The comment period on the U.S. Department of Homeland Security plan to link an electronic travel authorization system to the Visa Waiver Program ended last month after many interested parties detailed potential problems.
Once the Electronic System for Travel Authorization (ESTA) takes effect--currently scheduled for "on or before" 12 January 2009--all visitors to the United States from Visa Waiver Program (VWP) countries "must either obtain travel authorization in advance of travel under ESTA or obtain a visa prior to traveling to the United States."
VWP currently allows travelers from 27 participating countries to enter the United States without a visa. ESTA would require all travelers from those countries to use a U.S. Customs and Border Protection Web site to input all the information they currently provide on a printed form when arriving at a U.S. port. DHS "recommends that VWP travelers obtain travel authorizations at the time of reservation or purchase of the ticket, or at least 72 hours before departure to the United States, in order to facilitate timely departures. This timeline will allow accommodation of last minute and emergency travelers."
ESTA applicants would be required to list an e-mail address in order to receive confirmation. Each travel authorization would be valid for two years, allowing the traveler to repeatedly use the same authorization during that time period.
By automating what had been a paper-based system, CBP would determine if those traveling from VWP countries should be admitted to the United States "before such individuals begin travel to the United States," which would increase security and reduce arrival delays, DHS claimed.
Many involved in the travel industry conceptually support ESTA for simplifying entry to the United States and eliminating the paper-based system. But those supporters, along with several detractors, have a long list of concerns.
"We, and our members in the air transport industry, believe that the program in its current form has not been well thought through," according to the International Air Transport Association's filing to the U.S. government. "Systems will not be fully developed, adequate facilities will not be in place and the program has been rushed in implementation."
On the last point, DHS opted to push forward with an "interim rule" on ESTA rather than a "notice of proposed rule making," which would have allowed for public commentary before the government finalized program specifics. DHS wrote that "prolonging the implementation of these regulations could hamper the ability of DHS to address the security vulnerabilities in the VWP," and that delaying "to consider public comment would be impracticable, unnecessary and contrary to the public interest."
But the U.S. Air Transport Association said those explanations "do not withstand scrutiny," and suggested DHS "had no discretion" to skip "normal procedures."
Another concern relates to the role airlines would be required to play. According to DHS, CBP would "transmit travelers' authorization status" to airlines via the existing Advance Passenger Information System (APIS). DHS said 43 U.S.-based and foreign airlines would be impacted becase they operate routes to the United States. If affected travelers have not applied through ESTA before check in, those airlines would "be able to submit the required information and obtain a travel authorization" on behalf of the passenger.
"We cannot find sufficient explanation for DHS to assert the authority, either explicit or implicit, to compel airlines to assume a function that Congress has mandated on individual travelers and the secretary of Homeland Security," IATA wrote. As part of ESTA, airline employees occasionally would have to question travelers who had not received pre-authorization about their health and criminal records, which already are listed on VWP forms. Some airlines said that requiring their staff to ask such questions is not appropriate.
Several commentators also questioned why DHS would develop what they perceived as a redundant system, pointing to APIS and Secure Flightas programs that do or will collect similar passenger information.
According to U.K. travel trade association ABTA, "Many customers will confuse current APIS requirements with that of ESTA. This is not surprising as the same data elements are included in the ESTA application to that of APIS. This is of concern as a traveler may submit APIS data to the travel agent or carrier in advance of travel and consider that he or she has fulfilled the ESTA requirement," and vice versa. "Either way, it is likely that a number of passengers will arrive at the airport not having completed one of the APIS or ESTA formalities in advance."
Other practical concerns relate to cost--DHS projected as much as $1.1 billion in added expense for air and sea carriers during the next 10 years--viability of travel industry systems and public Internet accessibility.
The Travel Industry Association predicted potential "chaos at check-in counters" if ESTA requires Internet access. "Take, for example, the passenger who checks in for a flight and is informed by the carrier that the traveler cannot board the flight because he/she does not have a valid ESTA," TIA theorized. "How is the traveler or carrier supposed to submit an ESTA without Internet access at the check-in counter?"
Meanwhile, Virgin Atlantic Airways highlighted problems with the requirement of providing an e-mail address. "Should this be the traveler's or belonging to the person applying on their behalf?" the airline asked. "If the latter, then travel agencies could have access to personal details about their clients and data protection law may deem this unacceptable."
Other operational hurdles include transfer passengers and last-minute travelers. On the former, Virgin wrote: "Regardless of how the passenger's connection has been facilitated, there is at present no through check-in standard which allows for a system check to obtain the traveler's ESTA status prior to commencing their journey ... Given the volumes of transfer passengers, especially at peak times there is high probability of a delay to the departure of the flights as a result."
On the latter, many parties questioned DHS's statement that the ESTA "timeline will allow accommodation of last minute and emergency travelers." The Air Transport Association, for example, said, "U.S. airlines do not presently have the resources to facilitate such applications at their overseas stations."
Meanwhile, DHS estimated that the average ESTA application would take 15 minutes--five minutes longer than the average time to complete the paper form--since "the traveler must now register with ESTA, familiarize himself/herself with the system, gather and enter the data and access an e-mail account to check the status of his/her travel authorization application."
At the airport, those 15 minutes could present enormous problems, according to ESTA critics. "Adding up to 15 minutes per passenger in order to request a travel authority would impact negatively on departure times and, at multi-flight airports, bring check in to a standstill," according to Virgin.
Moreover, several parties said airline systems are not equipped to handle ESTA's demands. "In the simplest terms, implementation of ESTA ... demands a significant development and programming effort for every airline providing international air services in the U.S. market," according to IATA. "Additionally, carriers would be required to reprogram kiosk applications and online check-in engines in order to successfully respond to negative ESTA responses in situations where an airline employee is not involved in the transaction."
"Airlines' check-in staff do not have access to the Internet, so carriers would have to adapt their systems in order to be able to submit the ESTA data, incurring extra costs estimated at $500,000 during the first year and $125,000 per annum thereafter," according to the Association of European Airlines. "It is not acceptable that airlines should have to bear these additional costs."
Air Canada said ESTA would "affect a large proportion" of its passengers and "greatly affect our operations in almost every facet of our business ... At present, the airline industry is in a financial crisis, and the timing of this new program could not have been worse."
Meanwhile, DHS noted that "travel agents and other service providers may incur costs to assist their clients in obtaining travel authorizations. We do not know how many such service providers would be affected, but they would likely need to obtain a software module that allowed them to apply for travel authorizations during the booking process. Affected travel agents are most likely foreign businesses located in the affected countries."
Yet, ESTA "provides no facilities for travel agents to apply on behalf of their clients," IATA wrote.
Airports Council International concluded that "if VWP passengers are bewildered or intimidated by yet another U.S. government requirement on their travel to the United States, many may decide it's simply not worth the hassle."