B-316592

June 23, 2008

The Honorable MaxBaucus
Chairman
The Honorable Charles E. Grassley
Ranking Minority Member
Committee on Finance
United StatesSenate

The Honorable JohnConyers, Jr.
Chairman
The Honorable Lamar S. Smith
Ranking Minority Member
Committee on the Judiciary
House of Representatives

Subject: Department of Homeland Security, Bureau of Customs and BorderProtection: Changes to the Visa Waiver Program to Implement the ElectronicSystem for Travel Authorization (ESTA) Program

Pursuant to section801(a)(2)(A) of title 5, United States Code, this is our report on a major rulepromulgated by the Department of Homeland Security (DHS), Bureau of Customs andBorder Protection, entitled Changes to the Visa Waiver Program to Implementthe Electronic System for Travel Authorization (ESTA) Program (RIN: 1651-AA72). We received the rule on June 3, 2008.It was published in the FederalRegister as an interim final rule; solicitation of comments on June 9, 2008. 73 Fed. Reg. 32,440.

The interim final rule amends DHS regulations to implementthe ESTA requirements under section 711 of the Implementing Recommendations ofthe 9/11 Commission Act of 2007, Public Law 110-53, Aug. 3, 2007, for alienswho wish to enter the United States under the Visa Waiver Program (VWP) at airor sea ports of entry. Currently, aliensfrom VWP countries must provide certain biographical information to U.S.Customs and Border Protection (CBP) officers at air and sea ports of entry on apaper form, Form I-94W. Under thisinterim final rule, VWP travelers will provide the same information to CBPelectronically before departing for the United States.According to CBP, by automating the I-94W process and establishing asystem to provide VWP traveler data in advance of travel, CBP will be able todetermine the eligibility of citizens and eligible nations from VWP countriesto travel to the United States and whether such travel poses a law enforcementor security risk, before such individuals begin travel to the United States.

The interim final rule is effective on August 8, 2008. Comments must be received on or before August 8, 2008. ESTA will be implemented as a mandatoryprogram 60 days after publication of a notice in the Federal Register. DHSanticipates that the Secretary of Homeland Security will issue that notice inNovember 2008, for implementation of the mandatory ESTA requirements on orbefore January 12, 2009.

Enclosed is our assessment of the DHSs compliance withthe procedural steps required by section 801(a)(1)(B)(i) through (iv) of title5 with respect to the rule. Our reviewindicates that DHS complied with the applicable requirements.

If you have any questions about this report or wish tocontact GAO officials responsible for the evaluation work relating to thesubject matter of the rule, please contact Michael R. Volpe, Assistant GeneralCounsel, at (202) 512-8236.

signed

Robert J. Cramer
Associate General Counsel

Enclosure

cc: Lorrie Rodbart
Chief, Border Security Regulations Branch
Department of Homeland Security

ENCLOSURE

REPORT UNDER 5 U.S.C. sect.801(a)(2)(A) ON A MAJORRULE
ISSUED BY THE
DEPARTMENT OF HOMELAND SECURITY,
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)

(i) Cost-benefit analysis

DHS conducted a cost-benefit analysis of this interimfinal rule. DHS estimates that theannualized costs will be $16 million to $118 million. These costs are for U.S.and foreign-based air and sea carriers.Quantified benefits of $17 million to $29 million to carriers and CBPare for annual travel authorizations denied by ESTA that prevent inadmissiblepersons from applying for admission under the VWP at a United States port of entry. Non-quantified benefits are enhanced securityand efficiency.

(ii) Agency actions relevant to the RegulatoryFlexibility Act, 5 U.S.C. sections603-605, 607, and 609

The rule is published as an interim final rule, and,therefore, a regulatory flexibility analysis is not required under theAct. Nonetheless, DHS has considered theimpact of the rule on small entities and determined that this rule will nothave a significant economic impact on a substantial number of smallentities.

(iii) Agency actions relevant to sections 202-205 ofthe Unfunded Mandates Reform Act of 1995, 2 U.S.C. sections1532-1535

DHS concluded that this interim final rule will not resultin the expenditure by state, local, and tribal governments, in the aggregate, orby the private sector, of $100 million or more in any one year (currentlyadjusted for inflation to $127 million), and it will not significantly oruniquely affect small governments.Therefore, no actions were deemed necessary under the Act.

(iv) Other relevant information or requirements underacts and executive orders

Administrative Procedure Act (APA), 5 U.S.C. sections551 etseq.

DHS issued this rule as an interim final rule. DHS concluded that this rule addressesrequirements that are procedural in nature and does not alter the substantiverights of aliens from VWP countries seeking admission to the United States;this final rule is therefore exempt from notice and comment requirements under5 U.S.C. sect. 553(b)(A). DHS also concludedthat this rule is exempt from APA rulemaking requirements under the goodcause exception under 5 U.S.C. sect. 553(b)(3)(B), because the rule improves thesecurity of the VWP.

Paperwork Reduction Act, 44 U.S.C. sections3501-3520

This interim final rule contains a collection of informationthat has been reviewed and, pending receipt and evaluation of public comments,approved by the Office of Management and Budget (OMB), under Control Number1651-0111.

Statutory authorization for the rule

This interim final rule is authorized by section 711 of theImplementing 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 asignificant regulatory action under Executive Order 12,866.

Executive Order No. 13,132 (Federalism)

DHS determined that this rule will not have substantialdirect effects on the states, on the relationship between the nationalgovernment and the states, or on the distribution of power and responsibilitiesamong the various levels of government.