Rule2022-10869
Electronic System for Travel Authorization (ESTA) Fee Increase
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 20, 2022
Effective
May 20, 2022
Issuing agencies
Homeland Security DepartmentU.S. Customs and Border Protection
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 98 (Friday, May 20, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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, <a href="https://esta.cbp.dhs.gov/">https://esta.cbp.dhs.gov/</a> (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
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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
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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]
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Future approved
ESTA
Fiscal year applications
(forecast)
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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
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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%)
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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
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Total................... 603,619,432 530,391,804
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Annualized.................. 111,426,638 111,273,973
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[[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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