United States of America: Imposition of a fee on foreign travelers.
President Obama signed into law on March 4, 2010 the “Travel Promotion Act” (part of H.R.1299, now Public Law 111-145) The law institutes a new fee of $10 or more on visitors traveling to the United States from the 35 countries that participate in the Visa Waiver Program (VWP) . This new tax is supposed to raise an estimated $200 million per year, which will be used to help fund a new “Corporation for Travel Promotion.” The purpose of this new corporation is to promote tourism to the United States.
The bill developed from the “Travel Promotion Act of 2009” (S.1023 as originally introduced; click here for the version approved by the Senate), a bill that would establish a program for the promotion of travel to the United States, and provide for two separate means of funding this program. One would be a fee of at least $10 on each traveler from certain countries that enter the United States, and the other an unspecified set of assessments on the travel industry in the United States. These fees might be inconsistent with the national-treatment principle of GATT Article III and (perhaps more appropriately) GATS Article XVII.
The Travel Promotion Act amends section 217(h)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1187(h)(3)(B)), which gives the Secretary of Homeland Security the authority to charge a fee for the use of the Electronic Travel Authorization System. The law provides that the system is to be designed “to collect such biographical and other information as the Secretary of Homeland Security determines necessary to determine, in advance of travel, the eligibility of, and whether there exists a law enforcement or security risk in permitting, [an] alien to travel to the United States.” The existing law does provides for a fee for these authorizations, but states only that it shall be “set at a level that will ensure recovery of the full costs of providing and administering the System” and “available to pay the costs incurred to administer the System.” At present, the only fees imposed under this program apply to visitors who enter from land ports of entry (i.e., from Canada or Mexico).
The new law provides as follows:
(i) IN GENERAL.—No later than 6 months after the date of enactment of the Travel Promotion Act of 2009, the Secretary of Homeland Security shall establish a fee for the use of the System and begin assessment and collection of that fee. The initial fee shall be the sum of—
(I) $10 per travel authorization; and
(II) an amount that will at least ensure recovery of the full costs of providing and administering the System, as determined by the Secretary.
(ii) DISPOSITION OF AMOUNTS COLLECTED.—
Amounts collected under clause (i)(I) shall be credited to the Travel Promotion Fund established by subsection (d) of section 11 of the Travel Promotion Act of 2009. Amounts collected under clause (i)(II) shall be transferred to the general fund of the Treasury and made available to pay the costs incurred to administer the System.
(iii) SUNSET OF TRAVEL PROMOTION FUND FEE.—
The Secretary may not collect the fee authorized by clause (i)(I) for fiscal years beginning after September 30, 2014.’’.
There are two respects in which the proposed fees might raise concerns over national treatment. One is that these fees apply only to foreign travelers entering the United States and not to U.S. travelers who either leave or return to the United States. (That contention might nonetheless be countered by reference to national security issues and the exceptions of GATT Article XXI and GATS Article XIV bis.)
A second potential concern is that the bill provides for two sources of funding, and the two sources apply differently to domestic and foreign parties. The second source is provided for in section 6, which authorizes the proposed nonprofit Corporation for Travel Promotion to “impose an annual assessment on United States members of the international travel and tourism industry … in proportion to their share of the aggregate international travel and tourism revenue of the industry.” The initial assessments can be “no greater, in the aggregate, than $20,000,000.”
 The 35 VWP countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, United Kingdom.
Any Evidence-Based Deliberation:
|Is there anything in the public record to suggest that evidence of the effectiveness of the proposed measure was considered during official deliberations?||No|
|Is there any evidence that alternatives to the proposed measure were considered?||No|
|Is there anything in the public record that suggests that empirical evidence informed the comparison across the alternatives available to government?||No|
|Was such evidence identified?||No|
|Is such evidence publicly available?||No|
|Did the official decision-maker in question provide an explanation as to why a chosen measure was favoured over alternatives?||No|
|Is there any evidence to suggest that potentially affected trading partners were consulted before the measures were taken?||No|
|Is there any evidence that safeguards have been put in place to ensure that implementation of the initiative is transparent and non-discriminatory?||No|
|Did the government state its intention to review the measure within one year of implementation?||No|
Date of inception:
GTA Evaluation: Amber
See the hyperlinked items in the description above for the sources.