[Federal Register Volume 87, Number 63 (Friday, April 1, 2022)]
[Rules and Regulations]
[Pages 18967-18981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06366]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 212, 217, and 286

[Docket No. USCBP-2021-0014; CBP Dec. 22-07]
RIN 1651-AB14


Implementation of the Electronic System for Travel Authorization 
(ESTA) at U.S. Land Borders

AGENCY: U.S. Customs and Border Protection, Department of Homeland 
Security (DHS).

ACTION: Interim final rule; solicitation of comments.

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SUMMARY: This rule amends Department of Homeland Security (DHS) 
regulations to implement the Electronic System for Travel Authorization 
(ESTA) requirements under section 711 of the Implementing 
Recommendations of the 9/11 Commission Act of 2007, for noncitizens who 
intend to enter the United States under the Visa Waiver Program (VWP) 
at land ports of entry. Currently, noncitizens from VWP countries must 
provide certain biographic information to U.S. Customs and Border 
Protection (CBP) officers at land ports of entry on a paper I-94W 
Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W). Under 
this rule, these VWP travelers will instead provide this information to 
CBP electronically through ESTA prior to application for admission to 
the United States. DHS has already implemented the ESTA requirements 
for noncitizens who intend to enter the United States under the VWP at 
air or sea ports of entry.

DATES: This rule is effective May 2, 2022. Comments must be received on 
or before May 2, 2022.

ADDRESSES: You may submit comments, identified by docket number, by the 
following method:
    <bullet> Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2021-0014.
    Due to COVID-19-related restrictions, CBP has temporarily suspended 
its ability to receive public comments by mail.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Due to relevant 
COVID-19-related restrictions, CBP has temporarily suspended its on-
site public inspection of submitted comments.

FOR FURTHER INFORMATION CONTACT: Sikina S. Hasham, Director, Electronic 
System for Travel Authorization (ESTA), Office of Field Operations, 
202-325-8000, <a href="/cdn-cgi/l/email-protection#9eedf7f5f7f0ffb0f6ffedf6fff3defdfceeb0faf6edb0f9f1e8"><span class="__cf_email__" data-cfemail="3f4c565456515e11575e4c575e527f5c5d4f115b574c11585049">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

[[Page 18968]]

Table of Contents

I. Public Participation
II. Executive Summary
III. Background
    A. Visa Waiver Program
    1. Current CBP Processing of VWP Travelers at Land Ports of 
Entry
    2. Current CBP Processing of VWP Travelers at Air and Sea Ports 
of Entry
    B. Expanding ESTA to Land Ports of Entry
    1. Obtaining a Travel Authorization
    2. Travel Authorization
    3. Timeline for Obtaining a Travel Authorization
    4. Required ESTA Data Elements
    5. Scope of Travel Authorization
    6. Duration
    7. Events Requiring New Travel Authorization
    8. Fee
    9. Judicial Review
    C. Discussion of Regulatory Changes
    1. 8 CFR Part 103
    2. 8 CFR Part 212
    3. 8 CFR Part 217
    4. 8 CFR Part 286
IV. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    1. Procedural Rule Exception
    2. Foreign Affairs Function Exception
    B. Executive Orders 13563 and 12866
    1. Purpose of Rule
    2. Population Affected by Rule
    3. Costs of Rule
    4. Benefits of Rule
    5. Net Impact of Rule
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132
    F. Executive Order 12988 Civil Justice Reform
    G. Paperwork Reduction Act
    H. Privacy Interests

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
interim final rule. U.S. Customs and Border Protection (CBP) also 
invites comments on the economic, environmental, or federalism effects 
that might result from this regulatory change. Comments that will 
provide the most assistance to CBP will reference a specific portion of 
the rule, explain the reason for any recommended change, and include 
data, information, or authority that support such recommended change. 
Written comments must be submitted on or before May 2, 2022. CBP will 
consider those comments and make any changes appropriate after 
consideration of those comments.

II. Executive Summary

    The Visa Waiver Program (VWP) permits eligible citizens and 
nationals from 40 participating countries to apply for admission to the 
United States at ports of entry for periods of 90 days or less for 
business or pleasure without first obtaining a nonimmigrant B-1, B-2, 
or B-1/B-2 visa. The Department of Homeland Security (DHS) is amending 
its regulations to require VWP travelers applying for admission at U.S. 
land ports of entry to receive a travel authorization via the 
Electronic System for Travel Authorization (ESTA) from CBP prior to 
applying for admission to the United States.
    A travel authorization via ESTA is a positive determination of 
eligibility to travel to the United States under the VWP. Travelers 
without a travel authorization must have a visa issued by a U.S. 
Embassy or Consulate for admission to the United States.
    Currently, VWP travelers applying for admission at U.S. land ports 
of entry must complete a paper I-94W Nonimmigrant Visa Waiver Arrival/
Departure Record (Form I-94W) prior to admission that provides 
biographical and travel information to CBP. Through this interim rule, 
instead of completing a paper Form I-94W at land ports of entry, VWP 
travelers must now provide this information electronically to CBP via 
ESTA.
    DHS has already instituted the ESTA program at air and sea ports of 
entry. On June 9, 2008, DHS published an interim final rule (IFR), 
``Changes to the Visa Waiver Program to Implement the Electronic System 
for Travel Authorization (ESTA) Program,'' in the Federal Register (73 
FR 32440) (hereafter, ``ESTA Air and Sea IFR'') announcing the creation 
of the ESTA program for nonimmigrant visitors traveling to the United 
States by air or sea under the VWP. After a thorough review of the 
comments received, on June 8, 2015, DHS published in the Federal 
Register (80 FR 32267) a final rule titled ``Changes to the Visa Waiver 
Program to Implement the Electronic System for Travel Authorization 
(ESTA) Program and the Fee for Use of the System'' (hereafter, ``ESTA 
Air, Sea, and Fee Final Rule'').\1\ Specifically, DHS amended title 8 
of the Code of Federal Regulations (CFR) to provide that VWP travelers 
applying for admission at U.S. air and sea ports of entry must receive 
a travel authorization from CBP via ESTA. See 8 CFR 217.5 (ESTA 
regulations). The ESTA regulations set forth the general requirements, 
the time frame for obtaining a travel authorization, the required data 
elements, the duration of a travel authorization, and the fee for 
obtaining a travel authorization. With the implementation of ESTA, VWP 
travelers who arrive at air and sea ports of entry are no longer 
required to complete a paper Form I-94W.
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    \1\ On August 9, 2010, DHS published an IFR in the Federal 
Register (75 FR 47701) to establish a fee for ESTA.
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    This interim rule expands the requirements of ESTA to land ports of 
entry. Specifically, it extends the electronic collection of the 
information requested on paper Form I-94W to VWP travelers who intend 
to travel to the United States by land. For these travelers, all the 
ESTA requirements in 8 CFR 217.5 are identical to air and sea 
travelers, except for the time frame for receiving a travel 
authorization.
    As provided in 8 CFR 217.5(b), air and sea VWP travelers must 
receive a travel authorization prior to embarking on a carrier for 
travel to the United States. Under this interim rule, however, VWP 
travelers intending to travel to the United States by land must instead 
receive a travel authorization prior to application for admission to 
the United States. The different time frames take into account the fact 
that travel by land is often by privately owned vehicle or on foot and 
not by carrier, as is usually the case when people travel to the United 
States by air or sea.
    To expedite the admission process, DHS encourages VWP travelers who 
intend to travel to the United States by land to apply for a travel 
authorization at least 72 hours in advance of their anticipated arrival 
at a U.S. land port of entry. By submitting an ESTA application well in 
advance of anticipated arrival at a land port of entry, a traveler will 
be able to minimize the likelihood that he or she will be found to be 
inadmissible under the VWP upon arrival at the port of entry and 
prevent a potentially long wait time at the border while his or her 
application is under review.
    Implementing ESTA at land ports of entry will expedite the 
admission of VWP travelers and reduce traveler delays, especially when 
VWP travelers apply for a travel authorization in advance of travel. A 
travel authorization will be valid at all ports of entry. Therefore, if 
a VWP traveler already has a valid travel authorization obtained for 
air or sea travel, the traveler will not need to obtain another travel 
authorization for admission at a land port of entry.
    Following the implementation of ESTA at U.S. land ports of entry, 
all VWP travelers are required to complete the electronic version of 
the paper Form I-94W (i.e., an ESTA application) instead of the paper 
Form I-94W.
    As discussed in Section IV(B) of the Background section, 
``Executive Orders 13563 and 12866,'' and detailed in the complete 
regulatory assessment entitled ``Regulatory Assessment for the

[[Page 18969]]

Implementation of the Electronic System for Travel Authorization (ESTA) 
at U.S. Land Borders Interim Final Rule,'' available at docket number 
USCBP-2021-0014, this rule will provide immediate benefits to VWP 
travelers and to CBP. This rule will produce a consistent, modern VWP 
admission policy, strengthen national security through enhanced 
traveler vetting, expedite entry processing at land ports of entry, 
collect Form I-94W information electronically, and reduce inadmissible 
traveler inspections, generating time and cost savings for CBP and VWP 
travelers.

III. Background

A. Visa Waiver Program

    Pursuant to section 217 of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1187, the Secretary of Homeland Security, in 
consultation with the Secretary of State, may designate countries for 
participation in the VWP if certain requirements are met. See 8 U.S.C. 
1187(c)(2). The INA also sets forth requirements for continued 
eligibility and termination of VWP status.
    Eligible citizens and nationals of VWP countries may apply for 
admission at a U.S. port of entry as nonimmigrant visitors for a period 
of ninety (90) days or less for business or pleasure without first 
obtaining a nonimmigrant B-1, B-2, or B-1/B-2 visa. These travelers, 
however, must comply with applicable regulations and be admissible 
under statutory and regulatory requirements.\2\ Other nonimmigrant 
visitors who are not from VWP countries, or visitors from VWP countries 
who are traveling for purposes other than business or pleasure, must 
obtain a visa from a U.S. Embassy or Consulate and generally must 
undergo an interview by consular officials overseas in advance of 
travel to the United States.
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    \2\ For VWP travelers arriving at the United States at air and 
sea ports of entry, the ESTA requirements as set forth in 8 CFR 
217.5 apply. ESTA requirements are described in detail in Section 
III(B) of the Background section of this document.
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1. Current CBP Processing of VWP Travelers at Land Ports of Entry
    The way in which a VWP traveler is processed at a land port of 
entry depends on the documentation the traveler presents upon 
application for admission. In some cases, the VWP traveler may be 
referred to secondary processing. Generally, in secondary processing, 
the traveler must complete a paper Form I-94W and pay a $6.00 
processing fee. CBP estimates that the paper Form I-94W takes 16 
minutes (0.2667 hours) to complete.\3\
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    \3\ Source: U.S. Customs and Border Protection. Supporting 
Statement for Paperwork Reduction Act Submission 1651-0111: Arrival 
and Departure Record (Forms I-94, I-94W) and Electronic System for 
Travel Authorization (ESTA). February 12, 2019. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201810-1651-001. 
Accessed May 22, 2019.
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    In secondary, once a VWP traveler completes the paper Form I-94W, a 
CBP officer enters the traveler's passport and paper Form I-94W 
information into an internal database and collects the traveler's 
biometric data (i.e., fingerprints and photograph). CBP uses the data 
collected on the paper Form I-94W to populate a database of crossing 
history and admission status in the United States. This database stores 
the admissions and departures of travelers entering or leaving the 
United States. The CBP officer also checks the visitor's personal 
information against lost and stolen passport databases, government 
watch lists, and other DHS resources. Based on this information, as 
well as an interview with the traveler, the CBP officer determines 
whether or not the traveler is admissible to the United States. If 
admissible, the CBP officer stamps the traveler's paper Form I-94W and 
passport, provides the traveler with the departure portion of the paper 
Form I-94W (``I-94W Departure Record'') and grants the traveler 
admission to the United States for a period of up to 90 days (``90-day 
VWP admission period'').\4\
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    \4\ Generally, admitted VWP visitors must surrender the I-94W 
Departure Record when leaving the United States. This allows CBP to 
accurately record traveler departures. However, admitted VWP 
travelers are not required to surrender the Form I-94W Departure 
Record when departing the United States for Canada or Mexico for a 
trip of less than 30 days. These travelers may retain their I-94W 
Departure Record so that when they resume their visit to the United 
States, via a land port of entry, they are not required to complete 
another paper Form I-94W. They may be readmitted into the United 
States for the balance of time remaining on their 90-day VWP 
admission period.
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    The processing of a VWP traveler at a land port of entry may be 
different if the traveler is within a current 90-day VWP admission 
period (meaning, the traveler has been processed and admitted into the 
United States under the VWP within the last 90 days, with or without a 
current ESTA travel authorization), or if the traveler has a current 
ESTA travel authorization, but is not within a current 90-day VWP 
admission period.
    In the former case, where the traveler is within a current 90-day 
VWP admission period, the traveler may generally be processed at CBP's 
primary inspection. This is because the information typically gathered 
during secondary processing was already captured earlier through either 
the traveler's ESTA application (if he or she first arrived in the 
United States by air or sea) or the Form I-94W (if he or she first 
arrived in the United States by land). This scenario typically occurs 
when a VWP traveler who has already been admitted into the United 
States takes a brief excursion into Canada or Mexico, and then seeks to 
re-enter the United States to resume his or her visit.
    In the latter case, when a VWP traveler has a valid ESTA travel 
authorization, but is not within a current 90-day VWP admission period, 
the traveler must go to secondary processing and pay the $6.00 
processing fee, but he or she does not need to complete the paper Form 
I-94W because CBP already has the traveler's relevant information 
through his or her ESTA application.
    If a traveler is refused admission to the United States under the 
VWP, he or she can visit the nearest U.S. Embassy or Consulate to apply 
for a nonimmigrant B-1, B-2, or B-1/B-2 visa. This visa would cost a 
traveler approximately $302 in fees and time costs to obtain.\5\ The 
overall U.S.

[[Page 18970]]

admission refusal rate for VWP travelers at land ports of entry is low. 
From fiscal year (FY) 2013 to FY 2017, CBP recorded 4.0 million VWP 
traveler arrivals at U.S. land ports of entry, with 99.9 percent of 
arrivals resulting in admissions to the United States and 0.1 percent 
resulting in refusals based on paper Form I-94W processing.\6\
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    \5\ The fees to obtain a nonimmigrant B-1, B-2, or B-1/B-2 visa 
include a $160.00 U.S. Department of State fee for DS-160: Online 
Nonimmigrant Visa Application processing and an estimated $40.00 in 
photo, courier, and other miscellaneous expenses. The time cost to 
obtain a nonimmigrant B-1, B-2, or B-1/B-2 visa is approximately 
$102, based on the estimated 5-hour time burden to obtain a 
nonimmigrant B-1, B-2, or B-1/B-2 visa (including the time spent 
completing Form DS-160: Online Nonimmigrant Visa Application, 
traveling to a U.S. Embassy or Consulate for the nonimmigrant B-1, 
B-2, or B-1/B-2 visa interview, waiting for the interview, and 
undergoing the interview) and a VWP traveler's hourly time value of 
$20.40. CBP bases the $20.40 hourly time value for VWP travelers on 
the U.S. Department of Transportation's (DOT) hourly time value of 
$20.40 for all-purpose, intercity travel by surface-modes, except 
high-speed rail. For the purposes of this analysis, CBP assumes that 
the DOT time value, reported in 2015 U.S. dollars, would be the same 
for 2019. Source of visa processing fee cost: U.S. Department of 
State. ``Fees for Visa Services.'' Available at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/fees-visa-services.html. Accessed May 7, 2018. Source 
of photo cost: U.S. Department of State. Supporting Statement for 
Paperwork Reduction Act Submission: 1405-0015, Application for 
Immigrant Visa and Alien Registration (Form DS-230). August 3, 2018. 
Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201808-1405-001. Accessed December 20, 2018. 
Source of other fees: CBP estimates. Source of VWP traveler's hourly 
time value: U.S. Department of Transportation, Office of 
Transportation Policy. The Value of Travel Time Savings: 
Departmental Guidance for Conducting Economic Evaluations Revision 2 
(2016 Update). ``Table 4 (Revision 2--2016 Update): Recommended 
Hourly Values of Travel Time Savings.'' September 27, 2016. 
Available at https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf. 
Accessed June 11, 2018.
    \6\ Email correspondence with CBP's Office of Field Operations 
on April 24, 2015 and May 17, 2018.
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2. Current CBP Processing of VWP Travelers at Air and Sea Ports of 
Entry
    A nonimmigrant noncitizen arriving at a U.S. air or sea port of 
entry under the VWP must obtain a travel authorization via ESTA prior 
to embarking on a carrier for travel to the United States. If the 
traveler does not have a travel authorization, he or she must hold an 
unexpired visa issued by a U.S. Embassy or Consulate. See Section 
217(a) of the INA, 8 U.S.C. 1187(a). See also 8 CFR part 217. The 
relevant history regarding this ESTA requirement is set forth below.
    In response to the events of September 11, 2001, Congress enacted 
the Implementing Recommendations of the 9/11 Commission Act of 2007, 
Public Law 110-53 (9/11 Act). To address aviation security 
vulnerabilities of the VWP, section 711 of the 9/11 Act required the 
Secretary of Homeland Security, in consultation with the Secretary of 
State, to develop and implement a fully automated electronic travel 
authorization system for VWP travelers visiting the United States. The 
system would collect biographical and other information the DHS 
Secretary deems necessary to evaluate, in advance of travel, the 
eligibility of the applicant to travel to the United States under the 
VWP, and whether such travel poses a law enforcement or security risk. 
See 8 U.S.C. 1187(h)(3)(A). Prior to the establishment of ESTA, VWP 
travelers could board planes to the United States and be found 
inadmissible upon arrival at CBP inspection. By establishing ESTA, DHS 
is able to identify whether the traveler is likely to be admissible 
upon arrival before the traveler embarks on travel to the United 
States.
    DHS established the electronic equivalent of the paper Form I-94W 
process at air and sea ports of entry as set forth in the ESTA Air and 
Sea IFR (73 FR 32440), published on June 9, 2008, and in the ESTA Air, 
Sea, and Fee Final Rule (80 FR 32267), published on June 8, 2015. ESTA 
provides for an electronic collection of the information required on 
the paper Form I-94W in advance of travel. ESTA fulfills the statutory 
requirements described in section 711 of the 9/11 Act.
    DHS stated in the ESTA Air and Sea IFR that the development and 
implementation of the ESTA program would eventually allow DHS to 
automate the requirement that VWP travelers complete a paper Form I-94W 
prior to being admitted to the United States. See 73 FR 32440 at 32443. 
While the ESTA Air and Sea IFR established the regulations for ESTA, 
section 711 of the 9/11 Act required DHS to announce implementation of 
a mandatory ESTA system by publication of a notice in the Federal 
Register no less than 60 days before the date on which ESTA would 
become mandatory for all VWP travelers. On November 13, 2008, DHS 
published such a notice in the Federal Register (73 FR 67354) 
announcing that ESTA would be mandatory for all VWP travelers traveling 
to the United States seeking admission at air and sea ports of entry 
beginning January 12, 2009. At that point, DHS began an informed 
compliance period during which VWP travelers who arrived without prior 
ESTA authorization were not refused admission on that basis, but were 
instead permitted to complete the paper I-94W upon arrival in the 
United States. As of June 29, 2010, however, VWP travelers have been 
required to receive a travel authorization through the ESTA website, 
https://www.cbp.gov/esta, prior to boarding a conveyance destined for a 
U.S. air or sea port of entry. See 80 FR 32267 at 32285. Travelers who 
do not receive authorization through ESTA may still apply for a 
nonimmigrant B-1, B-2, or B-1/B-2 visa issued by a U.S. Embassy or 
Consulate.
    On March 4, 2010, the United States Capitol Police Administrative 
Technical Corrections Act of 2009, Public Law 111-145, was enacted. 
Section 9 of this law, the Travel Promotion Act of 2009 (TPA), mandated 
that the Secretary of Homeland Security establish a fee for the use of 
ESTA and begin assessing and collecting the fee.
    On August 9, 2010, DHS published an interim final rule ``Electronic 
System for Travel Authorization (ESTA); Travel Promotion Fee and Fee 
for Use of the System'' in the Federal Register (75 FR 47701) 
(hereafter, ``ESTA Fee IFR'') announcing that beginning September 8, 
2010, a $4.00 ESTA operational fee would be charged to each ESTA 
applicant to ensure recovery of the full costs of providing and 
administering the system and an additional $10.00 Trade Promotion Act 
(TPA) fee would be charged to each ESTA applicant receiving travel 
authorization through September 30, 2015.\7\ See 8 U.S.C. 
1187(h)(3)(B), as amended, and 8 CFR 217.5(h).
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    \7\ On February 9, 2018, section 30203(a) of the Bipartisan 
Budget Act of 2018, Public Law 115-123, extended the sunset 
provision of the travel promotion fee through September 30, 2027. On 
December 20, 2019, section 806 of the Further Consolidated 
Appropriations Act of 2020, Public Law 116-94, increased the travel 
promotion fee from $10 to $17. CBP will be publishing a separate 
rule to reflect these legislative changes.
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    In response to the request for comments in the ESTA Air and Sea IFR 
and the ESTA Fee IFR, DHS received a total of 39 submissions. Most of 
these submissions contained comments providing support, voicing 
concerns, highlighting issues, or offering suggestions for 
modifications to the ESTA program. After review and analysis of the 
comments, on June 8, 2015, DHS published the ESTA Air, Sea, and Fee 
Final Rule in the Federal Register (80 FR 32267) with two substantive 
regulatory changes. The first change allows the Secretary of Homeland 
Security to adjust travel authorization validity periods on a per 
country basis from a general validity period of two years, to a three-
year maximum or to a lesser period of time. The second change concerns 
the TPA fee. In accordance with Section 605 of the Consolidated and 
Further Continuing Appropriations Act of 2015, DHS extended the end 
date for assessment of the Travel Promotion Act fee to September 30, 
2020. DHS also removed a specific reference to the Pay.gov payment 
system in order to allow for flexibility in how CBP may collect ESTA 
fees.
    The ESTA Air, Sea, and Fee Final Rule also outlines the various 
operational changes DHS has implemented since the ESTA program's 
inception based on the experience DHS gained from operating the ESTA 
program. For example, VWP travelers who provide an email address to DHS 
when they submit their application will receive an automated email 
notification indicating that their travel authorization will expire 
soon. DHS has also updated the information on the ESTA website to 
address some of the comments. Finally, DHS has also revised some of the 
ESTA questions to make them more understandable, removed one of the 
questions, and added some new questions to improve the screening of 
travelers before their travel to the United States.\8\ All these 
changes took effect on November 3, 2014.
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    \8\ The ESTA application and the paper Form I-94W are covered by 
OMB Control Number 1651-0111. The updated questions and additional 
questions were described in various notices regarding the extension 
and revision of information collection 1651-0111 requesting public 
comments published in the Federal Register on November 26, 2013 (78 
FR 70570), February 14, 2014 (79 FR 8984), December 9, 2014 (79 FR 
73096), June 23, 2016 (81 FR 40892), and August 31, 2016 (81 FR 
60014).

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[[Page 18971]]

    For more details regarding ESTA and the fees associated with ESTA, 
please see: ESTA Air and Sea IFR; ESTA Fee IFR; and ESTA Air, Sea, and 
Fee Final Rule. Additional information may also be found on the ESTA 
website at https://esta.cbp.dhs.gov.

B. Expanding ESTA to Land Ports of Entry

    From FY 2013 to FY 2017, CBP recorded 4.0 million VWP traveler 
arrivals at U.S. land ports of entry, with 99.9 percent of arrivals 
resulting in admissions to the United States and 0.1 percent resulting 
in refusals based on paper Form I-94W processing. Of the total 
arrivals, approximately 3.1 million (77.8 percent) were distinct, 
meaning that they corresponded to VWP travelers required to complete 
new paper Form I-94Ws and undergo related processing. These distinct 
travelers were either taking their first trip to the United States by 
land or they lacked valid Form I-94W Departure Records. The remaining 
888,000 arrivals (22.2 percent) were non-distinct, meaning that they 
corresponded to VWP travelers making repeat visits to the United States 
using an initial, valid Form I-94W Departure Record.\9\
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    \9\ Travelers with a valid Form I-94W Departure Record are those 
who departed the United States for Canada or Mexico for a trip of 
less than 30 days.
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    This interim final rule (hereafter ``ESTA Land IFR'') amends title 
8 of the CFR to implement ESTA for noncitizens who intend to travel to 
the United States under the VWP by land. These travelers must now 
submit an ESTA application instead of the paper Form I-94W. The rule 
requires each noncitizen traveling to the United States by land under 
the VWP to obtain from CBP a travel authorization via ESTA prior to 
application for admission to the United States. With this expansion of 
ESTA, all VWP travelers will be required to have a travel authorization 
in advance of applying for admission to the United States.
    As summarized in the Executive Summary and in Section IV(B), 
``Executive Orders 13563 and 12866,'' this rule has many benefits. In 
addition to fulfilling a statutory mandate, ESTA serves the twin goals 
of promoting border security and legitimate travel to the United 
States. ESTA increases national security and provides efficiencies in 
the screening of international travelers by vetting subjects of 
potential interest before admittance into the United States. The ESTA 
Land IFR also generates various additional benefits to foreign 
travelers and DHS (particularly CBP).
    VWP travelers intending to arrive at U.S. land ports of entry will 
benefit from ESTA, especially when the traveler already has a travel 
authorization or applies for a travel authorization before traveling to 
the United States. By implementing ESTA at land ports of entry, 
travelers will no longer have to complete the paper Form I-94W at the 
land port of entry. This will shorten the admission process at U.S. 
land ports of entry for both VWP travelers and DHS. Travelers who 
already have an ESTA travel authorization that is still valid will not 
have to obtain a new travel authorization or complete the paper Form I-
94W when entering at a land port of entry. VWP travelers will also save 
time by obtaining a travel authorization in advance of travel, which 
may prevent them from spending time and money to travel to a U.S. land 
port of entry and possibly be refused admission.
    ESTA enables DHS to determine whether a noncitizen is eligible to 
travel to the United States under the VWP and to identify potential 
grounds of inadmissibility before the VWP traveler applies for 
admission at a U.S. land port of entry. By making these determinations 
before the noncitizen embarks on travel to the United States, DHS will 
likely be able to reduce the number of noncitizens arriving at U.S. 
ports of entry who are determined to be inadmissible upon arrival. In 
turn, this will reduce the number of inadmissible noncitizens that DHS 
must process for appropriate refusal or removal proceedings upon 
arrival. Furthermore, by implementing ESTA at land ports of entry, DHS 
will also likely reduce wait times for other international travelers 
arriving at U.S. ports of entry. With reduced wait times, DHS will 
better allocate existing resources towards screening passengers at U.S. 
ports of entry, thereby facilitating legitimate travel.
    As explained more fully in section III(B)(1), ``Obtaining a Travel 
Authorization,'' as a result of this interim final rule, VWP travelers 
entering the United States at land ports of entry must receive an ESTA 
travel authorization prior to application for admission to the United 
States. This time frame is different from the time frame applicable to 
VWP travelers entering the United States at air and sea ports of entry. 
VWP travelers entering the United States at air and sea ports of entry 
must have a travel authorization prior to boarding a carrier destined 
for the United States. The different time frames take into account the 
fact that travel by land is often more spontaneous, and sometimes last 
minute, and often not by a carrier. DHS will not require land carriers 
(such as bus and rail companies) to screen passengers or necessitate a 
travel authorization in advance of arrival to a U.S. land port of 
entry. Other than the different time frames, the ESTA procedures and 
requirements for VWP travelers arriving at land ports of entry will be 
the same as the procedures and requirements for VWP travelers arriving 
at air or sea ports of entry as provided in 8 CFR 217.5. These 
procedures and requirements are explained below.
1. Obtaining a Travel Authorization
    VWP travelers obtain the required travel authorization by 
electronically submitting to CBP, via the ESTA website (https://esta.cbp.dhs.gov), an application consisting of biographical and other 
information specified by the Secretary of Homeland Security. The ESTA 
application captures all data elements included on the paper Form I-
94W. To apply for a travel authorization, a traveler should select the 
``Apply'' feature on the ESTA web page, enter his or her biographical 
and travel information as prompted by the fields marked with a red 
asterisk (the mandatory data elements), enter the optional data 
elements, if known, and submit the application information. A third 
party (such as a commercial carrier, travel agent, visa service 
provider, or relative) may submit an ESTA application on a traveler's 
behalf. For each travel authorization, the traveler must pay a fee.
    CBP will use information included in a traveler's ESTA application 
to determine the eligibility of the noncitizen to travel to the United 
States and whether the visitor poses a law enforcement or security 
risk.\10\
---------------------------------------------------------------------------

    \10\ See 8 U.S.C. 1187(h)(3).
---------------------------------------------------------------------------

    CBP will check information submitted by the traveler, or on behalf 
of a traveler, in his or her ESTA application against all appropriate 
databases, including lost and stolen passport databases and appropriate 
watch lists. CBP may deny the traveler's ESTA application if: (1) A 
noncitizen does not provide the required information; (2) a noncitizen 
provides false information; (3) any evidence exists indicating 
ineligibility to travel to the United States under the VWP; or (4) the 
travel poses a law enforcement or security risk. Consistent with 
section 711 of the 9/11 Act, the Secretary, acting through CBP, retains

[[Page 18972]]

discretion to revoke a travel authorization determination at any time 
and for any reason. See 8 U.S.C. 1187(h)(3)(C)(i). If a noncitizen's 
travel authorization application is denied, the noncitizen may still 
apply to obtain a visa to travel to the United States from an 
appropriate U.S. Embassy or Consulate.
    To verify that the ESTA application has been approved and a travel 
authorization has been issued, the traveler must return to the ESTA 
website to view his or her ESTA status. CBP requires a minimum of two 
hours to make an ESTA application determination. While most 
determinations will generally be made in approximately two hours, there 
is no guarantee that an application will be processed in that time 
frame and some determinations may take longer. In most cases, the 
applicant will receive an ESTA decision within 72 hours. An applicant 
may contact the ESTA Help Desk at the Traveler Communications Center by 
telephone at 1-202-325-5120 for assistance in processing his or her 
pending application.
    DHS recommends that travelers apply for a travel authorization 
early in the travel planning process, rather than waiting until the 
traveler is approaching the port of entry. By planning ahead, a 
traveler who is unable to obtain a travel authorization will still have 
time to apply for a nonimmigrant B-1, B-2, or B-1/B-2 visa from a U.S. 
Embassy or Consulate before travel.
2. Travel Authorization
    A travel authorization is a positive determination that a 
noncitizen is eligible to travel to the United States under the VWP 
during the period of time the travel authorization is valid. A travel 
authorization is not a determination that the noncitizen is ultimately 
admissible into the United States. That determination is made by a CBP 
officer only after an applicant for admission is inspected by a CBP 
officer at a U.S. port of entry. In addition, ESTA is not a visa or a 
process that acts in lieu of any visa issuance determination made by 
the Department of State.
3. Timeline for Obtaining a Travel Authorization
    Each VWP traveler arriving at a U.S. land port of entry must have a 
travel authorization prior to application for admission at a land port 
of entry. A VWP traveler who does not have a valid travel authorization 
at the time he or she applies for admission to the United States at a 
land port of entry will be ineligible for admission under the VWP.
    If a VWP traveler arrives at a U.S. land port of entry without a 
valid travel authorization and wants to apply for one, the traveler 
will be permitted to withdraw his or her application for admission, 
return to Mexico or Canada, submit an ESTA application there, and await 
receipt of a travel authorization in Mexico or Canada before returning 
to a U.S. port of entry. Receipt of a travel authorization will take at 
least two hours from the time that it is submitted. If the traveler's 
ESTA application is approved, the traveler may return to a U.S. land 
port of entry to seek admission. If the traveler's ESTA application is 
not approved, the traveler is not eligible to seek admission to the 
United States under the VWP. In such a case, the traveler may apply for 
a nonimmigrant B-1, B-2, or B-1/B-2 visa from a U.S. Embassy or 
Consulate and then reapply for admission to the United States.
    It should be noted that because VWP travelers arriving at U.S. land 
ports of entry will need to have a travel authorization prior to 
application for admission, rather than prior to boarding a carrier, 
land carriers transporting VWP travelers are not responsible for 
confirming that the VWP traveler is ESTA-compliant. For example, this 
interim rule would not require bus companies to confirm that their 
passengers are ESTA-compliant or to transmit any ESTA data elements on 
behalf of these travelers to CBP.
4. Required ESTA Data Elements
    The current ESTA regulations provide that ESTA will collect such 
information as the Secretary deems necessary to issue a travel 
authorization as reflected on the ESTA application. See 8 CFR 217.5(c). 
This information is included on the ESTA website. VWP travelers 
arriving at land ports of entry will have to provide these same data 
elements. The ESTA website also includes some optional data elements. 
This data should be provided, if known.
5. Scope of Travel Authorization
    Consistent with section 711 of the 9/11 Act, a travel authorization 
does not restrict, limit, or otherwise affect the authority of CBP to 
determine a noncitizen's admissibility into the United States during 
inspection at a port of entry.
6. Duration
    The same general rule and exceptions regarding the duration of a 
travel authorization as set forth in 8 CFR 217.5(d) will apply to a 
travel authorization issued for travel to air, sea, and land ports of 
entry. DHS will notify an individual with an approved ESTA 
authorization at the email address he or she provided in the 
application when his or her ESTA expiration date is approaching. 
Subject to certain exceptions, each travel authorization will generally 
be valid for a period of two years from the date of issuance, meaning a 
noncitizen may travel to the United States repeatedly within a two-year 
period without obtaining another authorization.
7. Events Requiring New Travel Authorization
    The events requiring a new travel authorization as set forth in 8 
CFR 217.5(e) and summarized below are the same regardless of whether 
the travel authorization was issued for travel to U.S. air, sea, or 
land ports of entry.
    A VWP traveler must obtain a new travel authorization approval if 
any of the following conditions occurs: (1) The noncitizen is issued a 
new passport; (2) the noncitizen changes his or her name; (3) the 
noncitizen changes his or her gender; (4) the noncitizen changes his or 
her country of citizenship; or (5) the circumstances underlying the 
noncitizen's previous responses to any of the ESTA application 
questions requiring a ``yes'' or ``no'' response (eligibility 
questions) have changed.
8. Fee
    The TPA mandated that the Secretary of Homeland Security establish 
a fee for the use of ESTA and begin assessing and collecting the fee. 
DHS implemented the fee requirements of the TPA in the ESTA Fee IFR and 
ESTA Air and Sea Final Rule. VWP travelers applying for a travel 
authorization to travel to U.S. air and sea ports of entry must pay a 
$4.00 ESTA operational fee and an additional $10.00 Travel Promotion 
Act fee through September 30, 2020.<SUP>11 12</SUP>
---------------------------------------------------------------------------

    \11\ If the ESTA application is denied, the applicant will be 
refunded the $10.00 Travel Promotion Act fee. The fee was originally 
authorized by the TPA through September 30, 2015, but was extended 
through September 2020 by the Consolidated and Further Continuing 
Appropriations Act of 2015.
    \12\ On February 9, 2018, section 30203(a) of the Bipartisan 
Budget Act of 2018, Public Law 115-123, extended the sunset 
provision of the travel promotion fee through September 30, 2027. On 
December 20, 2019, section 806 of the Further Consolidated 
Appropriations Act of 2020, Public Law 116-94, increased the travel 
promotion fee from $10 to $17. CBP will be publishing a separate 
rule to reflect these legislative changes. CBP has not yet begun 
collecting the higher fee, but will do so after the fee rule has 
been published.
---------------------------------------------------------------------------

    This same fee will apply to VWP travelers arriving at U.S. land 
ports of entry. For a detailed discussion about this fee, see the ESTA 
Fee IFR and the ESTA Air and Sea Final Rule.

[[Page 18973]]

    It is important to note that a noncitizen may travel to the United 
States repeatedly within the validity period using the same travel 
authorization, regardless of the mode of transportation used. 
Therefore, VWP travelers who intend to arrive in the United States at a 
land port of entry and already have a travel authorization that is 
still valid will not need to apply for a new travel authorization or 
pay another ESTA fee.
    However, a VWP traveler arriving at U.S. land ports of entry will 
still have to pay the $6.00 I-94W fee provided for in 8 CFR 
103.7(d)(5), unless he or she is entering within a current 90-day VWP 
admission period. This fee covers processing costs, including those 
involved in collecting traveler fingerprints.\13\ Although the 
collection of the I-94W data elements will now be done electronically 
through ESTA, travelers at the land border will continue to receive a 
printed departure record. This printed departure record is equivalent 
to the departure portion of the paper Form I-94W. This document will be 
stamped by the CBP officer who processes the traveler's admission and 
should be retained by the traveler while he or she is in the United 
States. VWP visitors who depart from the United States via a land port 
will generally be required to surrender this document upon leaving the 
United States.\14\ CBP will enter the departure information manually 
into the appropriate CBP database.\15\ The $6.00 fee supports CBP's 
efforts in issuing these departure records and entering the departure 
information.
---------------------------------------------------------------------------

    \13\ Travelers arriving by air and sea pay the same fee; 
however, the fee is included in the price of the carrier tickets and 
is not collected separately upon arrival.
    \14\ Admitted VWP travelers will not be required to surrender 
the printed departure record when departing the United States for 
Canada or Mexico for a trip of less than 30 days. These travelers 
may retain their printed departure record so that when they resume 
their visit to the United States, CBP will not have to print another 
departure record and the traveler may be readmitted into the United 
States for the balance of time remaining on his or her I-94W 
Departure Record.
    \15\ This process differs from the departure process at air and 
sea ports of entry where departure information is received and 
recorded electronically.
---------------------------------------------------------------------------

9. Judicial Review
    Section 711 of the 9/11 Act amended section 217 of the INA to 
provide that no court shall have jurisdiction to review an eligibility 
determination under the electronic travel authorization system. See INA 
section 217(h)(3)(C)(iv), 8 U.S.C. 1187. Accordingly, a determination 
under ESTA will be final and, notwithstanding any other provision of 
the law, is not subject to judicial review.

C. Discussion of Regulatory Changes

    DHS is amending parts 103, 212, 217, and 286 of title 8 of the CFR, 
as set forth below, in order to expand the ESTA requirements to VWP 
travelers arriving at U.S. land ports of entry and to update the 
regulations.
1. 8 CFR Part 103
    Section 103.7(d)(5) of the DHS regulations (8 CFR 103.7), titled 
``Form I-94W,'' enumerates the $6.00 fee associated with the issuance 
of Form I-94W. The paragraph is revised to incorporate a definition of 
``issuance'' that reflects the new procedure involved in electronically 
collecting the traveler's information, then using that information to 
print a departure record for VWP travelers entering the United States 
at land ports of entry. The new provision will now clarify that ``the 
term `issuance' includes, but is not limited to, the creation of an 
electronic record of admission or arrival/departure by DHS following an 
inspection performed by a CBP officer, which may be provided to the 
nonimmigrant as a printout or other confirmation of the electronic 
record stored in DHS systems.''
2. 8 CFR Part 212
    Section 212.1 of the DHS regulations (8 CFR 212.1), titled 
``Documentary requirements for nonimmigrants,'' refers to the Visa 
Waiver Pilot Program. On October 30, 2000, the Visa Waiver Permanent 
Program Act, Public Law 106-396, established the VWP as a permanent 
program and replaced the Visa Waiver Pilot Program. Therefore, this 
section is amended to remove the reference to the ``Visa Waiver Pilot 
Program'' and refer instead to the ``Visa Waiver Program.''
3. 8 CFR Part 217
    Section 217.1 of the DHS regulations (8 CFR 217.1), titled 
``Scope,'' refers to the Visa Waiver Pilot Program. This section is 
amended to remove the reference to the ``Visa Waiver Pilot Program'' 
and instead refer to the ``Visa Waiver Program (VWP).''
    Section 217.2 of the DHS regulations (8 CFR 217.2) describes the 
eligibility requirements to travel under the VWP. Specifically, Sec.  
217.2(b)(1) provides that in addition to meeting all the requirements 
for the ``Visa Waiver Pilot Program,'' each applicant must possess a 
valid, unexpired passport issued by a designated country and present a 
completed, signed Form I-94W. This provision is amended to delete the 
reference to Form I-94W and add the new requirement to obtain a travel 
authorization via ESTA. Also, the paragraph is amended to delete the 
reference to the ``Visa Waiver Pilot Program'' and refer instead to the 
``Visa Waiver Program.''
    This rule also makes non-substantive amendments to Sec.  217.2 to 
make the regulation current, correct, and consistent. Specifically, 
Sec. Sec.  217.2(a), (c), and (d) and 217.3(b) are amended to delete 
the references to the ``Visa Waiver Pilot Program'' and refer instead 
to the ``Visa Waiver Program (VWP).'' These provisions are also being 
updated by replacing the legacy Immigration and Naturalization Service 
position title (``immigration officer'') with the current DHS position 
title (``CBP officer'').
    Section 217.5 (8 CFR 217.5) sets forth the requirements for ESTA. 
In particular, Sec.  217.5(a) requires nonimmigrant noncitizens 
intending to travel by air or sea to the United States under the VWP to 
receive a travel authorization prior to boarding a carrier destined for 
the United States. This provision is amended to require nonimmigrant 
noncitizens intending to travel by land to the United States under the 
VWP to obtain a travel authorization prior to application for admission 
to the United States at a land port of entry.
    Section 217.5(b) specifies the time frames for obtaining a travel 
authorization through ESTA for VWP travelers arriving at air and sea 
ports of entry. The paragraph is amended to also specify the time frame 
for obtaining a travel authorization for VWP travelers arriving at land 
ports of entry, i.e., prior to application for admission to the United 
States. Current Sec.  217.5(c) provides that the DHS Secretary may 
collect certain information to issue a travel authorization and refers 
to the Form I-94W. When the ESTA program is implemented at U.S. land 
ports of entry, DHS will no longer require VWP travelers to complete 
the Form I-94W. Therefore, the paragraph is amended by removing the 
references to the Form I-94W and referring instead to ESTA.
    Current Sec.  217.5(g) provides that once ESTA is implemented as a 
mandatory program, 60 days following publication by the Secretary of a 
notice in the Federal Register, citizens and eligible nationals of 
countries that participate in the VWP must comply with the requirements 
of this section. It further provides that as new countries are added to 
the VWP, citizens and eligible nationals of those countries will be 
required to obtain a travel authorization prior to traveling to the 
United States under the VWP. This language is outdated because it has 
been overtaken by the following events. First, the

[[Page 18974]]

Secretary published the referenced notice in the Federal Register on 
November 13, 2008 (73 FR 67354), and ESTA was implemented as a 
mandatory program for VWP travelers arriving at air and sea ports 60 
days later. Second, this interim final rule expanding ESTA to VWP 
travelers arriving at land ports of entry will be effective 30 days 
after publication. Third, the provision about new countries is now 
fully covered by the general provision about travel authorization in 
Sec.  217.5(a). Therefore, the outdated language is deleted.
4. 8 CFR Part 286
    Part 286 of the DHS regulations (8 CFR part 286) concerns 
immigration user fees. Specifically, Sec.  286.9 describes the fee for 
processing applications and issuing documentation at land border ports 
of entry. This section will be amended to delete the references to the 
``Visa Waiver Pilot Program'' and refer instead to the ``Visa Waiver 
Program.''

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

1. Procedural Rule Exception
    The Administrative Procedure Act (APA) generally requires agencies 
to publish a notice of proposed rulemaking in the Federal Register (5 
U.S.C. 553(b)) and provide interested persons the opportunity to submit 
comments (5 U.S.C. 553(c)). However, the APA provides an exception to 
this prior notice and comment requirement for ``rules of agency 
organization, procedure, or practice'' 5 U.S.C. 553(b)(A). This interim 
final rule is a procedural rule promulgated for efficiency purposes 
that falls within this exception.
    This rule is procedural because it merely changes the method of 
submission for an existing reporting requirement for nonimmigrant 
noncitizens pursuant to existing statutes and regulations. See 8 U.S.C. 
1103, 1184 and 1187. See also 8 CFR 212.1, 299.1, and 8 CFR parts 2 and 
217. The rule merely changes the manner in which noncitizens seeking 
admission to the United States under the VWP, at ports of entry along 
the land border, present information to DHS and does not alter the 
rights or interests of those noncitizens as they seek admission to the 
United States. Such arriving noncitizens will no longer be required to 
complete and submit the paper Form I-94W. Instead, all required 
information will be submitted to DHS electronically through the ESTA 
website. In addition, this rule neither affects the substantive 
criteria by which CBP officers inspect noncitizens upon arrival nor the 
nature of the information at CBP's disposal.
2. Foreign Affairs Function Exception
    This interim final rule is also exempt from the rulemaking 
provisions of the Administrative Procedure Act (APA) pursuant to 5 
U.S.C. 553(a)(1) as it involves a foreign affairs function of the 
United States. This rule advances the President's foreign policy goals 
and directly involves relationships between the United States and its 
noncitizen visitors.
    ESTA is an integral part of the administration of the VWP, a 
program that involves an inherently foreign affairs function of the 
United States. Specifically, the VWP, which is administered by DHS in 
consultation with the Department of State, enables eligible citizens or 
nationals of designated countries to travel to the United States for 
tourism or business for stays of 90 days or less without first 
obtaining a visa, provided they meet certain requirements. Among other 
things, a traveler must have a valid authorization through ESTA. As 
part of the ESTA screening process, CBP reviews available information 
regarding ESTA applicants to determine whether they present a concern 
to U.S. national security or law enforcement (to include immigration 
enforcement) interests. Accordingly, any rulemaking actions undertaken 
to implement ESTA at land ports of entry are exempt from APA notice and 
comment requirements. However, DHS is interested in receiving public 
comments on this interim final rule and, therefore, is providing the 
public with the opportunity to comment without delaying implementation 
of this rule.

B. Executive Orders 13563 and 12866

    Executive Orders (EOs) 13563 (``Improving Regulation and Regulatory 
Review'') and 12866 (``Regulatory Planning and Review'') direct 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility.
    This rule is not a ``significant regulatory action,'' under section 
3(f) of Executive Order 12866. Accordingly, the Office of Management 
and Budget has not reviewed this rule. Although this rule is not 
subject to the requirements of Executive Orders 13563 and 12866 due to 
the foreign affairs exception, DHS has reviewed this interim final rule 
to ensure its consistency with the regulatory philosophy and principles 
set forth in those Executive orders. DHS has also prepared a regulatory 
impact assessment to help inform stakeholders of the impacts of this 
rule, which DHS has summarized below. The complete assessment can be 
found in the public docket for this rulemaking at www.regulations.gov.
1. Purpose of Rule
    This rule will extend the regulatory requirements of ESTA to the 
land environment per the 9/11 Act. For VWP travelers arriving at U.S. 
land ports of entry (POEs), all the ESTA requirements currently in 8 
CFR 217.5 will remain the same as the requirements for VWP travelers 
arriving at air and sea ports, except for the time frame for obtaining 
the travel authorization. Under the ESTA Land IFR, VWP travelers 
intending to travel to the United States by land must receive a travel 
authorization prior to application for admission to, rather than prior 
to embarking on a carrier destined for, the United States. These 
travelers may obtain the required travel authorization by submitting an 
electronic application to CBP through the ESTA website (https://esta.cbp.dhs.gov/esta/) and paying the ESTA application fee, which 
consists of an operational fee and Travel Promotion Act (TPA) fee valid 
until FY 2021.\16\ The ESTA application serves as an electronic version 
of the paper Form I-94W, asking for the same biographical, personal, 
and trip-related information currently requested on the paper Form I-
94W as well as several additional security-related questions not on the 
paper Form I-94W but typically asked during paper Form I-94W 
processing. CBP will use the ESTA application information to assess a 
traveler's likely admissibility and any potential risks to the United 
States. Based on this assessment, CBP will either grant or deny an ESTA 
travel authorization, which will generally take two hours for CBP to 
complete. If CBP grants an ESTA travel authorization, the authorization

[[Page 18975]]

will generally be valid for a period of two years from the date of 
issuance (barring revocation), meaning that the VWP traveler granted 
the authorization may travel to the United States repeatedly within a 
two-year period without obtaining another authorization. If CBP denies 
an ESTA travel authorization, CBP will refer the VWP traveler denied 
the authorization to a U.S. Embassy or Consulate to apply to obtain a 
visa, like in the current paper Form I-94W environment.
---------------------------------------------------------------------------

    \16\ As previously stated, on February 9, 2018, section 30203(a) 
of the Bipartisan Budget Act of 2018, Public Law 115-123, extended 
the sunset provision of the travel promotion fee through September 
30, 2027. On December 20, 2019, section 806 of the Further 
Consolidated Appropriations Act of 2020, Public Law 116-94, 
increased the travel promotion fee from $10 to $17. See 8 U.S.C. 
1187(h)(3)(B), as amended, and 8 CFR 217.5(h). CBP will be 
publishing a separate rule to reflect these legislative changes. 
This analysis does not capture these changes.
---------------------------------------------------------------------------

    If a VWP traveler arrives without an advance ESTA travel 
authorization, CBP will generally advise the traveler to complete the 
ESTA application in an area outside of the U.S. land POE. In this case, 
the traveler may be permitted to withdraw his or her application for 
admission, and once withdrawn, travel back to either Canada or Mexico, 
apply for the ESTA authorization there, and typically wait two hours to 
receive his or her authorization status. Once approved, the traveler 
can then return to a U.S. land POE to apply for admission.
    In addition to fulfilling a statutory mandate, this rule will 
strengthen national security through enhanced traveler vetting, 
streamline Form I-94W processing through automation, reduce 
inadmissible traveler arrivals, and produce a uniform VWP admission 
policy in all U.S. travel environments, which will benefit VWP 
travelers, CBP, and the public.
2. Population Affected by Rule
    This rule will affect VWP travelers, CBP, and the public. Due to 
numerous factors that affect travel, CBP uses two different projection 
methods to estimate the population of VWP travelers affected by this 
rule over a 10-year period of analysis spanning from FY 2019 to FY 
2028. Under these methods, CBP estimates that VWP travelers will submit 
between 3.2 million and 4.1 million ESTA applications for land 
admission during the period of analysis, though CBP will deny about 
3,200 to 4,100 of these applications and related travel authorizations 
(see Table 1).\17\ These denials will be higher with ESTA's enhanced 
vetting, though the extent is unknown.\18\ Given ESTA's existing 
requirements in the U.S. air and sea environments, some of the 
application figures in Table 1 may correspond to travelers who already 
have valid ESTA travel authorizations first obtained for travel to the 
United States by air and sea that will allow them to avoid completing 
travel authorizations with this rule. However, the number of such 
travelers is unknown.
---------------------------------------------------------------------------

    \17\ Note that the estimates in this table are based on 
historical VWP traveler arrivals prior to FY 2019. Poland officially 
joined the VWP on November 11, 2019 (see 84 FR 60316 (November 8, 
2019)), and Croatia officially joined the VWP on December 1, 2021 
(see 86 FR 54029 (September 30, 2021)), so these estimates do not 
account for VWP travelers from Poland or Croatia. A small number of 
temporary business or pleasure visitors from Poland and Croatia who 
would now be eligible for the VWP (and subject to this rule) enter 
the United States at land POEs each year.
    \18\ Source: Email correspondence with CBP's Office of Field 
Operations on March 16, 2016.

                                                     Table 1--Projected ESTA Applications With Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Method 1 (primary estimate)--with rule                    Method 2--with rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               ESTA            ESTA                            ESTA            ESTA
                       Fiscal year                          application     application     Total ESTA      application     application     Total ESTA
                                                             approvals        denials      applications      approvals        denials      applications
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019....................................................         323,504             324         323,828         349,190             350         349,540
2020....................................................         323,504             324         323,828         359,317             360         359,677
2021....................................................         323,504             324         323,828         371,894             372         372,266
2022....................................................         323,504             324         323,828         385,281             386         385,667
2023....................................................         323,504             324         323,828         398,381             399         398,780
2024....................................................         323,504             324         323,828         411,926             412         412,338
2025....................................................         323,504             324         323,828         425,932             426         426,358
2026....................................................         323,504             324         323,828         440,413             441         440,854
2027....................................................         323,504             324         323,828         455,870             456         455,843
2028....................................................         323,504             324         323,828         470,870             471         471,341
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................       3,235,040           3,240       3,238,280       4,068,591           4,073       4,072,664
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.

    CBP plans to conduct extensive outreach on ESTA's requirements in 
the land environment prior to the effective date of this rule through 
electronic messaging, informational bulletins, and travel partner 
meetings.\19\ Nevertheless, some VWP travelers may not be fully aware 
of this rule's requirements when traveling to the United States via 
land. CBP estimates that 4 percent of the projected ESTA applications 
in FY 2019 will correspond to VWP travelers who arrive to U.S. land 
POEs without advance ESTA travel authorizations. CBP believes that this 
share will decrease to 1 percent of annual ESTA applications for FY 
2020 through FY 2028 due to the time and costs associated with arriving 
without an ESTA travel authorization and increased knowledge of ESTA's 
requirements.\20\ As shown in Table 2, CBP projects that 42,000 to 
51,000 VWP travelers will arrive to U.S. land POEs without advance ESTA 
travel authorizations over the period of analysis. CBP believes that 
the vast majority of these arrivals will occur at U.S. land POEs along 
the northern border based on the relatively high volume of VWP traveler 
arrivals at those POEs.\21\
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    \19\ Source: Correspondence with CBP's Office of Field 
Operations on November 26, 2018.
    \20\ Source: Email correspondence with CBP's Office of Field 
Operations on September 11, 2018.
    \21\ About 90 percent of VWP land traveler admissions between FY 
2013 and FY 2017 occurred at U.S. land POEs along the northern 
border. Sources: Email correspondence with CBP's Office of Field 
Operations on May 17, 2018, and correspondence on November 26, 2018.

[[Page 18976]]



 Table 2--Projected Arrivals of VWP Travelers at U.S. Land POEs Without
                   Advance ESTA Travel Authorizations
------------------------------------------------------------------------
                                   Method 1 (primary    Method 2-- with
---------------------------------   estimate)--with          rule
                                         rule        -------------------
                                 --------------------
                                  Total VWP traveler  Total VWP traveler
           Fiscal year             arrivals without    arrivals without
                                     advance ESTA        advance ESTA
                                        travel              travel
                                    authorizations      authorizations
------------------------------------------------------------------------
2019............................              12,953              13,982
2020............................               3,238               3,597
2021............................               3,238               3,723
2022............................               3,238               3,857
2023............................               3,238               3,988
2024............................               3,238               4,123
2025............................               3,238               4,264
2026............................               3,238               4,409
2027............................               3,238               4,558
2028............................               3,238               4,713
                                 ---------------------------------------
    Total.......................              42,095              51,214
------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.

    With this rule, CBP anticipates that the nearly 3,200 to 4,100 VWP 
travelers with ESTA application and travel authorization denials 
between FY 2019 and FY 2028 will forgo travel to the United States 
under the VWP altogether because they will be refused admission at U.S. 
land POEs without travel authorizations. These ESTA denials will result 
in 3,200 to 4,100 fewer distinct and total VWP traveler arrivals than 
projected in the absence of this rulemaking. CBP assumes that these 
ESTA denials will only affect the number of distinct arrivals 
anticipated with this rule and not the number of non-distinct arrivals. 
CBP estimates that the number of non-distinct arrivals of VWP travelers 
with valid departure coupons that generally allow for the avoidance of 
secondary processing and Form I-94W fee payments with this rule will be 
the same number projected without this rule, ranging from 1.0 million 
to 1.3 million over the period of analysis (see Table 3). The remaining 
3.6 million to 4.6 million VWP land traveler arrivals projected with 
this rule will represent distinct arrivals requiring CBP's primary and 
secondary processing and Form I-94W fee payments (see Table 3). In 
total, VWP land traveler arrivals are expected to reach 4.7 million to 
5.9 million during the period of analysis with this rule (see Table 3). 
To the extent that the application denials with this rule are greater 
than projected, the number of total arrivals will be fewer than shown 
in Table 3.

                                        Table 3--Projected Arrivals of VWP Travelers at U.S. Land POEs With Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Method 1 (primary estimate)--with rule                    Method 2--with rule
                                                         -----------------------------------------------------------------------------------------------
                       Fiscal year                           Distinct      Non-distinct                      Distinct      Non-distinct
                                                             arrivals        arrivals     Total arrivals     arrivals        arrivals     Total arrivals
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019....................................................         363,528         103,824         467,352         392,392         112,068         504,460
2020....................................................         363,528         103,824         467,352         403,771         115,318         519,089
2021....................................................         363,528         103,824         467,352         417,904         119,354         537,258
2022....................................................         363,528         103,824         467,352         432,948         123,651         556,599
2023....................................................         363,528         103,824         467,352         447,668         127,855         575,523
2024....................................................         363,528         103,824         467,352         462,889         132,202         595,091
2025....................................................         363,528         103,824         467,352         478,628         136,696         615,324
2026....................................................         363,528         103,824         467,352         494,901         141,344         636,245
2027....................................................         363,528         103,824         467,352         511,727         146,150         657,877
2028....................................................         363,528         103,824         467,352         529,126         151,119         680,245
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................       3,635,280       1,038,240       4,673,520       4,571,954       1,305,757       5,877,711
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Estimates may not sum to total due to rounding.

    This rule's impact on CBP operations depends on its changes to VWP 
traveler arrivals and processing, whereas its effect on the public 
depends on its ability to deter otherwise inadmissible VWP travelers 
from traveling to the United States.
3. Costs of Rule
    CBP will sustain ESTA-related maintenance, operation, and 
administration costs with this rule's implementation; however, CBP 
believes that the ESTA application fee collected from VWP travelers in 
the air, sea, and land environments will completely offset the ESTA 
Land IFR's costs to the agency. Thus, this rule will not introduce any 
unreimbursed costs to CBP. Instead, VWP travelers required to complete 
an ESTA application will bear all the direct costs of this rule. As 
stated earlier, this rule will require applicable VWP travelers to 
submit an ESTA application, pay the accompanying ESTA application fee, 
and receive a

[[Page 18977]]

travel authorization in advance of admission at a U.S. land POE. Each 
ESTA application will take a VWP traveler an estimated 23 minutes 
(0.3833 hours) to complete,\22\ at a time cost of $7.82.\23\ Depending 
on whether CBP approves or denies an application and travel 
authorization, VWP travelers must also pay a $4.00 operational fee, a 
$10.00 Travel Promotion Act fee (for approved applications only until 
FY 2021), and typically a foreign transaction fee with their ESTA 
application.\24\
---------------------------------------------------------------------------

    \22\ Source: U.S. Customs and Border Protection. Supporting 
Statement for Paperwork Reduction Act Submission 1651-0111: Arrival 
and Departure Record (Forms I-94, I-94W) and Electronic System for 
Travel Authorization (ESTA). February 12, 2019. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201810-1651-001. 
Accessed May 22, 2019.
    \23\ $20.40 hourly time value x 0.3833-hour time burden to 
complete ESTA application = $7.82 (rounded). CBP bases the $20.40 
hourly time value for VWP travelers on the U.S. Department of 
Transportation's (DOT) hourly time value of $20.40 for all-purpose, 
intercity travel by surface-modes, except high-speed rail. For the 
purposes of this analysis, CBP assumes that the DOT time value, 
reported in 2015 U.S. dollars, would be the same for 2019. Source: 
U.S. Department of Transportation, Office of Transportation Policy. 
The Value of Travel Time Savings: Departmental Guidance for 
Conducting Economic Evaluations Revision 2 (2016 Update). ``Table 4 
(Revision 2--2016 Update): Recommended Hourly Values of Travel Time 
Savings.'' September 27, 2016. Available at https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf. Accessed 
June 11, 2018.
    \24\ When CBP applies the average foreign currency transaction 
fee rate to the ESTA application and TPA fees, the full ESTA 
application cost is $14.42 for travelers granted travel 
authorizations through FY 2020.
---------------------------------------------------------------------------

    VWP travelers who arrive to U.S. land POEs without advance travel 
authorizations will incur time, travel, toll, and internet access 
expenses to travel to/from Canada and Mexico to apply and wait for an 
ESTA travel authorization. These travelers will sustain a $36.72 
additional CBP processing time cost, a $5.78 additional Canadian or 
Mexican entry processing time cost, a $4.30 travel cost, and a $40.80 
authorization wait time cost while traveling to/from Canada or Mexico 
to apply and wait for an ESTA travel authorization. Approximately 20 
percent of the population of VWP travelers projected to arrive to a 
U.S. land POE without an advance ESTA travel authorization (see Table 
2) will also sustain a toll cost of $3.50. Additionally, of the VWP 
travelers projected to arrive to a U.S. land POE without an advance 
ESTA travel authorization (see Table 2), an estimated 28 percent will 
pay a $2.00 fee to use an internet-accessible computer to apply and 
wait for their ESTA travel authorization. Considering these advance 
ESTA travel authorization and wait time costs and the number of VWP 
travelers projected to arrive without advance ESTA travel 
authorizations under this alternative, CBP estimates that these 
authorization requirements will introduce a total undiscounted cost of 
$4.2 million to VWP travelers between FY 2019 and FY 2028 according to 
CBP's primary estimation method.
    In total, VWP travelers will sustain $49.1 million in undiscounted 
time, fee, and other costs from this rule over the period of analysis 
under Method 1, CBP's primary estimation method. In present value 
terms, this cost to VWP travelers, which represents the total cost of 
the rule, will measure $38.5 million (using a 7 percent discount rate; 
see Table 4). On an annualized basis, the cost of this rule will equal 
$5.1 million under the primary estimation method, as shown in Table 4 
(using a 7 percent discount rate).

              Table 4--Total Monetized Present Value and Annualized Costs of Rule, FY 2019-FY 2028
                                               [2019 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
                                                         3% Discount rate                7% Discount rate
                                                 ---------------------------------------------------------------
                                                   Present value    Annualized     Present value    Annualized
                                                       cost            cost            cost            cost
----------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate).....................     $43,929,986      $4,999,936     $38,529,526      $5,126,858
Method 2........................................      53,652,846       6,106,554      46,527,106       6,191,040
----------------------------------------------------------------------------------------------------------------
Note: The estimates in this table are contingent upon CBP's expectations of the population affected by the rule
  and the discount rates applied.

4. Benefits of Rule
    ESTA's Form I-94W automation, advance-vetting and travel 
authorization denials, and uniform VWP admission policy will offer 
benefits (including cost savings) to VWP travelers, CBP, and the 
public. VWP travelers will experience 24 minutes (0.4 hours) of time 
savings per distinct arrival from avoided paper Form I-94W processing 
burdens,\25\ at a time cost saving of $8.16.\26\ Travelers denied 
travel authorizations who choose to forgo travel to the United States 
under the VWP will save 136 minutes (2.2667 hours) in avoided Form I-
94W completion time and inadmissible inspection time,\27\ at a time 
cost saving of $46.24, and $6.00 in avoided Form I-94W fee costs.\28\ 
Together with the savings from Form I-94W automation and travel that 
does not occur as a result of denied travel authorizations, VWP 
travelers will enjoy $29.8 million in undiscounted, monetized cost 
savings from this rule over the period of analysis under the primary 
estimation method. VWP travelers will also enjoy non-quantified 
benefits from this rule's uniform admission policy in all U.S. travel 
environments, which may prevent some travelers from being denied 
boarding on air or sea carriers because

[[Page 18978]]

they do not have an ESTA travel authorization.
---------------------------------------------------------------------------

    \25\ Sources: U.S. Customs and Border Protection. Supporting 
Statement for Paperwork Reduction Act Submission 1651-0111: Arrival 
and Departure Record (Forms I-94, I-94W) and Electronic System for 
Travel Authorization (ESTA). February 12, 2019. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201810-1651-001. 
Accessed May 22, 2019; email correspondence with CBP's Office of 
Field Operations on November 30, 2012.
    \26\ Based on the assumed hourly time value for VWP travelers of 
$20.40. $20.40 hourly time value x 0.4 hours saved from forgone 
paper Form I-94W application and certain secondary processing time 
burdens = $8.16 (rounded).
    \27\ This includes the time it takes to complete a paper Form I-
94W (16 minutes, or 0.2667 hours) and complete an inadmissible 
traveler inspection (120 minutes, or 2 hours). For the purposes of 
this analysis, CBP assumes that this time burden includes any time 
burdens incurred at a U.S. land POE as an inadmissible VWP traveler. 
This average time burden is greater than the time burden for VWP 
travelers who simply arrive to a U.S. land POE without an advance 
ESTA authorization because general inadmissibility examinations, 
such as those for travelers who are outright inadmissible due to 
reasons such as criminal history, outstanding warrant, or an expired 
passport, typically require examinations that are more thorough and 
require added processing time. Source: Email correspondence with 
CBP's Office of Field Operations on March 16, 2016, correspondence 
on November 26, 2018, and email correspondence on May 23, 2019.
    \28\ Based on the assumed hourly time value for VWP travelers of 
$20.40. $20.40 hourly time value x 2.2667 hours saved from forgone 
inadmissible arrival time burdens = $46.24 (rounded).
---------------------------------------------------------------------------

    Similar to VWP travelers, CBP will enjoy 8 minutes (0.1333 hours) 
of time savings per distinct arrival from this rule's Form I-94W 
automation,\29\ at a time cost saving of $11.58.\30\ CBP will also save 
120 minutes (2 hours) in avoided traveler inspection time per 
inadmissible traveler inspection avoided through ESTA's implementation 
in the land environment,\31\ at a time cost saving of $173.74.\32\ 
Overall, this rule's Form I-94W automation and forgone arrivals by 
those denied travel authorizations will offer $42.7 million in 
undiscounted, monetized cost savings to CBP between FY 2019 and FY 2028 
under the primary estimation method. Note that these are not budgetary 
savings--they are savings that CBP will dedicate to other agency 
mission areas, such as improving border security or expediting the 
processing of travelers. In addition to these monetized benefits, 
ESTA's advance and robust traveler screening process will offer the 
benefit of strengthened national security, which the public will enjoy.
---------------------------------------------------------------------------

    \29\ Sources: U.S. Customs and Border Protection. Supporting 
Statement for Paperwork Reduction Act Submission 1651-0111: Arrival 
and Departure Record (Forms I-94, I-94W) and Electronic System for 
Travel Authorization (ESTA). February 12, 2019. Available at https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201810-1651-001. 
Accessed May 22, 2019; email correspondence with CBP's Office of 
Field Operations on November 30, 2012.
    \30\ $86.87 fully loaded hourly wage rate for CBP officers x 
0.1333 hours saved per distinct VWP traveler arrival = $11.58 
(rounded). CBP bases the $86.87 hourly wage on the FY 2019 salary, 
benefits, and non-salary costs (i.e., fully loaded wage) of the 
national average of CBP officer positions. Source of wage rate: 
Email correspondence with CBP's Office of Finance on June 1, 2018.
    \31\ Source: Email correspondence with CBP's Office of Field 
Operations on March 16, 2016, correspondence on November 26, 2018, 
and email correspondence on May 23, 2019.
    \32\ Based on the fully loaded hourly wage rate for CBP officers 
of $86.87. $86.87 fully loaded hourly wage rate for CBP officers x 2 
hours saved per inadmissible traveler inspection avoided = $173.74 
(rounded).
---------------------------------------------------------------------------

    In total, this rule will offer undiscounted cost savings totaling 
$72.5 million between FY 2019 and FY 2028 under the primary estimation 
method. When discounted, these savings will measure $54.5 million in 
present value and $7.2 million on an annualized basis (using a 7 
percent discount rate; see Table 5). This rule will also strengthen 
national security and introduce a uniform VWP admission policy in all 
U.S. travel environments, providing non-quantifiable benefits to 
travelers and the public. These estimates vary according to the 
projection method and discount rate applied.

     Table 5--Total Monetized Present Value and Annualized Benefits (Cost Savings) of Rule, FY 2019-FY 2028
                                               [2019 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
                                                         3% Discount rate                7% Discount rate
                                                 ---------------------------------------------------------------
                                                   Present value    Annualized     Present value    Annualized
                                                      benefit         benefit         benefit         benefit
----------------------------------------------------------------------------------------------------------------
Method 1 (Primary Estimate).....................     $63,692,790      $7,249,260     $54,479,874      $7,249,260
Method 2........................................      79,452,253       9,042,940      67,252,192       8,948,784
----------------------------------------------------------------------------------------------------------------
Note: The estimates in this table are contingent upon CBP's expectations of the population affected by the rule
  and the discount rates applied.

5. Net Impact of Rule
    Table 6 summarizes the monetized and non-monetized costs and 
benefits of this rule to VWP travelers, CBP, and the public. As shown, 
the total monetized present value net benefit (or net cost saving) of 
this rule is $16.0 million, while its annualized net benefit totals 
$2.1 million according to CBP's primary estimation method (using a 7 
percent discount rate). In addition to these monetized impacts, this 
rule will strengthen national security through its advance and more 
robust traveler screening process and produce a uniform VWP admission 
policy in all U.S. travel environments, though these benefits are 
unmeasured. These estimates vary according to the projection method and 
discount rate applied.

                                  Table 6--Net Benefit of Rule, FY 2019-FY 2028
                                               [2019 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
                                                         3% Discount rate                7% Discount rate
                                                 ---------------------------------------------------------------
                                                   Present value    Annualized     Present value    Annualized
----------------------------------------------------------------------------------------------------------------
                                           Method 1 (Primary Estimate)
----------------------------------------------------------------------------------------------------------------
Total Cost:
    Monetized...................................     $43,929,986      $4,999,936     $38,529,526      $5,126,858
    Non-Monetized, but Quantified...............  ..............  ..............  ..............  ..............
    Non-Monetized and Non-Quantified............  ..............  ..............  ..............  ..............
Total Benefit, Incl. Cost Savings:
    Monetized (Cost Saving).....................      63,692,790       7,249,260      54,479,874       7,249,260
    Non-Monetized, but Quantified...............  ..............  ..............  ..............  ..............
                                                 ---------------------------------------------------------------
    Non-Monetized and Non-Quantified............  Strengthened national security
                                                     and uniform VWP admission
                                                              policy.
                                                  Strengthened national security
                                                     and uniform VWP admission
                                                              policy.
                                                 ---------------------------------------------------------------
    Total Net Benefit, Incl. Cost Savings:
        Monetized (Net Cost Saving).............     $19,762,805      $2,249,324     $15,950,348      $2,122,403
        Non-Monetized, but Quantified...........  ..............  ..............  ..............  ..............

[[Page 18979]]

 
        Non-Monetized and Non-Quantified........  Strengthened national security
                                                     and uniform VWP admission
                                                              policy.
                                                  Strengthened national security
                                                     and uniform VWP admission
                                                              policy.
----------------------------------------------------------------------------------------------------------------
                                                    Method 2
----------------------------------------------------------------------------------------------------------------
Total Cost:
    Monetized...................................     $53,652,846      $6,106,554     $46,527,106      $6,191,040
    Non-Monetized, but Quantified...............  ..............  ..............  ..............  ..............
    Non-Monetized and Non-Quantified............  ..............  ..............  ..............  ..............
Total Benefit, Incl. Cost Savings:
    Monetized (Cost Saving).....................      79,452,253       9,042,940      67,252,192       8,948,784
    Non-Monetized, but Quantified...............  ..............  ..............  ..............  ..............
                                                 ---------------------------------------------------------------
    Non-Monetized and Non-Quantified............  Strengthened national security
                                                     and uniform VWP admission
                                                              policy.
                                                  Strengthened national security
                                                     and uniform VWP admission
                                                              policy.
                                                 ---------------------------------------------------------------
    Total Net Benefit, Incl. Net Cost Savings:
        Monetized (Net Cost Saving)                  $25,799,407      $2,936,386     $20,725,086      $2,757,744
        Non-Monetized, but Quantified...........  ..............  ..............  ..............  ..............
                                                 ---------------------------------------------------------------
        Non-Monetized and Non-Quantified........  Strengthened national security
                                                     and uniform VWP admission
                                                              policy.
                                                  Strengthened national security
                                                     and uniform VWP admission
                                                              policy.
----------------------------------------------------------------------------------------------------------------
Notes: The estimates in this table are contingent upon CBP's expectations of the population affected by the rule
  and the discount rates applied. Estimates may not sum to total due to rounding.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of a proposed 
rule on small entities (i.e., small businesses, small organizations, 
and small governmental jurisdictions) when the agency is required to 
publish a general notice of proposed rulemaking for a rule. Since a 
general notice of proposed rulemaking is not necessary for this rule, 
CBP is not required to prepare a regulatory flexibility analysis for 
this rule.

D. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

E. Executive Order 13132

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

F. Executive Order 12988 Civil Justice Reform

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

G. Paperwork Reduction Act

    An agency may not conduct, and a person is not required to respond 
to, a collection of information unless the collection of information 
displays a valid control number assigned by the Office of Management 
and Budget (OMB).
    OMB-approved collection 1651-0111 will be amended to reflect the 
new applicants that will be using the ESTA website as a result of this 
interim final rule. CBP estimates that this rule will result in an 
additional 323,828 respondents (ESTA applicants) annually and an 
additional 124,123 burden hours.\33\ Of the 323,828 new ESTA 
respondents, CBP estimates that 323,504 will receive a travel 
authorization and 324 will not. Collection 1651-0111 will be revised to 
reflect the new total annual estimates for ESTA as follows:
---------------------------------------------------------------------------

    \33\ CBP uses the number of ESTA applications projected in FY 
2019 under Method 1 of the regulatory impact analysis for this 
estimate because it is CBP's primary estimation method.
---------------------------------------------------------------------------

    Estimated number of annual respondents: 23,333,828.
    Estimated number of annual responses: 23,333,828.
    Estimated time burden per response: 23 minutes (0.3833 hours).
    Estimated total annual time burden: 8,943,856 hours.
    These respondents include new and repeat ESTA applicants. Only new 
applicants or applicants whose authorization has expired will be 
required to pay the ESTA fee. The additional 323,828 ESTA applicants 
introduced with this rule will pay the ESTA fee, which will result in 
an additional estimated cost of $4,530,352 for this collection of 
information. This cost is based on the additional number of respondents 
granted a travel authorization through ESTA annually (323,504) 
multiplied by (x) the $14.00 ESTA fee to apply and receive a travel 
authorization = $4,529,056, plus the additional number of respondents 
denied a travel authorization through ESTA (324) multiplied by (x) the 
$4.00

[[Page 18980]]

ESTA operational fee = $1,296, for a total of $4,530,352.\34\
---------------------------------------------------------------------------

    \34\ These costs do not account for foreign transaction fees 
that respondents may incur with their ESTA application.
---------------------------------------------------------------------------

    OMB-approved collection 1651-0111 will also be revised to reflect 
the elimination of CBP's paper Form I-94W for land travelers, which is 
an additional result of this rule. The current approved number of 
estimated annual respondents for the paper Form I-94W of 941,291 will 
be removed. Respondents will now be categorized under ``ESTA'' on the 
collection because the paper Form I-94W data will now be collected 
electronically through ESTA.

H. Privacy Interests

    DHS published an ESTA Privacy Impact Assessment (PIA) for the 
interim final rule announcing ESTA at air or sea ports of entry on June 
9, 2008. Additionally, at that time, DHS prepared a separate System of 
Record Notice (SORN) that was published in conjunction with the IFR on 
June 9, 2008. DHS has updated these documents since that time and the 
most current ESTA PIA and SORN are available for viewing at: https://www.dhs.gov/privacy-documents-us-customs-and-border-protection.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Immigration, Privacy, 
Reporting and recordkeeping requirements, Surety bonds.

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passport and visas, Reporting and recordkeeping requirements.

8 CFR Part 217

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

8 CFR Part 286

    Air carriers, Immigration, Maritime carriers, Reporting and 
recordkeeping.

Amendments to the Regulations

    For the reasons stated in the preamble, DHS is amending 8 CFR parts 
103, 212, 217, and 286 as set forth below.

PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS; 
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 continues to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356, 1365b; 31 U.S.C. 9701; Pub. L. 107-296, 116 Stat. 2135 (6 
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 
Comp., p. 166; 8 CFR part 2; Pub. L. 112-54; 125 Stat. 550; 31 CFR 
part 223.


0
2. Amend Sec.  103.7 by revising paragraph (d)(5) to read as follows:


Sec.  103.7  Fees.

* * * * *
    (d) * * *
    (5) Form I-94W. For issuance of Form I-94W or other Nonimmigrant 
Visa Waiver Arrival/Departure record at a land border port-of-entry 
under section 217 of the Act: $6.00. The term `issuance' includes, but 
is not limited to, the creation of an electronic record of admission or 
arrival/departure by DHS following an inspection performed by a CBP 
officer, which may be provided to the nonimmigrant as a printout or 
other confirmation of the electronic record stored in DHS systems.
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
3. The authority citation for part 212 continues to read as follows:

    Authority:  6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and 
note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 
1255, 1359; section 7209 of Pub. L. 108-458 (8 U.S.C. 1185 note); 
Title VII of Pub. L. 110-229 (8 U.S.C. 1185 note); 8 CFR part 2; 
Pub. L. 115-218.
    Section 212.1(q) also issued under section 702, Pub. L. 110-229, 
122 Stat. 754, 854.


Sec.  212.1  [Amended]

0
4. Amend Sec.  212.1 by removing the word ``Pilot'' from the heading 
and text of paragraph (i).

PART 217--VISA WAIVER PROGRAM

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

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


Sec.  217.1  [Amended]

0
6. Amend Sec.  217.1 by removing the word ``Pilot'' and removing the 
parenthetical ``(VWPP)'' and adding in its place ``(VWP)''.

0
7. Amend Sec.  217.2 as follows:
0
a. Remove the word ``Pilot'' wherever it appears; and
0
b. Revise paragraphs (b)(1) and (c)(2).
    The revisions read as follows:


Sec.  217.2  Eligibility.

* * * * *
    (b) * * *
    (1) General. In addition to meeting all of the requirements for the 
Visa Waiver Program specified in section 217 of the Act, each applicant 
must possess a valid, unexpired passport issued by a designated country 
and obtain a travel authorization via the Electronic System for Travel 
Authorization (ESTA) as provided in Sec.  217.5.
* * * * *
    (c) * * *
    (2) Applicants arriving at land border ports of entry. Any Visa 
Waiver Program applicant arriving at a land border port of entry must 
provide evidence to the CBP officer of financial solvency and a 
domicile abroad to which the applicant intends to return. An applicant 
arriving at a land border port of entry will be charged a fee as 
prescribed in Sec.  103.7(d)(5) of this chapter for issuance of Form I-
94W, Nonimmigrant Visa Waiver Arrival/Departure Form. A round-trip 
transportation ticket is not required.
* * * * *


Sec.  217.3  [Amended]

0
8. Amend Sec.  217.3(b) by removing the word ``Pilot''.

0
9. Amend Sec.  217.5 as follows:
0
a. Revise paragraphs (a), (b), and (c); and
0
b. Remove and reserve paragraph (g).
    The revisions read as follows:


Sec.  217.5  Electronic System for Travel Authorization.

    (a) Travel authorization required. Each nonimmigrant alien 
intending to travel by air, sea, or land to the United States under the 
Visa Waiver Program (VWP) must, within the time specified in paragraph 
(b) of this section, receive a travel authorization, which is a 
positive determination of eligibility to travel to the United States 
under the VWP via the Electronic System for Travel Authorization 
(ESTA), from CBP. In order to receive a travel authorization, each 
nonimmigrant alien intending to travel to the United States by air, 
sea, or land under the VWP must provide the data elements set forth in 
paragraph (c) of this section to CBP, in English, in the manner 
specified herein, and must pay a fee as described in paragraph (h) of 
this section.
    (b) Time--(1) Applicants arriving at air or sea ports of entry. 
Each alien

[[Page 18981]]

falling within the provisions of paragraph (a) of this section and 
intending to travel by air or sea to the United States under the VWP 
must receive a travel authorization via ESTA prior to boarding a 
carrier destined for travel to the United States.
    (2) Applicants arriving at land ports of entry. Each alien falling 
within the provisions of paragraph (a) of this section and intending to 
travel by land to the United States under the VWP must receive a travel 
authorization via ESTA prior to application for admission to the United 
States.
    (c) Required elements. CBP will collect such information as the 
Secretary deems necessary to issue a travel authorization as reflected 
in the ESTA application.
* * * * *

PART 286--IMMIGRATION USER FEE

0
10. The authority citation for part 286 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1356; Title VII of Public Law 
110-229; 8 CFR part 2.


Sec.  286.9  [Amended]

0
11. Amend Sec.  286.9(b)(2) as follows:
0
a. Remove the word ``Pilot''; and
0
b. Add the words ``, as prescribed in Sec.  103.7(d)(5) of this 
chapter,'' after ``Form I-94W''.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-06366 Filed 3-31-22; 8:45 am]
BILLING CODE 9111-14-P


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