[Federal Register Volume 87, Number 63 (Friday, April 1, 2022)]
[Rules and Regulations]
[Pages 18967-18981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06366]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 212, 217, and 286
[Docket No. USCBP-2021-0014; CBP Dec. 22-07]
RIN 1651-AB14
Implementation of the Electronic System for Travel Authorization
(ESTA) at U.S. Land Borders
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security (DHS).
ACTION: Interim final rule; solicitation of comments.
-----------------------------------------------------------------------
SUMMARY: This rule amends Department of Homeland Security (DHS)
regulations to implement the Electronic System for Travel Authorization
(ESTA) requirements under section 711 of the Implementing
Recommendations of the 9/11 Commission Act of 2007, for noncitizens who
intend to enter the United States under the Visa Waiver Program (VWP)
at land ports of entry. Currently, noncitizens from VWP countries must
provide certain biographic information to U.S. Customs and Border
Protection (CBP) officers at land ports of entry on a paper I-94W
Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W). Under
this rule, these VWP travelers will instead provide this information to
CBP electronically through ESTA prior to application for admission to
the United States. DHS has already implemented the ESTA requirements
for noncitizens who intend to enter the United States under the VWP at
air or sea ports of entry.
DATES: This rule is effective May 2, 2022. Comments must be received on
or before May 2, 2022.
ADDRESSES: You may submit comments, identified by docket number, by the
following method:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2021-0014.
Due to COVID-19-related restrictions, CBP has temporarily suspended
its ability to receive public comments by mail.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Due to relevant
COVID-19-related restrictions, CBP has temporarily suspended its on-
site public inspection of submitted comments.
FOR FURTHER INFORMATION CONTACT: Sikina S. Hasham, Director, Electronic
System for Travel Authorization (ESTA), Office of Field Operations,
202-325-8000, [email protected].
SUPPLEMENTARY INFORMATION:
[[Page 18968]]
Table of Contents
I. Public Participation
II. Executive Summary
III. Background
A. Visa Waiver Program
1. Current CBP Processing of VWP Travelers at Land Ports of
Entry
2. Current CBP Processing of VWP Travelers at Air and Sea Ports
of Entry
B. Expanding ESTA to Land Ports of Entry
1. Obtaining a Travel Authorization
2. Travel Authorization
3. Timeline for Obtaining a Travel Authorization
4. Required ESTA Data Elements
5. Scope of Travel Authorization
6. Duration
7. Events Requiring New Travel Authorization
8. Fee
9. Judicial Review
C. Discussion of Regulatory Changes
1. 8 CFR Part 103
2. 8 CFR Part 212
3. 8 CFR Part 217
4. 8 CFR Part 286
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
1. Procedural Rule Exception
2. Foreign Affairs Function Exception
B. Executive Orders 13563 and 12866
1. Purpose of Rule
2. Population Affected by Rule
3. Costs of Rule
4. Benefits of Rule
5. Net Impact of Rule
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132
F. Executive Order 12988 Civil Justice Reform
G. Paperwork Reduction Act
H. Privacy Interests
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim final rule. U.S. Customs and Border Protection (CBP) also
invites comments on the economic, environmental, or federalism effects
that might result from this regulatory change. Comments that will
provide the most assistance to CBP will reference a specific portion of
the rule, explain the reason for any recommended change, and include
data, information, or authority that support such recommended change.
Written comments must be submitted on or before May 2, 2022. CBP will
consider those comments and make any changes appropriate after
consideration of those comments.
II. Executive Summary
The Visa Waiver Program (VWP) permits eligible citizens and
nationals from 40 participating countries to apply for admission to the
United States at ports of entry for periods of 90 days or less for
business or pleasure without first obtaining a nonimmigrant B-1, B-2,
or B-1/B-2 visa. The Department of Homeland Security (DHS) is amending
its regulations to require VWP travelers applying for admission at U.S.
land ports of entry to receive a travel authorization via the
Electronic System for Travel Authorization (ESTA) from CBP prior to
applying for admission to the United States.
A travel authorization via ESTA is a positive determination of
eligibility to travel to the United States under the VWP. Travelers
without a travel authorization must have a visa issued by a U.S.
Embassy or Consulate for admission to the United States.
Currently, VWP travelers applying for admission at U.S. land ports
of entry must complete a paper I-94W Nonimmigrant Visa Waiver Arrival/
Departure Record (Form I-94W) prior to admission that provides
biographical and travel information to CBP. Through this interim rule,
instead of completing a paper Form I-94W at land ports of entry, VWP
travelers must now provide this information electronically to CBP via
ESTA.
DHS has already instituted the ESTA program at air and sea ports of
entry. On June 9, 2008, DHS published an interim final rule (IFR),
``Changes to the Visa Waiver Program to Implement the Electronic System
for Travel Authorization (ESTA) Program,'' in the Federal Register (73
FR 32440) (hereafter, ``ESTA Air and Sea IFR'') announcing the creation
of the ESTA program for nonimmigrant visitors traveling to the United
States by air or sea under the VWP. After a thorough review of the
comments received, on June 8, 2015, DHS published in the Federal
Register (80 FR 32267) a final rule titled ``Changes to the Visa Waiver
Program to Implement the Electronic System for Travel Authorization
(ESTA) Program and the Fee for Use of the System'' (hereafter, ``ESTA
Air, Sea, and Fee Final Rule'').\1\ Specifically, DHS amended title 8
of the Code of Federal Regulations (CFR) to provide that VWP travelers
applying for admission at U.S. air and sea ports of entry must receive
a travel authorization from CBP via ESTA. See 8 CFR 217.5 (ESTA
regulations). The ESTA regulations set forth the general requirements,
the time frame for obtaining a travel authorization, the required data
elements, the duration of a travel authorization, and the fee for
obtaining a travel authorization. With the implementation of ESTA, VWP
travelers who arrive at air and sea ports of entry are no longer
required to complete a paper Form I-94W.
---------------------------------------------------------------------------
\1\ On August 9, 2010, DHS published an IFR in the Federal
Register (75 FR 47701) to establish a fee for ESTA.
---------------------------------------------------------------------------
This interim rule expands the requirements of ESTA to land ports of
entry. Specifically, it extends the electronic collection of the
information requested on paper Form I-94W to VWP travelers who intend
to travel to the United States by land. For these travelers, all the
ESTA requirements in 8 CFR 217.5 are identical to air and sea
travelers, except for the time frame for receiving a travel
authorization.
As provided in 8 CFR 217.5(b), air and sea VWP travelers must
receive a travel authorization prior to embarking on a carrier for
travel to the United States. Under this interim rule, however, VWP
travelers intending to travel to the United States by land must instead
receive a travel authorization prior to application for admission to
the United States. The different time frames take into account the fact
that travel by land is often by privately owned vehicle or on foot and
not by carrier, as is usually the case when people travel to the United
States by air or sea.
To expedite the admission process, DHS encourages VWP travelers who
intend to travel to the United States by land to apply for a travel
authorization at least 72 hours in advance of their anticipated arrival
at a U.S. land port of entry. By submitting an ESTA application well in
advance of anticipated arrival at a land port of entry, a traveler will
be able to minimize the likelihood that he or she will be found to be
inadmissible under the VWP upon arrival at the port of entry and
prevent a potentially long wait time at the border while his or her
application is under review.
Implementing ESTA at land ports of entry will expedite the
admission of VWP travelers and reduce traveler delays, especially when
VWP travelers apply for a travel authorization in advance of travel. A
travel authorization will be valid at all ports of entry. Therefore, if
a VWP traveler already has a valid travel authorization obtained for
air or sea travel, the traveler will not need to obtain another travel
authorization for admission at a land port of entry.
Following the implementation of ESTA at U.S. land ports of entry,
all VWP travelers are required to complete the electronic version of
the paper Form I-94W (i.e., an ESTA application) instead of the paper
Form I-94W.
As discussed in Section IV(B) of the Background section,
``Executive Orders 13563 and 12866,'' and detailed in the complete
regulatory assessment entitled ``Regulatory Assessment for the
[[Page 18969]]
Implementation of the Electronic System for Travel Authorization (ESTA)
at U.S. Land Borders Interim Final Rule,'' available at docket number
USCBP-2021-0014, this rule will provide immediate benefits to VWP
travelers and to CBP. This rule will produce a consistent, modern VWP
admission policy, strengthen national security through enhanced
traveler vetting, expedite entry processing at land ports of entry,
collect Form I-94W information electronically, and reduce inadmissible
traveler inspections, generating time and cost savings for CBP and VWP
travelers.
III. Background
A. 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 VWP if certain requirements are met. See 8 U.S.C.
1187(c)(2). The INA also sets forth requirements for continued
eligibility and termination of VWP status.
Eligible citizens and nationals of VWP countries may apply for
admission 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 B-1, B-2, or B-1/B-2 visa. These travelers,
however, must comply with applicable regulations and be admissible
under statutory and regulatory requirements.\2\ Other nonimmigrant
visitors who are not from VWP countries, or visitors from VWP countries
who are traveling for purposes other than business or pleasure, 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.
---------------------------------------------------------------------------
\2\ For VWP travelers arriving at the United States at air and
sea ports of entry, the ESTA requirements as set forth in 8 CFR
217.5 apply. ESTA requirements are described in detail in Section
III(B) of the Background section of this document.
---------------------------------------------------------------------------
1. Current CBP Processing of VWP Travelers at Land Ports of Entry
The way in which a VWP traveler is processed at a land port of
entry depends on the documentation the traveler presents upon
application for admission. In some cases, the VWP traveler may be
referred to secondary processing. Generally, in secondary processing,
the traveler must complete a paper Form I-94W and pay a $6.00
processing fee. CBP estimates that the paper Form I-94W takes 16
minutes (0.2667 hours) to complete.\3\
---------------------------------------------------------------------------
\3\ Source: U.S. Customs and Border Protection. Supporting
Statement for Paperwork Reduction Act Submission 1651-0111: Arrival
and Departure Record (Forms I-94, I-94W) and Electronic System for
Travel Authorization (ESTA). February 12, 2019. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201810-1651-001.
Accessed May 22, 2019.
---------------------------------------------------------------------------
In secondary, once a VWP traveler completes the paper Form I-94W, a
CBP officer enters the traveler's passport and paper Form I-94W
information into an internal database and collects the traveler's
biometric data (i.e., fingerprints and photograph). CBP uses the data
collected on the paper Form I-94W to populate a database of crossing
history and admission status in the United States. This database stores
the admissions and departures of travelers entering or leaving the
United States. The CBP officer also checks the visitor's personal
information against lost and stolen passport databases, government
watch lists, and other DHS resources. Based on this information, as
well as an interview with the traveler, the CBP officer determines
whether or not the traveler is admissible to the United States. If
admissible, the CBP officer stamps the traveler's paper Form I-94W and
passport, provides the traveler with the departure portion of the paper
Form I-94W (``I-94W Departure Record'') and grants the traveler
admission to the United States for a period of up to 90 days (``90-day
VWP admission period'').\4\
---------------------------------------------------------------------------
\4\ Generally, admitted VWP visitors must surrender the I-94W
Departure Record when leaving the United States. This allows CBP to
accurately record traveler departures. However, admitted VWP
travelers are not required to surrender the Form I-94W Departure
Record when departing the United States for Canada or Mexico for a
trip of less than 30 days. These travelers may retain their I-94W
Departure Record so that when they resume their visit to the United
States, via a land port of entry, they are not required to complete
another paper Form I-94W. They may be readmitted into the United
States for the balance of time remaining on their 90-day VWP
admission period.
---------------------------------------------------------------------------
The processing of a VWP traveler at a land port of entry may be
different if the traveler is within a current 90-day VWP admission
period (meaning, the traveler has been processed and admitted into the
United States under the VWP within the last 90 days, with or without a
current ESTA travel authorization), or if the traveler has a current
ESTA travel authorization, but is not within a current 90-day VWP
admission period.
In the former case, where the traveler is within a current 90-day
VWP admission period, the traveler may generally be processed at CBP's
primary inspection. This is because the information typically gathered
during secondary processing was already captured earlier through either
the traveler's ESTA application (if he or she first arrived in the
United States by air or sea) or the Form I-94W (if he or she first
arrived in the United States by land). This scenario typically occurs
when a VWP traveler who has already been admitted into the United
States takes a brief excursion into Canada or Mexico, and then seeks to
re-enter the United States to resume his or her visit.
In the latter case, when a VWP traveler has a valid ESTA travel
authorization, but is not within a current 90-day VWP admission period,
the traveler must go to secondary processing and pay the $6.00
processing fee, but he or she does not need to complete the paper Form
I-94W because CBP already has the traveler's relevant information
through his or her ESTA application.
If a traveler is refused admission to the United States under the
VWP, he or she can visit the nearest U.S. Embassy or Consulate to apply
for a nonimmigrant B-1, B-2, or B-1/B-2 visa. This visa would cost a
traveler approximately $302 in fees and time costs to obtain.\5\ The
overall U.S.
[[Page 18970]]
admission refusal rate for VWP travelers at land ports of entry is low.
From fiscal year (FY) 2013 to FY 2017, CBP recorded 4.0 million VWP
traveler arrivals at U.S. land ports of entry, with 99.9 percent of
arrivals resulting in admissions to the United States and 0.1 percent
resulting in refusals based on paper Form I-94W processing.\6\
---------------------------------------------------------------------------
\5\ The fees to obtain a nonimmigrant B-1, B-2, or B-1/B-2 visa
include a $160.00 U.S. Department of State fee for DS-160: Online
Nonimmigrant Visa Application processing and an estimated $40.00 in
photo, courier, and other miscellaneous expenses. The time cost to
obtain a nonimmigrant B-1, B-2, or B-1/B-2 visa is approximately
$102, based on the estimated 5-hour time burden to obtain a
nonimmigrant B-1, B-2, or B-1/B-2 visa (including the time spent
completing Form DS-160: Online Nonimmigrant Visa Application,
traveling to a U.S. Embassy or Consulate for the nonimmigrant B-1,
B-2, or B-1/B-2 visa interview, waiting for the interview, and
undergoing the interview) and a VWP traveler's hourly time value of
$20.40. CBP bases the $20.40 hourly time value for VWP travelers on
the U.S. Department of Transportation's (DOT) hourly time value of
$20.40 for all-purpose, intercity travel by surface-modes, except
high-speed rail. For the purposes of this analysis, CBP assumes that
the DOT time value, reported in 2015 U.S. dollars, would be the same
for 2019. Source of visa processing fee cost: U.S. Department of
State. ``Fees for Visa Services.'' Available at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/fees-visa-services.html. Accessed May 7, 2018. Source
of photo cost: U.S. Department of State. Supporting Statement for
Paperwork Reduction Act Submission: 1405-0015, Application for
Immigrant Visa and Alien Registration (Form DS-230). August 3, 2018.
Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201808-1405-001. Accessed December 20, 2018.
Source of other fees: CBP estimates. Source of VWP traveler's hourly
time value: U.S. Department of Transportation, Office of
Transportation Policy. The Value of Travel Time Savings:
Departmental Guidance for Conducting Economic Evaluations Revision 2
(2016 Update). ``Table 4 (Revision 2--2016 Update): Recommended
Hourly Values of Travel Time Savings.'' September 27, 2016.
Available at https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf.
Accessed June 11, 2018.
\6\ Email correspondence with CBP's Office of Field Operations
on April 24, 2015 and May 17, 2018.
---------------------------------------------------------------------------
2. Current CBP Processing of VWP Travelers at Air and Sea Ports of
Entry
A nonimmigrant noncitizen arriving at a U.S. air or sea port of
entry under the VWP must obtain a travel authorization via ESTA prior
to embarking on a carrier for travel to the United States. If the
traveler does not have a travel authorization, he or she must hold an
unexpired visa issued by a U.S. Embassy or Consulate. See Section
217(a) of the INA, 8 U.S.C. 1187(a). See also 8 CFR part 217. The
relevant history regarding this ESTA requirement is set forth below.
In response to the events of September 11, 2001, Congress enacted
the Implementing Recommendations of the 9/11 Commission Act of 2007,
Public Law 110-53 (9/11 Act). To address aviation security
vulnerabilities of the VWP, section 711 of 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 for VWP travelers visiting the United States. The
system would collect biographical and other information the DHS
Secretary deems 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). Prior to the establishment of ESTA, VWP
travelers could board planes to the United States and be found
inadmissible upon arrival at CBP inspection. By establishing ESTA, DHS
is able to identify whether the traveler is likely to be admissible
upon arrival before the traveler embarks on travel to the United
States.
DHS established the electronic equivalent of the paper Form I-94W
process at air and sea ports of entry as set forth in the ESTA Air and
Sea IFR (73 FR 32440), published on June 9, 2008, and in the ESTA Air,
Sea, and Fee Final Rule (80 FR 32267), published on June 8, 2015. ESTA
provides for an electronic collection of the information required on
the paper Form I-94W in advance of travel. ESTA fulfills the statutory
requirements described in section 711 of the 9/11 Act.
DHS stated in the ESTA Air and Sea IFR that the development and
implementation of the ESTA program would eventually allow DHS to
automate the requirement that VWP travelers complete a paper Form I-94W
prior to being admitted to the United States. See 73 FR 32440 at 32443.
While the ESTA Air and Sea IFR established the regulations for ESTA,
section 711 of the 9/11 Act required DHS to announce implementation of
a mandatory ESTA system by publication of a notice in the Federal
Register no less than 60 days before the date on which ESTA would
become mandatory for all VWP travelers. On November 13, 2008, DHS
published such a notice in the Federal Register (73 FR 67354)
announcing that 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. At that point, DHS began an informed
compliance period during which VWP travelers who arrived without prior
ESTA authorization were not refused admission on that basis, but were
instead permitted to complete the paper I-94W upon arrival in the
United States. As of June 29, 2010, however, VWP travelers have been
required to receive a travel authorization through the ESTA website,
https://www.cbp.gov/esta, prior to boarding a conveyance destined for a
U.S. air or sea port of entry. See 80 FR 32267 at 32285. Travelers who
do not receive authorization through ESTA may still apply for a
nonimmigrant B-1, B-2, or B-1/B-2 visa issued by a U.S. Embassy or
Consulate.
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
that the Secretary of Homeland Security establish a fee for the use of
ESTA and begin assessing and collecting the fee.
On August 9, 2010, DHS published an interim final rule ``Electronic
System for Travel Authorization (ESTA); Travel Promotion Fee and Fee
for Use of the System'' in the Federal Register (75 FR 47701)
(hereafter, ``ESTA Fee IFR'') announcing that beginning September 8,
2010, a $4.00 ESTA operational fee would be charged to each ESTA
applicant to ensure recovery of the full costs of providing and
administering the system and an additional $10.00 Trade Promotion Act
(TPA) fee would be charged to each ESTA applicant receiving travel
authorization through September 30, 2015.\7\ See 8 U.S.C.
1187(h)(3)(B), as amended, and 8 CFR 217.5(h).
---------------------------------------------------------------------------
\7\ On February 9, 2018, section 30203(a) of the Bipartisan
Budget Act of 2018, Public Law 115-123, extended the sunset
provision of the travel promotion fee through September 30, 2027. On
December 20, 2019, section 806 of the Further Consolidated
Appropriations Act of 2020, Public Law 116-94, increased the travel
promotion fee from $10 to $17. CBP will be publishing a separate
rule to reflect these legislative changes.
---------------------------------------------------------------------------
In response to the request for comments in the ESTA Air and Sea IFR
and the ESTA Fee IFR, DHS received a total of 39 submissions. Most of
these submissions contained comments providing support, voicing
concerns, highlighting issues, or offering suggestions for
modifications to the ESTA program. After review and analysis of the
comments, on June 8, 2015, DHS published the ESTA Air, Sea, and Fee
Final Rule in the Federal Register (80 FR 32267) with two substantive
regulatory changes. The first change allows the Secretary of Homeland
Security to adjust travel authorization validity periods on a per
country basis from a general validity period of two years, to a three-
year maximum or to a lesser period of time. The second change concerns
the TPA fee. In accordance with Section 605 of the Consolidated and
Further Continuing Appropriations Act of 2015, DHS extended the end
date for assessment of the Travel Promotion Act fee to September 30,
2020. DHS also removed a specific reference to the Pay.gov payment
system in order to allow for flexibility in how CBP may collect ESTA
fees.
The ESTA Air, Sea, and Fee Final Rule also outlines the various
operational changes DHS has implemented since the ESTA program's
inception based on the experience DHS gained from operating the ESTA
program. For example, VWP travelers who provide an email address to DHS
when they submit their application will receive an automated email
notification indicating that their travel authorization will expire
soon. DHS has also updated the information on the ESTA website to
address some of the comments. Finally, DHS has also revised some of the
ESTA questions to make them more understandable, removed one of the
questions, and added some new questions to improve the screening of
travelers before their travel to the United States.\8\ All these
changes took effect on November 3, 2014.
---------------------------------------------------------------------------
\8\ The ESTA application and the paper Form I-94W are covered by
OMB Control Number 1651-0111. The updated questions and additional
questions were described in various notices regarding the extension
and revision of information collection 1651-0111 requesting public
comments published in the Federal Register on November 26, 2013 (78
FR 70570), February 14, 2014 (79 FR 8984), December 9, 2014 (79 FR
73096), June 23, 2016 (81 FR 40892), and August 31, 2016 (81 FR
60014).
---------------------------------------------------------------------------
[[Page 18971]]
For more details regarding ESTA and the fees associated with ESTA,
please see: ESTA Air and Sea IFR; ESTA Fee IFR; and ESTA Air, Sea, and
Fee Final Rule. Additional information may also be found on the ESTA
website at https://esta.cbp.dhs.gov.
B. Expanding ESTA to Land Ports of Entry
From FY 2013 to FY 2017, CBP recorded 4.0 million VWP traveler
arrivals at U.S. land ports of entry, with 99.9 percent of arrivals
resulting in admissions to the United States and 0.1 percent resulting
in refusals based on paper Form I-94W processing. Of the total
arrivals, approximately 3.1 million (77.8 percent) were distinct,
meaning that they corresponded to VWP travelers required to complete
new paper Form I-94Ws and undergo related processing. These distinct
travelers were either taking their first trip to the United States by
land or they lacked valid Form I-94W Departure Records. The remaining
888,000 arrivals (22.2 percent) were non-distinct, meaning that they
corresponded to VWP travelers making repeat visits to the United States
using an initial, valid Form I-94W Departure Record.\9\
---------------------------------------------------------------------------
\9\ Travelers with a valid Form I-94W Departure Record are those
who departed the United States for Canada or Mexico for a trip of
less than 30 days.
---------------------------------------------------------------------------
This interim final rule (hereafter ``ESTA Land IFR'') amends title
8 of the CFR to implement ESTA for noncitizens who intend to travel to
the United States under the VWP by land. These travelers must now
submit an ESTA application instead of the paper Form I-94W. The rule
requires each noncitizen traveling to the United States by land under
the VWP to obtain from CBP a travel authorization via ESTA prior to
application for admission to the United States. With this expansion of
ESTA, all VWP travelers will be required to have a travel authorization
in advance of applying for admission to the United States.
As summarized in the Executive Summary and in Section IV(B),
``Executive Orders 13563 and 12866,'' this rule has many benefits. In
addition to fulfilling a statutory mandate, ESTA serves the twin goals
of promoting border security and legitimate travel to the United
States. ESTA increases national security and provides efficiencies in
the screening of international travelers by vetting subjects of
potential interest before admittance into the United States. The ESTA
Land IFR also generates various additional benefits to foreign
travelers and DHS (particularly CBP).
VWP travelers intending to arrive at U.S. land ports of entry will
benefit from ESTA, especially when the traveler already has a travel
authorization or applies for a travel authorization before traveling to
the United States. By implementing ESTA at land ports of entry,
travelers will no longer have to complete the paper Form I-94W at the
land port of entry. This will shorten the admission process at U.S.
land ports of entry for both VWP travelers and DHS. Travelers who
already have an ESTA travel authorization that is still valid will not
have to obtain a new travel authorization or complete the paper Form I-
94W when entering at a land port of entry. VWP travelers will also save
time by obtaining a travel authorization in advance of travel, which
may prevent them from spending time and money to travel to a U.S. land
port of entry and possibly be refused admission.
ESTA enables DHS to determine whether a noncitizen is eligible to
travel to the United States under the VWP and to identify potential
grounds of inadmissibility before the VWP traveler applies for
admission at a U.S. land port of entry. By making these determinations
before the noncitizen embarks on travel to the United States, DHS will
likely be able to reduce the number of noncitizens arriving at U.S.
ports of entry who are determined to be inadmissible upon arrival. In
turn, this will reduce the number of inadmissible noncitizens that DHS
must process for appropriate refusal or removal proceedings upon
arrival. Furthermore, by implementing ESTA at land ports of entry, DHS
will also likely reduce wait times for other international travelers
arriving at U.S. ports of entry. With reduced wait times, DHS will
better allocate existing resources towards screening passengers at U.S.
ports of entry, thereby facilitating legitimate travel.
As explained more fully in section III(B)(1), ``Obtaining a Travel
Authorization,'' as a result of this interim final rule, VWP travelers
entering the United States at land ports of entry must receive an ESTA
travel authorization prior to application for admission to the United
States. This time frame is different from the time frame applicable to
VWP travelers entering the United States at air and sea ports of entry.
VWP travelers entering the United States at air and sea ports of entry
must have a travel authorization prior to boarding a carrier destined
for the United States. The different time frames take into account the
fact that travel by land is often more spontaneous, and sometimes last
minute, and often not by a carrier. DHS will not require land carriers
(such as bus and rail companies) to screen passengers or necessitate a
travel authorization in advance of arrival to a U.S. land port of
entry. Other than the different time frames, the ESTA procedures and
requirements for VWP travelers arriving at land ports of entry will be
the same as the procedures and requirements for VWP travelers arriving
at air or sea ports of entry as provided in 8 CFR 217.5. These
procedures and requirements are explained below.
1. Obtaining a Travel Authorization
VWP travelers obtain the required travel authorization by
electronically submitting to CBP, via the ESTA website (https://esta.cbp.dhs.gov), an application consisting of biographical and other
information specified by the Secretary of Homeland Security. The ESTA
application captures all data elements included on the paper Form I-
94W. To apply for a travel authorization, a traveler should select the
``Apply'' feature on the ESTA web page, enter his or her biographical
and travel information as prompted by the fields marked with a red
asterisk (the mandatory data elements), enter the optional data
elements, if known, and submit the application information. A third
party (such as a commercial carrier, travel agent, visa service
provider, or relative) may submit an ESTA application on a traveler's
behalf. For each travel authorization, the traveler must pay a fee.
CBP will use information included in a traveler's ESTA application
to determine the eligibility of the noncitizen to travel to the United
States and whether the visitor poses a law enforcement or security
risk.\10\
---------------------------------------------------------------------------
\10\ See 8 U.S.C. 1187(h)(3).
---------------------------------------------------------------------------
CBP will check information submitted by the traveler, or on behalf
of a traveler, in his or her ESTA application against all appropriate
databases, including lost and stolen passport databases and appropriate
watch lists. CBP may deny the traveler's ESTA application if: (1) A
noncitizen does not provide the required information; (2) a noncitizen
provides false information; (3) any evidence exists indicating
ineligibility to travel to the United States under the VWP; or (4) the
travel poses a law enforcement or security risk. Consistent with
section 711 of the 9/11 Act, the Secretary, acting through CBP, retains
[[Page 18972]]
discretion to revoke a travel authorization determination at any time
and for any reason. See 8 U.S.C. 1187(h)(3)(C)(i). If a noncitizen's
travel authorization application is denied, the noncitizen may still
apply to obtain a visa to travel to the United States from an
appropriate U.S. Embassy or Consulate.
To verify that the ESTA application has been approved and a travel
authorization has been issued, the traveler must return to the ESTA
website to view his or her ESTA status. CBP requires a minimum of two
hours to make an ESTA application determination. While most
determinations will generally be made in approximately two hours, there
is no guarantee that an application will be processed in that time
frame and some determinations may take longer. In most cases, the
applicant will receive an ESTA decision within 72 hours. An applicant
may contact the ESTA Help Desk at the Traveler Communications Center by
telephone at 1-202-325-5120 for assistance in processing his or her
pending application.
DHS recommends that travelers apply for a travel authorization
early in the travel planning process, rather than waiting until the
traveler is approaching the port of entry. By planning ahead, a
traveler who is unable to obtain a travel authorization will still have
time to apply for a nonimmigrant B-1, B-2, or B-1/B-2 visa from a U.S.
Embassy or Consulate before travel.
2. Travel Authorization
A travel authorization is a positive determination that a
noncitizen is eligible to travel to the United States under the VWP
during the period of time the travel authorization is valid. A travel
authorization is not a determination that the noncitizen is ultimately
admissible into the United States. That determination is made by a CBP
officer only after an applicant for admission is inspected by a CBP
officer at a U.S. port of entry. In addition, ESTA is not a visa or a
process that acts in lieu of any visa issuance determination made by
the Department of State.
3. Timeline for Obtaining a Travel Authorization
Each VWP traveler arriving at a U.S. land port of entry must have a
travel authorization prior to application for admission at a land port
of entry. A VWP traveler who does not have a valid travel authorization
at the time he or she applies for admission to the United States at a
land port of entry will be ineligible for admission under the VWP.
If a VWP traveler arrives at a U.S. land port of entry without a
valid travel authorization and wants to apply for one, the traveler
will be permitted to withdraw his or her application for admission,
return to Mexico or Canada, submit an ESTA application there, and await
receipt of a travel authorization in Mexico or Canada before returning
to a U.S. port of entry. Receipt of a travel authorization will take at
least two hours from the time that it is submitted. If the traveler's
ESTA application is approved, the traveler may return to a U.S. land
port of entry to seek admission. If the traveler's ESTA application is
not approved, the traveler is not eligible to seek admission to the
United States under the VWP. In such a case, the traveler may apply for
a nonimmigrant B-1, B-2, or B-1/B-2 visa from a U.S. Embassy or
Consulate and then reapply for admission to the United States.
It should be noted that because VWP travelers arriving at U.S. land
ports of entry will need to have a travel authorization prior to
application for admission, rather than prior to boarding a carrier,
land carriers transporting VWP travelers are not responsible for
confirming that the VWP traveler is ESTA-compliant. For example, this
interim rule would not require bus companies to confirm that their
passengers are ESTA-compliant or to transmit any ESTA data elements on
behalf of these travelers to CBP.
4. Required ESTA Data Elements
The current ESTA regulations provide that ESTA will collect such
information as the Secretary deems necessary to issue a travel
authorization as reflected on the ESTA application. See 8 CFR 217.5(c).
This information is included on the ESTA website. VWP travelers
arriving at land ports of entry will have to provide these same data
elements. The ESTA website also includes some optional data elements.
This data should be provided, if known.
5. Scope of Travel Authorization
Consistent with section 711 of the 9/11 Act, a travel authorization
does not restrict, limit, or otherwise affect the authority of CBP to
determine a noncitizen's admissibility into the United States during
inspection at a port of entry.
6. Duration
The same general rule and exceptions regarding the duration of a
travel authorization as set forth in 8 CFR 217.5(d) will apply to a
travel authorization issued for travel to air, sea, and land ports of
entry. DHS will notify an individual with an approved ESTA
authorization at the email address he or she provided in the
application when his or her ESTA expiration date is approaching.
Subject to certain exceptions, each travel authorization will generally
be valid for a period of two years from the date of issuance, meaning a
noncitizen may travel to the United States repeatedly within a two-year
period without obtaining another authorization.
7. Events Requiring New Travel Authorization
The events requiring a new travel authorization as set forth in 8
CFR 217.5(e) and summarized below are the same regardless of whether
the travel authorization was issued for travel to U.S. air, sea, or
land ports of entry.
A VWP traveler must obtain a new travel authorization approval if
any of the following conditions occurs: (1) The noncitizen is issued a
new passport; (2) the noncitizen changes his or her name; (3) the
noncitizen changes his or her gender; (4) the noncitizen changes his or
her country of citizenship; or (5) the circumstances underlying the
noncitizen's previous responses to any of the ESTA application
questions requiring a ``yes'' or ``no'' response (eligibility
questions) have changed.
8. Fee
The TPA mandated that the Secretary of Homeland Security establish
a fee for the use of ESTA and begin assessing and collecting the fee.
DHS implemented the fee requirements of the TPA in the ESTA Fee IFR and
ESTA Air and Sea Final Rule. VWP travelers applying for a travel
authorization to travel to U.S. air and sea ports of entry must pay a
$4.00 ESTA operational fee and an additional $10.00 Travel Promotion
Act fee through September 30, 2020.11 12
---------------------------------------------------------------------------
\11\ If the ESTA application is denied, the applicant will be
refunded the $10.00 Travel Promotion Act fee. The fee was originally
authorized by the TPA through September 30, 2015, but was extended
through September 2020 by the Consolidated and Further Continuing
Appropriations Act of 2015.
\12\ On February 9, 2018, section 30203(a) of the Bipartisan
Budget Act of 2018, Public Law 115-123, extended the sunset
provision of the travel promotion fee through September 30, 2027. On
December 20, 2019, section 806 of the Further Consolidated
Appropriations Act of 2020, Public Law 116-94, increased the travel
promotion fee from $10 to $17. CBP will be publishing a separate
rule to reflect these legislative changes. CBP has not yet begun
collecting the higher fee, but will do so after the fee rule has
been published.
---------------------------------------------------------------------------
This same fee will apply to VWP travelers arriving at U.S. land
ports of entry. For a detailed discussion about this fee, see the ESTA
Fee IFR and the ESTA Air and Sea Final Rule.
[[Page 18973]]
It is important to note that a noncitizen may travel to the United
States repeatedly within the validity period using the same travel
authorization, regardless of the mode of transportation used.
Therefore, VWP travelers who intend to arrive in the United States at a
land port of entry and already have a travel authorization that is
still valid will not need to apply for a new travel authorization or
pay another ESTA fee.
However, a VWP traveler arriving at U.S. land ports of entry will
still have to pay the $6.00 I-94W fee provided for in 8 CFR
103.7(d)(5), unless he or she is entering within a current 90-day VWP
admission period. This fee covers processing costs, including those
involved in collecting traveler fingerprints.\13\ Although the
collection of the I-94W data elements will now be done electronically
through ESTA, travelers at the land border will continue to receive a
printed departure record. This printed departure record is equivalent
to the departure portion of the paper Form I-94W. This document will be
stamped by the CBP officer who processes the traveler's admission and
should be retained by the traveler while he or she is in the United
States. VWP visitors who depart from the United States via a land port
will generally be required to surrender this document upon leaving the
United States.\14\ CBP will enter the departure information manually
into the appropriate CBP database.\15\ The $6.00 fee supports CBP's
efforts in issuing these departure records and entering the departure
information.
---------------------------------------------------------------------------
\13\ Travelers arriving by air and sea pay the same fee;
however, the fee is included in the price of the carrier tickets and
is not collected separately upon arrival.
\14\ Admitted VWP travelers will not be required to surrender
the printed departure record when departing the United States for
Canada or Mexico for a trip of less than 30 days. These travelers
may retain their printed departure record so that when they resume
their visit to the United States, CBP will not have to print another
departure record and the traveler may be readmitted into the United
States for the balance of time remaining on his or her I-94W
Departure Record.
\15\ This process differs from the departure process at air and
sea ports of entry where departure information is received and
recorded electronically.
---------------------------------------------------------------------------
9. Judicial Review
Section 711 of the 9/11 Act amended section 217 of the INA to
provide that no court shall have jurisdiction to review an eligibility
determination under the electronic travel authorization system. See INA
section 217(h)(3)(C)(iv), 8 U.S.C. 1187. Accordingly, a determination
under ESTA will be final and, notwithstanding any other provision of
the law, is not subject to judicial review.
C. Discussion of Regulatory Changes
DHS is amending parts 103, 212, 217, and 286 of title 8 of the CFR,
as set forth below, in order to expand the ESTA requirements to VWP
travelers arriving at U.S. land ports of entry and to update the
regulations.
1. 8 CFR Part 103
Section 103.7(d)(5) of the DHS regulations (8 CFR 103.7), titled
``Form I-94W,'' enumerates the $6.00 fee associated with the issuance
of Form I-94W. The paragraph is revised to incorporate a definition of
``issuance'' that reflects the new procedure involved in electronically
collecting the traveler's information, then using that information to
print a departure record for VWP travelers entering the United States
at land ports of entry. The new provision will now clarify that ``the
term `issuance' includes, but is not limited to, the creation of an
electronic record of admission or arrival/departure by DHS following an
inspection performed by a CBP officer, which may be provided to the
nonimmigrant as a printout or other confirmation of the electronic
record stored in DHS systems.''
2. 8 CFR Part 212
Section 212.1 of the DHS regulations (8 CFR 212.1), titled
``Documentary requirements for nonimmigrants,'' refers to the Visa
Waiver Pilot Program. On October 30, 2000, the Visa Waiver Permanent
Program Act, Public Law 106-396, established the VWP as a permanent
program and replaced the Visa Waiver Pilot Program. Therefore, this
section is amended to remove the reference to the ``Visa Waiver Pilot
Program'' and refer instead to the ``Visa Waiver Program.''
3. 8 CFR Part 217
Section 217.1 of the DHS regulations (8 CFR 217.1), titled
``Scope,'' refers to the Visa Waiver Pilot Program. This section is
amended to remove the reference to the ``Visa Waiver Pilot Program''
and instead refer to the ``Visa Waiver Program (VWP).''
Section 217.2 of the DHS regulations (8 CFR 217.2) describes the
eligibility requirements to travel under the VWP. Specifically, Sec.
217.2(b)(1) provides that in addition to meeting all the requirements
for the ``Visa Waiver Pilot Program,'' each applicant must possess a
valid, unexpired passport issued by a designated country and present a
completed, signed Form I-94W. This provision is amended to delete the
reference to Form I-94W and add the new requirement to obtain a travel
authorization via ESTA. Also, the paragraph is amended to delete the
reference to the ``Visa Waiver Pilot Program'' and refer instead to the
``Visa Waiver Program.''
This rule also makes non-substantive amendments to Sec. 217.2 to
make the regulation current, correct, and consistent. Specifically,
Sec. Sec. 217.2(a), (c), and (d) and 217.3(b) are amended to delete
the references to the ``Visa Waiver Pilot Program'' and refer instead
to the ``Visa Waiver Program (VWP).'' These provisions are also being
updated by replacing the legacy Immigration and Naturalization Service
position title (``immigration officer'') with the current DHS position
title (``CBP officer'').
Section 217.5 (8 CFR 217.5) sets forth the requirements for ESTA.
In particular, Sec. 217.5(a) requires nonimmigrant noncitizens
intending to travel by air or sea to the United States under the VWP to
receive a travel authorization prior to boarding a carrier destined for
the United States. This provision is amended to require nonimmigrant
noncitizens intending to travel by land to the United States under the
VWP to obtain a travel authorization prior to application for admission
to the United States at a land port of entry.
Section 217.5(b) specifies the time frames for obtaining a travel
authorization through ESTA for VWP travelers arriving at air and sea
ports of entry. The paragraph is amended to also specify the time frame
for obtaining a travel authorization for VWP travelers arriving at land
ports of entry, i.e., prior to application for admission to the United
States. Current Sec. 217.5(c) provides that the DHS Secretary may
collect certain information to issue a travel authorization and refers
to the Form I-94W. When the ESTA program is implemented at U.S. land
ports of entry, DHS will no longer require VWP travelers to complete
the Form I-94W. Therefore, the paragraph is amended by removing the
references to the Form I-94W and referring instead to ESTA.
Current Sec. 217.5(g) provides that once ESTA is implemented as a
mandatory program, 60 days following publication by the Secretary of a
notice in the Federal Register, citizens and eligible nationals of
countries that participate in the VWP must comply with the requirements
of this section. It further provides that as new countries are added to
the VWP, citizens and eligible nationals of those countries will be
required to obtain a travel authorization prior to traveling to the
United States under the VWP. This language is outdated because it has
been overtaken by the following events. First, the
[[Page 18974]]
Secretary published the referenced notice in the Federal Register on
November 13, 2008 (73 FR 67354), and ESTA was implemented as a
mandatory program for VWP travelers arriving at air and sea ports 60
days later. Second, this interim final rule expanding ESTA to VWP
travelers arriving at land ports of entry will be effective 30 days
after publication. Third, the provision about new countries is now
fully covered by the general provision about travel authorization in
Sec. 217.5(a). Therefore, the outdated language is deleted.
4. 8 CFR Part 286
Part 286 of the DHS regulations (8 CFR part 286) concerns
immigration user fees. Specifically, Sec. 286.9 describes the fee for
processing applications and issuing documentation at land border ports
of entry. This section will be amended to delete the references to the
``Visa Waiver Pilot Program'' and refer instead to the ``Visa Waiver
Program.''
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
1. Procedural Rule Exception
The Administrative Procedure Act (APA) generally requires agencies
to publish a notice of proposed rulemaking in the Federal Register (5
U.S.C. 553(b)) and provide interested persons the opportunity to submit
comments (5 U.S.C. 553(c)). However, the APA provides an exception to
this prior notice and comment requirement for ``rules of agency
organization, procedure, or practice'' 5 U.S.C. 553(b)(A). This interim
final rule is a procedural rule promulgated for efficiency purposes
that falls within this exception.
This rule is procedural because it merely changes the method of
submission for an existing reporting requirement for nonimmigrant
noncitizens pursuant to existing statutes and regulations. See 8 U.S.C.
1103, 1184 and 1187. See also 8 CFR 212.1, 299.1, and 8 CFR parts 2 and
217. The rule merely changes the manner in which noncitizens seeking
admission to the United States under the VWP, at ports of entry along
the land border, present information to DHS and does not alter the
rights or interests of those noncitizens as they seek admission to the
United States. Such arriving noncitizens will no longer be required to
complete and submit the paper Form I-94W. Instead, all required
information will be submitted to DHS electronically through the ESTA
website. In addition, this rule neither affects the substantive
criteria by which CBP officers inspect noncitizens upon arrival nor the
nature of the information at CBP's disposal.
2. Foreign Affairs Function Exception
This interim final rule is also exempt from the rulemaking
provisions of the Administrative Procedure Act (APA) pursuant to 5
U.S.C. 553(a)(1) as it involves a foreign affairs function of the
United States. This rule advances the President's foreign policy goals
and directly involves relationships between the United States and its
noncitizen visitors.
ESTA is an integral part of the administration of the VWP, a
program that involves an inherently foreign affairs function of the
United States. Specifically, the VWP, which is administered by DHS in
consultation with the Department of State, enables eligible citizens or
nationals of designated countries to travel to the United States for
tourism or business for stays of 90 days or less without first
obtaining a visa, provided they meet certain requirements. Among other
things, a traveler must have a valid authorization through ESTA. As
part of the ESTA screening process, CBP reviews available information
regarding ESTA applicants to determine whether they present a concern
to U.S. national security or law enforcement (to include immigration
enforcement) interests. Accordingly, any rulemaking actions undertaken
to implement ESTA at land ports of entry are exempt from APA notice and
comment requirements. However, DHS is interested in receiving public
comments on this interim final rule and, therefore, is providing the
public with the opportunity to comment without delaying implementation
of this rule.
B. Executive Orders 13563 and 12866
Executive Orders (EOs) 13563 (``Improving Regulation and Regulatory
Review'') and 12866 (``Regulatory Planning and Review'') 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 (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 not a ``significant regulatory action,'' under section
3(f) of Executive Order 12866. Accordingly, the Office of Management
and Budget has not reviewed this rule. Although this rule is not
subject to the requirements of Executive Orders 13563 and 12866 due to
the foreign affairs exception, DHS has reviewed this interim final rule
to ensure its consistency with the regulatory philosophy and principles
set forth in those Executive orders. DHS has also prepared a regulatory
impact assessment to help inform stakeholders of the impacts of this
rule, which DHS has summarized below. The complete assessment can be
found in the public docket for this rulemaking at www.regulations.gov.
1. Purpose of Rule
This rule will extend the regulatory requirements of ESTA to the
land environment per the 9/11 Act. For VWP travelers arriving at U.S.
land ports of entry (POEs), all the ESTA requirements currently in 8
CFR 217.5 will remain the same as the requirements for VWP travelers
arriving at air and sea ports, except for the time frame for obtaining
the travel authorization. Under the ESTA Land IFR, VWP travelers
intending to travel to the United States by land must receive a travel
authorization prior to application for admission to, rather than prior
to embarking on a carrier destined for, the United States. These
travelers may obtain the required travel authorization by submitting an
electronic application to CBP through the ESTA website (https://esta.cbp.dhs.gov/esta/) and paying the ESTA application fee, which
consists of an operational fee and Travel Promotion Act (TPA) fee valid
until FY 2021.\16\ The ESTA application serves as an electronic version
of the paper Form I-94W, asking for the same biographical, personal,
and trip-related information currently requested on the paper Form I-
94W as well as several additional security-related questions not on the
paper Form I-94W but typically asked during paper Form I-94W
processing. CBP will use the ESTA application information to assess a
traveler's likely admissibility and any potential risks to the United
States. Based on this assessment, CBP will either grant or deny an ESTA
travel authorization, which will generally take two hours for CBP to
complete. If CBP grants an ESTA travel authorization, the authorization
[[Page 18975]]
will generally be valid for a period of two years from the date of
issuance (barring revocation), meaning that the VWP traveler granted
the authorization may travel to the United States repeatedly within a
two-year period without obtaining another authorization. If CBP denies
an ESTA travel authorization, CBP will refer the VWP traveler denied
the authorization to a U.S. Embassy or Consulate to apply to obtain a
visa, like in the current paper Form I-94W environment.
---------------------------------------------------------------------------
\16\ As previously stated, on February 9, 2018, section 30203(a)
of the Bipartisan Budget Act of 2018, Public Law 115-123, extended
the sunset provision of the travel promotion fee through September
30, 2027. On December 20, 2019, section 806 of the Further
Consolidated Appropriations Act of 2020, Public Law 116-94,
increased the travel promotion fee from $10 to $17. See 8 U.S.C.
1187(h)(3)(B), as amended, and 8 CFR 217.5(h). CBP will be
publishing a separate rule to reflect these legislative changes.
This analysis does not capture these changes.
---------------------------------------------------------------------------
If a VWP traveler arrives without an advance ESTA travel
authorization, CBP will generally advise the traveler to complete the
ESTA application in an area outside of the U.S. land POE. In this case,
the traveler may be permitted to withdraw his or her application for
admission, and once withdrawn, travel back to either Canada or Mexico,
apply for the ESTA authorization there, and typically wait two hours to
receive his or her authorization status. Once approved, the traveler
can then return to a U.S. land POE to apply for admission.
In addition to fulfilling a statutory mandate, this rule will
strengthen national security through enhanced traveler vetting,
streamline Form I-94W processing through automation, reduce
inadmissible traveler arrivals, and produce a uniform VWP admission
policy in all U.S. travel environments, which will benefit VWP
travelers, CBP, and the public.
2. Population Affected by Rule
This rule will affect VWP travelers, CBP, and the public. Due to
numerous factors that affect travel, CBP uses two different projection
methods to estimate the population of VWP travelers affected by this
rule over a 10-year period of analysis spanning from FY 2019 to FY
2028. Under these methods, CBP estimates that VWP travelers will submit
between 3.2 million and 4.1 million ESTA applications for land
admission during the period of analysis, though CBP will deny about
3,200 to 4,100 of these applications and related travel authorizations
(see Table 1).\17\ These denials will be higher with ESTA's enhanced
vetting, though the extent is unknown.\18\ Given ESTA's existing
requirements in the U.S. air and sea environments, some of the
application figures in Table 1 may correspond to travelers who already
have valid ESTA travel authorizations first obtained for travel to the
United States by air and sea that will allow them to avoid completing
travel authorizations with this rule. However, the number of such
travelers is unknown.
---------------------------------------------------------------------------
\17\ Note that the estimates in this table are based on
historical VWP traveler arrivals prior to FY 2019. Poland officially
joined the VWP on November 11, 2019 (see 84 FR 60316 (November 8,
2019)), and Croatia officially joined the VWP on December 1, 2021
(see 86 FR 54029 (September 30, 2021)), so these estimates do not
account for VWP travelers from Poland or Croatia. A small number of
temporary business or pleasure visitors from Poland and Croatia who
would now be eligible for the VWP (and subject to this rule) enter
the United States at land POEs each year.
\18\ Source: Email correspondence with CBP's Office of Field
Operations on March 16, 2016.
Table 1--Projected ESTA Applications With Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1 (primary estimate)--with rule Method 2--with rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESTA ESTA ESTA ESTA
Fiscal year application application Total ESTA application application Total ESTA
approvals denials applications approvals denials applications
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019.................................................... 323,504 324 323,828 349,190 350 349,540
2020.................................................... 323,504 324 323,828 359,317 360 359,677
2021.................................................... 323,504 324 323,828 371,894 372 372,266
2022.................................................... 323,504 324 323,828 385,281 386 385,667
2023.................................................... 323,504 324 323,828 398,381 399 398,780
2024.................................................... 323,504 324 323,828 411,926 412 412,338
2025.................................................... 323,504 324 323,828 425,932 426 426,358
2026.................................................... 323,504 324 323,828 440,413 441 440,854
2027.................................................... 323,504 324 323,828 455,870 456 455,843
2028.................................................... 323,504 324 323,828 470,870 471 471,341
-----------------------------------------------------------------------------------------------
Total............................................... 3,235,040 3,240 3,238,280 4,068,591 4,073 4,072,664
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
CBP plans to conduct extensive outreach on ESTA's requirements in
the land environment prior to the effective date of this rule through
electronic messaging, informational bulletins, and travel partner
meetings.\19\ Nevertheless, some VWP travelers may not be fully aware
of this rule's requirements when traveling to the United States via
land. CBP estimates that 4 percent of the projected ESTA applications
in FY 2019 will correspond to VWP travelers who arrive to U.S. land
POEs without advance ESTA travel authorizations. CBP believes that this
share will decrease to 1 percent of annual ESTA applications for FY
2020 through FY 2028 due to the time and costs associated with arriving
without an ESTA travel authorization and increased knowledge of ESTA's
requirements.\20\ As shown in Table 2, CBP projects that 42,000 to
51,000 VWP travelers will arrive to U.S. land POEs without advance ESTA
travel authorizations over the period of analysis. CBP believes that
the vast majority of these arrivals will occur at U.S. land POEs along
the northern border based on the relatively high volume of VWP traveler
arrivals at those POEs.\21\
---------------------------------------------------------------------------
\19\ Source: Correspondence with CBP's Office of Field
Operations on November 26, 2018.
\20\ Source: Email correspondence with CBP's Office of Field
Operations on September 11, 2018.
\21\ About 90 percent of VWP land traveler admissions between FY
2013 and FY 2017 occurred at U.S. land POEs along the northern
border. Sources: Email correspondence with CBP's Office of Field
Operations on May 17, 2018, and correspondence on November 26, 2018.
[[Page 18976]]
Table 2--Projected Arrivals of VWP Travelers at U.S. Land POEs Without
Advance ESTA Travel Authorizations
------------------------------------------------------------------------
Method 1 (primary Method 2-- with
--------------------------------- estimate)--with rule
rule -------------------
--------------------
Total VWP traveler Total VWP traveler
Fiscal year arrivals without arrivals without
advance ESTA advance ESTA
travel travel
authorizations authorizations
------------------------------------------------------------------------
2019............................ 12,953 13,982
2020............................ 3,238 3,597
2021............................ 3,238 3,723
2022............................ 3,238 3,857
2023............................ 3,238 3,988
2024............................ 3,238 4,123
2025............................ 3,238 4,264
2026............................ 3,238 4,409
2027............................ 3,238 4,558
2028............................ 3,238 4,713
---------------------------------------
Total....................... 42,095 51,214
------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
With this rule, CBP anticipates that the nearly 3,200 to 4,100 VWP
travelers with ESTA application and travel authorization denials
between FY 2019 and FY 2028 will forgo travel to the United States
under the VWP altogether because they will be refused admission at U.S.
land POEs without travel authorizations. These ESTA denials will result
in 3,200 to 4,100 fewer distinct and total VWP traveler arrivals than
projected in the absence of this rulemaking. CBP assumes that these
ESTA denials will only affect the number of distinct arrivals
anticipated with this rule and not the number of non-distinct arrivals.
CBP estimates that the number of non-distinct arrivals of VWP travelers
with valid departure coupons that generally allow for the avoidance of
secondary processing and Form I-94W fee payments with this rule will be
the same number projected without this rule, ranging from 1.0 million
to 1.3 million over the period of analysis (see Table 3). The remaining
3.6 million to 4.6 million VWP land traveler arrivals projected with
this rule will represent distinct arrivals requiring CBP's primary and
secondary processing and Form I-94W fee payments (see Table 3). In
total, VWP land traveler arrivals are expected to reach 4.7 million to
5.9 million during the period of analysis with this rule (see Table 3).
To the extent that the application denials with this rule are greater
than projected, the number of total arrivals will be fewer than shown
in Table 3.
Table 3--Projected Arrivals of VWP Travelers at U.S. Land POEs With Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1 (primary estimate)--with rule Method 2--with rule
-----------------------------------------------------------------------------------------------
Fiscal year Distinct Non-distinct Distinct Non-distinct
arrivals arrivals Total arrivals arrivals arrivals Total arrivals
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019.................................................... 363,528 103,824 467,352 392,392 112,068 504,460
2020.................................................... 363,528 103,824 467,352 403,771 115,318 519,089
2021.................................................... 363,528 103,824 467,352 417,904 119,354 537,258
2022.................................................... 363,528 103,824 467,352 432,948 123,651 556,599
2023.................................................... 363,528 103,824 467,352 447,668 127,855 575,523
2024.................................................... 363,528 103,824 467,352 462,889 132,202 595,091
2025.................................................... 363,528 103,824 467,352 478,628 136,696 615,324
2026.................................................... 363,528 103,824 467,352 494,901 141,344 636,245
2027.................................................... 363,528 103,824 467,352 511,727 146,150 657,877
2028.................................................... 363,528 103,824 467,352 529,126 151,119 680,245
-----------------------------------------------------------------------------------------------
Total............................................... 3,635,280 1,038,240 4,673,520 4,571,954 1,305,757 5,877,711
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.
This rule's impact on CBP operations depends on its changes to VWP
traveler arrivals and processing, whereas its effect on the public
depends on its ability to deter otherwise inadmissible VWP travelers
from traveling to the United States.
3. Costs of Rule
CBP will sustain ESTA-related maintenance, operation, and
administration costs with this rule's implementation; however, CBP
believes that the ESTA application fee collected from VWP travelers in
the air, sea, and land environments will completely offset the ESTA
Land IFR's costs to the agency. Thus, this rule will not introduce any
unreimbursed costs to CBP. Instead, VWP travelers required to complete
an ESTA application will bear all the direct costs of this rule. As
stated earlier, this rule will require applicable VWP travelers to
submit an ESTA application, pay the accompanying ESTA application fee,
and receive a
[[Page 18977]]
travel authorization in advance of admission at a U.S. land POE. Each
ESTA application will take a VWP traveler an estimated 23 minutes
(0.3833 hours) to complete,\22\ at a time cost of $7.82.\23\ Depending
on whether CBP approves or denies an application and travel
authorization, VWP travelers must also pay a $4.00 operational fee, a
$10.00 Travel Promotion Act fee (for approved applications only until
FY 2021), and typically a foreign transaction fee with their ESTA
application.\24\
---------------------------------------------------------------------------
\22\ Source: U.S. Customs and Border Protection. Supporting
Statement for Paperwork Reduction Act Submission 1651-0111: Arrival
and Departure Record (Forms I-94, I-94W) and Electronic System for
Travel Authorization (ESTA). February 12, 2019. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201810-1651-001.
Accessed May 22, 2019.
\23\ $20.40 hourly time value x 0.3833-hour time burden to
complete ESTA application = $7.82 (rounded). CBP bases the $20.40
hourly time value for VWP travelers on the U.S. Department of
Transportation's (DOT) hourly time value of $20.40 for all-purpose,
intercity travel by surface-modes, except high-speed rail. For the
purposes of this analysis, CBP assumes that the DOT time value,
reported in 2015 U.S. dollars, would be the same for 2019. Source:
U.S. Department of Transportation, Office of Transportation Policy.
The Value of Travel Time Savings: Departmental Guidance for
Conducting Economic Evaluations Revision 2 (2016 Update). ``Table 4
(Revision 2--2016 Update): Recommended Hourly Values of Travel Time
Savings.'' September 27, 2016. Available at https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf. Accessed
June 11, 2018.
\24\ When CBP applies the average foreign currency transaction
fee rate to the ESTA application and TPA fees, the full ESTA
application cost is $14.42 for travelers granted travel
authorizations through FY 2020.
---------------------------------------------------------------------------
VWP travelers who arrive to U.S. land POEs without advance travel
authorizations will incur time, travel, toll, and internet access
expenses to travel to/from Canada and Mexico to apply and wait for an
ESTA travel authorization. These travelers will sustain a $36.72
additional CBP processing time cost, a $5.78 additional Canadian or
Mexican entry processing time cost, a $4.30 travel cost, and a $40.80
authorization wait time cost while traveling to/from Canada or Mexico
to apply and wait for an ESTA travel authorization. Approximately 20
percent of the population of VWP travelers projected to arrive to a
U.S. land POE without an advance ESTA travel authorization (see Table
2) will also sustain a toll cost of $3.50. Additionally, of the VWP
travelers projected to arrive to a U.S. land POE without an advance
ESTA travel authorization (see Table 2), an estimated 28 percent will
pay a $2.00 fee to use an internet-accessible computer to apply and
wait for their ESTA travel authorization. Considering these advance
ESTA travel authorization and wait time costs and the number of VWP
travelers projected to arrive without advance ESTA travel
authorizations under this alternative, CBP estimates that these
authorization requirements will introduce a total undiscounted cost of
$4.2 million to VWP travelers between FY 2019 and FY 2028 according to
CBP's primary estimation method.
In total, VWP travelers will sustain $49.1 million in undiscounted
time, fee, and other costs from this rule over the period of analysis
under Method 1, CBP's primary estimation method. In present value
terms, this cost to VWP travelers, which represents the total cost of
the rule, will measure $38.5 million (using a 7 percent discount rate;
see Table 4). On an annualized basis, the cost of this rule will equal
$5.1 million under the primary estimation method, as shown in Table 4
(using a 7 percent discount rate).
Table 4--Total Monetized Present Value and Annualized Costs of Rule, FY 2019-FY 2028
[2019 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
---------------------------------------------------------------
Present value Annualized Present value Annualized
cost cost cost cost
----------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate)..................... $43,929,986 $4,999,936 $38,529,526 $5,126,858
Method 2........................................ 53,652,846 6,106,554 46,527,106 6,191,040
----------------------------------------------------------------------------------------------------------------
Note: The estimates in this table are contingent upon CBP's expectations of the population affected by the rule
and the discount rates applied.
4. Benefits of Rule
ESTA's Form I-94W automation, advance-vetting and travel
authorization denials, and uniform VWP admission policy will offer
benefits (including cost savings) to VWP travelers, CBP, and the
public. VWP travelers will experience 24 minutes (0.4 hours) of time
savings per distinct arrival from avoided paper Form I-94W processing
burdens,\25\ at a time cost saving of $8.16.\26\ Travelers denied
travel authorizations who choose to forgo travel to the United States
under the VWP will save 136 minutes (2.2667 hours) in avoided Form I-
94W completion time and inadmissible inspection time,\27\ at a time
cost saving of $46.24, and $6.00 in avoided Form I-94W fee costs.\28\
Together with the savings from Form I-94W automation and travel that
does not occur as a result of denied travel authorizations, VWP
travelers will enjoy $29.8 million in undiscounted, monetized cost
savings from this rule over the period of analysis under the primary
estimation method. VWP travelers will also enjoy non-quantified
benefits from this rule's uniform admission policy in all U.S. travel
environments, which may prevent some travelers from being denied
boarding on air or sea carriers because
[[Page 18978]]
they do not have an ESTA travel authorization.
---------------------------------------------------------------------------
\25\ Sources: U.S. Customs and Border Protection. Supporting
Statement for Paperwork Reduction Act Submission 1651-0111: Arrival
and Departure Record (Forms I-94, I-94W) and Electronic System for
Travel Authorization (ESTA). February 12, 2019. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201810-1651-001.
Accessed May 22, 2019; email correspondence with CBP's Office of
Field Operations on November 30, 2012.
\26\ Based on the assumed hourly time value for VWP travelers of
$20.40. $20.40 hourly time value x 0.4 hours saved from forgone
paper Form I-94W application and certain secondary processing time
burdens = $8.16 (rounded).
\27\ This includes the time it takes to complete a paper Form I-
94W (16 minutes, or 0.2667 hours) and complete an inadmissible
traveler inspection (120 minutes, or 2 hours). For the purposes of
this analysis, CBP assumes that this time burden includes any time
burdens incurred at a U.S. land POE as an inadmissible VWP traveler.
This average time burden is greater than the time burden for VWP
travelers who simply arrive to a U.S. land POE without an advance
ESTA authorization because general inadmissibility examinations,
such as those for travelers who are outright inadmissible due to
reasons such as criminal history, outstanding warrant, or an expired
passport, typically require examinations that are more thorough and
require added processing time. Source: Email correspondence with
CBP's Office of Field Operations on March 16, 2016, correspondence
on November 26, 2018, and email correspondence on May 23, 2019.
\28\ Based on the assumed hourly time value for VWP travelers of
$20.40. $20.40 hourly time value x 2.2667 hours saved from forgone
inadmissible arrival time burdens = $46.24 (rounded).
---------------------------------------------------------------------------
Similar to VWP travelers, CBP will enjoy 8 minutes (0.1333 hours)
of time savings per distinct arrival from this rule's Form I-94W
automation,\29\ at a time cost saving of $11.58.\30\ CBP will also save
120 minutes (2 hours) in avoided traveler inspection time per
inadmissible traveler inspection avoided through ESTA's implementation
in the land environment,\31\ at a time cost saving of $173.74.\32\
Overall, this rule's Form I-94W automation and forgone arrivals by
those denied travel authorizations will offer $42.7 million in
undiscounted, monetized cost savings to CBP between FY 2019 and FY 2028
under the primary estimation method. Note that these are not budgetary
savings--they are savings that CBP will dedicate to other agency
mission areas, such as improving border security or expediting the
processing of travelers. In addition to these monetized benefits,
ESTA's advance and robust traveler screening process will offer the
benefit of strengthened national security, which the public will enjoy.
---------------------------------------------------------------------------
\29\ Sources: U.S. Customs and Border Protection. Supporting
Statement for Paperwork Reduction Act Submission 1651-0111: Arrival
and Departure Record (Forms I-94, I-94W) and Electronic System for
Travel Authorization (ESTA). February 12, 2019. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201810-1651-001.
Accessed May 22, 2019; email correspondence with CBP's Office of
Field Operations on November 30, 2012.
\30\ $86.87 fully loaded hourly wage rate for CBP officers x
0.1333 hours saved per distinct VWP traveler arrival = $11.58
(rounded). CBP bases the $86.87 hourly wage on the FY 2019 salary,
benefits, and non-salary costs (i.e., fully loaded wage) of the
national average of CBP officer positions. Source of wage rate:
Email correspondence with CBP's Office of Finance on June 1, 2018.
\31\ Source: Email correspondence with CBP's Office of Field
Operations on March 16, 2016, correspondence on November 26, 2018,
and email correspondence on May 23, 2019.
\32\ Based on the fully loaded hourly wage rate for CBP officers
of $86.87. $86.87 fully loaded hourly wage rate for CBP officers x 2
hours saved per inadmissible traveler inspection avoided = $173.74
(rounded).
---------------------------------------------------------------------------
In total, this rule will offer undiscounted cost savings totaling
$72.5 million between FY 2019 and FY 2028 under the primary estimation
method. When discounted, these savings will measure $54.5 million in
present value and $7.2 million on an annualized basis (using a 7
percent discount rate; see Table 5). This rule will also strengthen
national security and introduce a uniform VWP admission policy in all
U.S. travel environments, providing non-quantifiable benefits to
travelers and the public. These estimates vary according to the
projection method and discount rate applied.
Table 5--Total Monetized Present Value and Annualized Benefits (Cost Savings) of Rule, FY 2019-FY 2028
[2019 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
---------------------------------------------------------------
Present value Annualized Present value Annualized
benefit benefit benefit benefit
----------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate)..................... $63,692,790 $7,249,260 $54,479,874 $7,249,260
Method 2........................................ 79,452,253 9,042,940 67,252,192 8,948,784
----------------------------------------------------------------------------------------------------------------
Note: The estimates in this table are contingent upon CBP's expectations of the population affected by the rule
and the discount rates applied.
5. Net Impact of Rule
Table 6 summarizes the monetized and non-monetized costs and
benefits of this rule to VWP travelers, CBP, and the public. As shown,
the total monetized present value net benefit (or net cost saving) of
this rule is $16.0 million, while its annualized net benefit totals
$2.1 million according to CBP's primary estimation method (using a 7
percent discount rate). In addition to these monetized impacts, this
rule will strengthen national security through its advance and more
robust traveler screening process and produce a uniform VWP admission
policy in all U.S. travel environments, though these benefits are
unmeasured. These estimates vary according to the projection method and
discount rate applied.
Table 6--Net Benefit of Rule, FY 2019-FY 2028
[2019 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
---------------------------------------------------------------
Present value Annualized Present value Annualized
----------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate)
----------------------------------------------------------------------------------------------------------------
Total Cost:
Monetized................................... $43,929,986 $4,999,936 $38,529,526 $5,126,858
Non-Monetized, but Quantified............... .............. .............. .............. ..............
Non-Monetized and Non-Quantified............ .............. .............. .............. ..............
Total Benefit, Incl. Cost Savings:
Monetized (Cost Saving)..................... 63,692,790 7,249,260 54,479,874 7,249,260
Non-Monetized, but Quantified............... .............. .............. .............. ..............
---------------------------------------------------------------
Non-Monetized and Non-Quantified............ Strengthened national security
and uniform VWP admission
policy.
Strengthened national security
and uniform VWP admission
policy.
---------------------------------------------------------------
Total Net Benefit, Incl. Cost Savings:
Monetized (Net Cost Saving)............. $19,762,805 $2,249,324 $15,950,348 $2,122,403
Non-Monetized, but Quantified........... .............. .............. .............. ..............
[[Page 18979]]
Non-Monetized and Non-Quantified........ Strengthened national security
and uniform VWP admission
policy.
Strengthened national security
and uniform VWP admission
policy.
----------------------------------------------------------------------------------------------------------------
Method 2
----------------------------------------------------------------------------------------------------------------
Total Cost:
Monetized................................... $53,652,846 $6,106,554 $46,527,106 $6,191,040
Non-Monetized, but Quantified............... .............. .............. .............. ..............
Non-Monetized and Non-Quantified............ .............. .............. .............. ..............
Total Benefit, Incl. Cost Savings:
Monetized (Cost Saving)..................... 79,452,253 9,042,940 67,252,192 8,948,784
Non-Monetized, but Quantified............... .............. .............. .............. ..............
---------------------------------------------------------------
Non-Monetized and Non-Quantified............ Strengthened national security
and uniform VWP admission
policy.
Strengthened national security
and uniform VWP admission
policy.
---------------------------------------------------------------
Total Net Benefit, Incl. Net Cost Savings:
Monetized (Net Cost Saving) $25,799,407 $2,936,386 $20,725,086 $2,757,744
Non-Monetized, but Quantified........... .............. .............. .............. ..............
---------------------------------------------------------------
Non-Monetized and Non-Quantified........ Strengthened national security
and uniform VWP admission
policy.
Strengthened national security
and uniform VWP admission
policy.
----------------------------------------------------------------------------------------------------------------
Notes: The estimates in this table are contingent upon CBP's expectations of the population affected by the rule
and the discount rates applied. Estimates may not sum to total due to rounding.
C. 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 and make available to the public a
regulatory flexibility analysis that describes the effect of a proposed
rule on small entities (i.e., small businesses, small organizations,
and small governmental jurisdictions) when the agency is required to
publish a general notice of proposed rulemaking for a rule. Since a
general notice of proposed rulemaking is not necessary for this rule,
CBP is not required to prepare a regulatory flexibility analysis for
this rule.
D. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
E. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, DHS has determined that this interim final rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
F. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
An agency may not conduct, and a person is not required to respond
to, a collection of information unless the collection of information
displays a valid control number assigned by the Office of Management
and Budget (OMB).
OMB-approved collection 1651-0111 will be amended to reflect the
new applicants that will be using the ESTA website as a result of this
interim final rule. CBP estimates that this rule will result in an
additional 323,828 respondents (ESTA applicants) annually and an
additional 124,123 burden hours.\33\ Of the 323,828 new ESTA
respondents, CBP estimates that 323,504 will receive a travel
authorization and 324 will not. Collection 1651-0111 will be revised to
reflect the new total annual estimates for ESTA as follows:
---------------------------------------------------------------------------
\33\ CBP uses the number of ESTA applications projected in FY
2019 under Method 1 of the regulatory impact analysis for this
estimate because it is CBP's primary estimation method.
---------------------------------------------------------------------------
Estimated number of annual respondents: 23,333,828.
Estimated number of annual responses: 23,333,828.
Estimated time burden per response: 23 minutes (0.3833 hours).
Estimated total annual time burden: 8,943,856 hours.
These respondents include new and repeat ESTA applicants. Only new
applicants or applicants whose authorization has expired will be
required to pay the ESTA fee. The additional 323,828 ESTA applicants
introduced with this rule will pay the ESTA fee, which will result in
an additional estimated cost of $4,530,352 for this collection of
information. This cost is based on the additional number of respondents
granted a travel authorization through ESTA annually (323,504)
multiplied by (x) the $14.00 ESTA fee to apply and receive a travel
authorization = $4,529,056, plus the additional number of respondents
denied a travel authorization through ESTA (324) multiplied by (x) the
$4.00
[[Page 18980]]
ESTA operational fee = $1,296, for a total of $4,530,352.\34\
---------------------------------------------------------------------------
\34\ These costs do not account for foreign transaction fees
that respondents may incur with their ESTA application.
---------------------------------------------------------------------------
OMB-approved collection 1651-0111 will also be revised to reflect
the elimination of CBP's paper Form I-94W for land travelers, which is
an additional result of this rule. The current approved number of
estimated annual respondents for the paper Form I-94W of 941,291 will
be removed. Respondents will now be categorized under ``ESTA'' on the
collection because the paper Form I-94W data will now be collected
electronically through ESTA.
H. Privacy Interests
DHS published an ESTA Privacy Impact Assessment (PIA) for the
interim final rule announcing ESTA at air or sea ports of entry on June
9, 2008. Additionally, at that time, DHS prepared a separate System of
Record Notice (SORN) that was published in conjunction with the 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: https://www.dhs.gov/privacy-documents-us-customs-and-border-protection.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Immigration, Privacy,
Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passport and visas, Reporting and recordkeeping requirements.
8 CFR Part 217
Air carriers, Aliens, Maritime carriers, Passports and visas.
8 CFR Part 286
Air carriers, Immigration, Maritime carriers, Reporting and
recordkeeping.
Amendments to the Regulations
For the reasons stated in the preamble, DHS is amending 8 CFR parts
103, 212, 217, and 286 as set forth below.
PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS;
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 1365b; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982
Comp., p. 166; 8 CFR part 2; Pub. L. 112-54; 125 Stat. 550; 31 CFR
part 223.
0
2. Amend Sec. 103.7 by revising paragraph (d)(5) to read as follows:
Sec. 103.7 Fees.
* * * * *
(d) * * *
(5) Form I-94W. For issuance of Form I-94W or other Nonimmigrant
Visa Waiver Arrival/Departure record at a land border port-of-entry
under section 217 of the Act: $6.00. The term `issuance' includes, but
is not limited to, the creation of an electronic record of admission or
arrival/departure by DHS following an inspection performed by a CBP
officer, which may be provided to the nonimmigrant as a printout or
other confirmation of the electronic record stored in DHS systems.
* * * * *
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
3. The authority citation for part 212 continues to read as follows:
Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and
note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227,
1255, 1359; section 7209 of Pub. L. 108-458 (8 U.S.C. 1185 note);
Title VII of Pub. L. 110-229 (8 U.S.C. 1185 note); 8 CFR part 2;
Pub. L. 115-218.
Section 212.1(q) also issued under section 702, Pub. L. 110-229,
122 Stat. 754, 854.
Sec. 212.1 [Amended]
0
4. Amend Sec. 212.1 by removing the word ``Pilot'' from the heading
and text of paragraph (i).
PART 217--VISA WAIVER PROGRAM
0
5. The authority citation for part 217 continues to read as follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
Sec. 217.1 [Amended]
0
6. Amend Sec. 217.1 by removing the word ``Pilot'' and removing the
parenthetical ``(VWPP)'' and adding in its place ``(VWP)''.
0
7. Amend Sec. 217.2 as follows:
0
a. Remove the word ``Pilot'' wherever it appears; and
0
b. Revise paragraphs (b)(1) and (c)(2).
The revisions read as follows:
Sec. 217.2 Eligibility.
* * * * *
(b) * * *
(1) General. In addition to meeting all of the requirements for the
Visa Waiver Program specified in section 217 of the Act, each applicant
must possess a valid, unexpired passport issued by a designated country
and obtain a travel authorization via the Electronic System for Travel
Authorization (ESTA) as provided in Sec. 217.5.
* * * * *
(c) * * *
(2) Applicants arriving at land border ports of entry. Any Visa
Waiver Program applicant arriving at a land border port of entry must
provide evidence to the CBP officer of financial solvency and a
domicile abroad to which the applicant intends to return. An applicant
arriving at a land border port of entry will be charged a fee as
prescribed in Sec. 103.7(d)(5) of this chapter for issuance of Form I-
94W, Nonimmigrant Visa Waiver Arrival/Departure Form. A round-trip
transportation ticket is not required.
* * * * *
Sec. 217.3 [Amended]
0
8. Amend Sec. 217.3(b) by removing the word ``Pilot''.
0
9. Amend Sec. 217.5 as follows:
0
a. Revise paragraphs (a), (b), and (c); and
0
b. Remove and reserve paragraph (g).
The revisions read as follows:
Sec. 217.5 Electronic System for Travel Authorization.
(a) Travel authorization required. Each nonimmigrant alien
intending to travel by air, sea, or land to the United States under the
Visa Waiver Program (VWP) must, within the time specified in paragraph
(b) of this section, receive a travel authorization, which is a
positive determination of eligibility to travel to the United States
under the VWP via the Electronic System for Travel Authorization
(ESTA), from CBP. In order to receive a travel authorization, each
nonimmigrant alien intending to travel to the United States by air,
sea, or land under the VWP must provide the data elements set forth in
paragraph (c) of this section to CBP, in English, in the manner
specified herein, and must pay a fee as described in paragraph (h) of
this section.
(b) Time--(1) Applicants arriving at air or sea ports of entry.
Each alien
[[Page 18981]]
falling within the provisions of paragraph (a) of this section and
intending to travel by air or sea to the United States under the VWP
must receive a travel authorization via ESTA prior to boarding a
carrier destined for travel to the United States.
(2) Applicants arriving at land ports of entry. Each alien falling
within the provisions of paragraph (a) of this section and intending to
travel by land to the United States under the VWP must receive a travel
authorization via ESTA prior to application for admission to the United
States.
(c) Required elements. CBP will collect such information as the
Secretary deems necessary to issue a travel authorization as reflected
in the ESTA application.
* * * * *
PART 286--IMMIGRATION USER FEE
0
10. The authority citation for part 286 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1356; Title VII of Public Law
110-229; 8 CFR part 2.
Sec. 286.9 [Amended]
0
11. Amend Sec. 286.9(b)(2) as follows:
0
a. Remove the word ``Pilot''; and
0
b. Add the words ``, as prescribed in Sec. 103.7(d)(5) of this
chapter,'' after ``Form I-94W''.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-06366 Filed 3-31-22; 8:45 am]
BILLING CODE 9111-14-P