2.4         $3.9        $15.9         $1.8
                                                                    ------------------------------------------------------------------------------------
Annualized subtotal................................................            $6.3
                                                                               $17.7
                                                                    ------------------------------------------------------------------------------------
Annualized grand total.............................................                         $24.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.

    Travel agents and other service providers may incur costs to assist 
their clients in obtaining travel authorizations. Affected travel 
agents are mostly foreign businesses located in the VWP countries. DHS 
has worked to minimize the costs for travel agents, building 
functionality into the ESTA Web site that allows travel agents to 
upload ESTA applications for up to 50 individuals at a time. Thanks to 
this upgrade, travel agents have not needed to obtain software modules 
to allow them to apply for authorizations for their clients.

Impacts on Travelers

    ESTA presents new costs and time burdens to travelers in original 
VWP countries who were not previously required to submit any 
information in advance of travel to the United States. Travelers from 
new VWP countries also incur costs and burdens, though these are much 
less than obtaining a nonimmigrant visa (category B-1/B-2), which is 
currently required for short-term business and leisure travel to the 
United States, absent eligibility for visa-free travel.
    For the primary analysis, DHS explores the following categories of 
costs--
     Cost and time burden to obtain a travel authorization--DHS 
estimates the cost of applying for the authorization, the time that 
will be required to obtain an authorization, and the value of that time 
(opportunity cost) to the traveler.
     Cost and time burden to obtain a nonimmigrant (B-1/B-2) 
visa if travel authorization is denied--based on the existing process 
for obtaining a visa, DHS estimates the cost to obtain that document in 
the event that a travel authorization is denied and the traveler is 
directed to go to a U.S. embassy or consulate to obtain permission to 
travel to the United States.
    For this analysis, DHS predicts ESTA-affected travelers to the 
United States over the period of analysis using information available 
from the Department of Commerce, National Travel and Tourism Office 
(NTTO), documenting historic travel levels and future projections. We 
use the travel-projection percentages through 2018 provided by NTTO. In 
addition to total travelers, DHS estimates the number of applicants 
based on an analysis of early ESTA applications. An ESTA travel 
authorization is valid for two years, so

[[Page 32288]]

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

                                                Exhibit 3--Total Visitors to the United States, 2009-2018
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  2009     2010     2011     2012    2013 *   2014 *   2015 *   2016 *   2017 *   2018 *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Travelers...............................................    17.66    18.74    19.82    20.60    21.54    22.44    23.01    23.52    24.09    24.66
Applicants....................................................    14.54    15.44    16.31    16.96    17.74    18.47    18.93    19.35    19.83    20.30
--------------------------------------------------------------------------------------------------------------------------------------------------------
Asterisk denotes projected values.

Cost To Obtain a Travel Authorization

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

 Exhibit 4--Total Present Value and Annualized Costs of the ESTA Fee to
                          Applicants, 2008-2018
------------------------------------------------------------------------
      Total present value costs          Annualized costs  ($millions)
             ($billions)             -----------------------------------
-------------------------------------
        3%                 7%                3%                7%
------------------------------------------------------------------------
         2.025              1.920               183               171
------------------------------------------------------------------------

Time Burden To Obtain a Travel Authorization

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

  Exhibit 5--Total Opportunity Costs for Visitors to the United States,
                 2009 and 2018 (Millions, Undiscounted)
------------------------------------------------------------------------
                2009                                 2018
------------------------------------------------------------------------
   Low estimate      High estimate      Low estimate      High estimate
------------------------------------------------------------------------
          $118               $250              $163              $345
------------------------------------------------------------------------

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

[[Page 32289]]

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

             Exhibit 6--Total Present Value and Annualized Opportunity Costs to Travelers, 2008-2018
----------------------------------------------------------------------------------------------------------------
         Total present value costs  ($billions)                        Annualized costs  ($millions)
----------------------------------------------------------------------------------------------------------------
        Low estimate                 High estimate               Low estimate                High estimate
----------------------------------------------------------------------------------------------------------------
      3%             7%            3%            7%            3%            7%            3%            7%
----------------------------------------------------------------------------------------------------------------
       1.409          1.389         2.985         2.941           128           123           270           261
----------------------------------------------------------------------------------------------------------------

Cost and Burden To Obtain a Visa If a Travel Authorization Is Denied

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

                Exhibit 7--Total Present Value and Annualized Visa Costs to Travelers, 2008-2018
----------------------------------------------------------------------------------------------------------------
         Total present value costs  ($billions)                        Annualized costs  ($millions)
----------------------------------------------------------------------------------------------------------------
        Low estimate                 High estimate               Low estimate                High estimate
----------------------------------------------------------------------------------------------------------------
      3%             7%            3%            7%            3%            7%            3%            7%
----------------------------------------------------------------------------------------------------------------
       0.158          0.156         0.227         0.224            14            14            21            20
----------------------------------------------------------------------------------------------------------------

Total Costs to Travelers

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

                   Exhibit 8--Total Present Value and Annualized Costs to Travelers, 2008-2018
----------------------------------------------------------------------------------------------------------------
         Total present value costs  ($billions)                        Annualized costs  ($millions)
----------------------------------------------------------------------------------------------------------------
        Low estimate                 High estimate               Low estimate                High estimate
----------------------------------------------------------------------------------------------------------------
      3%             7%            3%            7%            3%            7%            3%            7%
----------------------------------------------------------------------------------------------------------------
       3.592          3.464         5.237         5.085           325           308           474           452
----------------------------------------------------------------------------------------------------------------

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

Benefits

Benefits of ESTA Advance Screening

    In addition to fulfilling a statutory mandate, the rule serves the 
twin goals of promoting border security and legitimate travel to the 
United States. By modernizing the VWP, ESTA is intended to both 
increase national

[[Page 32290]]

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

                                        Exhibit 9--Benefits of Admissions Denied Attributable to ESTA, 2008-2018
                                                                     [in $millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           3% Discount rate                                                    7% Discount rate
      Total      ---------------------------------------------------------------------------------------------------------------------------------------
   admissions                        Benefits to                        Annualized                       Benefits to                        Annualized
     denied       Benefits to DHS      carriers     Total  benefits      benefits     Benefits to DHS      carriers     Total  benefits      benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
      496,960              66.2            732.1            798.4             72.3             65.2            721.1            786.3             69.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.

.Benefits of Not Having To Obtain Visas for Travelers From New VWP 
Countries

    The benefits of not having to obtain a B-1/B-2 visa, but rather 
obtaining a travel authorization, are also quantifiable. These benefits 
are realized only by travelers from new VWP countries, i.e., countries 
that became part of the VWP after publication of the ESTA IFR. DHS must 
first determine how many travelers are repeat versus first-time 
travelers in order not to double-count benefits from not having to 
obtain a visa. Prior to this rule, these visitors would all have needed 
visas if they were not part of the VWP. Then DHS estimates a percentage 
of repeat travelers who would also need to have visas because their old 
visa would expire during the next 10 years. Most VWP visitors are 
eligible for 10-year B-1/B-2 visas, so on average, one tenth of these 
visas expire every year. DHS thus assumes that 10 percent of repeat 
visitors would have to reapply for visas were it not for the rule.\13\ 
Finally, DHS subtracts out those who are denied a travel authorization 
and must apply for a visa instead.
---------------------------------------------------------------------------

    \13\ DHS notes that Taiwan has a 5-year validity period for B-1/
B-2 visas. Travelers from Taiwan make up only about 1 percent of the 
total number of VWP travelers, so assuming a 10-year validity period 
for Taiwan does not materially affect the analysis.
---------------------------------------------------------------------------

    Benefits of forgoing visas are expected to range from about $2.0 
billion to $2.6 billion (present value) from 2008 to 2018 depending on 
the travel level, the value of time used, and the discount rate applied 
(3 or 7 percent). Annualized benefits range from $180 million to $238 
million. See Exhibit 10.

[[Page 32291]]



              Exhibit 10--Total Present Value and Annualized Benefits of Forgoing Visas, 2008-2018
----------------------------------------------------------------------------------------------------------------
        Total present value benefits  ($billions)                    Annualized benefits  ($millions)
----------------------------------------------------------------------------------------------------------------
        Low estimate                 High estimate               Low estimate                High estimate
----------------------------------------------------------------------------------------------------------------
      3%             7%            3%            7%            3%            7%            3%            7%
----------------------------------------------------------------------------------------------------------------
       2.089          2.022         2.632         2.549           189           180           238           227
----------------------------------------------------------------------------------------------------------------

Benefits of Not Having To Complete the Form I-94W and Form I-94

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

          Exhibit 11--Total Present Value and Annualized Benefits of Forgoing the I-94/I-94W, 2008-2018
----------------------------------------------------------------------------------------------------------------
        Total present value benefits  ($billions)                    Annualized benefits  ($millions)
----------------------------------------------------------------------------------------------------------------
        Low estimate                 High estimate               Low estimate                High estimate
----------------------------------------------------------------------------------------------------------------
      3%             7%            3%            7%            3%            7%            3%            7%
----------------------------------------------------------------------------------------------------------------
       0.750          0.739         1.588         1.565            68            66           144           139
----------------------------------------------------------------------------------------------------------------

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

                      Exhibit 12--Form Management Benefits for DHS and Carriers, 2008-2018
                                                 [in $millions]
----------------------------------------------------------------------------------------------------------------
                    3% Discount rate                                         7% Discount rate
----------------------------------------------------------------------------------------------------------------
 Benefits to    Benefits to       Total      Annualized    Benefits to   Benefits to      Total      Annualized
     DHS          carriers      benefits      benefits         DHS        carriers      benefits      benefits
----------------------------------------------------------------------------------------------------------------
       1.957         17.168        19.125           1.7         1.928        16.908        18.836           1.7
----------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding.

Total Benefits to Travelers

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

[[Page 32292]]



                 Exhibit 13--Total Present Value and Annualized Benefits to Travelers, 2008-2018
----------------------------------------------------------------------------------------------------------------
        Total present value benefits  ($billions)                    Annualized benefits  ($millions)
----------------------------------------------------------------------------------------------------------------
        Low estimate                 High estimate               Low estimate                High estimate
----------------------------------------------------------------------------------------------------------------
      3%             7%            3%            7%            3%            7%            3%            7%
----------------------------------------------------------------------------------------------------------------
       2.846          2.770         4.220         4.114           258           246           382           366
----------------------------------------------------------------------------------------------------------------

Benefits of Enhanced Security

    As set forth in section 711 of the 9/11 Act, it was the intent of 
Congress to modernize and strengthen the security of the VWP under 
section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. 
1187) by enhancing program security requirements.
    This rule and the APIS 30/AQQ rule published on August 23, 2007 
\14\ have similar security objectives: To prevent a traveler who has 
been matched to an individual on a government watch list from boarding 
an aircraft or cruise ship bound for the United States. As these 
benefits have already been accounted for in the regulatory assessment 
for the APIS rule, we do not repeat them here. ESTA has the additional 
security benefit of preventing those on a government watch list from 
purchasing a ticket. This allows CBP to focus its targeting resources 
on unknown threats rather than known threats (those on a watch list). 
Since the publication of the Interim Final Rule, DHS has added 
questions to ESTA to further improve security. The addition of these 
data elements improves the Department's ability to screen prospective 
VWP travelers while more accurately and effectively identifying those 
who pose a security risk to the United States. We note that since the 
publication of the Interim Final Rule, ESTA has been successful in 
denying travel authorizations to known or suspected terrorists. In 
2014, 817 known or suspected terrorists were denied ESTA 
authorizations.\15\
---------------------------------------------------------------------------

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

    This rule allows CBP to comply with the TPA's mandate that the 
Secretary establish a fee for the use of the ESTA system and also 
establish a $10 travel promotion fee. The U.S. travel and tourism 
industry may benefit to the extent that travel promotion efforts made 
possible by the Travel Promotion Fund are successful in increasing 
travel to the United States. Likewise, the TPA has a mandate to provide 
information to communicate travel requirements, including ESTA, to 
travelers. To the extent that this outreach increases the travelers' 
understanding of U.S. travel requirements, they will benefit.
    The total net benefits of the rule are presented in Exhibit 14. Net 
benefits range from a net loss of $158 million to a net loss of $443 
million, depending on the value of time and discount rate used. We note 
that, though the monetized net benefits of this rule are negative, the 
non-monetized security benefits are large enough to for this rule's 
benefits to exceed the costs.

                                                        Exhibit 14--Total Net Benefits, 2009-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Total present values ($billions)                      Annualized values ($millions)
                                                 -------------------------------------------------------------------------------------------------------
                                                        Low estimate              High estimate             Low estimate              High estimate
                                                 -------------------------------------------------------------------------------------------------------
                                                  3% discount  7% discount  3% discount  7% discount  3% discount  7% discount  3% discount  7% discount
                                                      rate         rate         rate         rate         rate         rate         rate         rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs...........................................      (3.836)      (3.734)      (5.481)      (5.355)        (347)        (332)        (496)        (476)
Benefits........................................        3.664        3.575        5.037        4.919          332          318          456          437
                                                 -------------------------------------------------------------------------------------------------------
    Net Benefit.................................      (0.172)      (0.158)      (0.443)      (0.435)         (16)         (14)         (40)         (39)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding. Parentheses indicate a negative value. Note that annualized values are not additive.

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

 Accounting statement: Classification of Expenditures to U.S. Entities,
                                2008-2018
                                 [$2013]
------------------------------------------------------------------------
                                   3% discount rate    7% discount rate
------------------------------------------------------------------------
Costs:
    Annualized monetized costs..  $22 million.......  $24 million.
    Annualized quantified, but    None quantified...  None quantified.
     non-monetized costs.
    Qualitative (non-quantified)  Indirect costs to   Indirect costs to
     costs.                        the travel and      the travel and
                                   tourism industry.   tourism industry.
Benefits:

[[Page 32293]]

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

    DHS estimates that the carrier costs of this rule are approximately 
$22 million to $24 million annualized. Quantified benefits of $69 
million to $74 million to U.S. entities (carriers and DHS) are for 
forgone costs associated with processing and transporting inadmissible 
travelers and forgone form administration costs. There are also 
quantified costs and benefits for travelers; however, because these are 
attributable solely to foreign individuals, DHS does not include them 
in the accounting statement. There are non-quantified costs to the 
travel and tourism industry if the United States receives fewer 
visitors as a result of this rule. Conversely, there are non-quantified 
benefits to the travel and tourism industry if this rule results in 
more visitors. Additional non-quantified benefits are enhanced security 
and efficiency.

Regulatory Alternatives

    DHS considers three alternatives to this rule--
     Alternative 1: The ESTA requirements in the rule, but with 
no application fee (more costly for DHS, less burdensome for traveler)
     Alternative 2: The ESTA requirements in the rule, but with 
only the name of the passenger and the admissibility questions on the 
Form I-94W (less burdensome for the traveler)
     Alternative 3: The ESTA requirements in the rule, but only 
for the 10 new VWP countries (no new requirements for travelers from 
the original VWP countries, reduced burden for new VWP travelers)
    For the sake of brevity, DHS presents the high value estimates at 
the 7 percent discount rate only. Costs are expressed as negative 
values (denoted by parentheses) in this presentation of impacts. See 
Exhibit 15.

                       Exhibit 15--Comparison of 11-Year Impacts of the Rule and Regulatory Alternatives, 2008-2018, in $Billions, High Estimate, 7 Percent Discount Rate
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Rule                              Alternative 1                          Alternative 2                          Alternative 3
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Carrier costs.......................  $(0.270).............................  $(0.270).............................  $(0.270).............................  $(0.270).
ESTA time burden....................  (2.941)..............................  (2.941)..............................  (1.961)..............................  (0.127).
Visa costs..........................  (0.224)..............................  (0.224)..............................  (0.224)..............................  0.
ESTA fee............................  (1.920)..............................  0....................................  (1.920)..............................  (0.187).
CBP costs...........................  0....................................  (1.920)..............................  0....................................  (1.733).
Inadmissibility savings.............  0.810................................  0.810................................  0.810................................  0.068.
Benefit of no visa..................  2.549................................  2.549................................  2.549................................  2.549.
Benefit of no I-94/94W..............  1.565................................  1.565................................  1.565................................  0.068.
Benefit of no form administration...  0.019................................  0.019................................  0.019................................  0.019.
                                     -----------------------------------------------------------------------------------------------------------------------------------------------------------
    Net impact......................  $(0.412).............................  $(0.412).............................  $0.568...............................  0.387.
                                     -----------------------------------------------------------------------------------------------------------------------------------------------------------
Comment.............................  .....................................  Does not meet statutory requirements.  All data elements are required for     Does not meet statutory requirements.
                                                                                                                     effective screening.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Detail may not calculate to total due to independent rounding. Parentheses indicate a negative value. Note that annualized values are not additive.

    DHS has determined that this rule provides the greatest level of 
enhanced security and efficiency at an acceptable cost to the traveling 
public and potentially affected air and sea carriers. Alternative 2 
would provide less security as it does not include the additional 
questions on the ESTA application that CBP uses for targeting purposes. 
Alternative 3 would provide less security because we would only get 
advance information from a relatively small subset of the VWP 
population.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires an agency to prepare a regulatory flexibility analysis that 
describes the effect of a proposed rule on small entities when the 
agency is required to publish a general notice of proposed rulemaking. 
A small entity may be a small business (defined as any independently 
owned and operated business not dominant in its field that qualifies as 
a small business per the Small Business Act); a small not-for-profit 
organization; or a small governmental jurisdiction (locality with fewer 
than 50,000 people). Since a general notice of proposed rulemaking was 
not necessary, a regulatory flexibility analysis was not required. 
Nonetheless, DHS has considered the impact of this rule on small 
entities. The individuals to whom this rule applies are not small 
entities as that term is defined in 5 U.S.C. 601(6).

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the

[[Page 32294]]

Unfunded Mandates Reform Act of 1995.

D. Executive Order 13132

    The rule will not have substantial direct effects on the States, on 
the relationship between the National Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, in accordance with section 6 of Executive 
Order 13132, this rule does not have sufficient federalism implications 
to warrant the preparation of a federalism summary impact statement.

E. Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

F. Paperwork Reduction Act

    An agency may not conduct, and a person is not required to respond 
to, a collection of information unless the collection of information 
displays a valid control number assigned by OMB. OMB has already 
approved the collection of the ESTA information in accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507) under OMB Control 
Number 1651-0111.

G. Privacy

    DHS published an ESTA Privacy Impact Assessment (PIA) for the 
Interim Final Rule announcing ESTA on June 9, 2008. Additionally, at 
that time, DHS prepared a separate System of Records Notice (SORN) 
which was published in conjunction with the ESTA IFR on June 9, 2008. 
DHS has updated these documents since that time and the most current 
ESTA PIA and SORN are available for viewing at http://www.dhs.gov/privacy-documents-us-customs-and-border-protection.

List of Subjects in 8 CFR Part 217

    Air carriers, Aliens, Maritime carriers, Passports and visas.

Amendments to Regulations

    Accordingly, the interim rules amending part 217 of the CBP 
regulations (8 CFR part 217), which were published at 73 FR 32440 on 
June 9, 2008 and 75 FR 47701 on August 9, 2010, are adopted as final 
with the following changes:

PART 217--VISA WAIVER PROGRAM

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1187, 8 CFR part 2.

0
2. Section 217.5 is amended by adding paragraph (d)(3) and revising 
paragraph (h)(2) to read as follows:


Sec.  217.5  Electronic System for Travel Authorization.

* * * * *
    (d) * * *
    (3) The Secretary, in consultation with the Secretary of State, may 
increase or decrease ESTA travel authorization validity period 
otherwise authorized by subparagraph (1) for a designated VWP country. 
Notice of any change to ESTA travel authorization validity periods will 
be published in the Federal Register. The ESTA Web site will be updated 
to reflect the specific ESTA travel authorization validity period for 
each VWP country.
* * * * *
    (h) * * *
    (2) Beginning October 1, 2020, the fee for using ESTA is an 
operational fee of $4.00 to at least ensure recovery of the full costs 
of providing and administering the system.

    Dated: June 3, 2015.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2015-13919 Filed 6-5-15; 8:45 am]
 BILLING CODE 9111-14-P