Department of Homeland Security, Bureau of Customs and Border Protection: Changes to the Visa Waiver Program to Implement the Electronic System for Travel Authorization (ESTA) Program, GAO-08-906R, June 23, 2008
Pursuant to section
801(a)(2)(A) of title 5, United States Code, this is our report on a major rule
promulgated by the Department of Homeland Security (DHS), Bureau of Customs and
Border Protection, entitled “Changes to the Visa Waiver Program to Implement
the Electronic System for Travel Authorization (ESTA) Program” (RIN: 1651-AA72). We received the rule on
The interim final rule amends DHS regulations to implement
the ESTA requirements under section 711 of the Implementing Recommendations of
the 9/11 Commission Act of 2007, Public Law 110-53, Aug. 3, 2007, for aliens
who wish to enter the United States under the Visa Waiver Program (VWP) at air
or sea ports of entry. Currently, aliens
from VWP countries must provide certain biographical information to U.S.
Customs and Border Protection (CBP) officers at air and sea ports of entry on a
paper form, Form I-94W. Under this
interim final rule, VWP travelers will provide the same information to CBP
electronically before departing for the
The interim final rule is effective on
Enclosed is our assessment of the DHS’s compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. Our review indicates that DHS complied with the applicable requirements.
If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Michael R. Volpe, Assistant General Counsel, at (202) 512-8236.
Robert J. Cramer
Associate General Counsel
REPORT UNDER 5 U.S.C. sect. 801(a)(2)(A) ON A MAJOR
ISSUED BY THE
DEPARTMENT OF HOMELAND SECURITY,
BUREAU OF CUSTOMS AND BORDER PROTECTION
"CHANGES TO THE VISA WAIVER PROGRAM TO IMPLEMENT
THE ELECTRONIC SYSTEM FOR
TRAVEL AUTHORIZATION (ESTA) PROGRAM"
(i) Cost-benefit analysis
DHS conducted a cost-benefit analysis of this interim
final rule. DHS estimates that the
annualized costs will be $16 million to $118 million. These costs are for
(ii) Agency actions relevant to the Regulatory Flexibility Act, 5 U.S.C. sections 603-605, 607, and 609
The rule is published as an interim final rule, and, therefore, a regulatory flexibility analysis is not required under the Act. Nonetheless, DHS has considered the impact of the rule on small entities and determined that this rule will not have a significant economic impact on a substantial number of small entities.
(iii) Agency actions relevant to sections 202-205 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. sections 1532-1535
DHS concluded that this interim final 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 (currently adjusted for inflation to $127 million), and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the Act.
(iv) Other relevant information or requirements under acts and executive orders
Administrative Procedure Act (APA), 5 U.S.C. sections 551 et seq.
DHS issued this rule as an interim final rule. DHS concluded that this rule addresses requirements that are procedural in nature and does not alter the substantive rights of aliens from VWP countries seeking admission to the United States; this final rule is therefore exempt from notice and comment requirements under 5 U.S.C. sect. 553(b)(A). DHS also concluded that this rule is exempt from APA rulemaking requirements under the “good cause” exception under 5 U.S.C. sect. 553(b)(3)(B), because the rule improves the security of the VWP.
Paperwork Reduction Act, 44 U.S.C. sections 3501-3520
This interim final rule contains a collection of information that has been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget (OMB), under Control Number 1651-0111.
Statutory authorization for the rule
This interim final rule is authorized by section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53. See also 8 U.S.C. sections 1103, 1187.
Executive Order No. 12,866
OMB reviewed this rule and considers it to be a “significant regulatory action” under Executive Order 12,866.
Executive Order No. 13,132 (Federalism)
DHS determined that 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.