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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: June 9, 2008 (Volume 73, Number 111)]
[Rules and Regulations]               
[Page 32440-32453]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jn08-3]                         


[[Page 32440]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

8 CFR Part 217

[USCBP-2008-0003; CBP Dec. No. 08-18]
RIN 1651-AA72

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

AGENCY: Customs and Border Protection, DHS.

ACTION: Interim final rule; solicitation of comments.

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

SUMMARY: This rule amends Department of Homeland Security (DHS) 
regulations to implement the Electronic System for Travel Authorization 
(ESTA) requirements under section 711 of the Implementing 
Recommendations of the 9/11 Commission Act of 2007, for aliens who wish 
to enter the United States under the Visa Waiver Program (VWP) at air 
or sea ports of entry. This rule establishes ESTA and delineates the 
data fields DHS has determined will be collected by the system.
    As required under section 711 of the Implementing Recommendations 
of the 9/11 Commission Act of 2007, the Secretary of Homeland Security 
will announce implementation of a mandatory ESTA system by publication 
of a notice in the Federal Register no less than 60 days before the 
date on which ESTA becomes mandatory for all VWP travelers. Once ESTA 
is mandatory, all VWP travelers must either obtain travel authorization 
in advance of travel under ESTA or obtain a visa prior to traveling to 
the United States.
    Currently, aliens from VWP countries must provide certain 
biographical information to U.S. Customs and Border Protection (CBP) 
Officers at air and sea ports of entry on a paper form Nonimmigrant 
Alien Arrival/Departure (Form I-94W). Under this interim final rule, 
VWP travelers will provide the same information to CBP electronically 
before departing for the United States. Once ESTA is mandatory and all 
carriers are capable of receiving and validating messages pertaining to 
the traveler's ESTA status as part of the traveler's boarding status, 
DHS will eliminate the I-94W requirement. By automating the I-94W 
process and establishing a system to provide VWP traveler data in 
advance of travel, CBP will be able to determine the eligibility of 
citizens and eligible nationals from VWP countries to travel to the 
United States and whether such travel poses a law enforcement or 
security risk, before such individuals begin travel to the United 
States. ESTA will provide for greater efficiencies in the screening of 
international travelers by allowing CBP to identify subjects of 
potential interest before they depart for the United States, thereby 
increasing security and reducing traveler delays upon arrival at U.S. 
ports of entry.

DATES: This interim final rule is effective on August 8, 2008. Comments 
must be received on or before August 8, 2008. ESTA will be implemented 
as a mandatory program 60 days after publication of a notice in the 
Federal Register. DHS anticipates that the Secretary of Homeland 
Security will issue that notice in November 2008, for implementation of 
the mandatory ESTA requirements on or before January 12, 2009.

ADDRESSES: Please submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2008-0003.
     Mail: Border Security Regulations Branch, Office of 
International Trade, Customs and Border Protection, 1300 Pennsylvania 
Avenue, NW. (Mint Annex), Washington, DC 20229.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
     Docket: For access to the docket to read background 
documents or comments received, go to http://www.regulations.gov. 
Comments submitted will be available for public inspection in 
accordance with the Freedom of Information Act (5 U.S.C. 552) and 19 
CFR 103.11(b) on normal business days between the hours of 9 a.m. and 
4:30 p.m. at the Border Security Regulations Branch, Office of 
International Trade, United States Customs and Border Protection, 799 
9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect 
submitted comments should be made in advance by calling Mr. Joseph 
Clark at (202) 572-8768.

FOR FURTHER INFORMATION CONTACT: Beverly Good, Office of Field 
Operations, CBP.ESTA@dhs.gov or (202)-344-3710.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Comments
II. Background
    A. The Visa Waiver Program
    B. Enhancing VWP Screening
    C. Implementing the Recommendations of the 9/11 Act of 2007
    D. Electronic System for Travel Authorization
    1. Obtaining Travel Authorization
    2. Implementation Notice
    3. Timeline for Submitting Travel Authorization Data
    4. Required Travel Authorization Data Elements
    5. Scope of ESTA
    6. Duration
    a. General Rule
    b. Exception
    7. Events Requiring New Travel Authorizations
    8. Fee
    9. Judicial Review
    10. Privacy
III. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    1. Procedural Rule Exception
    2. Good Cause Exception
    3. Foreign Affairs Function Exception
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Executive Order 12866
    E. Executive Order 13132
    F. Executive Order 12988 Civil Justice Reform
    G. Paperwork Reduction Act
    H. Privacy Interests
List of Subjects
Amendments to the Regulations

I. Public Comments

    Interested persons are invited to submit written comments on all 
aspects of this interim final rule. U.S. Customs and Border Protection 
(CBP) also invites comments on the economic, environmental, or 
federalism effects of this rule. We urge commenters to reference a 
specific portion of the rule, explain the reason for any recommended 
change, and include data, information, or authorities that support such 
recommended change.

II. Background

A. The Visa Waiver Program

    Pursuant to section 217 of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1187, the Secretary of Homeland Security (the 
Secretary), in consultation with the Secretary of State, may designate 
certain countries as Visa Waiver Program (VWP) countries if certain 
requirements are met. Those requirements include, without limitation, 
(i) meeting the statutory rate of nonimmigrant visa refusal for 
citizens and nationals of the country, (ii) a government certification 
that it has a program to issue machine readable, tamper-resistant 
passports that comply with International Civil Aviation

[[Page 32441]]

Organization (ICAO) standards, (iii) a U.S. government determination 
that the country's designation would not negatively affect U.S. law 
enforcement and security interests, and (iv) government agreement to 
report, or make available to the U.S. government information about the 
theft or loss of passports. The INA also sets forth requirements for 
continued eligibility and, where appropriate, emergency termination of 
program countries.
    Citizens and eligible nationals of VWP countries may apply for 
admission to the United States at a U.S. port of entry as nonimmigrant 
aliens for a period of ninety (90) days or less for business or 
pleasure without first obtaining a nonimmigrant visa, provided that 
they are otherwise eligible for admission under applicable statutory 
and regulatory requirements. The list of countries which currently are 
eligible to participate in VWP is set forth in section 217.2(a) of 
Title 8 of the Code of Federal Regulations (CFR).
    To travel to the United States under VWP, an alien currently must 
(1) present an electronic passport or a machine readable passport 
issued by a designated VWP participant country to the air or vessel 
carrier before departure; \1\ (2) possess a round trip ticket; and (3) 
upon arrival at a U.S. port of entry, submit to a CBP Officer a signed 
and completed I-94W Nonimmigrant Alien Arrival/Departure Form (I-94W). 
Additionally, the alien must comply with the inspection process at the 
U.S. port of entry and must not have violated the requirements of a 
prior VWP admission to the United States. See Section 217(a) of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1187(a). See also 8 CFR 
part 217.
---------------------------------------------------------------------------

    \1\ For current VWP member countries only, passports issued 
before October 26, 2006, need not contain the electronic chip that 
includes the biographic and biometric information of the passport 
holder provided the passports comply with International Civil 
Aviation Organization machine readable standards.
---------------------------------------------------------------------------

    Under VWP, nonimmigrant alien visitors currently are required to 
complete and sign an I-94W form prior to arriving at a U.S. port of 
entry and present it to the CBP Officer at the U.S. port of entry where 
they undergo admissibility screening. In signing the I-94W form, the 
traveler waives any right to review or appeal of a CBP Officer's 
determination as to his admissibility, or to contest, except on the 
basis of an application for asylum, any action in removal. The form 
instructs the alien to apply for a visa at the appropriate U.S. embassy 
or consulate if he or she responds in the affirmative to questions on 
the reverse side of the I-94W. For example, a traveler may be refused 
admission to the United States under VWP based upon an affirmative 
response on the I-94W regarding prior criminal activity, deportation, 
or visa revocation. Upon arrival at the U.S. port of entry, if the CBP 
Officer determines that the traveler seeking admission under VWP is 
ineligible to enter the United States, or is inadmissible based on the 
information submitted via the I-94W form, or information ascertained 
during an admissibility interview, then the person must then be 
returned to the country from which they departed at the carrier's 
expense. Pursuant to section 217 of the Immigration and Nationality Act 
(INA, 8 U.S.C. 1187), a VWP alien traveling to the United States by air 
or sea must arrive in the United States on a carrier that has signed an 
agreement with DHS guaranteeing to transport inadmissible or deportable 
VWP travelers out of the United States at no expense to the United 
States. This may create significant delays for the VWP traveler who may 
not have been on notice that he or she is not admissible to the United 
States until he or she has arrived at a U.S. port of entry.

B. Enhancing VWP Screening

    While VWP encourages travel with participating countries, aspects 
of the program may be exploited by individuals seeking to circumvent 
immigration or other laws of the United States. Currently, VWP 
travelers are not subject to the same degree of screening as those 
travelers who must first obtain a visa before arriving in the United 
States. Since September 11, 2001, the visa issuance process has taken 
on greater significance as an antiterrorism tool.\2\ Non-VWP travelers 
must obtain a visa from a U.S. embassy or consulate and undergo an 
interview by consular officials overseas who conduct a rigorous 
screening process in deciding whether to approve or deny a visa. At the 
U.S. consulate, the application is reviewed, fingerprints are 
collected, and the applicant's name is checked against various 
government watchlists. The consular officer reviews name check results 
and determines if additional security checks are required. The consular 
officer then interviews the visa applicant and reviews his or her 
supporting documents. During the visa application process, consular 
officers have ample time to interview applicants and examine the 
authenticity of their passports, and may also speak the visa 
applicant's native language. Every visa applicant undergoes extensive 
security checks before a visa can be issued, including name-based 
checks against the Department of State's (State Department's) Consular 
Lookout and Support System (CLASS). When a consular officer determines 
that an applicant is a positive match to a CLASS record, or if the 
applicant meets other established criteria, the case is referred for an 
interagency security review. If denied a visa, the individual cannot 
lawfully board a plane or vessel destined for the United States.
---------------------------------------------------------------------------

    \2\ The Government Accountability Office (GAO) has issued a 
series of reports on how the visa issuance process serves as an 
antiterrorism tool, including: GAO, Border Security: Strengthened 
Visa Process Would Benefit from Improvements in Staffing and 
Information Sharing, GAO-05-859 (Washington, DC: Sept. 13, 2005); 
Border Security: Actions Needed to Strengthen Management of 
Department of Homeland Security's Visa Security Program, GAO-05-801 
(Washington, DC: July 29, 2005); and, Border Security: Visa Process 
Should be Strengthened as an Antiterrorism Tool, GAO-03-132NI 
(Washington, DC: Oct. 21, 2002).
---------------------------------------------------------------------------

    In contrast to travelers who require a visa and are screened by 
State Department consular officers through the visa issuance process, 
VWP travelers are not screened in person until they arrive at a U.S. 
port of entry.\3\ Only after arrival at a U.S. port of entry are VWP 
travelers subject to an admissibility interview in which CBP Officers 
observe the applicant, examine his or her passport, collect the 
applicant's fingerprints as part of the U.S. Visitor and Immigrant 
Status Indicator Technology (US-VISIT) program,\4\ and check his or her 
name against automated databases and watchlists (which contain 
information regarding the admissibility of aliens, including known 
terrorists, criminals, and immigration law violators). Thus, only after 
a VWP traveler has arrived at a U.S. port of entry is a CBP Officer 
able to determine whether the traveler is admissible to the United 
States, or

[[Page 32442]]

ineligible for admission, based on the information submitted via the 
form I-94W and information ascertained during an admissibility 
interview. Annually, several thousand VWP travelers arrive in the 
United States and are deemed inadmissible for VWP entry at the port of 
entry, causing significant expense, delay, and inconvenience for those 
aliens, other travelers, the airlines, and the U.S. government.
---------------------------------------------------------------------------

    \3\ Under the Advance Passenger Information System (APIS) 
regulations, commercial aircraft carriers bound for the United 
States from a foreign port must transmit passenger and crew manifest 
information to CBP no later than 30 minutes prior to departure to 
allow CBP to vet such information against government databases, 
including the terrorist watchlist, prior to departure of the 
aircraft. Vessel carriers departing for the United States from a 
foreign port must transmit a passenger and crew manifest no later 
than 60 minutes prior to departure. See 19 CFR 122.49a.
    \4\ The US-VISIT program is a government-wide program to 
collect, maintain, and share information on foreign nationals and 
better control and monitor the entry, visa status, and exit of 
visitors. Under the program, foreign visitors are required to submit 
to fingerprint scans of their right and left index finger and have a 
digital photograph taken upon arrival at U.S. ports of entry. (DHS 
recently has initiated a transition to collect scans of all ten 
fingers from travelers enrolling in the US-VISIT program.) Foreign 
nationals entering the United States through VWP are required to 
enroll in the US-VISIT program upon arrival at U.S. ports of entry.
---------------------------------------------------------------------------

    DHS has taken a number of steps to mitigate VWP security 
vulnerabilities in recent years, including instituting a biometric 
collection requirement for VWP travelers at U.S. ports of entry through 
US-VISIT. See 8 CFR part 235. The procedural and timing changes 
implemented under this interim final rule, as described below, 
represent crucial additional improvements to VWP security.

C. Implementing the Recommendations of the 9/11 Commission Act of 2007

    On August 3, 2007, the President signed into law the Implementing 
the Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), 
Public Law 110-53. Section 711 of the 9/11 Act requires that the 
Secretary of Homeland Security, in consultation with the Secretary of 
State, develop and implement a fully automated electronic travel 
authorization system which will collect such biographical and other 
information as the Secretary determines necessary to evaluate, in 
advance of travel, the eligibility of the alien to travel to the United 
States, and whether such travel poses a law enforcement or security 
risk. ESTA is intended to fulfill the statutory requirements as 
described in Section 711 of the 9/11 Act. Section 711 of the 9/11 Act 
also provides the Secretary with discretion to expand VWP to additional 
countries by waiving the nonimmigrant visa refusal rate requirements in 
section 217 of the INA for countries that do not satisfy the required 
threshold. See Public Law 110-53, Section 711(c). To waive those 
requirements, the Secretary must certify to Congress that ESTA is 
``fully operational,'' and that an air exit system (a separate 
requirement from ESTA) is in place that can verify the departure of not 
less than 97 percent of foreign nationals who exit through U.S. 
airports.\5\ Additionally, according to the statute, the Secretary's 
waiver authority may be temporarily suspended if the Secretary does not 
notify Congress that a biometric air exit system is in place by June 
30, 2009.
---------------------------------------------------------------------------

    \5\ The Secretary will provide separate certification to 
Congress and neither this interim final rule nor its effective and 
compliance dates serve as that certification.
---------------------------------------------------------------------------

D. Electronic System for Travel Authorization

    To satisfy the requirements of section 711 of the 9/11 Act, this 
interim final rule establishes ESTA to allow VWP travelers to obtain 
authorization to travel to the United States by air or sea prior to 
embarking on such travel. Under ESTA, CBP also will be able to screen 
travelers seeking to enter the United States under VWP prior to their 
arrival in the United States. Aliens intending to travel under the VWP 
will be able to obtain travel authorization in advance of travel to the 
United States. DHS notes that an authorization to travel to the United 
States under ESTA is not a determination that the alien ultimately is 
admissible to the United States. That determination is made by a CBP 
Officer only after an applicant for admission is inspected by the CBP 
officer at a U.S. port of entry. In addition, ESTA is not a visa or a 
process that acts in lieu of any visa issuance determination made by 
the Department of State. Travel authorization under ESTA allows a VWP 
participant to travel to the United States, and does not confer 
admissibility to the United States. ESTA, therefore, allows DHS to 
identify potential grounds of ineligibility for admission before the 
VWP traveler embarks on a carrier destined for the United States.
    ESTA will reduce the number of travelers who are determined to be 
inadmissible to the United States during inspection at a port of entry, 
thereby saving, among other things, the cost of return travel to the 
carrier, inspection time, and delays and inconvenience for the 
traveler. ESTA also will enable the U.S. government to better allocate 
existing resources towards screening passengers at U.S. ports of entry, 
thereby facilitating legitimate travel. ESTA increases the amount of 
information available to DHS regarding VWP travelers before such 
travelers arrive at U.S. ports of entry; and, by recommending that 
travelers submit such information a minimum of 72 hours in advance of 
departure, provides DHS with additional time to screen VWP travelers 
destined for the United States, thus enhancing security.
1. Obtaining Travel Authorization
    This interim final rule establishes data fields by which VWP 
travelers may electronically submit to CBP, in advance of travel to the 
United States, biographic and other information specified by the 
Secretary. The information specified by the Secretary is necessary to 
determine the eligibility of the alien to travel to the United States 
under the VWP, and whether such travel poses a law enforcement or 
security risk. This is the same information currently required on the 
form I-94W, which VWP travelers must present to a CBP officer at a port 
of entry. This interim final rule does not impose any new data 
collection requirements on air or vessel carriers. For example, this 
rule does not require air carriers to transmit any ESTA data elements 
on behalf of travelers to CBP, nor does it require carriers to submit 
any additional data.
    In determining a traveler's eligibility for ESTA authorization, CBP 
will assess each application to determine whether the alien is eligible 
to travel to the United States and whether there exists any law 
enforcement or security risk in permitting such travel under VWP. The 
information submitted by the alien in his/her travel authorization 
application will be checked by CBP against all appropriate databases, 
including, but not limited to, lost and stolen passport databases and 
appropriate watchlists. Additionally, if an alien does not provide the 
information required or provides false information in his travel 
authorization application or if any evidence exists indicating that an 
alien is ineligible to travel to the United States under VWP or that 
permitting such travel poses a law enforcement or security risk, CBP 
may deny the alien's application for a travel authorization. Consistent 
with section 711 of the 9/11 Act, the Secretary, acting through CBP, 
retains discretion to revoke a travel authorization determination at 
any time and for any reason. 8 U.S.C. 1187(h)(3)(C)(i). If an alien's 
travel authorization application is denied, the alien may still seek to 
obtain a visa to travel to the United States from the appropriate U.S. 
embassy or consulate.
2. Implementation Notice
    Under section 711 of the 9/11 Act, the Secretary also must publish 
a notice in the Federal Register, no less than 60 days before ESTA 
requirements are implemented. The Secretary will publish a notice in 
the Federal Register 60 days before ESTA is implemented as a mandatory 
requirement. DHS anticipates that the Secretary of Homeland Security 
will issue that notice in November 2008, for implementation of the 
mandatory ESTA requirements on or before January 12, 2009.
3. Timeline for Submitting Travel Authorization Data
    Once ESTA is implemented as a mandatory program, 60 days following

[[Page 32443]]

publication of a notice in the Federal Register, each nonimmigrant 
alien wishing to travel to the United States under the VWP must have a 
travel authorization prior to embarking on a carrier. DHS, however, 
recommends that VWP travelers obtain travel authorizations at the time 
of reservation or purchase of the ticket, or at least 72 hours before 
departure to the United States, in order to facilitate timely 
departures. This timeline will allow accommodation of last minute and 
emergency travelers.
4. Required Travel Authorization Data Elements
    ESTA will collect the same information currently required on the 
Form I-94W that is presented to a CBP officer at a port of entry. See 8 
U.S.C. 1187(h)(3). This is the information that the Secretary has 
deemed necessary to evaluate whether an alien is eligible to travel to 
the United States under VWP and whether such travel poses a law 
enforcement or security risk. This information is already collected 
through the I-94W form, which is presented to CBP when the alien 
arrives in the United States. On the I-94W form, aliens must provide 
biographical data such as name, birth date, and passport information, 
as well as travel information such as flight information and the 
address of the traveler in the United States. Travelers must also 
answer eligibility questions regarding, for example: communicable 
diseases, arrests and convictions for certain crimes, and past history 
of visa revocation or deportation. The information provided in the I-
94W form is sufficient for CBP to initially determine if the applicant 
is eligible to travel under VWP before the alien commences travel to 
the United States. Therefore, DHS has decided to utilize the I-94W data 
elements by requiring them to be submitted in advance of travel under 
ESTA.
    In conjunction with CBP's final rule ``Advance Electronic 
Transmission of Passenger and Crew Member Manifests for Commercial 
Aircraft and Vessels,'' which was published in the Federal Register on 
August 23, 2007 (and became effective on February 19, 2008), DHS has 
been coordinating with commercial aircraft and commercial vessel 
carriers on the development and implementation of messaging 
capabilities for passenger data transmissions that will enable DHS to 
provide the carriers with messages pertaining to a passenger's boarding 
status. A prospective VWP traveler's ESTA status is a component of a 
passenger's boarding status that has been introduced into the plans for 
implementing messaging capabilities between DHS and the carriers.
    The development and implementation of the ESTA program will 
eventually allow DHS to eliminate the requirement that VWP travelers 
complete an I-94W prior to being admitted to the United States. As DHS 
moves towards elimination of the I-94W requirement, a VWP traveler with 
valid ESTA authorization will not be required to complete the paper 
Form I-94W when arriving on a carrier that is capable of receiving and 
validating messages pertaining to the traveler's ESTA status as part of 
the traveler's boarding status. Once all carriers are capable of 
receiving and validating messages pertaining to the traveler's ESTA 
status as part of the traveler's boarding status, DHS will eliminate 
the I-94W requirement.
5. Scope of ESTA
    Consistent with the 9-11 Act, an approved travel authorization only 
allows an alien to board a conveyance for travel to a U.S. port of 
entry and does not restrict, limit, or otherwise affect the authority 
of CBP to determine an alien's admissibility to the United States 
during inspection at a port of entry.
6. Duration
a. General Rule
    Each travel authorization will be valid for a period of no more 
than two years. An alien may travel to the United States repeatedly 
within the validity period of the travel authorization using the same 
travel authorization. Travelers whose ESTA applications are approved, 
but whose passports will expire in less than two years, will receive 
travel authorization that is valid only until the expiration date on 
the passport.
b. Exception
    Pursuant to 8 U.S.C. 1182(a)(7)(B)(i)(I) and implementing 
regulations at 8 CFR 214.1(a)(3)(i), the passport of an alien applying 
for admission must be valid for a minimum of six months from the 
expiration date of the contemplated period of stay. Certain foreign 
governments have entered into agreements with the United States whereby 
their passports are recognized as valid for the return of the bearer to 
the country of the foreign-issuing authority for a period of six months 
beyond the expiration date specified in the passport. These agreements 
have the effect of extending the validity period of the foreign 
passport an additional six months notwithstanding the expiration date 
indicated in the passport. The general rule applies to aliens who are 
citizens of countries that have entered into such an agreement.
    For aliens from countries that have not entered into such an 
agreement,\6\ travel authorizations will be valid for a period of two 
years under ESTA. However, travel authorizations for aliens from 
countries that have not entered into such an agreement will not be 
approved beyond the six months prior to the expiration date of the 
alien's passport. Travelers from these countries whose passports will 
expire in six months or less will not receive an approved ESTA.
---------------------------------------------------------------------------

    \6\ At this time, Brunei is the only VWP country that has not 
entered into such an agreement with the United States. The list of 
countries which have entered into such an agreement is available on 
the Department of State Web site at http://foia.state.gov/
masterdocs/09fam/0941104X1.pdf.
---------------------------------------------------------------------------

    The Secretary, in his discretion, may issue a travel authorization 
for a different period of validity, not to exceed a period of three 
years.
7. Events Requiring New Travel Authorizations
    A VWP traveler must obtain a new travel authorization under ESTA in 
advance of travel to the United States if any of the following occur:
    (1) The alien is issued a new passport;
    (2) The alien changes his or her name;
    (3) The alien changes his or her gender;
    (4) The alien changes his or her country of citizenship; or
    (5) The circumstances underlying the alien's previous responses to 
any of the ESTA application questions requiring a ``yes'' or ``no'' 
response (eligibility questions) have changed.
8. Fee
    As provided under section 711(h)(3)(B) of the 9/11 Act, the 
Secretary may charge aliens a fee to use ESTA. The fee is intended to 
cover the full costs of developing and administering the system. At 
this time, payment of a fee will not be required to obtain a travel 
authorization. If DHS determines at a later time, however, that 
collection of a fee is necessary for the efficient administration of 
ESTA, DHS will implement a fee through a separate rulemaking action or 
such other manner as is consistent with the Administrative Procedure 
Act and applicable statutory authorities.
9. Judicial Review
    Section 711 of the 9/11 Act expressly provides that ``no court 
shall have jurisdiction to review an eligibility determination under 
the System.'' Accordingly, a determination by DHS to not provide a 
traveler a travel

[[Page 32444]]

authorization under ESTA will be final and, notwithstanding any other 
provision of the law, is not subject to judicial review. See 8 U.S.C. 
217(h)(3)(C)(iv).
10. Privacy
    DHS will ensure that all Privacy Act requirements and policies are 
adhered to in the implementation of this rule and will be issuing a 
Privacy Act Impact Assessment that will fully outline processes that 
will ensure compliance with Privacy Act protections.

III. Statutory and Regulatory Requirements

A. Administrative Procedure Act

1. Procedural Rule Exception
    This interim final rule addresses requirements that are procedural 
in nature and does not alter the substantive rights of aliens from VWP 
countries seeking admission to the United States. This interim final 
rule, therefore, is exempt from notice and comment requirements under 5 
U.S.C. 553(b)(A). This rule is procedural because it merely automates 
an existing reporting requirement for nonimmigrant aliens, as captured 
in the ``I-94W Nonimmigrant Alien Arrival/Departure Form'' pursuant to 
existing statutes and regulations. See 8 U.S.C. 1103, 1184 and 1187. 
See also 8 CFR 212.1, 299.1, 299.5 and Parts 2 and 217. By procedurally 
shifting the paper I-94W form to an electronic form and changing the 
timing of submission of such information to require travelers to submit 
the data to CBP in advance of travel, CBP will be able to determine, 
before the alien departs for the United States, the eligibility of 
citizens and eligible nationals from VWP countries to travel to the 
United States under VWP and whether such travel poses a law enforcement 
or security risk. This procedural change also benefits travelers as it 
allows CBP to identify potential grounds of ineligibility for admission 
before the traveler embarks on a carrier destined for the United 
States.
2. Good Cause Exception
    This interim final rule is also exempt from APA rulemaking 
requirements under the ``good cause'' exception set forth at 5 U.S.C. 
553(b)(3)(B). By requiring VWP travelers, who currently are not 
screened in person until they arrive at a U.S. port of entry, to submit 
I-94W screening information in advance of their departure for the 
United States, DHS is better positioned to screen VWP aliens before 
they board carriers or vessels en route to the United States. This 
rule, therefore, improves the security of the VWP by addressing 
vulnerabilities in the program identified by GAO and implementing 
security enhancements included in section 711 of the 9/11 Act.
    Specifically, certain inadmissible travelers who need visas to 
enter the United States may attempt to acquire a passport from a VWP 
country to avoid the normal visa issuance procedures. Potential 
terrorists also may use VWP exemption from the visa screening process 
as a means to gain access to the United States or an aircraft en route 
to the United States to cause serious damage, injury, or death in the 
United States. Thus, implementation of this rule prior to notice and 
comment is necessary to protect the national security of the United 
States and to prevent potential terrorists from exploiting VWP.
    Prolonging the implementation of these regulations could hamper the 
ability of DHS to address the security vulnerabilities in the VWP and 
to take effective action to keep persons found by DHS to pose a 
security threat from entering the country under the VWP. Accordingly, 
DHS has determined that delaying implementing of this interim final 
rule to consider public comment rule would be impracticable, 
unnecessary and contrary to the public interest.
3. Foreign Affairs Function Exception
    This interim final rule is also excluded from the rulemaking 
provisions of 5 U.S.C. 553 as a foreign affairs function of the United 
States because it advances the President's foreign policy goals, 
involves bilateral agreements that the United States has entered into 
with participating VWP countries, and directly involves relationships 
between the United States and its alien visitors. Accordingly, DHS is 
not required to provide public notice and an opportunity to comment 
before implementing the requirements under this final rule. The 
Department, however, is interested in public comments on this interim 
final rule and ESTA and, therefore, is providing the public with the 
opportunity to comment without delaying implementation of this rule.
    Additionally, the public will continue to be provided opportunity 
to comment on changes to the Arrival and Departure Record, Forms I-94 
and I-94W. These forms are in the process of being updated under the 
Paperwork Reduction Act. A Federal Register notice entitled ``Proposed 
Collection; Comment Request; Arrival and Departure Record (Forms I-94 
and I-94W),'' was published in the Federal Register on November 9, 2007 
(72 FR 63622). The 60-day comment period expired on January 8, 2008, 
and CBP has analyzed and responded to those comments received. Pursuant 
to the requirements of the Paperwork Reduction Act of 1995, CBP advised 
the public in this notice of its intention to revise its existing 
collection of information by adding an e-mail address and phone number 
to the I-94 and the I-94W forms under OMB Control Number 1651-0111. CBP 
published this 30-day notice document on February 4, 2008, in the 
Federal Register (73 FR 6522) and the comment period expired on March 
5, 2008. We note that, upon publication for OMB approval, interested 
persons had an additional opportunity to provide comments to OMB on 
CBP's request for the addition of e-mail address and phone number and 
other data elements to update the I-94W form. All comments received 
will become a matter of the public record.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996 
(SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of a 
proposed rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions) when the agency is 
required ``to publish a general notice of proposed rulemaking for any 
proposed rule.'' Because this rule is being issued as an interim rule, 
on the grounds set forth above, a regulatory flexibility analysis is 
not required under the RFA.
    Nonetheless, DHS has considered the impact of this rule on small 
entities and had determined that this rule will not have a significant 
economic impact on a substantial number of small entities. The 
individual aliens to whom this rule applies are not small entities as 
that term is defined in 5 U.S.C. 601(6). Accordingly, there is no 
change expected in any process as a result of this rule that would have 
a direct effect, either positive or negative, on a small entity.

C. Unfunded Mandates Reform Act of 1995

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

[[Page 32445]]

of the Unfunded Mandates Reform Act of 1995.

D. Executive Order 12866

    This interim final rule is considered to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Accordingly, OMB has reviewed this 
regulation under that Executive Order.
    The purpose of ESTA is to allow DHS and CBP to establish the 
eligibility of certain foreign travelers to travel to the United States 
under the VWP, and whether the alien's proposed travel to the United 
States poses a law enforcement or security risk. Upon review of such 
information, DHS will determine whether the alien is eligible to travel 
to the United States under the VWP. Once ESTA is implemented as a 
mandatory program, 60 days following publication of a notice in the 
Federal Register, citizens and eligible nationals of the 27 countries 
in the current VWP must comply with this rule. The primary parameters 
for this analysis are as follows--
     The period of analysis is 2008 to 2018.
     Because the order in which countries will potentially be 
brought into VWP, and thus into ESTA, is unknown, we make the 
simplifying assumption for this analysis only that all affected 
travelers will comply with this rule beginning in 2009.
     Air and sea carriers that transport these VWP travelers 
are not directly regulated under this rule; therefore, they are not 
responsible for completing ESTA applications on behalf of their 
passengers. However, carriers may choose to either modify their 
existing systems or potentially develop new systems to submit ESTA 
applications for their customers. For this analysis, we assume that 
carriers will incur system development costs in 2008 and will incur 
operation and maintenance costs every year thereafter. We note that CBP 
will transmit travelers' authorization status through CBP's existing 
Advance Passenger Information System (APIS), and therefore carriers may 
not have to make significant changes to their existing systems in 
response to this rule. Additionally, to minimize the potential impacts 
to air and sea carriers, CBP is developing a system that carriers will 
be able to use to submit applications on behalf of their passengers.
     Under this rule, an initial travel authorization is valid 
for two years. We anticipate that travelers and carriers will update 
information via CBP's APIS requirements rather than requiring updated 
ESTA information on each entry during the two-year period. However, for 
purposes of this analysis, we assume that a travel authorization update 
would be required for each trip to the United States so as not to 
underestimate the potential economic impacts of this rule.
Impacts to Air & Sea Carriers
    We estimate that eight U.S.-based air carriers and eleven sea 
carriers will be affected by the rule. An additional 35 foreign-based 
air carriers and five sea carriers will be affected.
    CBP intends to transmit each passenger's travel authorization 
status to the air carriers using CBP's Advance Passenger Information 
System (APIS).\7 \When a passenger checks in for his/her flight, the 
passport is swiped and the APIS process begins. CBP will provide the 
passenger's travel authorization status to the carrier in the return 
APIS message. If a passenger has not applied for and received a travel 
authorization prior to check-in, the carrier will be able to submit the 
required information and obtain a travel authorization on behalf of the 
passenger. It is unknown how many passengers annually may request that 
their carrier apply for a travel authorization on their behalf or how 
much it will cost carriers to modify their existing systems to 
accommodate such requests. During the first years of implementation 
when passengers are not quite as familiar with the new process, the 
carriers could face a notable burden if most of their non-U.S. 
passengers require travel authorization applications to be carrier-
transmitted.
---------------------------------------------------------------------------

    \7\ See U.S. Customs and Border Protection final rule. ``Advance 
Electronic Transmission of Passenger and Crew Member Manifests for 
Commercial Aircraft and Vessels,'' 72 FR 48320 (Aug. 23, 2007).
---------------------------------------------------------------------------

    Given these unknowns, we have developed a range of costs. For the 
low end of the range, we assume that carriers will modify their 
existing systems, interface with CBP's system, and will help few 
passengers apply for travel authorizations annually. For the high end 
of the range, we assume that carriers will develop a new system 
(similar to APIS Quick Query, AQQ) and will assist many passengers 
annually. We assume that for an air carrier modifying its existing 
systems the cost would be $500,000 in the first year and $125,000 (25 
percent of start-up costs) in subsequent years (low cost). The 
subsequent-year estimate is intended to account not only for annual 
operation and maintenance of the system but also for the burden 
incurred by the carriers to assist passengers. For an air carrier 
developing a new system, the cost would be $2 million in the first year 
and $2 million (100 percent of start-up costs) in subsequent years 
(high cost). Sea carriers have not previously developed an AQQ-like 
system, as they have been able to submit advance passenger data through 
the U.S. Coast Guard's Notice of Arrival/Departure system (called 
``eNOA/D''). For the low cost estimate, we assume that modifying 
systems would cost $1 million in the first year and $250,000 in 
subsequent years. For a sea carrier developing a new system, the cost 
would be $2 million in the first year and $2 million (100 percent of 
start-up costs) in subsequent years, as with air carriers.
    Given this range, should carriers undertake this effort, costs for 
U.S.-based carriers at the low end of the range would be about $9 
million in the first year and $2 million in subsequent years 
(undiscounted). Costs for U.S.-based carriers at the high end of the 
range will be about $36 million in the first year and subsequent years 
(undiscounted). See Exhibit 1.

                                    Exhibit 1.--First Year and Annual Costs for Carriers To Address ESTA Requirements
                                                          [$Millions, 2008-2018, undiscounted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Low cost scenario                                      High cost scenario
                                           -------------------------------------------------------------------------------------------------------------
                                                    U.S.                 Foreign                           U.S.                 Foreign
                                           --------------------------------------------   Total   --------------------------------------------   Total
                                               Air        Sea        Air        Sea                   Air        Sea        Air        Sea
--------------------------------------------------------------------------------------------------------------------------------------------------------
Carriers..................................          8         11         35          5         59          8         11         35          5         59
2008......................................       $4.0       $5.5      $35.0       $5.0      $49.5      $16.0      $22.0      $70.0      $10.0     $118.0
2009......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
2010......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0

[[Page 32446]]


2011......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
2012......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
2013......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
2014......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
2015......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
2016......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
2017......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
2018......................................        1.0        1.4        8.8        1.3       12.5       16.0       22.0       70.0       10.0      118.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As estimated, ESTA could cost the carriers about $137 million to 
$1.1 billion (present value) over the next 10 years depending on how 
the carriers decide to assist passengers, how many passengers the 
carriers need to assist, and the discount rate applied (3 or 7 
percent). See Exhibit 2.

                                        Exhibit 2.--Present Value Costs for Carriers to Address ESTA Requirements
                                                                 [$Millions, 2008-2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Low cost scenario                          High cost scenario
                                                                 ---------------------------------------------------------------------------------------
                                                                          U.S.                 Foreign                U.S.                 Foreign
                                                                 ---------------------------------------------------------------------------------------
                                                                     Air        Sea        Air        Sea        Air        Sea        Air        Sea
--------------------------------------------------------------------------------------------------------------------------------------------------------
                     3 percent discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-year subtotal................................................      $12.5      $17.2     $109.6      $15.7     $152.5     $209.7     $667.1      $95.3
                                                                 ---------------------------------------------------------------------------------------
10-year total...................................................          $29.7
                                                                         $125.3
                                                                         $362.2
                                                                         $762.4
                                                                 ---------------------------------------------------------------------------------------
10-year grand total.............................................                    $155.0
                                                                                   $1,124.6
                                                                 ---------------------------------------------------------------------------------------
Annualized subtotal.............................................       $1.3       $1.8      $11.5       $1.6      $16.0      $22.0      $70.0      $10.0
                                                                 ---------------------------------------------------------------------------------------
Annualized total................................................          $3.1
                                                                          $13.1
                                                                          $38.0
                                                                          $80.0
                                                                 ---------------------------------------------------------------------------------------
Annualized grand total..........................................                     $16.2
                                                                                    $118.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                     7 percent discount rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-year subtotal................................................      $11.0      $15.2      $96.5      $13.8     $128.4     $176.5     $561.7      $80.2
                                                                 ---------------------------------------------------------------------------------------
10-year total...................................................          $26.2
                                                                         $110.3
                                                                         $304.9
                                                                         $641.9
                                                                 ---------------------------------------------------------------------------------------
10-year grand total.............................................                    $136.5
                                                                                    $946.8
                                                                 ---------------------------------------------------------------------------------------
Annualized subtotal.............................................       $1.4       $1.9      $12.0       $1.7      $16.0      $22.0      $70.0      $10.0
                                                                 ---------------------------------------------------------------------------------------
Annualized total................................................          $3.3
                                                                          $13.7
                                                                          $38.0
                                                                          $80.0
                                                                 ---------------------------------------------------------------------------------------
Annualized grand total..........................................                     $17.0
                                                                                    $118.0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Travel agents and other service providers may incur costs to assist 
their clients in obtaining travel authorizations. We do not know how 
many such service providers would be affected, but they would likely 
need to obtain a software module that allowed them to apply for travel 
authorizations during the booking process. Affected travel agents are 
most likely foreign businesses located in the affected countries.
Impacts to Travelers
    ESTA will present new costs and burdens to travelers in VWP 
countries who were not previously required to submit any information to 
the U.S. Government in advance of travel to the United States. 
Travelers from Roadmap countries who become VWP will also incur costs 
and burdens, though these are much less than obtaining a nonimmigrant 
visa (category B1/B2), which is currently required for short-term 
pleasure or business to travel to the United States.
    For the primary analysis, we explore the following categories of 
costs.
     Burden to obtain a travel authorization--the time that 
will be required to obtain a travel authorization and the value of that 
time (opportunity cost) to the traveler.
     Cost and burden to obtain a visa if a travel authorization 
is denied--based on the existing process for obtaining a visa, the cost 
to obtain that document in

[[Page 32447]]

the event that a travel authorization is denied and the traveler is 
referred to a U.S. Embassy.
    For this analysis, we have developed four methods to predict ESTA-
affected travelers to the United States over the next 10 years using 
information available from the Department of Commerce, Office of Travel 
and Tourism Industries (OTTI), documenting historic travel levels and 
future projections. Method 1 employs the travel-projection percentages 
provided by OTTI and extrapolates them to the end of our period of 
analysis (OTTI projects travel only through 2010; we calculate a 
simple, straight-line extrapolation to 2018). Method 2 (modified OTTI 
projections) presents a more pessimistic outlook on travel: all 
projected percentages from Method 1 are reduced by 2 percent throughout 
the period of analysis. Methods 3 and 4 present more optimistic 
projections than Methods 1 and 2, but incorporated periodic downturns, 
which are prevalent (though not necessarily predictable) in 
international travel. See Exhibit 3.

                                   Exhibit 3.--Total Visitors to the United States Using Four Methodologies, 2008-2018
                                                                       [Millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         2008     2009     2010     2011     2012     2013     2014     2015     2016     2017     2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1:
    VWP..............................................     17.4     18.0     18.7     19.4     20.0     20.7     21.3     21.9     22.4     23.0     23.5
    Roadmap..........................................      1.2      1.2      1.3      1.3      1.4      1.4      1.5      1.5      1.5      1.6      1.6
                                                      --------------------------------------------------------------------------------------------------
        Total........................................     18.6     19.2     20.0     20.7     21.4     22.1     22.8     23.4     23.9     24.6     25.1
Method 2:
    VWP..............................................     17.0     17.4     17.7     17.9     18.2     18.4     18.6     18.7     18.8     18.9     18.9
    Roadmap..........................................      1.1      1.2      1.2      1.2      1.2      1.3      1.3      1.3      1.3      1.3      1.3
                                                      --------------------------------------------------------------------------------------------------
        Total........................................     18.1     18.6     18.9     19.1     19.4     19.7     19.9     20.0     20.1     20.2     20.2
Method 3:
    VWP..............................................     17.4     18.0     18.7     19.4     17.7     20.7     24.1     27.4     26.0     30.1     34.1
    Roadmap..........................................      1.2      1.2      1.3      1.3      1.2      1.4      1.7      2.0      2.3      2.9      2.7
                                                      --------------------------------------------------------------------------------------------------
        Total........................................     18.6     19.2     20.0     20.7     18.9     22.1     25.8     29.4     28.3     33.0     36.8
Method 4:
    VWP..............................................     17.4     15.9     18.5     21.6     24.5     23.3     26.9     30.5     35.6     33.9     38.6
    Roadmap..........................................      1.2      1.0      1.3      1.5      1.8      2.1      2.0      2.3      2.9      3.3      4.0
                                                      --------------------------------------------------------------------------------------------------
        Total........................................     18.6     16.9     19.8     23.1     26.3     25.4     28.9     32.8     38.5     37.2     42.6
--------------------------------------------------------------------------------------------------------------------------------------------------------

Burden To Obtain Travel Authorization Through ESTA

    To estimate the value of a non-U.S. citizen's time (opportunity 
cost), we have conducted a brief analysis that takes into account 
differing wage rates for countries that will be affected by the ESTA 
requirements. Based on this analysis, we found that countries in 
Western Europe, Oceania, and Japan generally have a higher value of 
time than the less developed countries of Eastern Europe and Asia. We 
also found that air travelers have a higher value of time than the 
general population. As we did previously for carriers, we develop a 
range of cost estimates for the value of an individual's time. For the 
low cost estimate, the hourly value of time ranges from $1.42 to $30.78 
depending on the country. For the high cost estimate, the hourly value 
of time ranges from $3.00 to $65.19.
    We estimate that it will take 15 minutes of time (0.25 hours) to 
apply for a travel authorization. Note that this is approximately 5 
minutes more than the time currently estimated to complete the I-94W 
(10 minutes). We estimate additional burden for a travel authorization 
application because even though the data elements and admissibility 
questions are identical, the traveler must now register with ESTA, 
familiarize himself/herself with the system, gather and enter the data, 
and access an e-mail account to check the status of his/ her travel 
authorization application. For those applicants who are computer savvy 
and have little difficulty navigating an electronic system, this may be 
a high estimate. For those applicants who are not as comfortable using 
computers and interfacing with Web sites, this may be a low estimate. 
We believe the burden estimate of 15 minutes is a reasonable average.
    Furthermore, if airlines, cruise lines, travel agents, and other 
service providers are entering the information on behalf of the 
passenger, it would almost certainly not take 15 minutes of time 
because these entities will have most of the information electronically 
as gathered during the booking process, and travel and ticket agents 
are certainly comfortable using computer applications. Because we do 
not know how many travelers will apply independently through the ESTA 
Web site versus through a third party, we assign a 15-minute burden to 
all travelers.
    Based on these values and assumptions, we estimate that total 
opportunity costs in 2009 (the first year that all travelers comply 
with the ESTA requirements in this analysis) will range from $86 
million (low) to $207 million (high) depending on the number of 
travelers projected and the value of time used. By the end of the 
period of analysis, costs range from $102 million to $444 million. 
These estimates are all undiscounted. The range between the estimates 
broadens as differences in the projection methods are more discernable 
at the end of the period of analysis. See Exhibit 4.

[[Page 32448]]



  Exhibit 4.--Total Opportunity Costs for Visitors to the United States Using Four Methodologies, 2009 and 2018
                                                 [In $millions]
----------------------------------------------------------------------------------------------------------------
                                                                        2009                      2018
                                                             ---------------------------------------------------
                                                                  Low          High         Low          High
                                                                estimate     estimate     estimate     estimate
----------------------------------------------------------------------------------------------------------------
Method 1....................................................          $98         $207         $127         $269
Method 2....................................................           94          199          102          217
Method 3....................................................           98          207          184          389
Method 4....................................................           86          182          210          444
----------------------------------------------------------------------------------------------------------------

    As estimated, ESTA could cost travelers $700 million to over $2.6 
billion (present value) over the next 10 years depending on the 
projection method, the value of opportunity cost, and the discount rate 
applied (3 or 7 percent). Annualized costs are an estimated $86 million 
to $270 million. See Exhibit 5.

                                Exhibit 5.--Total Present Value and Annualized Opportunity Costs to Travelers, 2008-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Total present value benefits  ($billions)       Annualized benefits  ($millions)
                                                                 ---------------------------------------------------------------------------------------
                                                                      Low estimate          High estimate         Low estimate          High estimate
                                                                 ---------------------------------------------------------------------------------------
                                                                      3%         7%         3%         7%         3%         7%         3%         7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1........................................................     $0.957     $0.781     $2.026     $1.653       $100        $97       $213       $206
Method 2........................................................      0.844      0.693      1.788      1.468         89         86        188        183
Method 3........................................................      1.071      0.862      2.268      1.825        112        107        238        227
Method 4........................................................      1.216      0.972      2.574      2.058        128        121        270        257
--------------------------------------------------------------------------------------------------------------------------------------------------------

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

    Using the value of time estimates calculated above, we estimate the 
costs if a travel authorization is denied and the traveler is referred 
to the nearest U.S. Consulate to apply for a nonimmigrant visa (B1/B2). 
Absent country-specific information, we assume that it will require 5 
hours of time to obtain a visa including time to complete the 
application, travel time, waiting at the Embassy for the interview, and 
the interview itself. There are also other incidental costs to 
consider, such as bank and courier fees, photographs, transportation, 
and other miscellaneous expenses. We estimate that these out-of-pocket 
costs will be $187.
    The number of travel authorizations that will be denied is unknown. 
For a country to have become part of the VWP originally, the visa 
refusal rate must have been no higher than 3 percent. Currently, the 
number of VWP travelers found inadmissible upon application for 
admission is low, only about 1 percent. ESTA, however, will likely 
affect a relatively small number of the current inadmissible 
individuals (see next section on benefits) because many individuals are 
denied entry for reasons that ESTA will not affect. For this analysis, 
we assume that 1 percent of ESTA applicants from current VWP travelers 
will subsequently need to apply for a visa. We do not account for visas 
that must be obtained in the event of an ESTA refusal for new VWP 
travelers because obtaining a visa is the baseline condition under 
which those travelers must currently operate in order to travel to the 
United States. We do, however, subtract out ESTA refusals in our 
benefits calculations (see next section) because these travelers do not 
accrue any benefit from ESTA.
    We multiply 1 percent of the annual travelers for each country by 
the burden (5 hours), the out-of-pocket expenses, and the value of 
time, either high or low. Total present value visa costs over the 
period of analysis could total $374 million to $916 million over the 
period of analysis. Annualized costs are an estimated $47 million to 
$96 million. See Exhibit 6.

                                    Exhibit 6.--Total Present Value and Annualized Visa Costs to Travelers, 2008-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Total present value benefits ($billions)        Annualized benefits  ($millions)
                                                                 ---------------------------------------------------------------------------------------
                                                                      Low estimate          High estimate         Low estimate          High estimate
                                                                 ---------------------------------------------------------------------------------------
                                                                      3%         7%         3%         7%         3%         7%         3%         7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1........................................................     $0.517     $0.421     $0.724     $0.590        $54        $53        $76        $74
Method 2........................................................      0.456      0.374      0.639      0.525         48         47         67         65
Method 3........................................................      0.577      0.465      0.809      0.651         61         58         85         81
Method 4........................................................      0.654      0.523      0.916      0.733         69         65         96         91
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 32449]]

Total Costs to Travelers

    Based on the above calculations, we estimate that the total 
quantified costs to travelers will range from $1.1 billion to $3.5 
billion depending on the number of travelers, the value of time, and 
the discount rate. Annualized costs are estimated to range from $133 
million to $366 million. See Exhibit 7.

                                      Exhibit 7.--Total Present Value and Annualized Costs to Travelers, 2008-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Total present value benefits ($billions)        Annualized benefits  ($millions)
                                                                 ---------------------------------------------------------------------------------------
                                                                      Low estimate          High estimate         Low estimate          High estimate
                                                                 ---------------------------------------------------------------------------------------
                                                                      3%         7%         3%         7%         3%         7%         3%         7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1........................................................     $1.474     $1.202     $2.750     $2.244       $154       $150       $289       $280
Method 2........................................................      1.300      1.067      2.427      1.993        137        133        255        248
Method 3........................................................      1.648      1.327      3.077      2.476        173        165        323        308
Method 4........................................................      1.870      1.495      3.490      2.791        197        186        366        348
--------------------------------------------------------------------------------------------------------------------------------------------------------

Conclusions

    We have shown that costs to air and sea carriers to support the 
requirements of the ESTA program could cost $137 million to $1.1 
billion over the next 10 years depending on the level of effort 
required to integrate their systems with ESTA, how many passengers they 
need to assist in applying for travel authorizations, and the discount 
rate applied to annual costs. Costs to foreign travelers could total 
$1.1 billion to $3.5 billion depending on traveler volume, their value 
of time, and the discount rate applied.
Benefits

Inadmissibility

    By requiring passenger data in advance of travel, CBP may be able 
to determine, before the alien departs for the United States, the 
eligibility of citizens and eligible nationals from VWP countries to 
travel to the United States under the VWP, and whether such travel 
poses a law enforcement or security risk. In addition to fulfilling a 
statutory mandate, the rule serves the twin goals of promoting border 
security and legitimate travel to the United States. By modernizing the 
VWP, ESTA is intended to both increase national security and provide 
for greater efficiencies in the screening of international travelers by 
allowing for the screening of subjects of potential interest well 
before boarding, thereby reducing traveler delays based on potentially 
lengthy processes at U.S. ports of entry.
    ESTA will allow for advance screening of VWP travelers against all 
appropriate databases, including, but not limited to, lost and stolen 
passport databases and appropriate watchlists. Based on data from CBP, 
we estimate that 0.04 percent of affected individuals will be prevented 
from traveling to the United States as a result of the ESTA 
requirements.
    Currently, when ineligible travelers are brought to the United 
States, they are referred to secondary inspection where a CBP or other 
law enforcement officer questions them and processes them for return to 
their country of origin. CBP estimates that it requires 2 hours of time 
for questioning and processing at a cost of approximately $1,560 per 
individual. We estimate that removing an ineligible traveler costs 
carriers $1,500 per individual, which includes the air fare and any 
lodging and meal expenses incurred while the individual is awaiting 
transportation out of the United States.
    Based on these estimates, we calculate that benefits to CBP would 
total $85 million to $151 million over the period of analysis depending 
on the traveler projection method and the discount rate applied. 
Benefits to carriers could total $82 million to $146 million. 
Annualized benefits range from $17 million to $29 million. See Exhibit 
8.

                                    Exhibit 8.--Benefits of Annual Admissions Denied Attributable to ESTA, 2008-2018
                                                                     [In $millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   3% discount rate                                    7% discount rate
                                        Total    -------------------------------------------------------------------------------------------------------
                                      admissions  Benefits to  Benefits to     Total      Annualized  Benefits to  Benefits to     Total      Annualized
                                        denied        CBP        carriers     benefits     benefits       CBP        carriers     benefits     benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1...........................       89,000         $118         $113         $231          $23          $96          $92         $188          $19
Method 2...........................       78,000          104          100          204           21           85           82          167           17
Method 3...........................      102,000          133          128          261           26          107          103          210           21
Method 4...........................      117,000          151          146          297           29          121          116          237           23
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Additionally, asking questions regarding eligibility for admission 
prior to travel to the United States may keep some VWP travelers from 
arriving at a United States port of entry only to then be deemed 
inadmissible. This rule would provide benefits to CBP and the carriers 
for those travelers who answer ``yes'' to any of the eligibility 
questions who are then deemed inadmissible and must be transported back 
to their country of origin. It is not known how many entries like this 
occur on an annual basis, and we are thus unable to quantify the 
benefits to CBP or the carriers of forgoing such occurrences.

Benefits of Not Having To Obtain Visas

    The benefits of not having to obtain a B1/B2 visa, but rather 
obtaining a travel authorization are also quantifiable. These benefits 
will be realized only by travelers who are citizens of countries that 
enter the Visa Waiver Program in the future. We must first determine 
how many travelers are repeat versus first-time travelers in order not 
to double count benefits from not having to obtain a visa. We estimate 
the number of first-time visitors under each of the four methods of 
projecting travelers. Then

[[Page 32450]]

we estimate a percentage of repeat travelers who would also need to 
have visas because their old visa will expire during the next 10 years. 
All of the Roadmap visitors are eligible for 10-year B1/B2 visas, and 
we thus assume that 10 percent of repeat visitors would have to reapply 
for visas were it not for the rule. Finally, we subtract out those who 
are denied a travel authorization and must apply for a visa instead 
(see previous section on costs).
    Benefits of forgoing visa are expected to range from about $619 
million to $1.6 billion (present value) over 10 years depending on the 
travel level, the value of time used, and the discount rate applied. 
Annualized benefits range from $77 million to $167 million. See Exhibit 
9.

                                  Exhibit 9.--Total Present Value and Annualized Benefits of Forgoing Visas, 2008-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Total present value benefits  ($billions)       Annualized benefits  ($millions)
                                                                 ---------------------------------------------------------------------------------------
                                                                      Low estimate          High estimate         Low estimate          High estimate
                                                                 ---------------------------------------------------------------------------------------
                                                                      3%         7%         3%         7%         3%         7%         3%         7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1........................................................     $0.856     $0.697     $1.042     $0.850        $90        $87       $109       $106
Method 2........................................................      0.755      0.619      0.920      0.754         79         77         96         84
Method 3........................................................      1.053      0.838      1.290      1.026        111        105        135        128
Method 4........................................................      1.293      1.019      1.588      1.251        136        127        167        156
--------------------------------------------------------------------------------------------------------------------------------------------------------

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

    We can also quantify the benefits of not having to complete the I-
94W paper form. These benefits will accrue to all travelers eventually 
covered by ESTA as the requirement to present a paper I-94W is 
eliminated. The estimated time to complete either the I-94W or I-94 is 
10 minutes (0.17 hours). We then subtract out those travelers who are 
not able to obtain a travel authorization through ESTA (see previous 
section on costs) and then apply a low and high value of time to the 
burden to estimate total savings that are expected to be accrued as a 
result of this rule.
    Benefits of not having to complete the paper forms are expected to 
range from $457 million to $1.7 billion over 10 years depending on the 
value of time used and the discount rate applied. Annualized benefits 
range from $57 million to $178 million. See Exhibit 10.

                                Exhibit 10.--Total Present Value and Annualized Benefits of Forgoing the I-94W, 2008-2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Total present value benefits ($billions)        Annualized benefits  ($millions)
                                                                 ---------------------------------------------------------------------------------------
                                                                      Low estimate          High estimate         Low estimate          High estimate
                                                                 ---------------------------------------------------------------------------------------
                                                                      3%         7%         3%         7%         3%         7%         3%         7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1........................................................     $0.636     $0.519     $1.336     $1.090        $67        $65       $140       $136
Method 2........................................................      0.557      0.457      1.179      0.968         58         57        124        121
Method 3........................................................      0.706      0.568      1.495      1.203         74         71        157        150
Method 4........................................................      0.801      0.641      1.697      1.357         84         80        178        169
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In addition to these benefits to travelers, CBP and the carriers 
should also experience the benefit of not having to administer the I-
94W. While CBP has not conducted an analysis of the potential savings, 
it should accrue benefits from not having to produce, ship, and store 
blank forms. CBP should also be able to accrue savings related to data 
entry and archiving. Carriers should realize some savings as well, 
though carriers will still have to administer the I-94 for those 
passengers not traveling under the VWP and the Customs Declaration 
forms for all passengers aboard the aircraft and vessel.

Total Benefits to Travelers

    Total benefits to travelers could total $1.1 billion to $3.3 
billion over the period of analysis. Annualized benefits could range 
from $134 million to $345 million. See Exhibit 11.

                                    Exhibit 11.--Total Present Value and Annualized Benefits to Travelers, 2008-2018
                                               [10-year costs in $billions; annualized costs in $millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Total present value benefits ($billions)        Annualized benefits  ($millions)
                                                                 ---------------------------------------------------------------------------------------
                                                                      Low estimate          High estimate         Low estimate          High estimate
                                                                 ---------------------------------------------------------------------------------------
                                                                      3%         7%         3%         7%         3%         7%         3%         7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Method 1........................................................     $1.492     $1.216     $2.378     $1.940       $157       $152       $249       $242
Method 2........................................................      1.312      1.076      2.099      1.722        137        134        220        215
Method 3........................................................      1.759      1.406      2.785      2.229        185        176        292        278
Method 4........................................................      2.094      1.660      3.285      2.608        220        207        345        325
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 32451]]

Benefits of Enhanced Security

    As set forth in section 711 of the 9/11 Act, it was the intent of 
Congress to modernize and strengthen the security of the VWP under 
section 217 of the Immigration and Nationality Act (INA, 8 U.S.C. 1187) 
by simultaneously enhancing program security requirements and extending 
visa-free travel privileges to citizens and eligible nationals of 
eligible foreign countries that are partners in the war on terrorism.
    In previous DHS analyses, a ``breakeven'' analysis has been 
conducted in the absence of information regarding baseline risks of 
terrorist attacks and risk reduced as the result of a regulatory 
action. Such an analysis was conducted for CBP's final rule 
implementing enhancements to APIS (this rule is familiarly referred to 
as APIS 30/AQQ).\8\ The APIS 30/AQQ and the ESTA rules essentially have 
the same objective: Prevent a traveler who has been matched to an 
individual on a government watchlist from boarding an aircraft or 
passenger vessel bound for the United States. This layered approach is 
a key component of the DHS and CBP goal of safe and secure travel. 
However, if we were to conduct a breakeven analysis for ESTA without 
taking into account the breakeven analysis for APIS 30/AQQ, we would be 
double-counting security benefits, though the extent is unknown. The 
APIS 30/AQQ analysis accounted for identifying a traveler of concern 
prior to the issuance of a boarding pass. Thus, we must not take credit 
for preventing a traveler from boarding an aircraft as a result of ESTA 
because that benefit has already been counted. We have not conducted a 
breakeven analysis for this rule because CBP has already accounted for 
preventing a traveler on a watchlist from boarding an aircraft and 
coming to the United States. This does not mean, however, that there 
are no security benefits of this rule--we simply have not 
quantitatively accounted for them here.
---------------------------------------------------------------------------

    \8\ See 72 FR 48320, 48339.
---------------------------------------------------------------------------

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

     Accounting Statement: Classification of Expenditures, 2008-2018
                                 [$2008]
------------------------------------------------------------------------
                                   3% discount rate    7% discount rate
------------------------------------------------------------------------
Costs:
Annualized monetized costs......  $16 million to      $17 million to
                                   $118 million.       $118 million.
Annualized quantified, but un-    None quantified...  None quantified.
 monetized costs.
Qualitative (un-quantified)       Indirect costs to   Indirect costs to
 costs.                            the travel and      the travel and
                                   tourism industry.   tourism industry.
Benefits:
Annualized monetized benefits...  $21 million to $29  $17 million to $23
                                   million.            million.
Annualized quantified, but un-    None quantified...  None quantified.
 monetized benefits.
Qualitative (un-quantified)       Enhanced security   Enhanced security
 benefits.                         and efficiency.     and efficiency.
------------------------------------------------------------------------

    We estimate that the annualized costs of this rule will be $16 
million to $118 million. These costs are for U.S. and foreign-based air 
and sea carriers. Quantified benefits of $17 million to $29 million to 
carriers and CBP are for annual travel authorizations denied by ESTA 
that prevent inadmissible persons from applying for admission under the 
VWP at a United States port of entry. Firms participating in the U.S. 
economy may also face unquantified or indirect burdens if, for example, 
U.S. travel agents invest in resources to assist their foreign clients 
in obtaining a travel authorization, if the requirements lead to trips 
forgone, or if the requirements lead to increased queues in airports or 
seaports. Under the simplifying assumption for this analysis only that 
all affected travelers, including those from roadmap countries, will 
comply with this rule beginning in 2009, there are quantified benefits 
to those travelers from Roadmap countries who no longer need to obtain 
a visa to visit the United States. In addition, there are quantified 
benefits for all ESTA participants who no longer need to complete I-94W 
forms. Because these benefits accrue to foreign entities, however, we 
do not include them in the accounting statement. Non-quantified 
benefits are enhanced security and efficiency.
Regulatory Alternatives
    We consider three alternatives to this rule--
     The ESTA requirements in the rule, but with a $1.50 fee 
per each travel authorization (more costly)
     The ESTA requirements in the rule, but with only the name 
of the passenger and the admissibility questions on the I-94W form 
(less burdensome)
     The ESTA requirements in the rule, but only for the 
countries entering the VWP after 2009 (no new requirements for VWP, 
reduced burden for newly entering countries)
    Because this rule only directly affects travelers, these 
alternatives only directly affect travelers, not air and sea carriers. 
The first alternative would create additional burden for carriers, who 
would potentially need to collect credit card information and the fee 
to cover the costs of the ESTA application. The second alternative 
would create less burden for the carriers because the biographic 
information would not be included. The third alternative would be less 
costly and burdensome for the carriers who would now not need to handle 
as many ESTA participants. Because the range of high and low cost 
estimates for carriers presented is so broad in the primary analysis 
(see previous section), we do not estimate carrier costs for these 
alternatives. The comparison of alternatives, therefore, is just for 
affected travelers.
    For the sake of brevity, we present the 10-year present value cost 
of the rule and these alternatives for the high value estimates, Method 
1 traveler projection, at the 7 percent discount rate only. Benefits 
are expressed as negative values in this presentation See Exhibit 12.

[[Page 32452]]



  Exhibit 12.--Comparison of 10-Year Impacts of the Rule and Regulatory Alternatives, 2008-2018, in $billions,
                                Method 1, High Estimate, 7 Percent Discount Rate
----------------------------------------------------------------------------------------------------------------
                                        Rule          Alternative 1        Alternative 2        Alternative 3
----------------------------------------------------------------------------------------------------------------
ESTA burden......................          $1.653  $1.653.............  $1.102.............  $0.045.
Visa costs.......................           0.591  0.591..............  0.591..............  0.
ESTA fee.........................               0  0.231..............  0..................  0.
Benefit of no visa...............         (0.850)  (0.850)............  (0.850)............  (0.850).
Benefit of no I-94W..............         (1.090)  (1.090)............  (1.090)............  (0.030).
Net impact.......................          $0.304  $0.535.............  ($0.247)...........  ($0.835).
Comment..........................  ..............  Fee will not be      All data elements    Does not meet
                                                    charged at this      are required for     statutory
                                                    time.                proper screening.    requirements.
----------------------------------------------------------------------------------------------------------------

    DHS has determined that the rule provides the greatest level of 
enhanced security and efficiency at an acceptable cost to the traveling 
public and potentially affected air carriers.

E. Executive Order 13132

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

F. Executive Order 12988 Civil Justice Reform

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

G. Paperwork Reduction Act

    These regulations are being issued without prior notice and public 
procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). 
For this reason, the collection of information contained in these 
regulations has been reviewed and, pending receipt and evaluation of 
public comments, approved by the Office of Management and Budget (OMB) 
in accordance with the Paperwork Reduction Act of 1995, Public Law 104-
13, under Control Number 1651-0111.
    The information collection provisions of this regulation are in 
Sec. Sec.  212.1 and 217.5 of the CFR. CBP will use the information 
collected under this rule to determine the eligibility of nonimmigrant 
aliens to travel to the United States under the VWP so as to enhance 
border security and streamline entry processes at U.S. ports of entry. 
The respondents to this collection are non-U.S. citizen travelers to 
the United States. When the Secretary publishes notice in the Federal 
Register that each alien wishing to travel to the United States by air 
or sea must apply for and obtain ESTA authorization prior to such 
travel, under 8 CFR 217.5, any nonimmigrant alien wishing to travel to 
the United States by air or sea under VWP would be required in advance 
to have a travel authorization before embarking on a carrier for travel 
to the United States. To obtain a travel authorization, travelers must 
provide to CBP via a CBP Web site an application consisting of 
biographic and other information specified by the Secretary of Homeland 
Security as necessary to determine the eligibility of the alien to 
travel to the United States under the VWP, and whether such travel 
poses a law enforcement or security risk.
    The collection of information regarding the I-94W Form procedures 
was previously reviewed and approved by OMB in accordance with the 
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) 
under OMB Control Number 1651-0111, and its renewal is currently being 
vetted through Federal Register notice as discussed in the document. An 
agency may not conduct, and a person is not required to respond to, a 
collection of information unless the collection of information displays 
a valid control number assigned by OMB.
    The additional respondents and burden estimates for this collection 
are as follows:
    Estimated annual reporting and/or recordkeeping burden: 4,225,000 
hours.
    Estimated average annual burden per respondent/recordkeeper: 15 
minutes (0.25 hours).
    Estimated number of respondents and/or recordkeepers: 17,000,000.
    Estimated annual frequency of responses: Once per year.
    The estimated annual public cost for ESTA is $63.8 million. This is 
based on the number of responses (17,000,000) x a response time of 15 
minutes x an average hourly rate of $15 = $63.8 million.
    Comments concerning the accuracy of this burden estimate and 
suggestions for reducing this burden should be directed to the Office 
of Management and Budget, Attention: Desk Officer for the Department of 
Homeland Security, Office of Information and Regulatory Affairs, 
Washington, DC 20503. A copy should also be sent to the Border Security 
Regulations Branch, Bureau of Customs and Border Protection, 1300 
Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229.

H. Privacy Interests

    DHS will be publishing a Privacy Impact Assessment (PIA) on its Web 
site. DHS also is preparing a separate SORN for publication in 
conjunction with this interim final rule.

List of Subjects in 8 CFR Part 217

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

Amendments to the Regulations

0
For the reasons stated in the preamble, DHS amends part 217 of title 8 
of the Code of Federal Regulations (8 CFR part 217), as set forth 
below.

PART 217--VISA WAIVER PROGRAM

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

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

0
2. A new Sec.  217.5 is being added to read as follows:


Sec.  217.5  Electronic System for Travel Authorization.

    (a) Travel authorization required. Each nonimmigrant alien 
intending to travel by air or sea to the United States under the Visa 
Waiver Program (VWP) must, within the time specified in paragraph (b) 
of this section, receive a travel authorization, which is a positive 
determination of eligibility to travel to the United States under the 
VWP via the Electronic System for Travel Authorization (ESTA), from 
CBP. In order to receive a travel authorization,

[[Page 32453]]

each nonimmigrant alien intending to travel to the United States by air 
or sea under the VWP must provide the data elements set forth in 
paragraph (c) of this section to CBP, in English, in the manner 
specified herein.
    (b) Time. Each alien falling within the provisions of paragraph (a) 
of this section must receive a travel authorization prior to embarking 
on a carrier for travel to the United States.
    (c) Required elements. ESTA will collect such information as the 
Secretary deems necessary to issue a travel authorization, as reflected 
by the I-94W Nonimmigrant Alien Arrival/Departure Form (I-94W).
    (d) Duration. (1) General Rule. A travel authorization issued under 
ESTA will be valid for a period of two years from the date of issuance, 
unless the passport of the authorized alien will expire in less than 
two years, in which case the authorization will be valid until the date 
of expiration of the passport.
    (2) Exception. For travelers from countries which have not entered 
into agreements with the United States whereby their passports are 
recognized as valid for the return of the bearer to the country of the 
foreign-issuing authority for a period of six months beyond the 
expiration date specified in the passport, a travel authorization 
issued under ESTA is not valid beyond the six months prior to the 
expiration date of the passport. Travelers from these countries whose 
passports will expire in six months or less will not receive a travel 
authorization.
    (e) New travel authorization required. A new travel authorization 
is required if any of the following occur:
    (1) The alien is issued a new passport;
    (2) The alien changes his or her name;
    (3) The alien changes his or her gender;
    (4) The alien's country of citizenship changes; or
    (5) The circumstances underlying the alien's previous responses to 
any of the ESTA application questions requiring a ``yes'' or ``no'' 
response (eligibility questions) have changed.
    (f) Limitations. (1) Current authorization period. An authorization 
under ESTA is a positive determination that an alien is eligible, and 
grants the alien permission, to travel to the United States under the 
VWP and to apply for admission under the VWP during the period of time 
the travel authorization is valid. An authorization under ESTA is not a 
determination that the alien is admissible to the United States. A 
determination of admissibility is made only after an applicant for 
admission is inspected by a CBP Officer at a U.S. port of entry.
    (2) Not a determination of visa eligibility. A determination under 
ESTA that an alien is not eligible to travel to the United States under 
the VWP is not a determination that the alien is ineligible for a visa 
to travel to the United States and does not preclude the alien from 
applying for a visa before a United States consular officer.
    (3) Judicial review. Notwithstanding any other provision of law, a 
determination under ESTA is not subject to judicial review pursuant to 
8 U.S.C. 217(h)(3)(C)(iv).
    (4) Revocation. A determination under ESTA that an alien is 
eligible to travel to the United States to apply for admission under 
the VWP may be revoked at the discretion of the Secretary.
    (g) Compliance date. Once ESTA is implemented as a mandatory 
program, 60 days following publication by the Secretary of a notice in 
the Federal Register, citizens and eligible nationals of countries that 
participate in the VWP planning to travel to the United States under 
the VWP must comply with the requirements of this section. As new 
countries are added to the VWP, citizens and eligible nationals of 
those countries will be required to obtain a travel authorization via 
ESTA prior to traveling to the United States under the VWP.

    Dated: June 2, 2008.
Michael Chertoff,
Secretary.
 [FR Doc. E8-12673 Filed 6-6-08; 8:45 am]
BILLING CODE 9111-14-P



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