[Federal Register Volume 87, Number 98 (Friday, May 20, 2022)]
[Rules and Regulations]
[Pages 30769-30773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10869]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

8 CFR Part 217

[CBP Dec. 22-08]
RIN 1651-AB40


Electronic System for Travel Authorization (ESTA) Fee Increase

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

ACTION: Final rule.

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SUMMARY: This document amends Department of Homeland Security (DHS) 
regulations pertaining to the Electronic System for Travel 
Authorization (ESTA). ESTA is the online system through which 
nonimmigrant visitors intending to enter the United States under the 
Visa Waiver Program (VWP) at air or sea ports of entry must obtain an 
electronic travel authorization in advance of travel to the United 
States. Pursuant to updates in Congressional mandates, the ESTA travel 
promotion fee (also referred to as the ``authorization charge'') was 
increased from $10 to $17 and extended to 2027. As a result of the 
increase in the travel promotion fee, the fee for an approved ESTA 
(which includes the travel promotion fee and a $4 operational fee) is 
$21. CBP will begin collecting the new fee following the effective date 
of this rule.

DATES: The final rule is effective May 20, 2022.

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#0d7e646664636c23656c7e656c604d6e6f7d2369657e236a627b"><span class="__cf_email__" data-cfemail="a8dbc1c3c1c6c986c0c9dbc0c9c5e8cbcad886ccc0db86cfc7de">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Visa Waiver Program

    Pursuant to section 217 of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1187, the Secretary of Homeland Security, in 
consultation with the Secretary of State, may

[[Page 30770]]

designate countries for participation in the Visa Waiver Program (VWP) 
if certain requirements are met. Eligible citizens and nationals of VWP 
countries \1\ may apply for admission to the United States at a U.S. 
port of entry as nonimmigrant visitors for a period of ninety (90) days 
or less for business or pleasure without first obtaining a nonimmigrant 
visa, provided that they are otherwise eligible for admission under 
applicable statutory and regulatory requirements. Other nonimmigrant 
visitors must obtain a visa from a U.S. embassy or consulate and 
generally must undergo an interview by consular officials overseas in 
advance of travel to the United States.
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    \1\ The current list of designated VWP countries is set forth in 
8 CFR 217.2(a).
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B. The Electronic System for Travel Authorization (ESTA)

    On August 3, 2007, the President signed into law the Implementing 
Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Public 
Law 110-53. Section 711 of the 9/11 Act required the Secretary of 
Homeland Security, in consultation with the Secretary of State, to 
develop and implement a fully automated electronic travel authorization 
system to collect biographical and other information as the Secretary 
of Homeland Security determines necessary to evaluate, in advance of 
travel, the eligibility of the applicant to travel to the United States 
under the VWP, and whether such travel poses a law enforcement or 
security risk.\2\
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    \2\ 8 U.S.C. 1187(h)(3)(A).
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    On June 9, 2008, DHS published an interim final rule in the Federal 
Register (73 FR 32440) announcing the creation of the ESTA program for 
nonimmigrant visitors traveling to the United States by air or sea 
under the VWP, and regulations have since been codified in the Code of 
Federal Regulations (CFR), at 8 CFR 217.5. ESTA provided for an 
automated collection of the information required on the Form I-94W, 
Nonimmigrant Visa Waiver Arrival/Departure paper form (Form I-94W), in 
advance of travel. ESTA is intended to fulfill the statutory 
requirements described in section 711 of the 9/11 Act.
    On November 13, 2008, DHS published a notice in the Federal 
Register (73 FR 67354) announcing that the use of ESTA would be 
mandatory for all VWP travelers traveling to the United States seeking 
admission at air and sea ports of entry beginning January 12, 2009. 
Since that date, VWP travelers have been required to receive travel 
authorization through ESTA prior to boarding a conveyance destined for 
an air or sea port of entry in the United States. Travelers unable to 
receive authorization through ESTA to travel under the VWP may still 
apply for a visa to travel to the United States.\3\
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    \3\ 8 CFR 217.5(f)(2). More information can be found in the 
``Frequently Asked Questions'' section of the Official ESTA 
Application website, https://esta.cbp.dhs.gov/ (last accessed Apr. 
27, 2022).
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C. The Fee for the Use of ESTA and the Travel Promotion Act Fee

    There have been several laws enacted that include provisions 
regarding ESTA fees, which have been incorporated into the DHS 
regulations. The relevant statutes and prior DHS rules are described 
below. However, some recent statutory changes have not yet been 
incorporated into the DHS regulations. This rule incorporates those 
changes.
    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 no later than six 
months after enactment.\4\ The TPA provided that the initial fee 
consists of the sum of ``$10 per travel authorization'' (travel 
promotion fee) to fund the newly authorized Corporation for Travel 
Promotion plus ``an amount that will at least ensure recovery of the 
full costs of providing and administering the System, as determined by 
the Secretary'' (known as the ``operational fee'' or the ``processing 
charge'').\5\ The TPA authorized collection of the $10 travel promotion 
fee through September 30, 2014. On July 2, 2010, the Homebuyer 
Assistance and Improvement Act of 2010, Public Law 111-198 at Sec.  5, 
amended the TPA by extending the sunset provision of the travel 
promotion fee and authorizing the Secretary to collect this fee through 
September 30, 2015.
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    \4\ 8 U.S.C. 1187(h)(3)(B).
    \5\ Public Law 111-145 at sec. 9.
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    On August 9, 2010, DHS published an interim final rule in the 
Federal Register (75 FR 47701) announcing that, beginning September 8, 
2010, a $4 operational fee would be charged to each ESTA applicant to 
ensure recovery of the full costs of providing and administering the 
system in addition to the $10 travel promotion fee that would be 
charged to each applicant receiving a travel authorization through 
September 30, 2015. Accordingly, the regulations at 8 CFR 217.5(h) were 
amended to provide that until September 30, 2015, the fee for an 
approved ESTA was $14, the sum of the $10 travel promotion fee and the 
$4 operational fee, and that beginning October 1, 2015, and after the 
sunset of the travel promotion fee, the fee for using ESTA would be 
just the operational fee of $4.
    On December 16, 2014, section 605 of the Travel Promotion, 
Enhancement, and Modernization Act of 2014, Public Law 113-235, further 
extended the sunset provision of the travel promotion fee through 
September 30, 2020. It did not make any changes to the operational fee 
and CBP continues to collect that fee. In contrast to the travel 
promotion fee, which is set by Congress, the operational fee does not 
include a sunset provision or a statutory amount. The Secretary of 
Homeland Security has discretion to determine the operational fee 
amount pursuant to the TPA. CBP will reassess the $4 operational fee on 
a regular basis to ensure that it is set at a level to fully recover 
ESTA operating costs. Any changes to this operational fee with be done 
through a subsequent rulemaking.
    On June 8, 2015, DHS published a final rule in the Federal Register 
(80 FR 32267) finalizing the June 9, 2008 interim final rule regarding 
the ESTA program and the August 9, 2010 interim final rule regarding 
the ESTA fee for nonimmigrant visitors traveling to the United States 
by air or sea under the VWP. Due to oversight, 8 CFR 217.5(h)(1) was 
not appropriately amended to provide the sunset date of September 30, 
2020. Nonetheless, in accordance with section 217(h)(3)(B) of the 
Immigration and Nationality Act, 8 U.S.C. 1187(h)(3)(B), CBP continued 
to collect the $10 travel promotion fee.
    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. As a result of this provision, the ESTA 
fee, which includes both the travel promotion fee and the $4 
operational fee, was increased to $21. CBP will begin collecting the 
new fee following the effective date of this rule. Pursuant to the 
Bipartisan Budget Act of 2018, this is the ESTA fee through September 
30, 2027. Beginning on October 1, 2027, the ESTA fee will be $4. 
Pursuant to the TPA, the Secretary of Homeland Security has discretion 
to determine the operational fee amount. CBP will reassess the $4 
operational fee on a regular basis to ensure that it is set

[[Page 30771]]

at a level to fully recover ESTA operating costs. Any changes to this 
operational fee will be done through a separate rulemaking.

II. Discussion of Regulatory Changes

    This rule updates the ESTA fee regulations to incorporate the most 
recent statutory provisions. To incorporate the new sunset provision 
for the travel promotion fee contained in section 30203(a) of the 
Bipartisan Budget Act of 2018, Public Law 115-123, this document amends 
8 CFR 217.5(h)(1) by replacing ``September 30, 2015'' with ``September 
30, 2027''. To reflect the fact that, after September 30, 2027, the 
only ESTA fee will be the operational fee, this document amends 8 CFR 
217.5(h)(2) by replacing ``October 1, 2020'' with ``October 1, 2027''.
    To implement the new travel promotion fee amount as set forth in 
section 806 of the Further Consolidated Appropriations Act of 2020, 
Public Law 116-94, this document amends 8 CFR 217.5(h)(1) by replacing 
the amount ``$14.00'' with ``$21'' and replacing the amount ``$10'' 
with ``$17''. Additionally, this document removes extraneous decimal 
points and zeros after the references to ``$4'' throughout section 
217.5(h).

III. Inapplicability of Notice and Delayed Effective Date

    The Administrative Procedure Act (APA) requirements in 5 U.S.C. 553 
govern agency rulemaking procedures. Section 553(b) of the APA 
generally requires notice and public comment before issuance of a final 
rule. In addition, section 553(d) of the APA requires that a final rule 
have a 30-day delayed effective date. The APA, however, provides 
exceptions from the prior notice and public comment requirement and the 
delayed effective date requirements, when an agency for good cause 
finds that such procedures are ``impracticable, unnecessary, or 
contrary to the public interest.'' See 5 U.S.C. 553(b)(3)(B), (d)(3). 
Prior notice and comment is ``unnecessary'' when, ``so far as the 
public is concerned,'' the regulatory change is minor or merely 
technical.\6\ Prior notice and comment has also been deemed 
``unnecessary'' when there is no need to allow ``affected parties an 
opportunity to participate in agency decision making early in the 
process, when the agency is more likely to consider alternative 
ideas,'' \7\ and where Congress requires an agency to perform a non-
discretionary act, and where no extent of notice or commentary could 
have altered the obligation of the agency.\8\ Additionally, courts have 
held that when there is a Congressionally approved extension to a 
program, further delay in implementing that program contravenes the 
program's purpose.\9\
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    \6\ Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 751 (10th 
Cir. 1987).
    \7\ Id.
    \8\ McChesney v. Peterson, 275 F. Supp. 3d. 1123, 1136 (Neb. 
2016).
    \9\ Id. (citing Combat Veterans for Cong. Political Action Comm. 
v. Fed. Election Comm'n, 795 F.3d 151, 154 (D.C. Cir. 2015).
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    In this case, CBP finds that good cause exists for dispensing with 
prior notice and public procedure as unnecessary because the amendments 
to the regulations are simply conforming amendments to reflect 
statutory changes and a non-substantive administrative change regarding 
how the $4 fee is referenced in the regulations. Specifically, the 
amendments in this document are necessary to reflect the changes to the 
sunset provision regarding the travel promotion fee in the Bipartisan 
Budget Act of 2018 and to reflect the change to the travel promotion 
fee amount in the Further Consolidated Appropriations Act of 2020. CBP 
has no discretion in raising the fee.
    For the same reasons, CBP finds that good cause exists for 
dispensing with the requirement for a delayed effective date as 
provided in 5 U.S.C. 553(d)(3).

IV. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (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 has been designated a ``significant regulatory 
action'' that is economically significant under section 3(f)(1) of 
Executive Order 12866 as it results in transfers of over $100 million 
in a given year. Accordingly, OMB has reviewed this regulation.
    The ESTA program pertains to nonimmigrant visitors traveling to the 
United States by air or sea under the Visa Waiver Program. ESTA 
provides for an automated collection of information from these 
travelers in advance of travel. Under the current regulations, the ESTA 
fee is $14 for an approved ESTA and consists of both a $10 travel 
promotion fee and a $4 operational fee. The Bipartisan Budget Act of 
2018 extended the sunset provision for the travel promotion fee to 
2027, and the Further Consolidated Appropriations Act of 2020 increased 
the travel promotion fee from $10 to $17. As a result of these 
statutory changes, the total fee for an approved ESTA has increased 
from $14 to $21. This final rule makes conforming amendments to DHS 
regulations to reflect the increase and extension of the travel 
promotion fee. CBP will begin collecting the new fee following the 
effective date of this rule. In accordance with the statutory changes, 
CBP could collect the new $17 fee even if this regulation were not 
promulgated. This rule is being promulgated for consistency between the 
statute and the regulations and to minimize the confusion any 
inconsistency would cause. Although the effects of the fee increase are 
not a result of this rule, but rather a result of the statutory 
changes, we analyze the effects here to inform the public of the effect 
of this fee increase.
    The travel promotion fee is collected by CBP, but the fee revenue 
is not kept by CBP or DHS. Instead, up to $100 million of fee revenue 
goes to the Travel Promotion Fund, which is made available to the 
Corporation for Travel Promotion (subject to a matching requirement) to 
carry out its functions. Any remaining fee revenue is retained by the 
general fund of the Treasury. As annual collections are already over 
$100 million before the increase in the fee, all of the additional 
revenue generated by this fee increase will be retained by the general 
fund of the Treasury. As the $7 fee increase is relatively small 
compared to costs involved to travel to the United States, CBP 
anticipates that the fee increase will not adversely affect travel to 
the United States.
    Table 1 shows the number of approved ESTA applications from fiscal 
year (FY) 2016 to 2021. Prior to the COVID pandemic, the average annual 
number of approved ESTA applications was approximately 15 million. 
After FY 2019, travel decreased substantially, and we expect that 
travel will remain lower through FY 2022, though forecasting travel 
coming out of a pandemic is difficult. For the purposes of this 
analysis, we project travel returning to normal in FY 2022. To the 
extent that it takes longer than that, the effects of the fee change 
will be lower.

[[Page 30772]]



            Table 1--Total Annual Approved ESTA Applications
------------------------------------------------------------------------
                                                         Total  approved
                      Fiscal year                             ESTA
                                                          applications
------------------------------------------------------------------------
FY 2016...............................................        14,601,471
FY 2017...............................................        14,894,749
FY 2018...............................................        15,115,878
FY 2019...............................................        15,184,970
FY 2020...............................................         6,312,562
FY 2021...............................................         1,259,440
                                                       -----------------
  Total...............................................        67,369,070
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    In the absence of any publicly available forecast for post-pandemic 
travel, CBP uses an ordinary least squares (OLS) linear trend based on 
pre-pandemic data to forecast future approved ESTA applications once 
ESTA travel returns to pre-pandemic levels. Table 2 shows the 
forecasted future approved applications until FY 2027.\10\
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    \10\ The linear trend (ESTA applications = 14,456,360 + 
197,163*(time), time = 1, 2, 3, 4 where year 1 is FY 2016, 2 is FY 
2017, 3 is FY 2018, 4 is FY2019, 5 is FY 2022, 6 is FY 2023, etc.) 
was determined based on FY 2016 to 2019 data. Data from FY 2020 and 
2021 were not used to generate the forecasted amounts since travel 
data from those years were severely affected by the COVID-19 
pandemic, including the strict restrictions governments imposed on 
nonessential travel. Accordingly, CBP estimates the linear trend for 
the growth in applications for the forecasted period (FY 2022-2027) 
beginning from FY 2019 levels. Note that projected FY 2022 
applications are what we expect FY 2020 would have been without the 
COVID-19 pandemic. ESTA is only used for leisure and business 
travel.

               Table 2--Future Approved ESTA Applications
                               [Forecast]
------------------------------------------------------------------------
                                                        Future  approved
                                                              ESTA
                      Fiscal year                         applications
                                                           (forecast)
------------------------------------------------------------------------
FY 2022...............................................        15,442,174
FY 2023...............................................        15,639,336
FY 2024...............................................        15,836,499
FY 2025...............................................        16,033,661
FY 2026...............................................        16,230,824
FY 2027...............................................        16,427,987
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    Using the forecast and applying the proposed $7 increase would 
result in the following forecast of additional revenue from the travel 
promotion fee. As shown in Table 3, the corresponding revenue 
forecasted is $108 million in FY 2022 to approximately $115 million in 
FY 2027. As this fee is not tied to the costs of the services provided 
by ESTA, this effect is not a cost but rather a transfer \11\ of funds 
from one party to another within society. In this case, it is a 
transfer from ESTA travelers to the U.S. Government.
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    \11\ See OMB Circular A-4. (This analysis is performed from a 
global perspective, and includes those individuals who travel to the 
United States. Please note that individuals paying the fee are not 
U.S. citizens or permanent residents.)

                                   Table 3--Anticipated Additional Fee Revenue
                                                   [Forecast]
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                                                                Future  approved                    Anticipated
                          Fiscal year                                 ESTA         Fee increase     additional
                                                                  applications        amount        fee revenue
----------------------------------------------------------------------------------------------------------------
FY 2022.......................................................        15,442,174              $7    $108,095,215
FY 2023.......................................................        15,639,336               7     109,475,353
FY 2024.......................................................        15,836,499               7     110,855,491
FY 2025.......................................................        16,033,661               7     112,235,629
FY 2026.......................................................        16,230,824               7     113,615,767
FY 2027.......................................................        16,427,987               7     114,995,906
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    Table 4 presents the estimated discounted future revenue that would 
result from the fee increase of $7. The estimated travel promotion fee 
revenue is discounted at both 3-percent and 7-percent. The total 
revenue generated from the fee increase over the six-year period of 
analysis from fiscal year 2022 to 2027 is expected to be $603,619,432 
after applying a 3-percent discount rate, and $539,391,804 using a 7-
percent discount rate. The annualized amount using a 3-percent discount 
rate is $111,426,638, and $111,273,973 using a 7-percent discount rate.

       Table 4--Discounted Additional Travel Promotion Fee Revenue
                               [Forecast]
------------------------------------------------------------------------
                                Additional travel     Additional travel
                                  promotion fee         promotion fee
   Fiscal year (forecast)     revenue  (discounted  revenue  (discounted
                                     at 3%)                at 7%)
------------------------------------------------------------------------
2022........................          $104,946,811          $101,023,565
2023........................           103,191,020            95,620,013
2024........................           101,448,478            90,491,102
2025........................            99,719,903            85,624,024
2026........................            98,005,959            81,006,472
2027........................            96,307,261            76,626,628
                             -------------------------------------------
    Total...................           603,619,432           530,391,804
                             -------------------------------------------
Annualized..................           111,426,638           111,273,973
------------------------------------------------------------------------


[[Page 30773]]

    Aside from the increase in fee revenue collection, the final rule 
is not expected to increase costs or benefits to the Government or any 
other entity.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires an agency to prepare 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 this 
document is not subject to the notice and public procedure requirements 
of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory 
Flexibility Act. 5 U.S.C. 601 et seq.

C. Unfunded Mandates Reform Act of 1995

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

D. Executive Order 13132

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

E. Executive Order 12988 Civil Justice Reform

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

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act, an agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless the collection of information displays a valid OMB 
control number. The collection of information in this final rule is 
approved in accordance with the requirements of the Paperwork Reduction 
Act under control number 1651-0111. There are no changes being made to 
the information collection as a result of this final rule.

List of Subjects in 8 CFR Part 217

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

Amendments to the Regulations

    For the reasons set forth above, 8 CFR part 217 is amended as set 
forth below.

PART 217--VISA WAIVER PROGRAM

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

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


0
2. In Sec.  217.5, revise paragraph (h) to read as follows:


Sec.  217.5   Electronic System for Travel Authorization.

* * * * *
    (h) Fee. (1) Through September 30, 2027, the fee for an approved 
ESTA is $21, which is the sum of two amounts: A $17 travel promotion 
fee to fund the Corporation for Travel Promotion and a $4 operational 
fee to at least ensure recovery of the full costs of providing and 
administering the system. In the event the ESTA application is denied, 
the fee is $4 to cover the operational costs.
    (2) Beginning October 1, 2027, the fee for using ESTA is an 
operational fee of $4 to at least ensure recovery of the full costs of 
providing and administering the system.

Alejandro N. Mayorkas
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-10869 Filed 5-19-22; 8:45 am]
BILLING CODE 9111-14-P


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