**DEPARTMENT OF HOMELAND SECURITY**

**Interim Final Rule 8 CFR Part 217,**

**RIN 1651-AA72**

**Docket No. USCBP-2008-0003; CBP Dec no.08-18**

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

**COMMENTS OF**

### TUI Travel PLC

Communications with respect to this document should be addressed to:

Eddie Redfern

Head of Regulatory Affairs (Aviation)

TUI Travel PLC

TUI Travel House

Crawley Business Quarter

Fleming Way

Crawley, West Sussex, RH10 9QL

United Kingdom

Phone: +44 1293 645 945

Fax: +44 1293 645 703

<Eddie.Redfern@tuitravel.com>

TUI Travel PLC respectfully submits the following comments in response
to the Department of Homeland Security Interim Final Rule
USCBP-2008-0003: CBP Dec no. 08-18. Changes to the Visa Waiver Program
To Implement the Electronic System for Travel Authorization (ESTA)
program.

TUI Travel PLC (TUI Travel) is a UK Listed leisure company offering
leisure travel from 20 source markets to over 200 destinations
worldwide. Additionally TUI Travel is the parent company of a number of
European Air Carriers that have regular, or ad hoc, operations to the
USA: Namely; ThomsonFly Limited d/b/a ThomsonFly and First Choice
Airways - UK; TUI Airlines Belgium d/b/a JetairFly -- Belgium; TUI
Nordic -- Sweden: Corse Air SA. D/b/a Corsairfly -- France.

## 

## 

## Introduction:

TUI Travel appreciates the opportunity to comment on the interim Final
rule relating to ESTA. We recognise that CBP has a mandate under section
711 of the 9/11 Act to *'develop and implement a fully automated
electronic travel authorization system that 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.'* We are grateful that the US CBP has
adopted a trial system well ahead of the mandatory requirement to be
imposed from January 2009. Whilst the onus for applying for ESTA will be
the individual traveller, it will ultimately be the air carriers who
will have to deal with the passenger at check-in if they have not
applied for ESTA, or have travel refused because of an ESTA refusal.
Thus our main comments and concerns will centre on the process for
dealing with such situations.

Specific Comments:

1.  TUI Travel recognises that the ESTA system will be a web based
    system that will require the individual consumer to log on to the
    Internet to register for ESTA. Given the recently published
    extension of the US Air carrier Access Act[^1] to foreign carriers
    we are concerned that a system where registration by the individual
    is limited to Internet access only is contrary to US
    non-discrimination laws? How will an independent blind traveller be
    able to register?

2.  At this stage we have no other comments about the registration
    process, but we do have a number of concerns relating to the
    responsibilities of the passenger and the air carrier, namely:

    a.  What confirmation will the traveller have of their ESTA
        approval; can this be easily copied or forged?

    b.  How will the ESTA status message be shown on the APIS
        pre-departure message? If it will only be 'ESTA OK' or 'ESTA NOT
        OK' message we are concerned that this will be insufficient data
        to enable the check-in agents to correctly advise the passenger.

        i.  The reason for ESTA NOT OK could be that they had not
            applied for ESTA, and need to do so before travel. This
            would be a relatively easy matter to rectify, providing the
            airport in question has access to the Internet. However not
            all UK or European Airports have such easy access to the
            Internet.

        ii. Another reason for ESTA NOT OK would be that the passenger
            is not from a VWP country and needs to obtain a Visa prior
            to travel, OR that a visa was already refused and they are
            attempting to travel under the VWP.

        iii. Conversely, a passenger could present a Visa at check-in,
             but in fact be intending to travel as a VWP national thus
             the carrier would not know that the passenger needs ESTA
             approval, but does not have this. (For example an airline
             crewmember holds a valid Visa for duty travel, but is on
             vacation travel, so needs ESTA but does not declare this).
             How will the system recognise that a passenger is
             travelling on a valid visa?

        iv. How will the ESTA message differentiate between a VWP
            national and a Visa national that does not hold a visa?

    c.  Moving forwards, it appears to be the individual's
        responsibility to amend their ESTA approval if the details
        previously supplied have changed, for example address whilst in
        the USA. Can CBP confirm that airlines will not be penalised if
        the passenger has not updated their details on their ESTA
        approval and this differs from the pre departure APIS (AQQ)
        transmission made by the air carrier.

    d.  Similarly there are certain events that a VWP traveller must
        obtain a new travel authorisation. Paragraph 7 of the Federal
        Register refers. We would not expect air carriers to be
        penalised for any failure of the individual not to declare any
        changes.

3.  By requiring passengers to amend any details on a previous ESTA
    approval, e.g. address whilst in the US, this is in effect forcing
    an application per trip for the vast majority of VWP travellers.

4.  *'Once all carriers are capable of receiving and validating messages
    pertaining to the traveller's ESTA status as part of the travellers
    boarding status, DHS will eliminate the I-94W requirement.'* We are
    concerned at the timeline for withdrawing the I-94W, as this appears
    to aimed at meeting the requirements of the slowest adopters of the
    ESTA requirement. Thus there is no incentive for carriers to comply
    at an early stage. We would suggest that a carrier-by-carrier
    approach is adopted to remove the I-94W. This would provide an early
    incentive to adopting the full process.

5.  We believe that whilst the industry will work diligently with CBP to
    highlight the requirement to register for ESTA to passengers
    travelling to the USA, we are concerned that passengers will have to
    be refused travel, after 12^th^ January 2009, because they will be
    unable to register for ESTA at the airport. One solution to this
    would be similar to that adopted with the introduction of biometric
    passports insofar as at the port of entry a single entry stamp was
    made for a 'one off' entry to the US. This would ensure continuity
    of travel whilst clearly alerting the passenger to the new
    requirements.

6.  On a practical note, a number of UK citizens have already applied to
    register on-line for ESTA, but their passports are not being
    accepted as valid because they have validity greater than 10 years.
    In the UK, under certain circumstances, the UK Identity and Passport
    Service will issue a passport that is valid for longer than 10
    years, thus the ESTA process needs to take account of this.

Finally TUI Travel PLC is aware that once ESTA becomes mandatory from
January 2009 this will mean that all foreign nationals seeking to visit
the US will either have a VISA, where they have been interviewed prior
to the issue of a biometric Visa, OR they will have an Electronic
Authority to travel via the ESTA programme. The US authorities will have
received the biometric data on all foreign nationals seeking to travel
to the US before they travel to the US, and before they check-in, or are
permitted to check-in. This, we would argue, will make the proposed TSA
Secure Flight programme for international flights redundant as it will
be the passenger that has supplied their own data, and obviate the need
for air carriers to collect and transmit data 72 hours prior to
departure.

04^th^ August 2008

[^1]: Federal Register Tuesday May 13, 2008: 14 CFR Part 382