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27 June 2007
[Federal Register: June 26, 2007 (Volume 72, Number 122)]
[Proposed Rules]
[Page 35087-35116]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn07-12]
[[Page 35087]]
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Part II
Department of Homeland Security
8 CFR Parts 212 and 235
Department of State
22 CFR Parts 41 and 53
Documents Required for Travelers Departing From or Arriving in the
United States at Sea and Land Ports-of-Entry From Within the Western
Hemisphere; Proposed Rule
[[Page 35088]]
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DEPARTMENT OF HOMELAND SECURITY
[USCBP-2007-0061]
RIN 1651-AA69
8 CFR Parts 212 and 235
DEPARTMENT OF STATE
22 CFR Parts 41 and 53
Documents Required for Travelers Departing From or Arriving in
the United States at Sea and Land Ports-of-Entry From Within the
Western Hemisphere
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security; Bureau of Consular Affairs, Department of State.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA), as amended, provides that upon full implementation, U.S.
citizens and certain classes of nonimmigrant aliens may enter the
United States only with passports or such alternative documents as the
Secretary of Homeland Security designates as satisfactorily
establishing identity and citizenship. This notice of proposed
rulemaking (NPRM) is the second phase of a joint Department of Homeland
Security (DHS) and Department of State (DOS) plan, known as the Western
Hemisphere Travel Initiative, to implement these new requirements. This
NPRM proposes the specific documents that, as early as January 2008,
and no sooner than 60 days from publication of the final rule, U.S.
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico will
be required to present when entering the United States at sea and land
ports-of-entry from Western Hemisphere countries.
DATES: Written comments must be submitted on or before August 27, 2007.
ADDRESSES: Comments, identified by docket number USCBP-2007-0061, may
be submitted by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Comments by mail are to be addressed to U.S. Customs
and Border Protection, Office of International Trade, Office of
Regulations and Rulings, Border Security Regulations Branch, 1300
Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. Submitted
comments by mail may be inspected at the U.S. Customs and Border
Protection at 799 9th Street, NW., Washington, DC. To inspect comments,
please call (202) 572-8768 to arrange for an appointment.
Instructions: All submissions regarding the proposed rule and
regulatory assessment must include the agency name and docket number
USCBP-2007-0061. All comments will be posted without change to http://www.regulations.gov
, including any personal information sent with each
comment. For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.
Docket: For access to the docket to read background documents or
submitted comments, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Department of Homeland Security: Colleen Manaher, WHTI, Office of Field
Operations, U.S. Customs and Border Protection, 1300 Pennsylvania
Avenue, NW., Washington, DC 20229, telephone number (202) 344-3003.
Department of State: Consuelo Pachon, Office of Passport Policy,
Planning and Advisory Services, Bureau of Consular Affairs, telephone
number (202) 663-2662.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Current Document Requirements for U.S. Citizens Arriving by
Sea or Land
B. Current Document Requirements for Nonimmigrant Aliens
Arriving by Sea or Land
1. Canadian Citizens and Citizens of the British Overseas
Territory of Bermuda
2. Mexican Nationals
C. Statutory and Regulatory History
1. Intelligence Reform and Terrorism Prevention Act of 2004
2. Advance Notice of Proposed Rulemaking
3. Rules for Air Travel from within the Western Hemisphere
4. Amendment to Section 7209 of IRTPA
5. Passport Card NPRM
6. Certifications to Congress
III. Security and Operational Considerations at the U.S. Border
IV. Proposed WHTI Document Requirements for U.S. Citizens and
Nonimmigrant Aliens
A. U.S. Citizens Arriving by Sea or Land
1. Passport Book
2. Passport Card
3. Trusted Traveler Program Documents
a. NEXUS Program
b. FAST Program
c. SENTRI Program
4. Merchant Mariner Document (MMD)
5. United States Military Identification
B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or
Land
1. Canadians
2. Bermudians
C. Mexican Nationals Arriving by Sea or Land
1. Border Crossing Card (BCC)
2. Trusted Traveler Program Use
3. Elimination of Passport Waiver to Obtain Documents at Mexican
Consulate in United States
D. Other Approved Documents
E. Timing of Changes and Effective Date for Final Rule
1. Satisfactory Evidence of Citizenship
2. Implementation and Effective Date of Final Rule
V. Special Rules for Specific Groups of Travelers Permitted to
Present Other Documents
A. U.S. Citizen Cruise Ship Passengers
B. U.S. and Canadian Citizen Children
1. Children Under Age 16
2. Children in Groups Under Age 19
3. Alternative Approach for Children; Parental Consent
C. Lawful Permanent Residents
D. Alien Members of the U.S. Armed Forces
E. Members of NATO Armed Forces
F. American Indian Card Holders From Kickapoo Band of Texas and
Tribe of Oklahoma
G. Members of United States Native American Tribes
1. Proposed Acceptance of Satisfactory Tribal Enrollment
Documents at Traditional Border Crossing Points for Tribes Who
Continue Traditional Land Border Crossings
2. Possible Alternative Treatment of United States Native
Americans
H. Canadian Indians
I. Sea Travel From Territories Subject to the Jurisdiction of
the United States
J. Outer Continental Shelf Employees
K. International Boundary and Water Commission Employees
L. Individual Cases of Passport Waivers
M. Summary of Document Requirements
VI. Section-By-Section Discussion of Proposed Amendments
VII. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act
C. Executive Order 13132: Federalism
D. Unfunded Mandates Reform Act Assessment
E. National Environmental Policy Act of 1969
F. Paperwork Reduction Act
G. Privacy Statement
List of Subjects
Abbreviations and Terms Used in This Document
ANPRM--Advance Notice of Proposed Rulemaking
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--U.S. Customs and Border Protection
CBSA--Canadian Border Services Agency
DHS--Department of Homeland Security
DOS--Department of State
FAST--Free and Secure Trade
[[Page 35089]]
FBI--Federal Bureau of Investigation
IBWC--International Boundary and Water Commission
INA--Immigration and Nationality Act
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
MMD--Merchant Mariner Document
MODU--Mobile Offshore Drilling Unit
MRZ--Machine Readable Zone
NATO--North Atlantic Treaty Organization
NEPA--National Environmental Policy Act of 1969
NPRM--Notice of Proposed Rulemaking
OARS--Outlying Area Reporting System
OCS--Outer Continental Shelf
PEA--Programmatic Environmental Assessment
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
TBKA--Texas Band of Kickapoo Act
UMRA--Unfunded Mandates Reform Act
USCIS--U.S. Citizenship and Immigration Services
US--VISIT-United States Visitor and Immigrant Status Indicator
Technology Program
WHTI--Western Hemisphere Travel Initiative
I. Public Partication
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. DHS and DOS also invite comments that relate to the
economic effects or the federalism implications that might result from
this proposed rule. Comments that will provide the most assistance to
DHS and DOS in developing these procedures will reference a specific
portion of the proposed rule, explain the reason for any recommended
change, and include data, information, or authority that support such
recommended change.
This notice includes proposed regulatory text that represents the
initial preference of DHS and DOS unless otherwise identified, but the
Departments also seek comment on proposals and ideas discussed in the
preamble, but not contained in the regulatory text because the
Departments are interested in comments on these alternative approaches
and may include these alternatives in the final rule. See ADDRESSES
above for information on how to submit comments.
II. Background
The current document requirements for travelers entering the United
States by sea or land generally depend on the nationality of the
traveler and whether or not the traveler is entering the United States
from a country within the Western Hemisphere.\1\ The following is an
overview of the current document requirements for citizens of the
United States, Canada, British Overseas Territory of Bermuda, and
Mexico who enter the United States at sea or land ports-of-entry. The
requirements discussed in this section are the subject of proposed
changes under this NPRM.
---------------------------------------------------------------------------
\1\ For purposes of this proposed rule, the Western Hemisphere
is understood to be North, South or Central America, and associated
islands and waters. Adjacent islands are understood to mean Bermuda
and the islands located in the Caribbean Sea, except Cuba.
---------------------------------------------------------------------------
A. Current Document Requirements for U.S. Citizens Arriving by Sea or
Land
In general, under Federal law it is ``unlawful for any citizen of
the United States to depart from or enter * * * the United States
unless he bears a valid United States passport.'' \2\ However, the
statutory passport requirement has been waived in the past for U.S.
citizens traveling between the United States and locations within the
Western Hemisphere by land or sea, other than from Cuba.\3\ Currently,
a U.S. citizen entering the United States by land or sea from within
the Western Hemisphere is inspected by a Customs and Border Protection
(CBP) Officer. To enter the United States in conformance with the
Immigration and Nationality Act (INA), these U.S. citizens must satisfy
the CBP Officer of their citizenship.\4\ In addition to assessing the
verbal declaration and examining whatever documentation a traveler may
present initially, the CBP Officer may ask for additional
identification and proof of citizenship until such time as the CBP
Officer is satisfied that the traveler seeking entry into the United
States is a U.S. citizen.
---------------------------------------------------------------------------
\2\ See section 215(b) of the Immigration and Nationality Act
(INA), 8 U.S.C. 1185(b).
\3\ See 22 CFR 53.2(b), which waives the passport requirement
pursuant to section 215(b) of the INA, 8 U.S.C. 1185(b).
\4\ See 8 CFR 235.1(b).
---------------------------------------------------------------------------
U.S. citizens arriving at sea or land ports-of-entry from within
the Western Hemisphere, other than Cuba, can currently present to CBP
Officers a wide variety of documents to establish their right to enter
the United States. A driver's license issued by a state motor vehicle
administration or other competent state government authority is the
most common form of identity document now provided to CBP at the border
even though such documents do not denote citizenship. Documents
currently used at these ports-of-entry also include birth certificates
issued by a U.S. jurisdiction, Consular Reports of Birth Abroad,
Certificates of Naturalization, and Certificates of Citizenship.
B. Current Document Requirements for Nonimmigrant Aliens Arriving by
Sea or Land
Currently, each nonimmigrant alien arriving in the United States
must present to the CBP Officer at the port-of-entry a valid passport
issued by his or her country of citizenship and a valid visa issued by
a U.S. embassy or consulate abroad, unless one or both requirements
have been waived.\5\ Nonimmigrant aliens applying for entry to the
United States must also satisfy any other applicable entry requirements
(e.g., U.S. Visitor and Immigrant Status Indicator Technology Program
(US-VISIT)) and overcome all grounds of inadmissibility before being
admitted to the United States. For nonimmigrant aliens arriving in the
United States at sea or land ports-of-entry, the only current waiver to
the passport requirement applies to (1) Citizens of Canada and Bermuda
arriving from within the Western Hemisphere, and (2) Mexican nationals
with a Border Crossing Card (BCC) arriving from a contiguous
territory.\6\
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\5\ See section 212(a)(7)(B)(i) of the INA, 8 U.S.C.
1182(a)(7)(B)(i).
\6\ Mexican nationals arriving in the United States who possess
a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) may be
admitted without presenting a valid passport when coming from
contiguous territory. See 8 CFR 212.1(c)(1).
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1. Canadian Citizens and Citizens of the British Overseas Territory of
Bermuda
In most cases, Canadian citizens and citizens of the British
Overseas Territory of Bermuda (Bermuda) are not currently required to
present a passport and visa \7\ when entering the United States by sea
or land as nonimmigrant visitors from countries in the Western
Hemisphere. These travelers must nevertheless satisfy the inspecting
CBP Officer of their identity, citizenship, and admissibility at the
time of their application for admission. The applicant may present any
proof of citizenship in his or her possession. An individual who
initially fails to satisfy the inspecting CBP Officer that he or she is
a Canadian or Bermudian citizen may then be required by CBP to provide
further identification and proof of citizenship such as a birth
certificate, passport, or citizenship card.
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\7\ See 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR
212.1(a)(2) (Citizens of Bermuda). See also 22 CFR 41.2.
---------------------------------------------------------------------------
2. Mexican Nationals
Mexican nationals arriving in the United States are generally
required to present a passport and visa when applying for entry to the
United States. However, Mexican nationals who
[[Page 35090]]
possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC)
currently may be admitted at sea and land ports-of-entry without
presenting a passport when arriving in the United States from
contiguous territory.\8\ A BCC is a machine-readable, biometric card,
issued by the U.S. Department of State, Bureau of Consular Affairs.
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\8\ See 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g). Mexican
BCC holders traveling for less than 72 hours within a certain
geographic area along the United States' border with Mexico: usually
up to 25 miles from the border but within 75 miles under the
exception for Tucson, Arizona, do not need to obtain a form I-94. If
they travel outside of that geographic area and/or period of time,
they must obtain an I-94 from CBP at the port-of-entry. 8 CFR
235.1(h)(1).
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C. Statutory and Regulatory History
This NPRM is the second phase of a joint DHS and DOS plan, known as
the Western Hemisphere Travel Initiative (WHTI), to implement section
7209 of the Intelligence Reform and Terrorism Prevention Act of 2004,
as amended (hereinafter IRTPA).\9\ A brief discussion of IRTPA and
related regulatory efforts follows.
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\9\ Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17, 2004).
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1. Intelligence Reform and Terrorism Prevention Act of 2004
Section 7209 of IRTPA requires that the Secretary of Homeland
Security, in consultation with the Secretary of State, develop and
implement a plan to require travelers entering the United States to
present a passport, other document, or combination of documents, that
are ``deemed by the Secretary of Homeland Security to be sufficient to
denote identity and citizenship.'' Section 7209 expressly provides that
U.S. citizens and nationals for whom documentation requirements have
previously been waived on the basis of reciprocity under section
212(d)(4)(B) of the INA (8 U.S.C 1182(d)(4)(B)) (i.e., citizens of
Canada, Mexico, and Bermuda) will be required to comply.\10\
---------------------------------------------------------------------------
\10\ Section 7209 does not apply to Lawful Permanent Residents,
who will continue to be able to enter the United States upon
presentation of a valid Form I-551, Permanent Resident Card, or
other valid evidence of permanent resident status. See section
211(b) of the INA, 8 U.S.C. 1181(b). It also does not apply to alien
members of the United States Armed Forces traveling under official
orders who present military identification. See section 284 of the
INA, 8 U.S.C. 1354. Additionally, section 7209 does not apply to
nonimmigrant aliens from anywhere other than Canada, Mexico, or
Bermuda. See section 212(d)(4)(B) of the INA, 8 U.S.C 1182(d)(4)(B).
Such nonimmigrant aliens are currently required to show a passport
for admission into the United States.
---------------------------------------------------------------------------
Section 7209 limits the President's authority \11\ to waive
generally applicable documentation requirements after the complete
implementation of the plan required by IRTPA. With respect to non-
immigrant aliens currently granted a passport waiver under section
212(d)(4)(B) of the INA (i.e., nationals of contiguous territory or
adjacent islands), the President may not waive the document requirement
imposed by IRTPA. With respect to U.S. citizens, once WHTI is
completely implemented, the President may waive the new documentation
requirements for departing or entering the United States only in three
specific circumstances: (1) When the Secretary of Homeland Security
determines that ``alternative documentation'' that is the basis of the
waiver is sufficient to denote identity and citizenship; (2) in an
individual case of an unforeseen emergency; or (3) in an individual
case based on ``humanitarian or national interest reasons.'' \12\
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\11\ See section 212(d)(4)(B) of the INA, 8 U.S.C.
1182(d)(4)(B), and section 215(b) of the INA, 8 U.S.C. 1185(b)
(delegated to the Secretaries of State and Homeland Security under
Executive Order 13323, 69 FR 241 (Dec. 30, 2003)).
\12\ See section 7209(c)(2) of IRTPA.
---------------------------------------------------------------------------
Accordingly, U.S. citizens and those nonimmigrant aliens who
currently are not required to present passports, pursuant to sections
215(b) and 212(d)(4)(B) of the INA respectively, will be required to
present a passport or other acceptable document that establishes
identity and citizenship deemed sufficient by the Secretary of Homeland
Security when entering the United States from any location, including
from countries within the Western Hemisphere. The principal groups
affected by this provision of IRPTA are citizens of the United States,
Canada, and Bermuda entering the United States from within the Western
Hemisphere and Mexican nationals in possession of a BCC entering the
United States from contiguous territory.\13\
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\13\ These groups of individuals are currently exempt from the
general passport requirement when entering the United States. See 8
CFR 212.1(a)(1) (Canadian citizens), 8 CFR 212.1(c)(1)(i) (Mexican
citizens), and 8 CFR 212.1(a)(2) (Bermudian citizens).
---------------------------------------------------------------------------
2. Advance Notice of Proposed Rulemaking
On September 1, 2005, DHS and DOS published in the Federal Register
an advance notice of proposed rulemaking (ANPRM), at 70 FR 52037,
announcing a joint DHS and DOS plan to amend their respective
regulations to implement section 7209 of IRTPA. The ANPRM announced
that DHS and DOS anticipated implementing the documentation
requirements of section 7209 in two stages. The first stage would have
affected those travelers entering the United States by air and sea from
within the Western Hemisphere and the second stage would have addressed
travelers arriving by land. The two-stage approach was intended to
ensure an orderly transition, provide affected persons with adequate
notice to obtain necessary documents, and ensure that adequate
resources were available to issue additional passports or other
authorized documents.
In the ANPRM, DHS and DOS sought public comment to assist the
Secretary of Homeland Security to make a final determination of which
documents or combination of documents other than passports would be
accepted at ports-of-entry to satisfy section 7209. DHS and DOS also
solicited public comments regarding the economic impact of implementing
section 7209, the costs anticipated to be incurred by U.S. citizens and
others as a result of new document requirements, potential benefits of
the rulemaking, alternative methods of complying with the legislation,
and the proposed stages for implementation. In addition to receiving
written comments, DHS and DOS representatives attended listening
sessions and town hall meetings across the country and met with
community leaders and stakeholders to discuss the initiative.
DHS and DOS received 2,062 written comments in response to the
ANPRM. Comments were received from a wide range of U.S. and Canadian
sources including: Private citizens; businesses and associations;
local, State, Federal, and tribal governments; and members of the U.S.
Congress and Canadian Parliament. The majority of the comments (1,910)
addressed potential changes to the documentation requirements at land
border ports-of-entry. One hundred and fifty-two (152) comments
addressed changes to the documentation requirements for persons
arriving at air or sea ports-of-entry. The comments related to air
travel were addressed separately in the air final rule, which is
discussed below.\14\ Complete responses to the comments from the ANPRM
related to sea and land arrivals will be presented in the final WHTI
sea and land rule.
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\14\ See 71 FR 68412 (Nov. 24, 2006).
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3. Rules for Air Travel From Within the Western Hemisphere
On August 11, 2006, DHS and DOS published an NPRM for air and sea
arrivals. The NPRM proposed that, subject to certain narrow exceptions,
beginning January 2007, all U.S. citizens and nonimmigrant aliens,
including those from Canada, Bermuda, and
[[Page 35091]]
Mexico, entering the United States by air and sea would be required to
present a valid passport, NEXUS Air card, or Merchant Mariner Document
(MMD). The NPRM provided that the requirements would not apply to
members of the United States Armed Forces. For a detailed discussion of
what was proposed for air and sea arrivals, please see the NPRM at 71
FR 41655.
Based on the DOS proposal to allow use of a passport card in the
sea environment discussed below, Congressional intent with respect to
land and sea travel also discussed below, and the public comments, DHS
and DOS deferred until this rulemaking decision on the document
requirements for arrivals by sea. Complete responses to the comments
relating to sea travel that were submitted in response to the air and
sea NPRM will be presented in the final sea and land rule.
The final rule for travelers entering or departing the United
States at air ports-of-entry (Air Rule) was published in the Federal
Register on November 24, 2006. Beginning January 23, 2007,\15\ U.S.
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico
entering and departing the United States at air ports-of-entry from
within the Western Hemisphere are generally required to present a valid
passport. The main exceptions to this requirement are for U.S. citizens
who present a valid, unexpired Merchant Mariner Document traveling in
conjunction with maritime business and U.S. and Canadian citizens who
present a NEXUS Air card for use at a NEXUS Air kiosk.\16\ The Air Rule
made no changes to the requirements for members of the United States
Armed Forces. Please see the Air Rule at 71 FR 68412 for a full
discussion of the air requirements.
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\15\ DHS and DOS determined that delaying the effective date of
the Air Rule to January 23, 2007, was appropriate for air travel
because of operational considerations and available resources. See
id.
\16\ Under the Air Rule, Lawful Permanent Residents of the
United States continue to need to carry their I-551 cards, and
permanent residents of Canada continue to be required to present a
passport and a visa, if necessary, as they did before the rule came
into effect.
---------------------------------------------------------------------------
4. Amendment to Section 7209 of IRTPA
On October 4, 2006, the President signed into law the Department of
Homeland Security Appropriations Act of 2007 (DHS Appropriations Act of
2007).\17\ Section 546 of the DHS Appropriations Act of 2007 amended
section 7209 of IRTPA by stressing the need for DHS and DOS to
expeditiously implement the WHTI requirements no later than the earlier
of two dates, June 1, 2009, or three months after the Secretaries of
Homeland Security and State certify that certain criteria have been
met. The section requires ``expeditious[]'' action and states that
requirements must be satisfied by the ``earlier'' of the dates
identified. By using this language, the drafters expressed an intention
for rapid action.\18\ Congress also expressed an interest in having the
requirements for sea and land implemented at the same time and having
alternative procedures for groups of children traveling under adult
supervision.\19\
---------------------------------------------------------------------------
\17\ Pub. L. 109-295, 120 Stat. 1355 (Oct. 4, 2006).
\18\ Id. at 546. See Congressional Record, 109th Cong., 2nd
Sess., September 29, 2006 at H7964.
\19\ Id.
---------------------------------------------------------------------------
5. Passport Card NPRM
On October 17, 2006, to meet the documentary requirements of WHTI
and to facilitate the frequent travel of persons living in border
communities, DOS, in consultation with DHS, proposed to develop a card-
format passport for international travel by United States citizens
through land and sea ports of entry between the United States, Canada,
Mexico, or the Caribbean and Bermuda.\20\
---------------------------------------------------------------------------
\20\ 71 FR 60928.
---------------------------------------------------------------------------
The passport card would contain security features similar to the
traditional passport book. The passport card would be particularly
useful for citizens in border communities who regularly cross the
border and would be considerably less expensive than a traditional
passport. DOS anticipates the validity period for the passport card to
be the same as for the traditional passport--ten years for adults and
five years for minors under age 16. Please see the Passport Card NPRM
at 71 FR 60298, for a full discussion of the background and details of
the proposed passport card. DOS will issue a final rule prior to making
passport cards available to the public.
6. Certifications to Congress
In Section 546 of the DHS Appropriations Act of 2007, Congress
called for DHS and DOS to make certain certifications before completing
the implementation of the WHTI plan. The Departments have been working
toward making these certifications since October 2006 and have made
great progress in meeting them. The Departments are instructed to
certify to:
1. NIST Certification. National Institute of Standards and
Technology (``NIST'') certification concerning security standards and
best practices for protection of personal identification documents.
On May 1, 2007, NIST certified that the proposed card architecture
of the passport card meets or exceeds the relevant standard and best
practices, as specified in the statute.
2. Technology Sharing. Certify that passport card technology has
been shared with Canada and Mexico.
DHS and DOS have been sharing information and meeting regularly
with both Mexican and Canadian officials, including the decision to
select RFID technology for the passport card.
3. Postal Service Fee Agreement. Certify that an agreement has been
reached and reported to Congress on the fee collected by the U.S.
Postal Service for acceptance agent services.
DOS is working with the Postal Service to memorialize their
agreement including the proposed new fees to be set by DOS so that the
appropriate certification can be made and the detailed justification
submitted.
4. Groups of Children. Certify that an alternative procedure has
been developed for border crossings by groups of children.
This NPRM contains an alternative procedure for groups of children
traveling across an international border under adult supervision with
parental consent.
5. Infrastructure. Certify that the necessary passport card
infrastructure has been installed and employees have been trained.
DHS anticipates using existing equipment along with the deployment
of new technology. CBP has technology currently in place at all ports-
of-entry to read any travel document with a machine-readable zone,
including passports and the new passport card. All CBP Officers at
ports-of-entry are currently trained in the use of this technology.
Depending upon the results of our environmental analysis, CBP will
deploy an integrated RFID technical infrastructure to support advanced
identity verification in incremental deployment phases. RFID technology
training plans and requirements are currently being developed with
initial training to be completed by November 2007.
6. Passport Card Issuance. Certify that the passport card is
available to U.S. citizens.
DOS has developed an ambitious and aggressive schedule to develop
the passport card and is making progress toward that goal. The Request
for Procurement (RFP) to potential contractors was issued on May 25,
2007. DOS expects to begin testing product samples in the summer. In
accordance
[[Page 35092]]
with testing requirements established in the certification by NIST, DOS
will conduct the full range of security, durability and privacy tests
on the passport card and protective sleeve to ensure that a high-
quality, secure card is issued to the American public. DOS is planning
to issue a final rule in the near future.
7. Common Land and Sea Implementation. Certify to one
implementation date.
This NPRM sets forth one implementation date for land and sea
travel.
The Departments have worked very closely to update the appropriate
congressional committees on the status of these certifications and will
continue to do so until final certifications are made. DOS and DHS
believe that these certifications will be made well in advance of the
June 1, 2009 deadline for implementation.
DOS and DHS are planning to conduct a robust public outreach
program to the traveling public, which will include a more targeted
effort in border communities.
We anticipate that RFID infrastructure will be rolled out to cover
the top 39 ports-of-entry (in terms of number of travelers) through
which 95 percent of the land traffic enters the United States. The
remaining land and all sea ports-of-entry would utilize existing
machine-readable zone technology to read the travel documents. Machine-
readable zone technology is currently in place in all air, sea, and
land ports-of-entry.
III. Security and Operational Considerations at the U.S. Border
WHTI will reduce vulnerabilities identified in the final report of
the National Commission on Terrorist Attacks Upon the United States,
also known as the 9/11 Commission. WHTI is intended not only to enhance
security efforts at the borders, but is also intended to expedite the
movement of legitimate travel within the Western Hemisphere.
The land border, in particular, presents complex operational
challenges, in that a tremendous amount of traffic must be processed in
a short amount of time. For example, there are often several passengers
in a vehicle, and multiple vehicles arriving at one time at each land
border port-of-entry. Many of the people encountered crossing at the
land border ports-of-entry are repeat crossers, who travel back and
forth across the border numerous times a day.
The historical absence of standard travel document requirements for
the travel of Canadian and U.S. citizens across our northern and
southern borders has resulted in the current situation, where a
multiplicity of documents can be presented at ports-of-entry by
Canadian and U.S. travelers. As a result, those individuals who seek to
enter the United States or Canada illegally or who pose a potential
threat could falsely declare themselves as U.S. or Canadian citizens.
They can do this through several methods: presenting fraudulent
documents that cannot be validated; presenting facially valid
documentation that cannot be validated against the identity of the
holder \21\; assuming the identity of the legitimate authentic document
holder; or undocumented false claims. These same vulnerabilities exist
for individuals purporting to be U.S. citizens crossing back and forth
across the southern border with Mexico.
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\21\ This refers to individuals who obtain valid documents
through malfeasance. In such cases, the individual uses fraudulently
obtained source/feeder documents to impersonate the U.S. or Canadian
citizen in order to obtain the new document (i.e., identity theft).
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U.S. travel document requirements for Mexican nationals already
addressed most of these vulnerabilities prior to the passage of the
IRTPA. Generally, Mexican nationals are required to present either a
Mexican passport with a visa or a biometric BCC \22\ when entering the
United States. Mexican nationals can also apply for membership in DHS
Trusted Traveler Programs such as FAST and SENTRI.\23\
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\22\ Development of the biometric BCC was a joint effort of DOS
and U.S. Citizenship and Immigration Services (USCIS) to comply with
Section 104 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRIA) Pub. L. 104-208, Div. C, 110
Stat. 3009-546.
\23\ Additionally, Mexican nationals who temporarily reside
lawfully in Canada or the United States during the term of the NEXUS
membership and pass an Interpol criminal history check may also be
eligible to participate in NEXUS.
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The current documents presented by U.S., Canadian, and Bermudian
citizens arriving from within the Western Hemisphere vary widely in
terms of the security and reliability as evidence of identity, status,
and nationality. This variety poses challenges for accurate identity
and admissibility determinations by border officials and has been
identified as a security vulnerability for cross-border travel between
these countries. It is recognized that national passports of Canada,
Mexico, Bermuda (whether Bermudian or British passports) and the United
States do currently, and will continue to, provide reliable evidence of
identity and nationality for the purposes of cross-border travel.
Standardizing documentation requirements for travelers entering the
United States in the land border environment would enhance our national
security and secure and facilitate the entry process into the United
States. Limiting the number of acceptable, secure documents would allow
border security officials to quickly, efficiently, accurately, and
reliably review documentation, identify persons of concern to national
security, and determine eligibility for entry of legitimate travelers
without disrupting the critically important movement of people and
goods across our land borders. Standardizing travel documents for
citizens of the United States, Canada, Bermuda, and Mexico entering the
United States in the land border environment would also reduce
confusion for the travel industry and make the entry process more
efficient for CBP officers and the public alike.
Originally, DHS and DOS proposed to implement new documentation
requirements for those travelers by air and most sea travel in the
first phase of the WHTI plan. However, for the reasons described above,
the Departments decided to delay new requirements for sea travel until
the passport card would be available for use in the sea environment.
The Departments also believed it would be less confusing to the public
if sea and land requirements, both of which would accept the passport
card, were implemented at the same time. Thus, documentation
requirements for sea travelers were deferred to this rulemaking.\24\
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\24\ Please see the Air Rule for a full discussion of the
reasons that the sea regulations were deferred, at 71 FR 68412.
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IV. Proposed WHTI Document Requirements for U.S. Citizens and
Nonimmigrant Aliens
This NPRM proposes new documentation requirements for U.S. citizens
and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the
United States by land from Canada and Mexico, or by sea \25\ from
within the Western Hemisphere. A discussion of the proposed
requirements for most U.S. citizens, Canadians, Bermudians, and Mexican
nationals follows in Section IV. In Section V., we explain the special
circumstances under which specific groups or persons may present other
documents for entry into the United States by sea or land, such as U.S.
and Canadian citizen children and U.S. citizens traveling on cruise
ships.
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\25\ In some circumstances under this rule, it is important to
distinguish between types of sea travel. Those circumstances are so
noted in the discussion of the proposed requirements.
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[[Page 35093]]
A. U.S. Citizens Arriving by Sea or Land
Under this proposed rule, most U.S. citizens entering the United
States at all sea or land ports-of-entry would be required to have
either (1) A U.S. passport; (2) a U.S. passport card; (3) a trusted
traveler card (NEXUS, FAST, or SENTRI); \26\ (4) a valid MMD when
traveling in conjunction with official maritime business; or (5) a
valid U.S. Military identification card when traveling on official
orders or permit.
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\26\ Currently, U.S. citizens can show a NEXUS, SENTRI, or FAST
card for entry into the United States only at dedicated lanes at
designated land border ports-of-entry.
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1. Passport Book
U.S. passports are internationally recognized, secure documents
that demonstrate the individual's identity and citizenship and continue
to be specifically authorized for all border-crossing purposes.
Traditional U.S. passport books contain security features including
digitized photographs, embossed seals, watermarks, ultraviolet and
fluorescent light verification features, security laminations, micro-
printing, holograms, and pages for visas and stamps.
U.S. electronic passports or e-passports, which DOS has issued to
the public since August 2006, are the same as traditional passports
with the addition of a small contactless integrated circuit (computer
chip) embedded in the back cover. The chip securely stores the same
data visually displayed on the photo page of the passport, and will
additionally include a digital photograph. The inclusion of the digital
photograph will enable biometric comparison, through the use of facial
recognition technology at international borders. The U.S. ``e-
passport'' incorporates additional anti-fraud and security
features.\27\
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\27\ More information about e-passports is available at http://www.state.gov.
See also, 70 FR 61553 (Oct. 25, 2005)(final rule for
e-passports).
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2. Passport Card
DOS published an NPRM announcing the development and issuance of a
card-format passport on October 17, 2006 (71 FR 60928), which would be
a secure citizenship and identity document that carries most of the
rights and privileges of a traditional U.S. passport, but with validity
limited to international travel by land and sea between the United
States and Canada, Mexico, the Caribbean or Bermuda.
The passport card would contain security features similar to the
passport book, would be issued by DOS, would contain biographical
information about the holder, and would be readily authenticated and
validated at the border. The passport card will contain a radio
frequency identification (RFID) chip, which will link the card, via a
manufacturer-generated reference number, to a stored record in secure
government databases. Unlike the e-passport, which contains personal
data on the RFID chip, there will be no personal information stored on
the passport card's RFID chip. The passport card would be particularly
useful for citizens in border communities who cross the land border
every day. The passport card would satisfy the definition of a
passport, and, therefore, it would be specifically authorized in
section 7209 of IRTPA.
3. Trusted Traveler Program Documents
Under the proposed rule, U.S. citizens would be permitted to
present cards issued for certain DHS Trusted Traveler Programs, such as
NEXUS, Free and Secure Trade (FAST), and Secure Electronic Network for
Travelers Rapid Inspection (SENTRI), at all lanes at all land and sea
ports-of-entry when traveling from contiguous territory or adjacent
islands.
These trusted traveler cards contain numerous security features,
are issued by either U.S. or Canadian border security agencies, contain
biographical information about the holder, and are readily
authenticated and validated at the border. These programs are
implemented in partnership with the Governments of Canada and Mexico,
and many citizens of these countries participate in the programs.
Under the proposed rule, U.S. citizens who arrive by pleasure
vessel \28\ from contiguous territory would be permitted to show the
trusted traveler cards, among other documents, at all ports of entry.
Additionally, U.S. citizens who have been pre-screened as part of the
NEXUS or Canadian Border Boat Landing Program who arrive by pleasure
vessel from Canada would be permitted to report their arrival by
telephone or by remote video inspection, respectively.
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\28\ For purposes of this rule, a pleasure vessel is a vessel
that is used exclusively for recreational or personal purposes and
not to transport passengers or property for hire.
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U.S. citizens who arrive by pleasure vessel from Canada would be
permitted to show the NEXUS card in lieu of a passport or passport card
along the northern border under the auspices of the remote inspection
system for pleasure vessels, such as the Outlying Area Reporting System
(OARS). Currently, as NEXUS members, U.S. citizen recreational boaters
can report their arrival to CBP by telephone. Otherwise, these pleasure
vessel travelers would be required to report in person to a port-of-
entry in order to enter the United States.\29\
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\29\ See 8 CFR 235.1(g). U.S. citizen holders of a Canadian
Border Boat Landing Permit (Form I-68) would be required to possess
a passport, passport card, or other document specified in this NPRM
when arriving in the United States in combination with the Form I-68
and would be required to show this documentation when applying for
or renewing the Form I-68. Participants would continue to benefit
from entering the United States from time to time without having to
wait for a physical inspection, subject to the applicable
regulations. More information on the Canadian Border Boat Landing
Program (I-68 Permit Program) is available on the CBP Web site at
http://www.cbp.gov.
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a. NEXUS Program
The NEXUS program is implemented by CBP and the Canadian Border
Services Agency (CBSA), pursuant to the Shared Border Accord and Smart
Border Declaration between the United States and Canada.\30\ NEXUS
streamlines border inspection for pre-screened, low-risk travelers by
utilizing one application form, a joint enrollment process, bi-national
security screening, and one card for expedited entry to both Canada and
the United States for air, land and sea travel.\31\
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\30\ On December 14, 2006, CBP announced that the NEXUS air,
highway, and marine modes had been integrated into one program. This
integration means that there will be one application form and fee to
participate in all three modes of the NEXUS program. CBP also
announced that NEXUS would expand the number of processing locations
at Canadian airports in 2007. More information on the NEXUS program
is available on the CBP Web site at http://www.cbp.gov.
\31\ Lawful Permanent Residents of the United States would
continue to be required to carry I-551 Permanent Resident cards
while they are traveling under the NEXUS program.
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Applicants for NEXUS complete a joint U.S./Canada NEXUS
Application. The application is then reviewed by both CBP and the CBSA.
Once approved by both countries, the applicant reports to a joint CBP/
CBSA enrollment center where the applicant is interviewed and
fingerprinted by CBP and CBSA. Applicants who are deemed low-risk and
are approved for the program are then issued a NEXUS Identification
Card.
b. FAST Program
The Free and Secure Trade (FAST) program is designed to enhance the
security and safety along both the northern and southern land borders
of the United States, while also enhancing the economic prosperity of
the United States, Canada, and Mexico, by coordinating, to the maximum
extent possible, their customs commercial programs. The program
accomplishes this by allowing member commercial
[[Page 35094]]
drivers to cross the border with expedited customs and immigration
processing and to transport eligible goods for FAST approved carriers
along the northern and southern borders.
Commercial drivers applying for the FAST program on the northern
border complete a U.S./Canada FAST Commercial Driver Application and
send it to the FAST Application Processing Center in Canada. The
application is then reviewed by both CBP and CBSA. Once approved by
both countries, the applicant reports to a joint CBP/CBSA enrollment
center where he or she is interviewed by CBP and CBSA.
During the application process, a U.S. applicant's ten fingerprints
are taken and submitted to the FBI for a records check; \32\
identification and immigration documents are checked for validity; and
a digital photograph is taken. Applicants who are deemed low-risk and
are approved for the program are then issued a FAST Commercial Driver
Identification Card (FAST Card). Drivers applying for the FAST program
on the southern border enroll in a similar process where the card
applications are reviewed and cards are issued by CBP.
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\32\ For Canadian applicants, fingerprints are submitted to
Canadian authorities for a records check.
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c. SENTRI Program
SENTRI currently streamlines border inspection for pre-approved
low-risk travelers for expedited entry into the United States for land
travel along the southern border, similar to NEXUS and FAST.\33\ To
enroll in SENTRI a participant must provide acceptable proof of
citizenship or permanent resident status in the United States. U.S.
citizens and Lawful Permanent Residents must provide an original birth
certificate with government-issued photo identification, a valid
passport, or a certificate of naturalization.
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\33\ Enrollment in the program is available to Mexican
nationals, United States citizens or lawful permanent residents, and
a national of any other country who demonstrates a need to use the
program.
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4. Merchant Mariner Document (MMD)
Currently, a Merchant Mariner Document (MMD) is accepted for U.S.
citizen Merchant Mariners in lieu of a passport.\34\ U.S. citizen
Merchant Mariners must provide proof of their U.S. citizenship and
undergo an application process that includes a fingerprint background
check submitted to the FBI, a National Driver Register check, and a
drug test from an authorized official that administers a drug testing
program in order to obtain an MMD.
---------------------------------------------------------------------------
\34\ See 22 CFR 53.2(c).
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The Air Rule provides that an MMD used by U.S. citizens in
conjunction with maritime business is sufficient to denote identity and
citizenship when presented upon arrival at an air port-of-entry.
Under this proposed rule, DHS and DOS propose that U.S. citizen
Merchant Mariners may present a valid MMD when arriving in the United
States at sea or land ports-of-entry when traveling in conjunction with
official maritime business. It should be noted that the U.S. Coast
Guard has proposed to phase-out the MMD over the next five years and
streamline all existing Merchant Mariner credentials.\35\ DHS and DOS
propose to accept the MMD as long as it is an unexpired document.\36\
United States citizen Merchant Mariners serving on U.S. flag
vessels are eligible for no-fee U.S. passports upon presentation of a
letter from the employer and an MMD, in addition to the standard
evidence of citizenship and identity.
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\35\ See 71 FR 29462 (May 22, 2006) and 72 FR 3605 (Jan. 25,
2007).
\36\ On April 24, 2007, the U.S. Coast Guard published an
interim final rule amending Coast Guard regulations to allow for the
issuance of MMDs to certain non-resident aliens for service in the
stewards departments of U.S.-flag large passenger vessels endorsed
for coastwise trade. See 72 FR 20278. However, only U.S. citizens
may use the MMD in lieu of a passport under this proposed rule.
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5. U.S. Military Identification Card
Citizens of the United States currently are not required to possess
a valid passport to enter or depart the United States when traveling as
a member of the Armed Forces of the United States on active duty under
22 CFR 53.2(d). Because the military identification card is issued to
U.S. citizens of the Armed Forces and because U.S. citizen members of
the U.S. military traveling under military orders are, without
exception, entitled to be admitted to the United States, the Secretary
of Homeland Security proposes to determine that a military
identification card when traveling under official orders or permit of
the U.S. Armed Forces would be an acceptable form of alternative
documentation when presented upon arrival at air, sea, and land ports-
of-entry.
Allowing members of the U.S. Armed Forces to cross the U.S. borders
without the need to present a passport is necessary to meet the
operational requirements of the Armed Forces. In fact, pursuant to
Section 284 of the INA,\37\ alien members of the U.S. Armed Forces
entering under official orders and presenting military identification
specifically are not required to present a passport and visa.\38\
Imposing a passport requirement on U.S. citizens who are members of the
U.S. Armed Forces when there is no such requirement for alien members,
would not be a desired result of the WHTI rulemaking.
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\37\ See 8 U.S.C. 1354.
\38\ See 8 CFR 235.1(c).
---------------------------------------------------------------------------
Travel document requirements for spouses and dependents of U.S.
citizen members of the U.S. Armed Forces, as well as Department of
Defense contractors and civilian employees, will be subject to the same
document requirements applicable to other arrivals at sea and land
ports-of-entry otherwise specified in this NPRM.
B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or Land
1. Canadians
Canadian citizens entering the United States at sea and land ports-
of-entry would be required to present, in addition to any applicable
visa requirements: \39\
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\39\ See 8 CFR 212.1(h), (l), and (m) and 22 CFR 41.2(k) and
(m).
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1. A passport issued by the Government of Canada; \40\
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\40\ Foreign passports remain an acceptable border crossing
document under section 7209 of the IRTPA.
---------------------------------------------------------------------------
2. A valid trusted traveler program card issued by CBSA or DHS as
discussed above in Section III.C.1.c, e.g., FAST, NEXUS, or SENTRI
\41\; or
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\41\ Canadian citizens who demonstrate a need may enroll in the
SENTRI program and currently may use the SENTRI card in lieu of a
passport. To enroll in SENTRI, a Canadian participant must present a
valid passport and a valid visa, if required, when applying for
SENTRI membership. Other foreign participants in the SENTRI program
must present a valid passport and a valid visa, if required, when
seeking admission to the United States, in addition to the SENTRI
card. This proposed rule does not alter the passport and visa
requirements for other foreign enrollees in SENTRI (i.e., other than
Canadian foreign enrollees). Currently, Canadian citizens can show a
SENTRI, NEXUS, or FAST card for entry into the United States only at
designated lanes at designated land border ports-of-entry.
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3. Alternative Canadian citizenship and identity documents
hereafter proposed by Canada and accepted by DHS and DOS.
Additionally, Canadian citizens in the NEXUS program who arrive by
pleasure vessel from Canada would be permitted to present a NEXUS
membership card in lieu of a passport along the northern border under
the auspices of the remote inspection system for pleasure vessels, such
as the Outlying Area Reporting System (OARS).\42\ Currently, as NEXUS
members, Canadian recreational boaters
[[Page 35095]]
can report their arrival to CBP by telephone.\43\ Otherwise, these
pleasure vessel travelers would be required to report in person to a
port-of-entry in order to enter the United States.\44\
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\42\ Permanent residents of Canada must also carry a valid
passport and valid visa, if required.
\43\ Remote pleasure vessel inspection locations are only
located on the northern border.
\44\ See 8 CFR 235.1(g). Canadian holders of a Canadian Border
Boat Landing Permit (Form I-68) would be required to possess a
passport, passport card, or other document specified in this NPRM
when arriving in the United States in combination with the Form I-68
and would be required to show this documentation when applying for
or renewing the Form I-68.
---------------------------------------------------------------------------
Both DHS and DOS have engaged with the Government of Canada and
various provinces in discussions of alternative documents that could be
considered for border crossing use at land and sea ports of entry under
this rule. For instance, one Canadian office, Indians and Northern
Affairs Canada, is in the process of issuing a card to registered
Indians. This alternative document and any other alternative identity
and citizenship document issued by the Government of Canada will be
considered, as appropriate, in the course of this rulemaking. While we
are not in a position to propose a complete list of alternative
Canadian documents we will continue to engage in discussions of
alternatives and welcome comments suggesting alternative Canadian
documents.
In fact, various Canadian provinces have indicated their interest
or intention in pursuing pilots of enhanced driver's licenses similar
to the Washington State and DHS pilot (described below). Because
documents accepted for border crossing under WHTI must denote
citizenship, the participation of the Government of Canada in
determinations of citizenship on behalf of its citizens, and
recognition of this determination, is a strong consideration by the
United States in the acceptance of documents by Canadian citizens.
Therefore, at this time, DHS and DOS are not proposing to accept
documents from Canadian citizens other than those described above. We
will, however, consider other documents, as described above and in
Section IV.D., as appropriate.
2. Bermudians
Under this proposed rule, all Bermudian citizens would be required
to present a passport issued by the Government of Bermuda or the United
Kingdom when seeking admission to the United States at all sea or land
ports-of-entry, including travel from within the Western Hemisphere.
C. Mexican Nationals Arriving by Sea or Land
Under this proposed rule, all Mexican nationals would be required
to present either (1) A passport issued by the Government of Mexico and
a visa when seeking admission to the United States, or (2) a valid Form
DSP-150, B-1/B-2 laser visa Border Crossing Card (BCC) when seeking
admission to the United States at land ports-of-entry or arriving by
pleasure vessel or by ferry from Mexico.
For purposes of this rule, a pleasure vessel is defined as a vessel
that is used exclusively for recreational or personal purposes and not
to transport passengers or property for hire. A ferry is defined as any
vessel: (1) Operating on a pre-determined fixed schedule; (2) providing
transportation only between places that are no more than 300 miles
apart; and (3) transporting passengers, vehicles, and/or railroad cars.
We note that ferries are subject to land border-type entry processing
on arrival from, or departure to, a foreign port or place. Arrivals
aboard all vessels other than ferries and pleasure vessels would be
treated as sea arrivals.\45\
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\45\ For example, commercial vessels would be treated as
arrivals at sea ports-of-entry. A commercial vessel is any civilian
vessel being used to transport persons or property for compensation
or hire to or from any port or place. A charter vessel that is
leased or contracted to transport persons or property for
compensation or hire to or from any port or place would be
considered an arrival by sea under this rule. Arrivals by travelers
on fishing vessels, research or seismic vessels, other service-type
vessels (such as salvage, cable layers, etc.), or humanitarian
service vessels (such as rescue vessels or hospital ships) would all
be considered as arrivals by sea.
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1. Border Crossing Card (BCC)
DOS issues BCCs to Mexican nationals who come to the United States
on a regular basis. Since 1998, every new BCC contains a biometric
identifier, such as a fingerprint, and a machine-readable zone (MRZ).
In order to obtain a new BCC, a Mexican traveler must have a passport.
Because the BCC is a B-1/B-2 visa, the State Department issuance
process is nearly identical to that of other visas, with the attendant
background checks and interviews necessary for security purposes.
Mexican nationals who hold a BCC will be allowed to use their BCC
for entry at the land border and when arriving by ferry or pleasure
vessel in lieu of a passport for travel within 25 miles of the border
with Mexico (75 miles for the Tucson, Arizona region) and no longer
than a 30-day stay in the United States. For travel outside of these
geographical limits or a stay over 30 days, under the proposed rule,
Mexican nationals possessing a BCC would also be required to obtain a
Form I-94 from CBP at the POE, as is currently the practice.\46\ The
BCC would not be permitted in lieu of a passport for commercial or
other sea arrivals in the United States.
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\46\ See 8 CFR 212.1(c)(1)(i); also 22 CFR 41.2 (g). If Mexicans
are only traveling within a certain geographic area along the United
States' border with Mexico: usually up to 25 miles from the border
but within 75 miles under the exception for Tucson, Arizona, they do
not need to obtain a form I-94. If they travel outside of that
geographic area, they must obtain an I-94 from CBP at the port-of-
entry. 8 CFR 235.1(h)(1).
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2. Trusted Traveler Program Use
We propose continuing the current practice that Mexican nationals
may not use the FAST or SENTRI card in lieu of a passport or BCC. These
participants, however, would continue to benefit from expedited border
processing.
Mexican nationals applying for the FAST program on the southern
border and applying for the SENTRI program must present a valid
passport and valid visa or valid laser visa/BCC when applying to CBP
for membership. CBP then reviews the applications and issues the cards.
3. Elimination of Passport Waiver to Obtain Documents at Mexican
Consulate in United States
Mexican nationals who enter the United States from Mexico solely to
apply for a Mexican passport or other ``official Mexican document'' at
a Mexican consulate in the United States located directly adjacent to a
land port-of-entry currently are not required to present a valid
passport. This type of entry generally occurs at land borders.\47\
There is no basis under section 7209, as amended, to exempt Mexican
nationals coming to the United States to apply for a passport from the
general requirements of WHTI. This proposed rule would eliminate this
exception to the passport requirement for Mexican nationals. Under the
proposed rule, all Mexican nationals will be required to have a
passport with a visa or a BCC to enter the United States.
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\47\ See 8 CFR 212.1(c)(1)(ii).
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D. Other Approved Documents
DHS and DOS remain committed to considering travel documents
developed by the various U.S. States and the Governments of Canada and
Mexico in the future that would denote identity and citizenship and
would also satisfy section 7209 of IRTPA.
Under this proposed rule, DHS proposes to consider as appropriate,
documents such as State driver's licenses that satisfy the WHTI
[[Page 35096]]
requirements by denoting identity and citizenship. These documents
could be from a State, tribe, band, province, territory, or foreign
government if developed in accordance with pilot program agreements
between those entities and DHS. In addition to denoting identity and
citizenship, these documents will have compatible technology, security
criteria, and respond to CBP's operational concerns.
These documents would be announced and updated by publishing a
notice in the Federal Register. A list of such programs and documents
would also be maintained on the CBP Web site. It is anticipated that
the Secretary of Homeland Security would designate successful pilot
program documents that satisfy section 7209 and the technology,
security, and operational concerns discussed above as documents
acceptable for travel under section 7209. At the completion of a
successful pilot, the Department would designate a document by
rulemaking.
For example, the State of Washington (Washington) has begun a
voluntary program to develop an ``enhanced driver's license'' and
identification card that would denote identity and citizenship. On
March 23, 2007, the Secretary of Homeland Security and the Governor of
Washington signed a Memorandum of Agreement to develop, issue, test and
evaluate an enhanced driver's license and identification card with
facilitative technology to be used for border crossing purposes.\48\
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\48\ For more information on this pilot program, see http://www.dhs.gov
.
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On March 9, 2007, DHS published in the Federal Register an NPRM
concerning minimum standards for State-issued driver's licenses and
identification cards that can be accepted for official purposes in
accordance with the REAL ID Act.\49\ DHS encourages States interested
in developing driver's licenses that will meet both the REAL ID and
WHTI requirements to work closely with DHS to that end.
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\49\ See REAL ID NPRM at 72 FR 10819.
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E. Timing of Changes and Effective Date for Final Rule
1. Satisfactory Evidence of Citizenship
Reducing the well-known vulnerability posed by those who might
illegally purport to be U.S. or foreign citizens trying to enter the
U.S. by land or sea on a mere oral declaration is imperative. As we
move towards WHTI implementation, it is the intention of DHS to end the
routine practice of accepting oral declarations alone starting January
31, 2008. CBP will retain its discretionary authority to request
additional documentation when warranted and to make individual
exceptions in extraordinary circumstances when oral declarations alone
or with other alternative documents may be accepted. Beginning January
31, 2008, DHS will expect the satisfactory evidence of U.S. or Canadian
citizenship to include either of the following documents or groups of
documents: (1) A document specified in this NPRM as WHTI-compliant for
that individual's entry; or (2) a government-issued photo
identification document presented with a birth certificate.\50\ CBP
will also act according to the procedures for children outlined in
Sections V.B.1. and V.B.2 beginning January 31, 2008.
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\50\ For U.S. citizens, a government-issued photo identification
combined with a Consular Report of Birth Abroad or a Certificate of
Naturalization could also be presented.
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2. Implementation and Effective Date of Final Rule
At a date to be determined by the Secretary of Homeland Security,
in consultation with the Secretary of State, the Departments will
implement the full requirements of the land and sea phase of WHTI. The
implementation date will be determined based on a number of factors,
including the progress of actions undertaken by the Department of
Homeland Security to implement the WHTI requirements and the
availability of WHTI compliant documents on both sides of the border.
DHS and DOS expect the date of full WHTI implementation to be in
the summer of 2008. The precise implementation date will be published
in the Final Rule or will separately be published, with at least 60
days notice, in the Federal Register.
V. Special Rules for Specific Groups of Travelers Permitted To Use
Other Alternative Documents
Even though DHS and DOS have presented generally applicable
document requirements above, in reviewing the security and travel
considerations for the sea and land environments, the Departments
believe there are certain special circumstances for specific groups of
travelers that warrant permitting use of other documents. For these
specific groups of travelers, within these limited circumstances, the
Secretary of Homeland Security proposes that the delineated documents
be accepted for travel as discussed.
There are other groups of travelers that fall outside the scope of
section 7209 and are therefore not subject to these requirements. The
documents permitted for these populations under the foregoing special
circumstances are also explained below.
A. U.S. Citizen Cruise Ship Passengers
Because of the nature of round trip cruise ship travel, DHS has
determined that when U.S. citizens depart from and reenter the United
States on board the same cruise ship, they pose a low security risk in
contrast to cruise ship passengers who embark in foreign ports.
Although round trip cruises may stop in foreign ports (e.g., some
east coast cruises stop in the Caribbean and some cruises in the
Pacific Northwest may include land excursions in Canada), there are
reasons why U.S. citizens aboard these cruises pose a low security
risk. First, on round trip cruises, passengers who depart from the
United States would have their documents checked both when they depart
from the United States and when they return to the United States. Under
current Advanced Passenger Information System (APIS) requirements,\51\
the cruise lines are required to check the accuracy of the travel
documents for all departing passengers. The passenger information is
transmitted to CBP well before the return of the cruise ship.
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\51\ See 19 CFR 4.7b (vessel arrivals) and 19 CFR 4.64 (vessel
departures).
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While on the voyage, the cruise lines also check the identity of
passengers as they return to the ship at various ports of call along
the voyage. CBP has worked with the cruise lines to establish proper
security protocols for these voyages and will continue to work with the
cruise lines on security protocols in the future.
When the cruise ships return to the United States, CBP officers
examine the documents of the incoming passengers as they would for
other cruise passengers. Because of the advanced passenger information
supplied to CBP upon departure and because of CBP's ability to check
this passenger data against the information supplied by passengers upon
return to the United States, the security risks associated with
allowing U.S. citizens to use the documents described below are low.
Accordingly, and in response to public comments, DHS and DOS
propose the following alternative document requirement for U.S. cruise
ship passengers. For purposes of the proposed rule, a cruise ship is
defined as a passenger vessel over 100 gross tons, carrying more than
12 passengers for hire, making a voyage lasting more than 24 hours any
part of which is on the high seas, and for which passengers
[[Page 35097]]
are embarked or disembarked in the United States or its
territories.\52\
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\52\ For this proposed rule, DHS proposes to adopt the
definition of a cruise ship used by the U.S. Coast Guard. See 33 CFR
101.105.
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U.S. cruise ship passengers traveling within the Western Hemisphere
would be permitted to present a government issued photo identification
document in combination with either (1) An original or a certified copy
of a birth certificate, (2) a Consular Report of Birth Abroad issued by
DOS, or (3) a Certificate of Naturalization issued by U.S. Citizenship
and Immigration Services (USCIS), when returning to the United States,
under certain conditions:
The passengers must board the cruise ship at a port or
place within the United States; and
The passengers must return on the same ship to the same
U.S. port or place from where they originally departed.
All passengers arriving on a cruise ship that originated at a
foreign port or place would have to present travel documents that
comply with applicable document requirements otherwise specified in
this NPRM when arriving in the United States. For voyages where the
cruise ship originated in the United States, if any new passengers
board the ship at a foreign port or place, the new passengers would
have to present travel documents that comply with applicable document
requirements otherwise specified in this NPRM when arriving in the
United States. U.S. citizen cruise ship passengers that would fall
under this alternative document requirement are reminded to carry
appropriate travel documentation to enter any foreign countries or
stops on the cruise.
B. U.S. and Canadian Citizen Children
The U.S. government currently requires all children arriving from
countries outside the Western Hemisphere to present a passport when
entering the United States. Currently, children (like adults) from the
United States, Canada, and Bermuda are not required to present a
passport when entering the United States from contiguous territory or
adjacent islands by sea or land, excluding Cuba. Mexican children are
currently required to present either a passport and visa or BCC upon
arrival in the United States, as discussed above.
DHS and DOS considered extending this passport requirement to all
U.S. and Canadian children entering the United States by sea or land
from within the Western Hemisphere as well; however, many public
comments have expressed a desire for an exception to be made for these
children traveling across international borders, primarily in the land
environment.
Because DHS and DOS believe that these children traveling in the
sea and land environments pose a low security risk, DHS, in
consultation with DOS, proposes the procedures below.
Mexican children are currently required to present either a
passport and visa or BCC upon arrival in the United States, as
discussed above. DHS and DOS do not propose to change the current
document requirements for Mexican children entering the United States
because Mexican children must now present either a passport and visa or
BCC upon arrival in the United States from contiguous territory. As
discussed above, IRTPA directs DHS to implement a plan to require
documents for citizens for whom the general passport requirements have
previously been waived, not to eliminate document requirements
currently in place.
1. Children Under Age 16
Under the proposed rule, all U.S. citizen children under the age of
16 would be permitted to present either (1) An original or a certified
copy of a birth certificate; (2) a Consular Report of Birth Abroad
issued by DOS; or (3) a Certificate of Naturalization issued by USCIS
at all sea and land ports-of-entry when arriving from contiguous
territory. Canadian citizen children under the age of 16 would be
permitted to present an original or a certified copy of a birth
certificate at all sea and land ports-of-entry when arriving from
contiguous territory.
DHS and DOS have determined that 16 is the most appropriate age to
begin the requirement to present a passport, passport card (for U.S.
citizens), or other approved document because at that age most states
begin issuing photo identification to children, such as a driver's
license, and at that point, the child would consequently, have a known
and established identity that could be readily accessed by border
security and law enforcement personnel. CBP officers at the border
could more easily determine if the traveler was wanted for a federal
crime, or if the person had been listed as missing in a Federal
database. Also, age 16 is the age that DOS begins to issue adult
passports, valid for 10 years instead of 5 years for children. DHS and
DOS also recognize that it is difficult for the majority of children
under 16 to obtain a form of government-issued photo identification
other than a passport or passport card. U.S. and Canadian children age
16 and over who arrive from contiguous territory would be subject to
the WHTI document requirements specified below or otherwise specified
in this NPRM.
In order to facilitate law enforcement functions, DHS and DOS
recommend that those attempting to enter the United States with
children under the age of 16 have verbal or written evidence of
parental consent for the child to travel internationally. For example,
both parents or legal guardians, or one parent or guardian with sole
custody, may provide written consent for a child's international travel
with an adult who is not that child's parent or guardian.
2. Groups of Children Under Age 19
In Section 546 of the DHS Appropriations Act of 2007, Congress
expressed an interest that an alternative procedure be developed for
groups of children traveling across an international border under adult
supervision with parental consent.
Under this proposed rule, U.S. and Canadian citizen children under
age 19, who are traveling with public or private school groups,
religious groups, social or cultural organizations, or teams associated
with youth sport organizations that arrive at U.S. sea or land ports-
of-entry from contiguous territory, would be permitted to present
either (1) An original or a certified copy of a birth certificate; (2)
a Consular Report of Birth Abroad issued by DOS; or (3) a Certificate
of Naturalization issued by USCIS, when the groups are under the
supervision of an adult affiliated with the organization (including a
parent of one of the accompanied children who is only affiliated with
the organization for purposes of a particular trip) and when all the
children have parental or legal guardian consent to travel. For
purposes of this alternative procedure, an adult would be considered to
be a person age 19 or older, and a group would consist of two or more
people.
The group, organization, or team would be required to contact CBP
upon crossing the border at the port-of-entry where it will cross and
provide on organizational letterhead: (1) The name of the group,
organization or team and the name of the supervising adult; (2) a list
of the children on the trip; (3) for each child, the primary address,
primary phone number, date of birth, place of birth, and name of at
least one parent or legal guardian; and (4) the signature of the
supervising adult certifying that he or she has obtained parental or
legal guardian consent for each participating child. The group,
organization, or team would be able to demonstrate parental or legal
guardian consent by having the adult leading the group sign and certify
in writing that he
[[Page 35098]]
or she has obtained parental or legal guardian consent for each
participating child.
For Canadian children, in addition to the information indicated
above, a trip itinerary, including the stated purpose of the trip, the
location of the destination, and the length of stay would be required.
As it is structured, we believe most of the groups utilizing this
alternative procedure would be high school groups or groups containing
children aged 16 to 18. Based on experience, there is little, if any,
risk of child trafficking or parental abduction in the group travel
context. To avoid delays upon arrival at a port-of-entry, CBP would
recommend that the group, organization, or team provide this
information well in advance of arrival, and would recommend that each
participant traveling on an original or certified copy of a birth
certificate, Consular Report of Birth Abroad, or Certificate of
Naturalization carry a government or school issued photo identification
document, if available. Travelers with the group who are age 19 and
over would be subject to the generally applicable travel document
requirements specified in 8 CFR parts 211, 212 or 235 and 22 CFR parts
41 or 53.
3. Alternative Approach for Children; Parental Consent
DOS and DHS also seek comments regarding approaches to ensuring
proper documentation to address concerns about child abduction,
parental kidnapping, and trafficking in children across U.S. borders.
DOS's Office to Monitor and Combat Trafficking in Persons estimates
that approximately half the victims of trafficking who enter the United
States are minors. At any one time, there are approximately 700 open
cases of parental child abduction across the United States borders with
Canada and Mexico.
In light of concerns about the safety of children, the American
public supported changes in passport processing beginning in 1999 to
require evidence of parental consent. Currently, DOS requires the
execution of a passport application by both parents or legal
guardian(s) before the passport agent or passport acceptance agent as a
precondition to the issuance of a passport to a child under 14. On
March 7, 2007, DOS published for public comment a rule proposing to
require the execution of a passport application by both parents or
legal guardian(s) for a passport application pertaining to a minor
under the age of 16.\53\ Furthermore, parents are making use of the DOS
Children's Passport Issuance Alert System. Under this system, DOS
notifies a parent or court ordered legal guardian, when requested,
before issuing a U.S. passport for his or her child.
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\53\ See 72 FR 10095.
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DOS and DHS are soliciting comments on whether a traditional
passport or a passport card should be required for any child under 16
entering the United States not in a group without his/her parents. DOS
and DHS are also soliciting comments on what would be the advantages
and disadvantages to requiring a traditional passport or a passport
card, and not allowing child travelers in such circumstances to rely
upon a birth certificate, Consular Record of Birth Abroad, or
Certificate of Naturalization.
C. Lawful Permanent Residents of the United States
Section 7209 of IRTPA does not apply to Lawful Permanent Residents
(LPRs), because LPRs are immigrant aliens exempted from the requirement
to present a passport under section 211(b) of the INA. LPRs will
continue to be able to enter the United States upon presentation of a
valid Form I-551, Permanent Resident Card \54\ or other evidence of
permanent resident status.\55\
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\54\ See Section 211(b) of the INA, 8 U.S.C. 1181(b).
\55\ See 8 CFR 211.1.
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We note that DHS published a notice of proposed rulemaking in the
Federal Register on July 27, 2006, that proposes to collect and verify
the identity of LPRs arriving at air and sea ports-of-entry, or
requiring secondary inspection at land ports-of-entry, through US-
VISIT.\56\ CBP Trusted Traveler program members (FAST, SENTRI or NEXUS)
who are LPRs must always carry their Form I-551 cards in addition to
their membership card.
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\56\ See 71 FR 42605.
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D. Alien Members of the U.S. Armed Forces
Pursuant to Section 284 of the INA,\57\ alien members of the U.S.
Armed Forces entering under official orders presenting military
identification are not required to present a passport and visa.\58\
Because this statutory exemption does not fall within the scope of
section 7209 of IRTPA, under this proposed rule, alien members of the
U.S. Armed Forces traveling under orders would continue to be exempt
from the requirement to present a passport when arriving in the United
States at sea and land ports-of-entry. Accordingly, under this NPRM,
alien members of the U.S. Armed Forces traveling under official orders
or permit of the Armed Forces would be permitted to present those
orders and a military identification card in lieu of a passport when
entering the United States at air, sea, and land ports-of-entry.
However, spouses and dependents of military members are not covered by
the exemption set forth in section 284 of the INA.\59\ Under this
proposed rule, spouses and dependents of these alien military members,
unless they are LPRs, will be subject to the same document requirements
as other sea and land border arrivals otherwise specified in this NPRM
or the INA.
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\57\ See 8 U.S.C. 1354.
\58\ See 8 CFR 235.1(c).
\59\ See 8 U.S.C. 1354.
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E. Members of NATO Armed Forces
Pursuant to Article III of the Agreement Between the Parties to the
North Atlantic Treaty Regarding the Status of Their Forces, June 19,
1951,\60\ North Atlantic Treaty Organization (NATO) military personnel
on official duty are normally exempt from passport and visa regulations
and immigration inspection on entering and leaving the territory of a
NATO party, but, if asked, must present a personal identification card
issued by their NATO party of nationality and official orders from an
appropriate agency of that country or from NATO.\61\ Because their
exemption from the passport requirement is based on the NATO Status of
Forces Agreement rather than a waiver under section 212(d)(4)(B), they
are not subject to section 7209 of IRTPA. Therefore, notwithstanding
this proposed rule, NATO military personnel would not be subject to the
requirement to present a passport when arriving in the United States at
sea and land ports-of-entry.
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\60\ Agreement Between the Parties to the North Atlantic Treaty
Regarding the Status of Their Forces, June 19, 1951, [1953, pt.2] 4
U.S.T. 1792, T.I.A.S. No. 2846 (effective Aug. 23, 1953). NATO
member countries are: Belgium, Bulgaria, Canada, the Czech Republic,
Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy,
Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland,
Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, the United
Kingdom of Great Britain and Northern Ireland, and the United
States.
\61\ See 8 CFR 235.1(c).
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F. American Indian Card Holders From Kickapoo Band of Texas and Tribe
of Oklahoma
U.S. Citizenship and Immigration Services (USCIS) issues American
Indian Cards (Form I-872) to members of the Kickapoo Band of Texas and
Tribe of Oklahoma to document their status. The American Indian Card is
issued pursuant to the Texas Band of
[[Page 35099]]
Kickapoo Act of 1983 (TBKA), 25 U.S.C. 1300b-13. There are two versions
of the American Indian Card: (1) For Kickapoos who opted to become U.S.
citizens under the TBKA (the filing deadline for this benefit closed in
1989) and (2) for Kickapoos who opted not to become U.S. citizens, but
instead were afforded ``pass/repass'' status.
We note that by Federal law, all of the Kickapoo Indians described
above, whether or not they are U.S. citizens, may ``pass the borders''
between Mexico and the United States,\62\ which has historically
applied to land border crossings. We propose to continue the current
practice of allowing U.S. citizen and Mexican national Kickapoo Indians
to enter and exit the United States using their American Indian Cards,
issued by USCIS, as an alternative to the traditional passport or
passport card at all sea and land border ports-of-entry.
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\62\ See Texas Band of Kickapoo Act, Pub. L. 97-429, 96 Stat.
2269 (1983).
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Under the proposed rule, U.S. citizen members of the Kickapoo Band
of Texas and Tribe of Oklahoma would be permitted to present the Form
I-872 American Indian Card in lieu of a passport or passport card at
all sea and land ports of entry when arriving from contiguous territory
or adjacent islands. Mexican national members of the Kickapoo Band of
Texas and Tribe of Oklahoma would be permitted to present the I-872 in
lieu of either a passport and visa or BCC at sea and land ports-of-
entry when arriving from contiguous territory or adjacent islands.
G. Members of United States Native American Tribes
IRTPA expressly applies to all United States citizens. Federal
statutes apply to Native Americans born in the United States \63\
absent some clear indication that Congress did not intend the statute
to apply.\64\ However, the United States has a special relationship,
founded in the Constitution, with its Native American tribes.\65\ This
relationship permits special rules for Native American members of
federally recognized United States tribes.\66\
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\63\ In 1924, Congress conferred United States citizenship on
all Native Americans born in the United States. Act of June 2, 1924,
ch. 233, 43 Stat. 253, codified as INA Sec. 301(b), 8 U.S.C.
1401(b).
\64\ See Federal Power Commission v. Tuscarora Indian Nation,
362 U.S. 99, 120 (1960); Taylor v. Ala. Intertribal Council Title IV
J.T.P.A., 261 F.3d 1032, 1034-1035 (11th Cir. 2001).
\65\ See Constitution, I, Sec. 8, cl.3; Cherokee Nation v.
Georgia, 30 U.S. 1, 17 (1831); Worcester v. Georgia, 31 U.S. 515,
561 (1832); U.S. v. Sandoval, 231 U.S. 28, 46-47 (1913).
\66\ Morton v. Mancari, 417 U.S. 535, 551-55.
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Comments on the ANPRM and consultations with United States Native
American tribes have emphasized the particular impact which a new
document requirement may have on Native Americans belonging to United
States tribes who continue to cross the land borders for traditional
historic, religious, and other cultural purposes. A number of border
tribes are particularly concerned that their members will be required
to obtain a passport card or other alternative document to maintain
contact with ethnically related communities, including, for some
tribes, members who live on traditional land in Mexico or Canada.
1. Proposed Acceptance of Satisfactory Tribal Enrollment Documents at
Traditional Border Crossing Points for Tribes Who Continue Traditional
Land Border Crossings
DHS and DOS do not propose to accept any particular tribal
enrollment documents as part of this NPRM. DHS and DOS do propose,
however, to consider such documents for the final rule as discussed
below. Documents that may be found acceptable and so designated in the
final rule must establish the identity and citizenship of members of
United States tribes. DHS and DOS propose to accept such tribal
enrollment documents only if members of the issuing tribe continue to
cross the land border of the United States for a historic, religious or
other cultural purpose.\67\ The tribal enrollment card must be
satisfactory to CBP, may only be used at that tribe's traditional
border crossing points and will only be accepted so long as that tribe
cooperates with the verification and validation of the document. These
tribes must also cooperate with CBP on the enhancement of their
documents in the future as a condition for the continued acceptance of
the document.
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\67\ From our consultations with Native American communities,
DHS understands that members of a number of federally recognized
tribes maintain contact with ethnically related people across our
land border. For example, the Kumeyaay of California, Tohono O'odham
of Arizona, Kickapoo of Texas, Oklahoma and Kansas, and
Haudenosaunee or Six Nations of the New York State area maintain
contact with ethnically related people on the other side of border.
We also have been told that the three Kickapoo bands in the United
States all lay their dead to rest in a traditional cemetery in
Mexico. Traditional border crossings may continue for these and
similar historic, religious and cultural purposes.
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DHS and DOS invite comments from those United States tribes that
enroll members who continue to cross the border for a traditional
purpose. Any tribe that wishes to propose its tribal enrollment card as
an acceptable alternative document at one or more traditional border
crossing points should submit comments supporting acceptance of its
tribal enrollment card as an alternative for its members. All such
comments should explain fully why the proposed tribal enrollment card
should be an acceptable alternative document for its members.
Each comment should explain the traditional border crossings of
that tribe by:
a. Specifically identifying the federally recognized tribe;
b. Indicating the traditional destination or destinations across
the border that are visited by members of the tribe;
c. Explaining in detail the purpose or purposes of all such travel;
d. Relating all such travel to traditional ethnic, religious,
cultural or other activities of the tribe;
e. Indicating the frequency of the travel; and
f. Specifying the border crossing point or points which are
generally utilized to travel to each destination.
If the cross-border travel is reciprocated by a tribe, community,
or band from Canada or Mexico, the United States tribe should also
fully explain the connection with Canadian or Mexican Native Americans
including a complete description of all such travel into the United
States by individuals from the related Native American community.
The record of the rulemaking will need to detail the enrollment
qualifications employed by each United States tribe in order to propose
the acceptance of the tribe's enrollment document. All qualifications
for membership in any such tribe should be fully described in the
comments as well as whether, and in what circumstances, spouses,
children or others may be ``adopted'' into the tribe. In addition, each
tribe should indicate the relevant categories of information from its
enrollment records that support the acceptance of its tribal enrollment
document as an acceptable citizenship and identity document. Such
comments should explain and document the reliability of each tribe's
records. For that reason, tribes interested in pursuing this option
should indicate the information that it is willing to make available to
CBP from tribal enrollment records. At a minimum, CBP will need to
verify the names, residences, and birthplaces of enrolled tribal
members, the identity of the parents of enrolled tribal members who
were not born in the United States, and the procedures followed by each
tribe to document all such information contained in its enrollment
records.
DHS and DOS also welcome comments concerning the determination
[[Page 35100]]
of which cards are satisfactory as well as information concerning the
specific features of each tribal enrollment card used by tribal members
who continue to cross the land border for a traditional purpose. All
biometric and other security features on each card should be described
in full in the comments and a life size image of both sides of a sample
card should be submitted for the record with each set of comments.
Comments must also include a description of the issuance process
used by the tribe to physically issue the tribal enrollment document.
DHS and DOS are particularly interested in the materials and techniques
used to ensure that the tribal enrollment document cannot be obtained
improperly. This description must also include a description of the
physical security features utilized to ensure that documents are not
issued to individuals who are not qualified to receive such documents.
A tribe that issues an acceptable tribal enrollment document may be
asked to regularly provide CBP with an electronic copy of current
relevant information from its tribal enrollment roles for purposes of
verifying and validating tribal enrollment documents. Comments should
indicate whether the tribe is willing and able to provide this
information on an ongoing basis.
DHS and DOS are also sensitive to the privacy of tribal enrollment
records not related to the establishment of identity and citizenship
such as alternative tribal names. Comments explaining specific privacy
and other concerns related to the sharing of tribal enrollment
information are particularly encouraged.
Each tribe which proposes a tribal enrollment card as an
alternative border crossing document should indicate whether the tribe
is willing to cooperate with CBP on the enhancement of the document in
the future.
Tribes will only have the opportunity to participate in the shaping
of the standards for tribal documents through this rulemaking.
Therefore any tribe that is considering submitting the information
outlined above must do so through this rulemaking process, as outlined
in this NPRM.
2. Possible Alternative Treatment of United States Native Americans
DHS and DOS are also considering alternative approaches and invite
comments on the following approaches:
Make no special provision for U.S. Native Americans
because they have an equal opportunity to obtain the same documents
that are available to all other U.S. citizens.
Consider broader issuance of the American Indian Card now
issued to members of the federally recognized Kickapoo Tribes or a
similar card.
Accept tribal enrollment cards from tribes whose members
continue traditional border crossings without any limitation on the
border crossing point or points where each such tribal enrollment card
is accepted.
Accept all tribal enrollment cards from all federally
recognized Native American tribes at some or all border crossing
points.
DHS and DOS specifically request comments on these alternatives and
suggestions for any other alternatives for U.S. Native Americans.
H. Canadian Indians
Section 289 of the INA \68\ refers to the ``right'' of Native
Americans born in Canada to ``pass the borders of the United States,''
provided they possess at least 50 percent of Native American blood.
Under this proposed rule, Canadian members of First Nations or
``bands'' would be permitted to enter the United States at traditional
border crossing points with tribal membership documents subject to the
same conditions applicable to United States Native Americans. Canadian
First Nations or bands who seek to have their tribal enrollment cards
accepted for border crossing purposes should submit comments for the
record which contain the information requested in subsection G for
comparable federally recognized U.S. tribes.
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\68\ See 8 U.S.C. 1359.
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As previously noted, the new Indian and Northern Affairs Canada
card may also be accepted as satisfactory evidence of the citizenship
and identity of registered Canadian Indians.
I. Sea Travel From Territories Subject to the Jurisdiction of the
United States
As we stated in the Air Rule, for purposes of the passport
requirement of section 215(c) of the INA,\69\ the term ``United
States'' includes all territory and waters, continental or insular,
subject to the jurisdiction of the United States. The United States,
for purposes of section 215 of the INA and section 7209 of the IRTPA,
includes Guam, Puerto Rico, the U.S. Virgin Islands, American Samoa,
Swains Island, and the Commonwealth of the Northern Mariana
Islands.\70\ Because section 7209, applies only to persons traveling
between the United States and foreign countries, these requirements to
carry specified documents will not apply to United States citizens and
nationals who travel directly between parts of the United States, as
defined in section 215(c) of the INA, without touching at a foreign
port or place.
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\69\ See 8 U.S.C. 1185(c).
\70\ See 8 CFR 215.1(e) and 22 CFR 50.1.
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J. Outer Continental Shelf Employees
In response to comments received to the ANPRM and Air/Sea NPRM, DHS
and DOS are clarifying that offshore workers who work aboard Mobile
Offshore Drilling Units (MODUs) attached to the United States Outer
Continental Shelf (OCS), and who travel to and from MODUs, would not
need to possess a passport or other designated document to re-enter the
United States if they do not enter a foreign port or place. Upon return
to the United States from a MODU, such an individual would not be
considered an applicant for admission for inspection purposes under 8
CFR 235.1. Therefore, this individual would not need to possess a
passport or other designated document when returning to the United
States. However, an individual who travels to a MODU from outside of
the United States and, therefore, has not been previously inspected and
admitted to the United States, would be required to possess a passport
and visa, if required, or other designated document when arriving at
the U.S. port-of-entry.
DHS and DOS note that for immigration purposes offshore employees
on MODUs underway, which are not considered attached, would not need to
present a passport or other designated document for re-entry to the
United States mainland or other territory if they do not enter a
foreign port or place during transit. However, an individual who
travels to a MODU from outside the United States OCS and, therefore,
has not been previously inspected and admitted to the United States,
would be required to possess a passport and visa or other designated
document when arriving at the United States port-of-entry by sea.
K. International Boundary and Water Commission Employees
Alien direct and indirect employees of the International Boundary
and Water Commission (IBWC) are not required to present a passport and
visa when seeking admission to the United States temporarily in
connection with their employment.\71\ Instead, these employees usually
present IBWC identification cards. The exemption is pursuant to treaty
and thus not affected by IRPTA. Accordingly, there is no substantive
[[Page 35101]]
change to the rule regarding alien employees of the IBWC.
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\71\ Article 20 of the 1944 Treaty Between the United States and
Mexico (regarding division of boundary water and the functions of
International Boundary and Water Commission), TS 922, Bevan 1166, 59
Stat. 1219; 8 CFR 212.1(c)(5).
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U.S. citizen direct and indirect employees of the IBWC who enter
the United States from Mexico in connection with their IBWC employment
would continue to be able to present an IBWC identification card.
L. Individual Cases of Passport Waivers
The passport requirement may be waived for U.S. citizens in certain
individual cases on a case-by-case basis.\72\ A waiver may be granted
in the case of an emergency, such as individuals in need of emergency
medical treatment, fire fighters responding to a call, emergency
workers responding to a natural disaster, Medi-vac (land and air
ambulance) cases, sick or injured crewmembers, and shipwreck or plane
crash survivors. A waiver may also be granted in other cases of
humanitarian or national interest.\73\
---------------------------------------------------------------------------
\72\ See 22 CFR 53.2.
\73\ See section 7209(c)(2) of IRTPA.
---------------------------------------------------------------------------
M. Summary of Document Requirements
The following chart summarizes the acceptable documents for sea and
land arrivals from the Western Hemisphere under WHTI.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acceptable Sea (all other
Group/population document(s) Land Ferry Pleasure vessel vessels)
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Travelers (U.S., Can., Mex., Valid Passport (and Yes..................... Yes..................... Yes..................... Yes.
Berm.) at all sea and land POEs. valid visa, if
necessary for
foreign travelers).
U.S. Citizens at all sea and Valid Passport card Yes..................... Yes..................... Yes..................... Yes.
land POEs when arriving from
Canada, Mexico, the Caribbean,
and Bermuda.
Trusted Traveler Members at all Trusted Traveler Yes*.................... Yes*.................... Yes*.................... Yes.*
sea and land POEs when arriving Cards (NEXUS,
from contiguous territory or FAST, SENTRI).
adjacent islands.
U.S. Citizen Merchant Mariner on U.S. Merchant Yes..................... Yes..................... Yes..................... Yes.
official mariner business at Mariners Document
all sea and land POEs. (MMD).
Mexican Nationals arriving from Border Crossing Yes**................... Yes**................... Yes**................... No.
Mexico. Card (BCC).
Lawful Permanent Residents I-551; I-688 with Yes..................... Yes..................... Yes..................... Yes.
(LPRs) at all land and sea POE. proper stamp; I-
327; I-571; I-512;
other evidence of
permanent resident
status.
U.S. Citizen Cruise Ship Government-issued N/A..................... N/A..................... N/A..................... Yes--for round trip
Passengers on round trip photo ID and voyages that
voyages that begin and end in certified copy of originate in U.S.
the same U.S. port. birth certificate.
U.S. and Canadian Citizen Certified copy of Yes..................... Yes..................... Yes..................... Yes.
Children Under 16 at all sea birth certificate
and land POEs when arriving (government-issued
from contiguous territory or photo ID
adjacent islands. recommended, but
not or required).
U.S. and Canadian Citizen Certified copy of Yes..................... Yes..................... Yes..................... Yes.
Children--Groups of Children birth certificate
Under Age 19, under adult and parental/
supervision with parental/ guardian consent
guardian consent at all sea and (government-issued
land POEs when arriving from photo ID
contiguous territory or recommended, but
adjacent islands. not required.).
U.S. Citizen/Alien Members of Military ID and Yes..................... Yes..................... Yes..................... Yes.
U.S. Armed Forces traveling Official Orders.
under official orders or permit
at all air, sea and land POEs.
Members of NATO Armed Forces at Military ID and Yes..................... Yes..................... Yes..................... Yes.
all sea and land POEs. Official Orders.
[[Page 35102]]
U.S. and Mexican Kickapoo at all Form I-872 American Yes..................... Yes..................... Yes..................... Yes.
sea and land POEs when arriving Indian Card.
from contiguous territory and
adjacent islands.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Approved for Mexican national members traveling with passport and visa or BCC.
** In conjunction with a valid I-94 for travel outside the 25- or 75-mile geographic limits of the BCC.
VI. Section-by-Section Discussion of Proposed Amendments
Based on the discussion above, the following changes are necessary
to the regulations.
8 CFR 212.0
This amendment would add a new section 212.0 that would define the
terms ``adjacent islands'', ``cruise ship'', ``ferry'', ``pleasure
vessel'', and ``United States'' for purposes of Sec. 212.1 and Sec.
235.1 of this subchapter of title 8.
8 CFR 212.1
The amendments to this section would revise paragraphs (a)(1) and
(a)(2) to add a requirement that Canadians and citizens of the British
Overseas Territory of Bermuda present a passport when seeking admission
to the United States at sea or land ports-of-entry, except in certain
enumerated circumstances. The amendment designates acceptable
alternative documents for trusted traveler program (NEXUS, FAST, or
SENTRI) members; children under age 16; and children under age 19
traveling in groups.
In addition, the amendments to this section would revise paragraph
(c)(1) by deleting the current paragraph (c)(1)(ii), which provides a
passport exception to Mexican nationals obtaining a passport at Mexican
consulates in the United States. The amendment would add a new
paragraph (c)(1)(ii), allowing alternative documentation to be
presented by Mexican national Kickapoo holders of a Form I-872 American
Indian Card.
8 CFR 235.1
The amendment to this section would revise paragraph (b) to provide
that certain categories of United States citizens may present
alternative documentation in lieu of a passport when they enter the
United States. The revised paragraph (b) would list the acceptable
documentation for each category of U.S. citizen when they enter the
United States at sea or land ports-of-entry: a passport; a passport
card; a trusted traveler card (NEXUS, FAST, or SENTRI); an unexpired
MMD for merchant mariners traveling in conjunction with official
maritime business.
The amendments would designate acceptable alternative documents to
the passport for: U.S. citizen members of the Armed Forces of the
United States; cruise ship passengers on cruises that originate and
return to the United States; children under age 16; children under to
age 19 traveling in groups; and U.S. citizen direct and indirect
employees of the International Boundary and Water Commission traveling
in connection with Commission employment with proper identification.
The amendments to this section also remove the current paragraph
(d) and add a new paragraph (d), which provides that the Secretary of
Homeland Security may designate certain documents or combinations of
documents as sufficient to denote identity and citizenship for certain
approved pilot programs effective upon publishing notice in the Federal
Register.
22 CFR Part 41
The amendments to this part would add definitions in a new section
numbered 41.0, delete section 41.1(b) and revise sections 41.2(a), (b),
and (g). These sections currently provide passport exceptions for
Canadian citizens and citizens of the British Overseas Territory of
Bermuda. In the amendments, new language is proposed that would require
a passport when seeking admission to the United States at sea or land
ports-of-entry from contiguous territory within the Western Hemisphere,
except in certain enumerated circumstances. The amendments propose the
deletion of section 41.2(b) and the reservation of that subsection for
future rulemaking. The visa exception for certain Native Americans born
in Canada is moved to revised section 41.2(a). As outlined in the
preamble, the proposed rule would consider designation of a
satisfactory alternative document for Canadian Native Americans
belonging to a First Nation, tribe, or band whose members continue
traditional border crossings. The proposed amendment would add passport
exceptions for trusted traveler program (NEXUS, FAST, or SENTRI)
members; children under age 16; and children under age 19 traveling in
groups.
The amendments to 22 CFR 41.2(g) would eliminate the passport
exceptions for Mexican nationals obtaining a passport at Mexican
consulates in the United States and would add a passport exception for
Mexican national Kickapoo holders of a Form I-872 American Indian Card.
22 CFR 53.2
The proposed amendments to this section would add additional
categories of United States citizens who may present alternative
documentation in lieu of a passport when traveling by land and sea.
Specifically, the amendments would add passport exceptions for: U.S.
citizen members of the Armed Forces of the United States; children
under age 16; and children under age 19 traveling in groups.
VII. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
This rule is considered to be an economically significant
regulatory action under Executive Order 12866 because it may result in
the expenditure of over $100 million in any one year. Accordingly, this
proposed rule has been reviewed by the Office of Management and Budget
(OMB). The following summary presents the costs and benefits of the
proposed rule plus a range of alternatives considered. (The
``Regulatory Assessment'' can be found in the docket for this
rulemaking: http://www.regulations.gov; see also http://www.cbp.gov).
There are two documents: one document examines the impacts of WHTI in
the cruise ship environment; the second document examines the impacts
on border crossings by land, ferry, and pleasure vessels. Comments
regarding both of the analyses and the underlying assumptions are
encouraged and may be submitted by any of the methods described under
the ADDRESSES section of this document.
The regulatory assessments summarized here consider U.S. travelers
entering the United States via land
[[Page 35103]]
ports-of-entry on the northern and southern borders (including arrivals
by ferry and pleasure boat) as well as certain cruise ship passengers.
The impacts to the public due to the requirement to obtain the
necessary documentation for air travel were considered in a previous
analysis examining the implementation of WHTI in the air environment
(the Regulatory Assessment for the November 2006 Final Rule for
implementation of WHTI in the air environment can be found at http://www.regulations.gov
; document number USCBP-2006-0097-0108). If
travelers have already purchased a passport for travel in the air
environment, they would not need to purchase a passport for travel in
the land or sea environments. We do not attempt to estimate with any
precision the number of travelers who travel in more than one
environment, and, therefore, may have already obtained a passport due
to the air rule and will not incur any burden due to this rulemaking.
To the extent that the three traveling populations overlap in the air,
land, and sea environments, we have potentially overestimated the
direct costs of the proposed rule presented here.
The period of analysis is 2005-2014 (10 years). We calculate costs
beginning in 2005 because although the full suite of WHTI rules is not
yet in place, DOS has already seen a dramatic increase in passport
applications since the WHTI plan was announced in early 2005. We
account for those passports obtained prior to full implementation to
more accurately estimate the economic impacts of the rule as well as to
incorporate the fairly sizable percentage of travelers that currently
hold passports in anticipation of the new requirements.
In addition to the traditional passport book, the Secretary of
Homeland Security is designating the passport card, CBP trusted
traveler cards (NEXUS, SENTRI, FAST), the Merchant Mariner Document,
and specified documents from a DHS-approved WHTI pilot program as
generally acceptable travel documents for U.S. citizens to enter the
United States at land and sea ports-of-entry. Because DHS and DOS
believe that children under the age of 16 pose a low security threat in
the sea and land environments, U.S. children may present a certified
copy of a birth certificate in lieu of the designated documents.
Additionally, DHS and DOS have determined that exempting certain cruise
passengers from a passport requirement is the best approach to balance
security and travel efficiency considerations in the cruise ship
environment. To meet the cruise exemptions, a passenger must board the
cruise ship at a port or place within the United States and the
passenger must return on the same ship to the same U.S. port or place
from where he or she originally departed.
For the summary of the analysis presented here, CBP assumes that
only the passport, trusted traveler cards, and the MMD are available in
the first years of the analysis (recalling that the period of analysis
begins in 2005 when passport cards and pilot-program documents were not
yet available). CBP also assumes that most children under 16 will not
obtain a passport or passport card but will instead use alternative
documentation (birth certificates). The estimates reflect that CBP
trusted traveler cards would be accepted at land and sea ports-of-
entry. Finally, CBP assumes that most of the U.S. cruise passenger
population will present alternative documentation (government-issued
photo ID and certified copy of birth certificate) because they meet the
waiver criteria proposed.
To estimate the costs of the rule, we follow this general
analytical framework--
Determine the number of U.S. travelers that will be
covered.
Determine how many already hold acceptable documents.
Determine how many will opt to obtain passports or
passport cards, and estimate their lost ``consumer surplus.''
Determine how many will forgo travel instead of obtaining
passports or passport cards, and estimate their lost ``consumer
surplus.''
We estimate covered land travelers using multiple sources,
including: Crossing data from the Bureau of Transportation Statistics
(BTS, 2004 data), a study of passport demand conducted by DOS,\74\ and
a host of regional studies conducted by State and local governments and
academic research centers.
Other than the DOS passport demand study, no source exists to our
knowledge that has estimated the total number of land entrants
nationwide. Researchers almost always count or estimate crossings, not
crossers and focus on a region or locality, not an entire border.
Building on the work conducted for the DOS passport study, we distilled
approximately 300 million annual crossings into the number of frequent
(defined as at least once a year), infrequent (once every 3 years), and
rare (once every 10 years) ``unique U.S. adult travelers.'' We then
estimate the number of travelers without the documentation this
rulemaking proposes to be required and estimate the cost to obtain such
documents. The fee for the passport varies depending on the age of the
applicant, whether or not the applicant is renewing a passport, whether
or not the applicant is requesting expedited service, and whether or
not the applicant obtains a passport or a passport card. Additionally,
we consider the amount of time required to obtain the document and the
value of that time. To estimate the value of an applicant's time in the
land environment, we conducted new research that builds on existing
estimates from the Department of Transportation.\75\ To estimate the
value of an applicant's time in the sea environment, we use estimates
for air travelers' value of time (recall that air and sea travelers
share very similar characteristics) from the Federal Aviation
Administration (FAA, 2005 data). We use the 2005 DOS passport demand
study and CBP statistics on the trusted traveler programs to estimate
how many unique U.S. travelers already hold acceptable documents.
We estimate covered cruise passengers using data from the Maritime
Administration (MARAD, 2006 data) and itineraries available on the
cruise line Web sites (for 2007). The overwhelming majority of Western
Hemisphere cruise passengers--92 percent--would fall under the proposed
cruise-passenger waiver. Passengers not covered by the waiver fall into
four trade markets--Alaska (72 percent), Trans-Panama Canal (16
percent), U.S. Pacific Coast (8 percent), and Canada/New England (4
percent). We estimate that these passengers will have to obtain a
passport rather than one of the other acceptable documents because
these travelers will likely have an international flight as part of
their cruise vacation, and only the passport is a globally accepted
travel document. We use a comment to the August 2006 NPRM for
implementation of WHTI in the air and sea environments (71 FR 46155)
from the International Council of Cruise Lines to estimate how many
unique U.S. cruise travelers already hold acceptable documentation;
however, we will continue to study this issue.
[[Page 35104]]
Based on CBP's analysis, approximately 3.2 million U.S. travelers
are affected by the proposed rule in the first year of analysis (2005).
Of these, approximately 2.9 million enter through a land-border
crossing (via privately owned vehicle, commercial truck, bus, train, on
foot) and ferry and recreational boat landing sites. An estimated 0.3
million are cruise passengers that do not meet the waiver criteria in
the NPRM (note that over 90 percent of U.S. cruise passengers are
expected to meet the proposed waiver criteria). CBP estimates that the
traveling public acquired approximately 3.2 million passports in the
first year of the analysis, in the anticipation of the passport
requirements, at a direct cost of $417 million. These estimates are
summarized in Table A.
---------------------------------------------------------------------------
\74\ A Study to Determine the Inaugural and Annual Demand for
U.S. Passports by U.S. Citizens Living in and Traveling to Canada,
Mexico and the Caribbean (U.S. State Department, Prepared by Bearing
Point Oct. 2005).
\75\ U.S. Department of Transportation, Departmental Guidance
for the Valuation of Travel Time in Economic Analysis (Memorandum
from F.E. Kruesi) (April 1997); and U.S. Department of
Transportation. Revised Departmental Guidance, Valuation of Travel
Time in Economic Analysis (Memorandum from E.H. Frankel) (February
2003).
Table A.--First-Year Estimates (2005) for U.S. Adult Travelers
[All estimates in millions]
------------------------------------------------------------------------
------------------------------------------------------------------------
Affected Travelers:
Land/ferry/pleasure boat crossers.......................... 2.9
Cruise passengers.......................................... 0.3
----------
Total.................................................... 3.2
Passports demanded:
Land/ferry/pleasure boat crossers.......................... 2.7
Cruise passengers.......................................... 0.3
----------
Total.................................................... 3.0
Total cost of passports:
Land-border crossers....................................... $370.7
Cruise passengers.......................................... 45.8
----------
Total.................................................... $416.5
------------------------------------------------------------------------
To estimate potential forgone travel in the land environment, we
derive traveler demand curves for access to Mexico and Canada based on
survey responses collected in the DOS passport study. We estimate that
when the rule is implemented, the number of unique U.S. travelers to
Mexico who are frequent travelers decreases by 6.5 percent, the unique
U.S. travelers who are infrequent travelers decreases by 7.3 percent,
and the unique U.S. travelers who are rare travelers decreases by 17.8
percent. The number of U.S. travelers visiting Canada who are frequent
travelers decreases by 3.7 percent, the unique U.S. travelers who are
infrequent travelers decreases by 10.7 percent, and the unique U.S.
travelers who are rare travelers decreases by 10.9 percent. These
estimates account for the use of a passport card for those travelers
who choose to obtain one. For unique travelers deciding to forgo future
visits, their implied value for access to these countries is less than
the cost of obtaining a passport card.
To estimate potential forgone travel in the relatively small number
of cruises affected in the sea environment, we use a study from
Coleman, Meyer, and Scheffman (2003), which described the Federal Trade
Commission investigation into potential impacts of two cruise-line
mergers and estimated a demand elasticity for cruise travel. We
estimate that the number of travelers decreases by 24.4 percent, 13.4
percent, 7.0 percent, and 5.6 percent for travelers on short (1 to 5
nights), medium (6 to 8 nights), long (9 to 17 nights), and very long
cruises (over 17 nights) once the rule is implemented.
We then estimate total losses in consumer surplus. The first figure
below represents U.S. travelers' willingness to pay (D1 ) for
access to Mexico and Canada. At price P1 , the number of U.S.
travelers without passports currently making trips to these countries
is represented by Q1 . As seen in the second figure, if the
government requires travelers to obtain a passport or passport card in
order to take trips to Mexico and Canada, the price of access increases
by the cost of obtaining the new document, to P2 . As a
result, the number of travelers making trips to these countries
decreases to Q2 .
[GRAPHIC] [TIFF OMITTED] TP26JN07.005
All travelers in this figure experience a loss in consumer surplus;
the size of the surplus loss depends on their willingness to pay for
access to these countries. The lost surplus experienced by travelers
whose willingness to pay exceeds P2 is shown in the dark
gray rectangle, and is calculated as (P2 -P1 ) *
Q2 . In other words, the lost consumer surplus of travelers
willing to buy the passport or passport card is simply the cost
(P2 -P1 ) of the passport or passport card.
Travelers whose willingness to pay for access to these countries is
less than the price of the passport or passport card will experience a
loss equal to the area of the light gray triangle, calculated as \1/2\
* (Q1 -Q2 ) * (P2 -P1 ).
Costs of the rule (expressed as losses in consumer surplus) are
summed by year of the analysis. We then add the government costs of
implementing WHTI over the period of analysis. Ten-year costs are $3.3
billion at the 3 percent discount rate and $2.8 billion at 7 percent,
as shown in Table B. Annualized costs are $384 million at 3 percent and
$406 million at 7 percent.
Table B.--Total Costs for U.S. Travelers Over the Period of Analysis
[2005-2014, in $Millions]
----------------------------------------------------------------------------------------------------------------
3% discount 7% discount
Year Cost rate rate
----------------------------------------------------------------------------------------------------------------
2005......................................................... $436 $436 $435
2006......................................................... 173 168 163
[[Page 35105]]
2007......................................................... 405 381 357
2008......................................................... 603 552 498
2009......................................................... 476 423 368
2010......................................................... 386 333 280
2011......................................................... 297 249 202
2012......................................................... 291 236 184
2013......................................................... 276 218 163
2014......................................................... 361 277 198
--------------------------------------------------
Total.................................................... ............... $3,272 $2,848
----------------------------------------------------------------------------------------------------------------
The primary analysis for land summarized here assumes a constant
number of border crossers over the period of analysis; in the complete
Regulatory Assessment, we also consider scenarios where the number of
border crossers both increases and decreases over the period of
analysis. It is worth noting that border crossings have been mostly
decreasing at both the northern and southern borders since 1999. The
analysis for sea travel assumes a 6 percent annual increase in
passenger counts over the period of analysis as the Western Hemisphere
cruise industry continues to experience growth.
Finally, we conduct a formal uncertainty (Monte Carlo) analysis to
test our assumptions in the land environment. We first conducted a
preliminary sensitivity analysis to identify the variables that have
the most significant effect on consumer welfare losses. We found that
the frequency of travel (frequent, infrequent, rare), crossings at
multiple ports-of-entry, future annual affected individuals, and the
amount of time spent applying for documentation were the most sensitive
variables in the analysis. The variables that did not appear to have an
impact on consumer losses were the estimated number of crossings by
Lawful Permanent Residents (LPRs) or Native Americans and estimated
future timing with which travelers will apply for acceptable
documentation. After we conducted our formal Monte Carlo we found that
our most sensitive assumptions are: the projected crossing growth rate,
the frequency of travel, and the number of new unique travelers that
enter the population annually. The results of the Monte Carlo analysis
are presented in Table C. Note that these estimates do not include the
government costs of implementation, estimated at an annualized cost of
$100 million (3 percent discount rate, 10 years), because we have no
basis for assigning uncertainty parameters for government costs.
Table C.--Summary of Key Characteristics of Probability Distributions of
Total Welfare Losses in the Land Environment (2005-2014, in $Billions),
3 Percent Discount Rate
------------------------------------------------------------------------
Statistic Value
------------------------------------------------------------------------
Trials.................................................. 10,000
Mean.................................................... $2.1
Median.................................................. $2.1
Std Dev................................................. $0.5
Variance................................................ 2.8E+08
5th Percentile.......................................... $1.4
95th Percentile......................................... $3.1
Point Estimate.......................................... $2.2
------------------------------------------------------------------------
We then consider the secondary impacts of forgone travel in the
land and sea environments. Forgone travel will result in gains and
losses in the United States, Canada, and Mexico. For this analysis, we
made the simplifying assumption that if U.S. citizens forgo travel to
Canada and Mexico, their expenditures that would have been spent
outside the country now remain here. In this case, industries receiving
the diverted expenditure in the United States experience a gain, while
the travel and related industries in Canada and Mexico suffer a loss.
Conversely, if Canadian and Mexican citizens forgo travel to the United
States, their potential expenditures remain abroad--a loss for the
travel and related industries in the U.S., but a gain to Canada and
Mexico. Please note that ``gains'' and ``losses'' in this analysis
cannot readily be compared to the costs and benefits of the rulemaking,
since they represent primarily transfers in and out of the U.S.
economy.
For cruise passengers, we have only rough estimates of where U.S.
passengers come from, how they travel to and from the ports where they
embark, where they go, and the activities they engage in while
cruising. We know even less about how they will alter their behavior if
they do, in fact, forgo obtaining a passport. Ideally, we could model
the indirect impacts of the rule with an input-output model (either
static or dynamic) that could give us a reasonable estimation of the
level the impact, the sectors affected, and regional impacts.
Unfortunately, given the dearth of data, the assumptions we had to
make, the small numbers of travelers who are estimated to forgo travel,
and the fact that much of their travel experience occurs outside the
United States, using such a model would not likely produce meaningful
results. We recognize, however, that multiple industries could be
indirectly affected by forgone cruise travel, including (but not
limited to): Cruise lines; cruise terminals and their support services;
air carriers and their support services; travel agents; traveler
accommodations; dining services; retail shopping; tour operators;
scenic and sightseeing transportation; hired transportation (taxis,
buses); and arts, entertainment, and recreation.
According to the MARAD dataset used for the sea analysis, there are
17 cruise lines operating in the Western Hemisphere, 9 of which are
currently offering cruises that would be indirectly affected by a
passport requirement. While we expect that cruise lines will be
indirectly affected by the rule, how they will be affected depends on
their itineraries, the length of their cruises, their current capacity,
and future expansion, as well as by travelers' decisions. We expect
short cruises (1 to 5 nights) to be most notably affected because the
passport represents a greater percentage of the overall trip cost,
passengers on these cruises are less likely to already hold a passport,
and travel plans for these cruises are frequently made closer to voyage
time. Longer cruises are less likely to be affected because these trips
are planned
[[Page 35106]]
well in advance, passengers on these voyages are more likely to already
possess a passport, and the passport cost is a smaller fraction of the
total trip cost.
Because border-crossing activity is predominantly a localized
phenomenon, and the activities engaged in while visiting the United
States are well documented in existing studies, we can explore the
potential impacts of forgone travel more quantitatively in the land
environment. Using various studies on average spending per trip in the
United States, Canada, and Mexico, we estimate the net results of
changes in expenditure flows in 2008 (the presumed first year the
requirements will be implemented) and subsequent years. Because Mexican
crossers already possess acceptable documentation to enter the United
States (passport or BCC), we do not estimate that Mexican travelers
will forgo travel to the United States. The summary of expenditure
flows is presented in Table D.
Table D.--Net Expenditure Flows in North America, 2008 and Subsequent
Years
[$Millions]
------------------------------------------------------------------------
------------------------------------------------------------------------
2008:
Spending by U.S. travelers who forgo travel to Mexico.. +$440
Spending by Mexican travelers who forgo travel to the 0
United States.........................................
Spending by U.S. travelers who forgo travel to Canada.. +170
Spending by Canadian travelers who forgo travel to -200
United States.........................................
------------
Net................................................ $410
Subsequent years (annual):
Spending by U.S. travelers who forgo travel to Mexico.. +$310
Spending by Mexican travelers who forgo travel to 0
United States.........................................
Spending by U.S. travelers who forgo travel to Canada.. +120
Spending by Canadian travelers who forgo travel to -200
United States.........................................
------------
Net................................................ $230
------------------------------------------------------------------------
To examine these impacts more locally, we conduct eight case
studies using a commonly applied input-output model (IMPLAN), which
examines regional changes in economic activity given an external
stimulus affecting those activities. In all our case studies but one,
forgone border crossings attributable to WHTI have a less-than-1-
percent impact on the regional economy both in terms of output and
employment. The results of these eight case studies are presented in
Table E.
Table E.--Modeled Distributional Effects in Eight Case Studies
----------------------------------------------------------------------------------------------------------------
Change as % of total . . .
Study area (counties) State -------------------------------
Output Employment
----------------------------------------------------------------------------------------------------------------
San Diego..................................... California...................... +0.03 +0.03
Pima, Santa Cruz.............................. Arizona......................... +0.03 +0.03
Hidalgo, Cameron.............................. Texas........................... +0.22 +0.19
Presidio...................................... Texas........................... +0.55 +0.62
Niagara, Erie................................. New York........................ -0.06 -0.12
Washington.................................... Maine........................... -0.61 -1.41
Macomb, Wayne, Oakland........................ Michigan........................ -0.01 -0.01
Whatcom....................................... Washington...................... -0.21 -0.53
----------------------------------------------------------------------------------------------------------------
As shown, we anticipate very small net positive changes in the
southern-border case studies because Mexican travelers to the United
States use existing documentation, and their travel is not affected.
The net change in regional output and employment is negative (though
still very small) in the northern-border case studies because Canadian
travelers forgoing trips outnumber U.S. travelers staying in the United
States and because Canadian travelers to the United States generally
spend more per trip than U.S. travelers to Canada. On both borders,
those U.S. travelers that forgo travel do not necessarily spend the
money they would have spent outside the United States in the case-study
region; they may spend it outside the region, and thus outside the
model.
As this is one of the first comprehensive attempts by DHS to
develop a model to estimate localized cross-border economic impacts due
to a rulemaking, we explicitly seek comment on this proposed analysis.
Specifically, we may not have captured all of the changes in local
expenditures that may be attributable to the proposed rulemaking. For
example, U.S. citizens purchasing documentation required for travel to
Canada or Mexico will not have that money available for other
consumption. Similarly, Canadian travelers may spend less in the United
States on travel to compensate for the costs of acquiring
documentation.
Finally, because the benefits of homeland security regulations
cannot readily be quantified using traditional analytical methods, we
conduct a ``breakeven analysis'' to determine what the reduction in
risk would have to be given the estimated costs of the implementation
of WHTI (land environment only). Using the Risk Management Solutions
U.S. Terrorism Risk Model (RMS model), we estimated the critical risk
reduction that would have to occur in order for the costs of the rule
to equal the benefits--or break even.
The RMS model has been developed for use by the insurance industry
and provides a comprehensive assessment of the overall terrorism risk
from both foreign and domestic terrorist
[[Page 35107]]
organizations. The RMS model generates a probabilistic estimate of the
overall terrorism risk from loss estimates for dozens of types of
potential attacks against several thousand potential targets of
terrorism across the United States. For each attack mode-target pair
(constituting an individual scenario) the model accounts for the
probability that a successful attack will occur and the consequences of
the attack. RMS derives attack probabilities from a semi-annual
structured expert elicitation process focusing on terrorists'
intentions and capabilities. It bases scenario consequences on physical
modeling of attack phenomena and casts target characteristics in terms
of property damage and casualties of interest to insurers.
Specifically, property damages include costs of damaged buildings, loss
of building contents, and loss from business interruption associated
with property to which law enforcement prohibits entry immediately
following a terrorist attack. RMS classifies casualties based on
injury-severity categories used by the worker compensation insurance
industry.
The results in the figure below are for the cost estimates
presented above and casualty costs based on willingness-to-pay
estimates and a $3 million value of a statistical life (VSL). These
results show that a decrease in perceived risk leads to a smaller
annualized loss and a greater critical risk reduction, and an increase
in perceived risk leads to a greater annualized loss and a smaller
critical risk reduction. The total range in critical risk reduction is
a factor of four and ranges from 6.6 to 26 percent, with a critical
risk reduction of 13 percent required for the standard risk scenario.
[GRAPHIC] [TIFF OMITTED] TP26JN07.006
The critical risk reduction for all risk levels considered and
multiple injury and fatality estimates are presented in Table F. As
shown, critical risk reduction ranges from 3.5 percent (high risk,
quality-of-life, VSL $6 million) to 35 percent (low risk, cost-of-
injury, no VSL). Note that because the annualized costs of the
rulemaking are very similar at the 7 percent discount rate, the
critical risk reduction estimates presented in Table F would not change
appreciably at the 7 percent rate.
Table F.--Critical Risk Reduction for the Proposed Rule
[Standard risk scenario, 3 percent discount rate]
------------------------------------------------------------------------
Critical risk reduction (%)
---------------------------------------
Low Standard High
------------------------------------------------------------------------
Cost of injury (fatality = 35 17 8.7
$1.1m).........................
Willingness to pay (VSL = $3m).. 26 13 6.6
Quality of life (VSL = $3m)..... 22 11 5.6
Willingness to pay (VSL = $6m).. 18 8.8 4.4
Quality of life (VSL = $6m)..... 14 6.9 3.5
------------------------------------------------------------------------
In addition to the methodology used to value casualties, several
other key factors affect the critical risk reduction estimate. These
factors include: The uncertainty in the risk estimate produced by the
RMS model; the
[[Page 35108]]
potential for other types of baseline losses not captured in the RMS
model; and the size of other non-quantified direct and ancillary
benefits of the rule. The RMS model likely underestimates total
baseline terrorism loss because it only reflects the direct, insurable
costs of terrorism. It does not include any indirect losses that would
result from continued change in consumption patterns or preferences or
that would result from propagating consequences of interdependent
infrastructure systems. For example, the RMS model does not capture the
economic disruption of a terrorism event beyond the immediate insured
losses. Furthermore, the model also excludes non-worker casualty losses
and losses associated with government buildings and employees. Finally,
the model may not capture less-tangible components of losses that the
public wishes to avoid, such as the fear and anxiety associated with
experiencing a terrorist attack. Omission of these losses will cause us
to overstate the necessary risk reductions.
Alternatives to the Proposed Rule
CBP considered the following alternatives to the NPRM--
1. Require all U.S. travelers (including children) to present a
valid passport book upon return to the United States from countries in
the Western Hemisphere.
2. Require all U.S. travelers (including children) to present a
valid passport book, passport card, CBP trusted traveler document, MMD,
or a specified document from a DHS-approved WHTI pilot program upon
return to the United States from countries in the Western Hemisphere.
Calculations of costs for the alternatives can be found in the two
Regulatory Assessments for the NPRM.
Alternative 1: Require All U.S. Travelers (Including Children) to
Present a Valid Passport Book
This alternative would require all U.S. citizens, including minors
under 16 and all cruise passengers, to present a valid passport book.
The passport card, CBP trusted traveler documents, the MMD, and
documents from DHS-approved pilot programs would not be accepted. This
would be a more stringent alternative, and it was rejected as
potentially too costly and burdensome for low-risk populations of
travelers. While the traditional passport book will always be an
acceptable document for a U.S. citizen to present upon entry to the
United States, DHS and DOS believe that the cost of a traditional
passport book may be too burdensome for some U.S. citizens,
particularly those living in border communities where land-border
crossings are an integral part of everyday life. As stated previously,
DHS and DOS believe that children under the age of 16 pose a low
security threat in the land and sea environments and will be permitted
to present a certified copy of a birth certificate when arriving in the
United States at all land and sea ports-of-entry from within the
Western Hemisphere. Additionally, DHS and CBP have developed an
alternative procedure for children traveling in groups. DHS and DOS
have also determined that exempting certain cruise passengers from a
passport requirement is the best approach to balance security and
travel efficiency considerations in the cruise ship environment.
Alternative 2: Require All U.S. Ttravelers (Including All Cchildren) to
Present a Valid Passport Book, Passport Card, or Other Approved
Document
The second alternative is similar to the proposed rule, though it
includes children and does not exempt cruise passengers. It is again
more stringent than the proposed rule. While this alternative
incorporates the low-cost passport card and CBP trusted traveler cards
as acceptable travel documents, this alternative was ultimately
rejected as potentially too costly and burdensome for low-risk
populations of travelers (certain cruise passengers and minors under
16).
Table G presents a comparison of the costs of the proposed rule and
the alternatives considered.
Table G.--Comparison of Regulatory Alternatives
[In $Millions]
----------------------------------------------------------------------------------------------------------------
Cost compared
Alternative 10-year cost to proposed Reason rejected
(7%) rule
----------------------------------------------------------------------------------------------------------------
Proposed rule................................. $2,848 n/a
1. Passport book only for all U.S. travelers.. 5,254 +$2,406 Cost of a passport considered
too high for citizens in border
communities; low-risk traveling
populations (certain cruise
passengers, children under 16)
unduly burdened.
2. Passport book, passport card, and other 5,448 +2,600 Low-risk traveling populations
designated documents for all U.S. travelers. (certain cruise passengers,
children under 16) unduly
burdened.
----------------------------------------------------------------------------------------------------------------
It is important to note that for scenarios where the passport card
is acceptable (the proposed rule and Alternative 2), the estimates
include government implementation costs for CBP to install the
appropriate technology at land ports-of-entry to read RFID-enabled
passport cards and the next generation of CBP trusted traveler
documents. These technology deployment costs are estimated to be
substantial, particularly in the early phases of implementation. As a
result, the alternatives allowing more documents than just the passport
cost more over 10 years than alternatives allowing only the passport,
which can be processed with existing readers that scan the passport's
MRZ. Providing waivers for minors and most cruise passengers results in
notable cost savings over 10 years (about $2.5 billion depending on the
documents considered).
The passport card is designed specifically to address the needs and
travel patterns of those who live in land-border communities and
frequently cross the border in their day-to-day activities. The
passport card is intended not only to enhance security efforts for
international land and sea travel between the U.S. and Canada, Mexico,
the Caribbean, or Bermuda, but is also intended to assist DHS in
expediting the movement of legitimate travel within the Western
Hemisphere.
In particular, the land border presents complex operational
challenges, in that a tremendous amount of traffic must be processed in
a short amount of time. There are often several passengers in a
vehicle, and multiple vehicles arriving at one time at each land border
port-of-entry. Many of the people encountered
[[Page 35109]]
crossing at the land border ports-of-entry are frequent crossers.
However, CBP does not receive advance information on these land border
travelers. For these reasons, the Department of State, in consultation
with DHS, agreed to develop a technology-based solution.
The data printed on the face of the passport card will be the same
as that currently shown on the data page of the U.S. passport--bearer's
facial image, full name, date and place of birth, passport card number,
dates of validity and issuing authority. The reverse side of the
passport card will carry a machine-readable zone (MRZ) and notation
that the card is valid only for international land and sea travel
between the U.S. and Canada, Mexico, the Caribbean, or Bermuda. In
addition, each passport card will utilize Radio Frequency (RF)
technology to store and transmit only a unique reference number that
will serve as a link to information safeguarded in a secure database
managed by CBP. This reference number will be assigned by Department of
State at the time the passport card is issued and no personal or
biographic information will be stored or transmitted using Radio
Frequency (RF) technology. Presenting the passport card will allow the
linked information to be retrieved from the secure DHS database to
allow the CBP officer to compare the citizen presenting him or herself
for entry into the United States with the original issuance record to
ensure that it is the same person. This database could include
additional information, for example, information about the bearer's
membership in one of CBP's trusted traveler programs (NEXUS, SENTRI, or
FAST).
After reviewing a number of options to provide the CBP officer with
appropriate personal information to facilitate the processing of
travelers, DOS and DHS believe that the most promising technology is RF
technology. This technology utilizes a passive chip deriving its power
from the reader that communicates with it. We focused on RF vicinity
read (GEN 2) technology.
RF vicinity read technology conforms to International Standards
Organization (ISO) 18000 6-C specifications. Vicinity read technology
would allow the passport card data to be read at a distance of up to 20
feet from the reader. The vicinity read chip would contain only a
unique reference number that will serve as a link to information
safeguarded in a secure database managed by CBP. In addition to having
commercial applications, vicinity-read technology is currently being
used in a number of DHS programs. Operationally, it has similarities to
CBP land border international trusted traveler programs, and DHS's
pilot electronic I-94 program currently in place at several land border
crossings in that it will only store and transmit a unique reference
number and no personal or biographic information. Vicinity read
technology is similar to that used in highway toll systems throughout
the U.S. From an operational sense, this technology would allow
passengers approaching a land crossing in vehicles to present the
passport card to the reader easily from within the vehicle and these
readers could process information from up to eight cards at one time.
In addition, the use of vicinity technology would provide information
to border security personnel further in advance of a traveler's arrival
at an inspection booth, facilitate a faster processing of individuals,
and provide more opportunities to leverage existing technologies.
DHS selected RF vicinity read technology for its border management
system. To ensure compatibility and interoperability with the DHS
border management system, and to secure significant travel facilitation
advantages, DOS proposed to produce the passport card utilizing RF
vicinity read technology (see 71 FR 60928 for DOS's proposed rule,
which contains a more detailed discussion of the advantages and
disadvantages of different technology choices). The selection of
vicinity read technology for the passport card was made in an effort to
ensure a seamless operational environment with DHS, and provide the
infrastructure support to strengthen our national security at U.S. land
borders. DOS proposed to produce the card and deliver them with a thin
protective sleeve, designed to protect the card from unauthorized
access. The card could be stored in the sleeve and removed only when
needed.
In addition to the State Department's proposed rule referenced
above, please see the DHS Land border analysis document for a more
detailed discussion of both the deployment and other costs of the
proposed form of the passport card, and the advantages to the border
management system provided by the RF vicinity read technology.
Accounting Statement
As required by OMB Circular A-4, CBP has prepared an accounting
statement showing the classification of the expenditures associated
with this rule. The table below provides an estimate of the dollar
amount of these costs and benefits, expressed in 2005 dollars, at 7
percent and 3 percent discount rates. We estimate that the cost of this
rule will be approximately $406 million annualized (7 percent discount
rate) and approximately $384 million annualized (3 percent discount
rate). Non-quantified benefits are enhanced security and efficiency.
Accounting Statement: Classification of Expenditures, 2005--2014
[2005 dollars]
------------------------------------------------------------------------
3% Discount rate 7% Discount rate
------------------------------------------------------------------------
Costs:
Annualized monetized $384 million........ $406 million.
costs.
Annualized quantified, None................ None.
but un-monetized costs.
Qualitative (un- Indirect costs to Indirect costs to
quantified) costs. the travel and the travel and
tourism industry. tourism industry.
Benefits:
Annualized monetized None quantified..... None quantified.
benefits.
Annualized, quantified, None quantified..... None quantified.
but un-monetized
benefits.
Qualitative (un- Enhanced security Enhanced security
quantified) benefits. and efficiency. and efficiency.
------------------------------------------------------------------------
[[Page 35110]]
B. Regulatory Flexibility Act
CBP has prepared this section to examine the impacts of the
proposed rule on small entities as required by the Regulatory
Flexibility Act (RFA).\76\ A small entity may be a small business
(defined as any independently owned and operated business not dominant
in its field that qualifies as a small business per the Small Business
Act); a small not-for-profit organization; or a small governmental
jurisdiction (locality with fewer than 50,000 people).
---------------------------------------------------------------------------
\76\ See 5 U.S.C. 601-612.
---------------------------------------------------------------------------
When considering the impacts on small entities for the purpose of
complying with the RFA, CBP consulted the Small Business
Administration's guidance document for conducting regulatory
flexibility analysis.\77\ Per this guidance, a regulatory flexibility
analysis is required when an agency determines that the rule will have
a significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule.\78\ This guidance
document also includes a good discussion describing how direct and
indirect costs of a regulation are considered differently for the
purposes of the RFA. CBP does not believe that small entities are
subject to the requirements of the proposed rule; individuals are
subject to the requirements, and individuals are not considered small
entities. To wit, ``The courts have held that the RFA requires an
agency to perform a regulatory flexibility analysis of small entity
impacts only when a rule directly regulates them.'' \79\
---------------------------------------------------------------------------
\77\ See Small Business Administration, Office of Advocacy, A
Guide for Government Agencies: How to Comply with the Regulatory
Flexibility Act, May 2003.
\78\ See id. at 69.
\79\ See id. at 20.
---------------------------------------------------------------------------
As described in the Regulatory Assessment for this rulemaking, CBP
could not quantify the indirect impacts of the proposed rule with any
degree of certainty; it instead focused the analysis on the direct
costs to individuals recognizing that some small entities will face
indirect impacts.
Some of the small entities indirectly affected will be foreign
owned and will be located outside the United States. Additionally,
reductions in international travel that result from the proposed rule
could lead to gains for domestic industries. Most travelers are
expected to eventually obtain passports and continue traveling.
Consequently, indirect effects are expected to be spread over wide
swaths of domestic and foreign economies.
Small businesses may be indirectly affected by the proposed rule if
international travelers forego travel to affected Western Hemisphere
countries. These industry sectors may include (but are not limited to):
--Manufacturing
--Wholesale trade
--Retail trade
--Transportation (including water, air, truck, bus, and rail)
--Real estate
--Arts, entertainment, and recreation
--Accommodation and food services
Because this rule does not directly regulate small entities, we do
not believe that this rule has a significant economic impact on a
substantial number of small entities. The exception could be certain
``sole proprietors'' who could be considered small businesses and could
be directly affected by the rule if their occupations required travel
within the Western Hemisphere where a passport was not previously
required. The cost to such businesses would be only $128 for a first-
time passport applicant, or $195 if expedited service were requested,
and would only be incurred if the individual needed a passport. We
believe such an expense would not rise to the level of being a
``significant economic impact.'' We welcome comments on our
assumptions. The most helpful comments are those that can provide
specific information or examples of a direct impact on small entities.
If we do not receive comments that demonstrate that the rule causes
small entities to incur direct costs, we may certify that this action
does not have a significant economic impact on a substantial number of
small entities during the final rule.
The complete analysis of impacts to small entities for this
proposed rulemaking is available on the CBP Web site at: http://www.regulations.gov; see also http://www.cbp.gov. Comments regarding
the analysis and the underlying assumptions are encouraged and may be
submitted by any of the methods described under the ADDRESSES section
of this document.
C. Executive Order 13132: Federalism
Executive Order 13132 requires DHS and DOS to develop a process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' Policies that have federalism implications are defined
in the Executive Order to include rules that 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.'' DHS and DOS
have analyzed the proposed rule in accordance with the principles and
criteria in the Executive Order and have determined that it does not
have federalism implications or a substantial direct effect on the
States. The proposed rule requires U.S. citizens and nonimmigrant
aliens from Canada, Bermuda and Mexico entering the United States by
land or by sea from Western Hemisphere countries to present a valid
passport or other identified alternative document. States do not
conduct activities with which this rule would interfere. For these
reasons, this proposed rule would not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
D. Unfunded Mandates Reform Act Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
enacted as Public Law 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the UMRA is any
provision in a Federal agency regulation that will impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section
204(a), provides that before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals.
This proposal would not impose a significant cost or uniquely
affect small governments. The proposal does have an effect on the
private sector of $100 million or more in any one year. This
[[Page 35111]]
impact is discussed under the Executive Order 12866 discussion.
E. National Environmental Policy Act of 1969
DHS and CBP, in consultation with DOS, the Environmental Protection
Agency and the General Services Administration have been reviewing the
potential environmental and other impacts of this proposed rule in
accordance with the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (40 CFR part 1500), and DHS Management Directive
5100.1, Environmental Planning Program of April 19, 2006. A
programmatic environmental assessment (PEA) is being prepared that
examines, among other things, potential alternatives regarding
implementation of the proposed rule at the various land and sea ports
of entry and what, if any, environmental impacts may result from the
proposed rule and its implementation. The PEA will serve as the basis
for the determination whether the proposed rule and its implementation
will have a significant impact on the quality of the human environment
such that it will require further analysis under NEPA.
A Notice of Availability will be published in the Federal Register,
and the PEA will be available for viewing and comments on http://www.regulations.gov.
The Notice of Availability will also be published
in newspapers, and copies placed in public libraries, in certain border
areas. Additionally, copies of the PEA will be posted on the CBP Web
site at http://www.cbp.gov. The Notice of Availability will provide
details on how the public may provide comments on the PEA. In addition,
copies may be obtained by writing to: U.S. Customs and Border
Protection, 1300 Pennsylvania Avenue, NW., Room 5.4C, Attn: WHTI
Environmental Assessment, Washington, DC 20229.
F. Paperwork Reduction Act
1. Passports/Passport Cards
The collection of information requirement for passports is
contained in 22 CFR 51.20 and 51.21. The required information is
necessary for DOS Passport Services to issue a United States passport
in the exercise of authorities granted to the Secretary of State in 22
U.S.C. Section 211a et seq. and Executive Order 11295 (August 5, 1966)
for the issuance of passports to United States citizens and non-citizen
nationals. The issuance of U.S. passports requires the determination of
identity and nationality with reference to the provisions of Title III
of the Immigration and Nationality Act (8 U.S.C. sections 1401-1504),
the Fourteenth Amendment to the Constitution of the United States, and
other applicable treaties and laws. The primary purpose for soliciting
the information is to establish nationality, identity, and entitlement
to the issuance of a United States passport or related service and to
properly administer and enforce the laws pertaining to issuance
thereof.
There are currently two OMB-approved application forms for
passports, the DS-11 Application for a U.S. Passport (OMB Approval No.
1405-0004) and the DS-82 Application for a U.S. Passport by Mail.
Applicants for the proposed passport cards would use the same
application forms (DS-11 and DS-82). First time applicants must use the
DS-11. The rule would not create any new collection of information
requiring OMB approval under the Paperwork Reduction Act of 1995 (44
U.S.C. 3507). It would result in an increase in the number of persons
filing the DS-11, and a corresponding increase in the annual reporting
and/or record-keeping burden. In conjunction with publication of the
final rule, DOS will amend the OMB form 83-I (Paperwork Reduction Act
Submission) relating to the DS-11 to reflect these increases.
The collection of information encompassed within this rule has been
submitted to the OMB for review in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and
a person is not required to respond to, a collection of information
unless the collection of information displays a valid control number
assigned by OMB.
Estimated annual average reporting and/or recordkeeping burden:
14.7 million hours.
Estimated annual average number of respondents: 9 million.
Estimated average burden per respondent: 1 hour 25 minutes.
Estimated frequency of responses: every 10 years (adult passport
and passport card applications); every 5 years (minor passport and
passport card applications).
Comments on this collection of information should be sent to the
Office of Management and Budget, Attention: Desk Officer of the
Department of State, Office of Information and Regulatory Affairs,
Washington, DC 20503. Comments should be submitted within the time
frame that comments are due regarding the substance of the proposal.
Comments are invited on: (a) Whether the collection is necessary
for the proper performance of the functions of the agency, including
whether the information will have practical utility; (b) the accuracy
of the agency's estimate of the burden of the collection of the
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; (d) ways to minimize the burden of the
collection of information on respondents, including through the use of
automated collection techniques or other forms of information
technology; and (e) estimates of capital or startup costs and costs of
operations, maintenance, and purchases of services to provide
information.
2. Groups of Children
The collection of information requirements for groups of children
would be contained in 8 CFR 212.1 and 235.1. The required information
is necessary to comply with section 7209 of IRTPA, as amended, to
develop an alternative procedure for groups of children traveling
across an international border under adult supervision with parental
consent. DHS, in consultation with DOS, has developed alternate
procedures requiring that certain information be provided to CBP so
that these children would not be required to present a passport.
Consequently, U.S. and Canadian citizen children through age 18, who
are traveling with public or private school groups, religious groups,
social or cultural organizations, or teams associated with youth sport
organizations that arrive at U.S. sea or land ports-of-entry, would be
permitted to present a certified copy of a birth certificate (rather
than a passport), when the groups are under the supervision of an adult
affiliated with the organization and when all the children have
parental or legal guardian consent to travel. U.S. citizen children
would also be permitted to present a certification of Naturalization or
a Consular Report of Birth Abroad.
When crossing the border at the port-of-entry, the U.S. group,
organization, or team would be required to provide to CBP on
organizational letterhead the following information: (1) The name of
the group; (2) the name of each child on the trip; (3) the primary
address, primary phone number, date of birth, place of birth, and name
of at least one parent or legal guardian for each child on the trip;
(4) the name of the chaperone or supervising adult; and (5) the
signature of the supervising adult certifying that he or she has
obtained parental or legal guardian consent for each child.
[[Page 35112]]
The primary purpose for soliciting the information is to allow
groups of children arriving at the U.S. border under adult supervision
with parental consent to present either an original or a certified copy
of a birth certificate, Consular Report of Birth Abroad, or Certificate
of Naturalization, rather than a passport, when the requested
information is provided to CBP. This information is necessary for CBP
to verify that the group of children entering the United States would
be eligible for this alternative procedure so that the children would
not be required to present a passport.
The collection of information encompassed within this proposed rule
has been submitted to the OMB for review in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not
conduct, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number assigned by OMB.
Estimated annual reporting and/or recordkeeping burden: 1,625
hours.
Estimated average annual respondent or recordkeeping burden: 15
minutes.
Estimated number of respondents and/or recordkeepers: 6,500
respondents.
Estimated annual frequency of responses: 6,500 responses.
Comments on this collection of information should be sent to the
Office of Management and Budget, Attention: Desk Officer of the
Department of Homeland Security, Office of Information and Regulatory
Affairs, Washington, DC 20503. Comments should be submitted within the
time frame that comments are due regarding the substance of the
proposal.
Comments are invited on: (a) Whether the collection is necessary
for the proper performance of the functions of the agency, including
whether the information will have practical utility; (b) the accuracy
of the agency's estimate of the burden of the collection of the
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; (d) ways to minimize the burden of the
collection of information on respondents, including through the use of
automated collection techniques or other forms of information
technology; and (e) estimates of capital or startup costs and costs of
operations, maintenance, and purchases of services to provide
information.
G. Privacy Statement
A Privacy Impact Assessment (PIA) is being posted to the DHS Web
site in conjunction with the publication of this proposed rule in the
Federal Register. The changes proposed in this rule involve the removal
of an exception for U.S. citizens from having to present a passport in
connection with Western Hemisphere travel other than Cuba, such that
said individuals would now be required to present a passport or other
identified alternative document when traveling from points of origin
both within and without of the Western Hemisphere. The rule expands the
number of individuals submitting passport information for travel within
the Western Hemisphere, but does not involve the collection of any new
data elements. Presently, CBP collects and stores passport information
from all travelers, required to provide such information pursuant to
the Aviation and Transportation Security Act of 2001 (ATSA) and the
Enhanced Border Security and Visa Reform Act of 2002 (EBSA), in the
Treasury Enforcement Communications System (TECS) (for which a System
of Records Notice is published at 66 FR 53029). By removing the
exception for submitting passport information from U.S. citizens
traveling within the Western Hemisphere, DOS and CBP are requiring
these individuals to comply with the general requirement to submit
passport information when traveling to and from the United States.
List of Subjects
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
22 CFR Part 41
Aliens, Nonimmigrants, Passports and visas.
22 CFR Part 53
Passports and visas, Travel restrictions.
Proposed Amendments to the Regulations
For the reasons stated above, DHS and DOS propose to amend 8 CFR
parts 212 and 235 and 22 CFR parts 41 and 53 as set forth below.
Title 8--Aliens and Nationality
PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
1. The authority citation for part 212 is revised to read as
follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1359; 8 U.S.C. 1185 note
(section 7209 of Pub. L. 108-458, as amended by section 546 of Pub.
L. 109-295).
2. A new section 212.0 is added to read as follows:
Sec. 212.0 Definitions.
For purposes of Sec. 212.1 and Sec. 235.1 of this chapter:
Adjacent islands means Bermuda and the islands located in the
Caribbean Sea, except Cuba.
Cruise ship means a passenger vessel over 100 gross tons, carrying
more than 12 passengers for hire, making a voyage lasting more than 24
hours any part of which is on the high seas, and for which passengers
are embarked or disembarked in the United States or its territories.
Ferry means any vessel operating on a pre-determined fixed schedule
and route, which is being used solely to provide transportation between
places that are no more than 300 miles apart and which is being used to
transport passengers, vehicles, and/or railroad cars;
Pleasure vessel means a vessel that is used exclusively for
recreational or personal purposes and not to transport passengers or
property for hire; and
United States means ``United States'' as defined in section 215(c)
of the Immigration and Nationality Act of 1952, as amended (8 U.S.C.
1185(c)).
3. Section 212.1 is amended by:
a. Revising paragraphs (a)(1) and (a)(2); and
b. Revising paragraph (c)(1).
The revisions read as follows:
Sec. 212.1 Documentary requirements for nonimmigrants.
* * * * *
(a) Citizens of Canada or Bermuda, Bahamian nationals or British
subjects resident in certain islands--(1) Canadian citizens. A visa is
generally not required for Canadian citizens, except those Canadians
that fall under nonimmigrant visa categories E, K, S or V as provided
in paragraphs (h), (l), and (m) of this section and 22 CFR 41.2. A
valid unexpired passport is required for Canadian citizens arriving in
the United States, except when meeting one of the following
requirements:
[[Page 35113]]
(i) NEXUS Program. A Canadian citizen who is traveling as a
participant in the NEXUS program may present a valid unexpired NEXUS
program card when using a NEXUS Air kiosk or when entering the United
States from contiguous territory or adjacent islands at a sea or land
port-of-entry, and who is not otherwise required to present a passport
and visa as provided in paragraphs (h), (l), and (m) of this section
and 22 CFR 41.2. A Canadian citizen who enters the United States by
pleasure vessel from Canada under the remote inspection system may
present a valid unexpired NEXUS program card.
(ii) FAST Program. A Canadian citizen who is traveling as a
participant in the FAST program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (h), (l), and (m)
of this section and 22 CFR 41.2, may present a valid unexpired FAST
card at a sea or land port-of-entry prior to entering the United States
from contiguous territory or adjacent islands.
(iii) SENTRI Program. A Canadian citizen who is traveling as a
participant in the SENTRI program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (h), (l), and (m)
of this section and 22 CFR 41.2, may present a valid unexpired SENTRI
card at a sea or land port-of-entry prior to entering the United States
from contiguous territory or adjacent islands.
(iv) Children. A child who is a Canadian citizen arriving from
contiguous territory may present for admission to the United States at
sea or land ports-of-entry certain other documents if the arrival meets
the requirements described below.
(A) Children Under Age 16. A Canadian citizen who is under the age
of 16 is permitted to present an original or certified copy of his or
her birth certificate when arriving in the United States from
contiguous territory at sea or land ports-of-entry.
(B) Groups of Children Under Age 19. A Canadian citizen, under age
19 who is traveling with a public or private school group, religious
group, social or cultural organization, or team associated with a youth
sport organization is permitted to present an original or certified
copy of his or her birth certificate when arriving in the United States
from contiguous territory at sea or land ports-of-entry, when the
group, organization or team is under the supervision of an adult
affiliated with the organization and when the child has parental or
legal guardian consent to travel. For purposes of this paragraph, an
adult is considered to be a person who is age 19 or older. The
following requirements will apply:
(1) The group, organization, or team must provide to CBP upon
crossing the border, on organizational letterhead:
(i) The name of the group, organization or team, and the name of
the supervising adult;
(ii) A trip itinerary, including the stated purpose of the trip,
the location of the destination, and the length of stay;
(iii) A list of the children on the trip;
(iv) For each child, the primary address, primary phone number,
date of birth, place of birth, and name of a parent or legal guardian.
(2) The adult leading the group, organization, or team must
demonstrate parental or legal guardian consent by certifying in the
writing submitted in paragraph (a)(1)(iv)(B)(1) of this section that he
or she has obtained for each child the consent of at least one parent
or legal guardian.
(3) The inspection procedure described in this paragraph is limited
to members of the group, organization, or team who are under age 19.
Other members of the group, organization, or team must comply with
other applicable document and/or inspection requirements found in this
part or parts 211 or 235 of this subchapter.
(2) Citizens of the British Overseas Territory of Bermuda. A visa
is generally not required for Citizens of the British Overseas
Territory of Bermuda, except those Bermudians that fall under
nonimmigrant visa categories E, K, S or V as provided in paragraphs
(h), (l), and (m) of this section and 22 CFR 41.2. A passport is
required for Citizens of the British Overseas Territory of Bermuda
arriving in the United States.
* * * * *
(c) Mexican nationals. (1) A visa and a passport are not required
of a Mexican national who:
(i) Is applying for admission as a temporary visitor for business
or pleasure from Mexico at a land port-of-entry, or arriving by
pleasure vessel or ferry, if the national is in possession of a Form
DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a machine-
readable biometric identifier, issued by the Department of State.
(ii) Is applying for admission from contiguous territory or
adjacent islands at a sea or land port-of-entry, if the national is a
member of the Texas Band of Kickapoo who is in possession of a Form I-
872 American Indian Card.
* * * * *
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
4. The authority citation for part 235 is revised to read as
follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226,
1228, 1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of
Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).
5. Section 235.1 is amended by:
a. Revising paragraph (b); and
b. Revising paragraph (d).
The revised text reads as follows:
Sec. 235.1 Scope of Examination.
* * * * *
(b) U.S. Citizens. A person claiming United States citizenship must
establish that fact to the examining officer's satisfaction and must
present a passport or alternative documentation as required by 22 CFR
part 53. If such applicant for admission fails to satisfy the examining
immigration officer that he or she is a citizen, he or she shall
thereafter be inspected as an alien. A United States citizen must
present a valid unexpired traditional passport upon entering the United
States, unless he or she presents one of the following documents:
(1) Passport Card. A United States citizen who possesses a valid
unexpired United States passport card, as defined in 22 CFR 53.1, may
present the passport card when entering the United States from Canada,
Mexico, the Caribbean or Bermuda at sea or land ports-of-entry.
(2) Merchant Mariner Document. A United States citizen who holds a
Merchant Mariner Document (MMD) issued by the U.S. Coast Guard may
present an unexpired MMD used in conjunction with official maritime
business when entering the United States.
(3) Military Identification. Any U.S. citizen member of the U.S.
Armed Forces who is in the uniform of, or bears documents identifying
him or her as a member of, such Armed Forces, and who is coming to or
departing from the United States under official orders or permit of
such Armed Forces, may present a military identification card and the
official orders when entering the United States.
(4) Trusted Traveler Programs. A United States citizen who travels
as a participant in the NEXUS, FAST or SENTRI programs may present a
valid NEXUS program card when using a NEXUS Air kiosk or a valid NEXUS,
FAST, or SENTRI card at a sea or land port-of-entry prior to entering
the
[[Page 35114]]
United States from contiguous territory or adjacent islands. A United
States citizen who enters the United States by pleasure vessel from
Canada using the remote inspection system may present a NEXUS program
card.
(5) Certain Cruise Ship Passengers. A United States citizen
traveling entirely within the Western Hemisphere is permitted to
present a government-issued photo identification document in
combination with either an original or a certified copy of his or her
birth certificate, a Consular Report of Birth Abroad issued by the
Department of State, or a Certificate of Naturalization issued by U.S.
Citizenship and Immigration Services before entering the United States
when the United States citizen:
(i) Boards a cruise ship at a port or place within the United
States; and,
(ii) Returns on the same cruise ship to the same United States port
or place from where he or she originally departed.
(6) Native American Holders of an American Indian Card. A Native
American holder of a Form I-872 American Indian Card arriving from
contiguous territory is permitted to present the Form I-872 card prior
to entering the United States at a land or sea port-of-entry.
(7) Children. A child who is a United States citizen entering the
United States from contiguous territory at a sea or land ports-of-entry
may present certain other documents, if the arrival meets the
applicable requirements described below.
(i) Children Under Age 16. A United States citizen who is under the
age of 16 is permitted to present either an original or a certified
copy of his or her birth certificate, a Consular Report of Birth Abroad
issued by the Department of State, or a Certificate of Naturalization
issued by U.S. Citizenship and Immigration Services when entering the
United States from contiguous territory at sea or land ports-of-entry.
(ii) Groups of Children Under Age 19. A United States citizen, who
is under age 19 and is traveling with a public or private school group,
religious group, social or cultural organization or team associated
with a youth sport organization is permitted to present either an
original or a certified copy of his or her birth certificate, a
Consular Report of Birth Abroad issued by the Department of State, or a
Certificate of Naturalization issued by U.S. Citizenship and
Immigration Services when arriving from contiguous territory at sea or
land ports-of-entry, when the group, organization, or team is under the
supervision of an adult affiliated with the group, organization, or
team and when the child has parental or legal guardian consent to
travel. For purposes of this paragraph, an adult is considered to be a
person age 19 or older. The following requirements will apply:
(A) The group or organization must provide to CBP upon crossing the
border, on organizational letterhead:
(1) The name of the group, organization or team, and the name of
the supervising adult;
(2) A list of the children on the trip;
(3) For each child, the primary address, primary phone number, date
of birth, place of birth, and name of a parent or legal guardian.
(B) The adult leading the group, organization, or team must
demonstrate parental or legal guardian consent by certifying in the
writing submitted in paragraph (b)(7)(ii)(A) of this section that he or
she has obtained for each child the consent of at least one parent or
legal guardian.
(C) The inspection procedure described in this paragraph is limited
to members of the group, organization, or team who are under age 19.
Other members of the group, organization, or team must comply with
other applicable document and/or inspection requirements found in this
part.
* * * * *
(d) Pilot Programs; alternate requirements. For purposes of
conducting a test program or procedure designed to evaluate the
effectiveness of technology or operational procedures regarding the
suitability of travel documents that denote citizenship and identity,
the Secretary of Homeland Security may enter into a voluntary pilot
program agreement with a State, tribe, province, territory, or foreign
government. The Secretary of Homeland Security may, by publication of a
notice in the Federal Register, designate as an acceptable document for
travel into the United States from elsewhere in the Western Hemisphere,
on a temporary basis, a valid and lawfully obtained document from a
State, tribe, province, territory, or foreign government developed in
accordance with a voluntary pilot program agreement between that entity
and the Department of Homeland Security. If a pilot program document is
announced in such a notice, United States citizens or foreign nationals
may present these accepted pilot program documents in lieu of a
passport upon entering or seeking admission to the United States
according to the terms announced in the pilot program agreements. A
list of such programs and documents are available on the Customs and
Border Protection Web site.
* * * * *
Title 22--Foreign Relations
PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY ACT
1. The authority citation for part 41 is revised to read as
follows:
Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795
through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458, as amended by section 546 of Pub. L. 109-295).
Subpart A--Passport and Visas Not Required for Certain
Nonimmigrants
2. A new section 41.0 is added to read as follows:
Sec. 41.0 Definitions.
For purposes of this chapter:
Adjacent islands means Bermuda and the islands located in the
Caribbean Sea, except Cuba.
Cruise ship means a passenger vessel over 100 gross tons, carrying
more than 12 passengers for hire, making a voyage lasting more than 24
hours any part of which is on the high seas, and for which passengers
are embarked or disembarked in the United States or its territories.
Ferry means any vessel operating on a pre-determined fixed schedule
and route, which is being used solely to provide transportation between
places that are no more than 300 miles apart and which is being used to
transport passengers, vehicles, and/or railroad cars;
Pleasure vessel means a vessel that is used exclusively for
recreational or personal purposes and not to transport passengers or
property for hire; and
United States means ``United States'' as defined in section 215(c)
of the Immigration and Nationality Act of 1952, as amended (8 U.S.C.
1185(c)).
Sec. 41.1 [Amended]
3. Section 41.1 is amended by removing and reserving paragraph (b).
4. Section 41.2 is amended by revising the introductory text and
paragraphs (a), (b), and (g)(1), and adding a paragraph (g)(5) to read
as follows:
Sec. 41.2 Exemption or Waiver by Secretary of State and Secretary of
Homeland Security of passport and/or visa requirements for certain
categories of nonimmigrants.
Pursuant to the authority of the Secretary of State and the
Secretary of Homeland Security under INA as amended a passport and/or
visa is not
[[Page 35115]]
required for the following categories of nonimmigrants:
(a) Canadian citizens. A visa is not required for an American
Indian born in Canada having at least 50 percentum of blood of the
American Indian race. A visa is not required for other Canadian
citizens except for those who apply for admission in E, K, V, or S
nonimmigrant classification as provided in paragraphs (k) and (m) of
this section and 8 CFR 212.1. A passport is required for Canadian
citizens applying for admission to the United States, except when one
of the following exceptions applies:
(1) NEXUS Program. A Canadian citizen who is traveling as a
participant in the NEXUS program may present a valid NEXUS program card
when using a NEXUS Air kiosk or when entering the United States from
contiguous territory or adjacent islands at a land or sea port-of-
entry, and who is not otherwise required to present a passport and visa
as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1.
A Canadian citizen who enters the United States by pleasure vessel from
Canada under the remote inspection system may present a NEXUS program
card.
(2) FAST Program. A Canadian citizen who is traveling as a
participant in the FAST program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (k) and (m) of
this section and 8 CFR 212.1, may present a valid FAST card at a sea or
land port-of-entry prior to entering the United States from contiguous
territory or adjacent islands.
(3) SENTRI Program. A Canadian citizen who is traveling as a
participant in the SENTRI program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (k) and (m) of
this section and 8 CFR 212.1, may present a valid SENTRI card at a sea
or land port-of-entry prior to entering the United States from
contiguous territory or adjacent islands.
(4) Children. A child who is a Canadian citizen who is seeking
admission to the United States when arriving from contiguous territory
at a sea or land port-of-entry, may present certain other documents if
the arrival meets the applicable requirements described below.
(i) Children Under Age 16. A Canadian citizen who is under the age
of 16 is permitted to present an original or certified copy of his or
her birth certificate when arriving in the United States from
contiguous territory at sea or land ports-of-entry.
(ii) Groups of Children Under Age 19. A Canadian citizen who is
under age 19 and who is traveling with a public or private school
group, religious group, social or cultural organization, or team
associated with a youth sport organization may present an original or
certified copy of his or her birth certificate when applying for
admission to the United States from contiguous territory at all sea and
land ports-of-entry, when the group, organization or team is under the
supervision of an adult affiliated with the organization and when the
child has parental or legal guardian consent to travel. For purposes of
this paragraph, an adult is considered to be a person who is age 19 or
older.
The following requirements will apply:
(A) The group, organization, or team must provide to CBP upon
crossing the border, on organizational letterhead:
(1) The name of the group, organization or team, and the name of
the supervising adult;
(2) A trip itinerary, including the stated purpose of the trip, the
location of the destination, and the length of stay;
(3) A list of the children on the trip;
(4) For each child, the primary address, primary phone number, date
of birth, place of birth, and the name of at least one parent or legal
guardian.
(B) The adult leading the group, organization, or team must
demonstrate parental or legal guardian consent by certifying in the
writing submitted in paragraph (a)(4)(ii)(A) of this section that he or
she has obtained for each child the consent of at least one parent or
legal guardian.
(C) The procedure described in this paragraph is limited to members
of the group, organization, or team that are under age 19. Other
members of the group, organization, or team must comply with other
applicable document and/or inspection requirements found in this part
and 8 CFR parts 212 and 235.
(5) Pilot Programs. A Canadian citizen who is traveling as a
participant in a pilot program approved by the Secretary of Homeland
Security pursuant to 8 CFR 235.1(d) may present an acceptable
alternative document specified for that pilot program when entering the
United States from contiguous territory or adjacent islands at a land
or sea port-of-entry, and who is not otherwise required to present a
passport and visa as provided in paragraphs (k) and (m) of this section
and 8 CFR 212.1. A Canadian citizen who enters the United States by
pleasure vessel from Canada under the remote inspection system may also
present an acceptable pilot program document if the Canadian citizen is
participating in a pilot program which specifically provides that the
acceptable pilot program document may be presented for remote entry.
* * * * *
(b) Citizens of the British Overseas Territory of Bermuda. A visa
is not required, except for Citizens of the British Overseas Territory
of Bermuda who apply for admission in E, K, V, or S nonimmigrant visa
classification as provided in paragraphs (k) and (m) of this section
and 8 CFR 212.1. A passport is required for Citizens of the British
Overseas Territory of Bermuda applying for admission to the United
States.
* * * * *
(g) Mexican nationals. (1) A visa and a passport are not required
of a Mexican national who is applying for admission from Mexico as a
temporary visitor for business or pleasure at a land port-of-entry, or
arriving by pleasure vessel or ferry, if the national is in possession
of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a
machine-readable biometric identifier, issued by the Department of
State.
* * * * *
(5) A visa and a passport are not required of a Mexican national
who is applying for admission from contiguous territory or adjacent
islands at a land or sea port-of-entry, if the national is a member of
the Texas Band of Kickapoo who is in possession of a Form I-872
American Indian Card issued by U.S. Citizenship and Immigration
Services (USCIS).
* * * * *
PART 53--PASSPORT REQUIREMENT AND EXCEPTIONS
5. The authority citation for part 53 continues to read as follows:
Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 note (section 7209 of
Pub. L. 108-458); E.O. 13323, 69 FR 241 (Dec. 30, 2003).
6. Section 53.2 is revised to read as follows:
Sec. 53.2 Exceptions.
(a) U.S. citizens are not required to bear U.S. passports when
traveling directly between parts of the United States as defined in
Sec. 50.1 of this chapter.
(b) A U.S. citizen is not required to bear a valid U.S. passport to
enter or depart the United States:
(1) When traveling as a member of the Armed Forces of the United
States on active duty and when he or she is in the uniform of, or bears
documents identifying him or her as a member of, such Armed Forces,
when under official orders or permit of such Armed Forces, and when
carrying a military identification card; or
[[Page 35116]]
(2) When traveling entirely within the Western Hemisphere on a
cruise ship, when the U.S. citizen boards the cruise ship at a port or
place within the United States, and, returns on the same cruise ship to
the same United States port or place from where he or she originally
departed. That U.S. citizen may present a government-issued photo
identification document in combination with either an original or a
certified copy of his or her birth certificate, a Consular Report of
Birth Abroad issued by the Department, or a Certificate of
Naturalization issued by U.S. Citizenship and Immigration Services
before entering the United States; or
(3) When traveling as a U.S. citizen seaman, carrying an unexpired
Merchant Marine Document (MMD) in conjunction with maritime business.
The MMD is not sufficient to establish citizenship for purposes of
issuance of a United States passport under part 51 of this chapter; or
(4) Trusted Traveler Programs--(i) NEXUS Program. When traveling as
a participant in the NEXUS program, he or she may present a valid NEXUS
program card when using a NEXUS Air kiosk or when entering the United
States from contiguous territory or adjacent islands at a sea or land
port-of-entry. A U.S. citizen who enters the United States by pleasure
vessel from Canada under the remote inspection system may also present
a NEXUS program card;
(ii) FAST Program. A U.S. citizen who is traveling as a participant
in the FAST program may present a valid FAST card when entering the
United States from contiguous territory or adjacent islands at a sea or
land port-of-entry;
(iii) SENTRI Program. A U.S. citizen who is traveling as a
participant in the SENTRI program may present a valid SENTRI card when
entering the United States from contiguous territory or adjacent
islands at a sea or land port-of-entry;
(iv) The NEXUS, FAST, and SENTRI cards are not sufficient to
establish citizenship for purposes of issuance of a U.S. passport under
part 51 of this chapter; or
(5) When arriving at land ports of entry and sea ports of entry
from contiguous territory or adjacent islands, Native American holders
of American Indian Cards (Form I-872) issued by United States
Citizenship and Immigration Services (USCIS) may present those cards.
(6) When bearing documents or combinations of documents the
Secretary of Homeland Security has determined under Section 7209(b) of
Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote
identity and citizenship.
(7) When the U.S. citizen is employed directly or indirectly on the
construction, operation, or maintenance of works undertaken in
accordance with the treaty concluded on February 3, 1944, between the
United States and Mexico regarding the functions of the International
Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat.
1219, or other related agreements, provided that the U.S. citizen bears
an official identification card issued by the IBWC and is traveling in
connection with such employment; or
(8) When the Department of State waives, pursuant to EO 13323 of
December 30, 2003, Sec. 2, the requirement with respect to the U.S.
citizen because there is an unforeseen emergency; or
(9) When the Department of State waives, pursuant to EO 13323 of
December 30, 2003, Sec. 2, the requirement with respect to the U.S.
citizen for humanitarian or national interest reasons.
(10) When the U.S. citizen is a child under the age of 19 arriving
from contiguous territory in the following circumstances:
(i) Children Under Age 16. A United States citizen who is under the
age of 16 is permitted to present either an original or a certified
copy of his or her birth certificate, a Consular Report of Birth
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship
and Immigration Services when entering the United States from
contiguous territory at sea or land ports-of-entry.
(ii) Groups of Children Under Age 19. A U.S. citizen who is under
age 19 and who is traveling with a public or private school group,
religious group, social or cultural organization, or team associated
with a youth sport organization may present either an original or
certified copy of his or her birth certificate, a Consular Report of
Birth Abroad, or a Certificate of Naturalization issued by U.S.
Citizenship and Immigration Services when arriving in the United States
from contiguous territory at all land or sea ports of entry, when the
group, organization or team is under the supervision of an adult
affiliated with the organization and when the child has parental or
legal guardian consent to travel. For purposes of this paragraph, an
adult is considered to be a person who is age 19 or older. The
following requirements will apply:
(A) The group, organization, or team must provide to CBP upon
crossing the border on organizational letterhead:
(1) The name of the group, organization or team, and the name of
the supervising adult;
(2) A list of the children on the trip; and
(3) For each child, the primary address, primary phone number, date
of birth, place of birth, and the name of at least one parent or legal
guardian.
(B) The adult leading the group, organization, or team must
demonstrate parental or legal guardian consent by providing certifying
in the writing submitted in paragraph (b)(10)(ii)(A) of this section
that he or she has obtained for each child the consent of at least one
parent or legal guardian.
(C) The procedure described in this paragraph is limited to members
of the group, organization, or team who are under age 19. Other members
of the group, organization, or team must comply with other applicable
document and/or inspection requirements found in 8 CFR parts 211, 212
or 235.
Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.
Dated: June 19, 2007.
Henrietta Fore,
Under Secretary of State for Management, Department of State.
[FR Doc. 07-3104 Filed 6-21-07; 2:11 pm]
BILLING CODE 9111-14-P