Federal Register / Vol. 71, No. 155 / Friday, August 11, 2006 / Proposed Rules 46155 

TABLE OF CONCENTRATION LIMITS

List I chemicals DEA chemical 

code number 

Concentration 

(percent) 

Special 

conditions 

* * * * * * * 

Iodine ................................................................................................................................ 6699 2.2 

* * * * * * * 

(d) * * * 

* * * * * 

(4) Iodine products classified as 

iodophors which exist as an iodine 

complex to include poloxamer-iodine 

complex, polyvinyl pyrrolidone-iodine 

complex (i.e. povidone-iodine), 

undecoylium chloride iodine, 

nonylphenoxypoly (ethyleneoxy) 

ethanol-iodine complex, iodine complex 

with phosphate ester of alkylaryloxy 

polyethylene glycol, and iodine 

complex with ammonium ether sulfate/ 

polyoxyethylene sorbitan monolaurate. 

Dated: July 6, 2006. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E6–12353 Filed 8–10–06; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Bureau of Customs and Border 

Protection 

8 CFR Parts 212 and 235 

[USCBP 2006–0097] 

RIN 1651–AA66 

DEPARTMENT OF STATE 

22 CFR Parts 41 and 53 

RIN 1400–AC10 

Documents Required for Travelers 

Arriving in the United States at Air and 

Sea Ports-of-Entry From Within the 

Western Hemisphere 

AGENCY: Bureau of Customs and Border 

Protection, Department of Homeland 

Security; Bureau of Consular Affairs, 

Department of State. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Intelligence Reform and 

Terrorism Prevention Act of 2004 

provides that by January 1, 2008, United 

States citizens and nonimmigrant aliens 

may enter the United States only with 

passports or such alternative documents 

as the Secretary of Homeland Security 

may designate as satisfactorily 

establishing identity and citizenship. 

This notice of proposed rulemaking 

(NPRM) is the first phase of a joint 

Department of Homeland Security and 

Department of State plan to implement 

these new requirements. This NPRM 

proposes that, beginning January 8, 

2007, United States citizens and 

nonimmigrant aliens from Canada, 

Bermuda, and Mexico entering the 

United States at air ports-of-entry and 

most sea ports-of-entry, with certain 

limited exceptions, will generally be 

required to present a valid passport. 

This NPRM does not propose to change 

the requirements for United States 

citizens and nonimmigrant aliens from 

Canada, Bermuda, and Mexico entering 

the United States at land border portsof-entry and certain types of arrivals by 

sea (ferries and pleasure vessels) which 

will be addressed in a separate, future 

rulemaking. 

DATES: Written comments must be 

submitted on or before September 25, 

2006. 

ADDRESSES: Comments, identified by 

docket number USCBP 2006–0097, must 

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 the Bureau of Customs and 

Border Protection, Office of Regulations 

and Rulings, Border Security 

Regulations Branch, 1300 Pennsylvania 

Avenue, NW., Washington, DC 20229. 

Submitted comments by mail may be 

inspected at the Bureau of 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 must 

include the agency name and docket 

number USCBP 2006–0097. 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 in Rulemaking Process’’

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: 

Robert Rawls, Office of Field 

Operations, Bureau of Customs and 

Border Protection, 1300 Pennsylvania 

Avenue, NW., Room 5.4–D, Washington, 

DC 20229, telephone number (202) 344–

2847. 

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 Entry Requirements for United 

States Citizens Arriving by Air or Sea 

B. Current Entry Requirements for 

Nonimmigrant Aliens Arriving by Air or 

Sea 

1. Canadian Citizens and Citizens of the 

British Overseas Territory of Bermuda 

2. Mexican Citizens 

C. Intelligence Reform and Terrorism 

Prevention Act of 2004 

D. Advance Notice of Proposed 

Rulemaking 

1. Passport as Only Acceptable Document 

for WHTI Air-and-Sea Arrivals 

2. Alternative Forms of Identification 

3. One Implementation Date of January 1, 

2008 

4. Effective Communications Plan 

5. Passport Exemption for Children Under 

the Age of 16 

6. Reduce Cost of Passports or Institute 

Pricing Incentives 

7. Bilateral or Multilateral Process 

8. Native Americans 

9. Mobile Offshore Drilling Units Working 

on the United States Outer Continental 

Shelf 

10. Passengers Traveling by Ferry 

11. Military Personnel 

III. Proposed Requirements for United States 

Citizens and Nonimmigrant Aliens 

Traveling by Air and Sea to the United 

States 

A. Passports for Air and Sea Arrivals 

B. Exceptions to the Passport Proposal 

1. Pleasure Vessels 


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46156 Federal Register / Vol. 71, No. 155 / Friday, August 11, 2006 / Proposed Rules 

1Section 215(b) of the Immigration and 

Nationality Act (INA), 8 U.S.C. 1185(b). 

2See 22 CFR 53.2(b), which waived the passport 

requirement pursuant to section 215(b) of the INA, 

8 U.S.C. 1185(b). 

3United States citizens entering the United States 

at land border ports-of-entry from within the 

Western Hemisphere are also inspected by a CBP 

officer. However, such travelers are outside the 

scope of this proposed rulemaking and will be 

addressed in a separate, future rulemaking. 

4 8 CFR 235.1(b). 

5Section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 

1182(a)(7)(B)(i). 

6 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. Passengers Arriving by Ferry 

3. Members of the United States Armed 

Forces 

C. Other Documents Deemed Acceptable To 

Denote Citizenship and Identity 

1. Merchant Mariner Document 

2. Nexus Air Program Membership Card 

D. Impact of This Rulemaking on Specific 

Groups and Populations 

1. Charter and Commercial Vessels 

2. Aviation Passengers and Crew 

3. Lawful Permanent Residents 

4. Mexican Citizens 

5. Children Under the Age of 16 

6. Alien Members of the United States Armed 

Forces 

7. Members of NATO Armed Forces 

8. Native Americans Born in Canada 

9. Native Americans Born in the United 

States 

10. American Indian Card Holders From 

Kickapoo Band of Texas and Tribe of 

Oklahoma 

11. Travel From Territories Subject to the 

Jurisdiction of the United States 

12. Outer Continental Shelf Employees 

13. International Boundary and Water 

Commission Employees 

E. Section-by-Section Discussion of Proposed 

Amendments 

IV. Regulatory Analyses 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Regulatory Flexibility Act 

C. Executive Order 13132: Federalism 

D. Executive Order 12988: Civil Justice 

Reform 

E. Unfunded Mandates Reform Act 

Assessment 

F. Paperwork Reduction Act 

G. Privacy Statement 

List of Subjects 

Abbreviations and Terms Used in This 

Document 

ANPRM—Advance Notice of Proposed 

Rulemaking 

APIS—Advance Passenger Information 

System 

BCC—Form DSP–150, B–1/B–2 Visa and 

Border Crossing Card 

CBP—Bureau of Customs and Border 

Protection 

DHS—Department of Homeland Security 

DMV—Department of Motor Vehicles 

DOS—Department of State 

FAST—Free and Secure Trade 

IBWC—International Boundary and Water 

Commission 

INA—Immigration and Nationality Act 

INS—Immigration and Naturalization Service 

IRTPA—Intelligence Reform and Terrorism 

Prevention Act of 2004 

LPR—Lawful Permanent Resident 

MMD—Merchant Mariner Document 

MODU—Mobile Offshore Drilling Unit 

NATO—North Atlantic Treaty Organization 

NPRM—Notice of Proposed Rulemaking 

OCS—Outer Continental Shelf 

OTTI—Office of Travel & Tourism Industries 

SENTRI—Secure Electronic Network for 

Travelers Rapid Inspection 

TSA—Transportation Security 

Administration 

TWIC—Transportation Worker Identification 

Card 

US–VISIT—United States Visitor and 

Immigrant Status Indicator Technology 

Program 

WHTI—Western Hemisphere Travel 

Initiative 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of the 

proposed rule. The Department of 

Homeland Security (DHS) and the 

Department of State (DOS) also invite 

comments that relate to the economic or 

environmental 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. See 

ADDRESSES above for information on 

how to submit comments. 

II. Background 

A. Current Entry Requirements for 

United States Citizens Arriving by Air or 

Sea 

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.’’ 1 However, the 

statutory passport requirement has not 

been applied to United States citizens 

when departing from or entering into 

the United States from within the 

Western Hemisphere other than from 

Cuba.2 Currently, a United States citizen 

entering the United States from within 

the Western Hemisphere, other than 

from Cuba, is inspected at an air or sea 

port-of-entry by a DHS Bureau of 

Customs and Border Protection (CBP) 

officer.3 To lawfully enter the United 

States, a person need only satisfy the 

CBP officer of his or her United States 

citizenship.4 In addition to assessing the 

verbal declaration and examining the 

documentation the person submits, the 

CBP officer may ask for additional 

identification and evidence of 

citizenship until the officer is satisfied 

that the person is a United States 

citizen. 

As a result of this procedure, United 

States citizens arriving at air or sea 

ports-of-entry from within the Western 

Hemisphere currently produce a variety 

of documents to establish their 

citizenship and right to enter the United 

States. A driver’s license issued by a 

state motor vehicle administration or 

other competent state government 

authority is a common form of identity 

document now accepted by CBP at the 

border even though such documents do 

not denote citizenship. Citizenship 

documents currently accepted at portsof-entry generally include birth 

certificates issued by a United States 

jurisdiction, Consular Reports of Birth 

Abroad, Certificates of Naturalization, 

and Certificates of Citizenship. 

B. Current Entry Requirements for 

Nonimmigrant Aliens Arriving by Air or 

Sea 

Currently, each nonimmigrant alien 

arriving in the United States must 

present to the CBP officer at the port-ofentry a valid unexpired passport issued 

by his or her country of citizenship and, 

if required, a valid unexpired visa 

issued by a United States embassy or 

consulate abroad.5 Nonimmigrant aliens 

entering the United States must also 

satisfy any other applicable entry 

requirements (e.g., United States Visitor 

and Immigrant Status Indicator 

Technology Program (US–VISIT)). For 

nonimmigrant aliens arriving in the 

United States, the only current general 

exceptions to the passport requirement 

apply to the admission of (1) citizens of 

Canada and Bermuda arriving from 

anywhere in the Western Hemisphere 

and (2) Mexican nationals with a Border 

Crossing Card (BCC) arriving from 

contiguous territory. 

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) currently are not 

required to present a valid passport and 

visa when entering the United States as 

nonimmigrant visitors from countries in 

the Western Hemisphere.6 Nevertheless, 

these travelers are currently required to 

satisfy the inspecting CBP officer of 

their identity and citizenship at the time 

of their application for admission. 

Entering aliens may present any 

evidence of identity and citizenship in 

their possession. Individuals who 


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7 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g). If 

they 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(f)(1). 

8 8 U.S.C. 1185(b). 

9 8 U.S.C. 1182(d)(4)(B). 

10Section 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, Alien Registration Card, or other 

valid evidence of permanent resident status. 

Section 211(b) of the INA, 8 U.S.C. 1181(b). It also 

does not apply to alien members of United States 

Armed Forces traveling under official orders. 

Section 284 of 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) and 8 C.F.R. 212.1. 

11See 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). 

12 8 U.S.C. 1182(d)(4)(B). 

13 8 U.S.C. 1185(b). 

14Section 7209(c)(2) of IRTPA. 

15 8 U.S.C. 1185(b) and 8 U.S.C. 1182(d)(4)(B). 

16Section 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). 

initially fail to satisfy the examining 

CBP officer may then be required to 

provide further identification and 

evidence of citizenship such as a birth 

certificate, passport, or citizenship card. 

2. Mexican Citizens 

Mexican citizens arriving in the 

United States at ports-of-entry who 

possess a Form DSP–150, B–1/B–2 Visa 

and Border Crossing Card (BCC) are 

currently admitted without presenting a 

valid passport if they are coming from 

contiguous territory.7 A BCC is a 

machine-readable, biometric card, 

issued by the Department of State, 

Bureau of Consular Affairs. The use of 

a BCC without a passport is atypical in 

the air/sea environment, but it 

continues to be permitted. Although the 

use of a BCC is much more common in 

the land environment, this NPRM deals 

solely with arrivals at air and sea portsof-entry. 

C. Intelligence Reform and Terrorism 

Prevention Act of 2004 

This NPRM is the first phase of the 

joint DHS and DOS implementation of 

section 7209 of the Intelligence Reform 

and Terrorism Prevention Act of 2004 

(IRTPA), Pub. L. 108–458, 118 Stat. 

3638 (Dec. 17, 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 limits the waiver of 

documentation requirements for United 

States citizens under section 215(b) of 

the Immigration and Nationality Act 

(INA) 8 and eliminates the waiver of 

documentation requirements for 

categories of individuals for whom 

documentation requirements have 

previously been waived (citizens of 

Canada, Mexico, and Bermuda) under 

section 212(d)(4)(B) of the INA.9 United 

States citizens and nonimmigrant aliens 

from Canada, Mexico, and Bermuda will 

be required to comply with the new 

document requirements of section 

7209.10 IRTPA requires that the 

Secretary of Homeland Security, in 

consultation with the Secretary of State, 

develop and implement the plan by 

January 1, 2008. 

Section 7209 limits the Secretaries’

respective authorities 11 to waive 

generally applicable documentation 

requirements by providing that, after the 

complete implementation of the plan, 

neither the Secretary of State nor the 

Secretary of Homeland Security may 

exercise the authority of section 

212(d)(4)(B) of the INA 12 to waive the 

passport requirement on the basis of 

reciprocity for nonimmigrant aliens who 

are nationals of foreign contiguous 

territory or adjacent islands. In addition, 

section 7209 of IRTPA provides that the 

President may exercise the authority of 

section 215(b) of the INA 13 to waive the 

new documentation requirements for 

United States citizens departing from or 

entering the United States only in three 

specific circumstances: (1) When the 

Secretary of Homeland Security 

determines that ‘‘alternative 

documentation’’ different from what is 

required under section 7209 is sufficient 

to denote citizenship and identity; (2) in 

an individual case of an unforeseen 

emergency; or (3) in an individual case 

based on ‘‘humanitarian or national 

interest reasons.’’ 14

United States citizens and 

nonimmigrant aliens, who currently are 

not required to have passports pursuant 

to sections 215(b) and 212(d)(4)(B) of 

the INA 15 respectively, would be 

required to present a passport or other 

identity and citizenship document 

deemed sufficient by the Secretary of 

Homeland Security when entering the 

United States from countries within the 

Western Hemisphere. The principal 

groups affected by this provision of 

IRTPA are United States citizens, 

Canadian citizens, citizens of Bermuda, 

and Mexican citizens holding BCC 

cards. These groups of individuals are 

currently exempt from the general 

passport requirement when entering the 

United States from within the Western 

Hemisphere.16

D. Advance Notice of Proposed 

Rulemaking 

On September 1, 2005, DHS and DOS 

published in the Federal Register (70 

FR 52037) an advance notice of 

proposed rulemaking (ANPRM) that 

announced that DHS and DOS were 

planning to amend their respective 

regulations to implement section 7209 

of IRTPA. The DHS and DOS plan to 

implement section 7209 is also known 

as the Western Hemisphere Travel 

Initiative (WHTI). As stated in the 

ANPRM, DHS and DOS proposed to 

develop a plan that would require 

citizens of the United States, Canada, 

Bermuda, and Mexico to possess a 

passport or other acceptable secure 

document to enter the United States 

from within the Western Hemisphere by 

January 1, 2008. The ANPRM invited 

comments on the possible means of 

implementation and specifically invited 

comments on what documents, other 

than passports, should be accepted as 

sufficient under section 7209. 

The ANPRM announced that DHS and 

DOS anticipated implementing the 

documentation requirements of section 

7209 in two stages. The first stage would 

affect travelers entering the United 

States at air and sea ports-of-entry 

beginning January 1, 2007. The second 

stage would address travelers arriving at 

land border ports-of-entry beginning 

January 1, 2008. The two-stage approach 

is intended to ensure an orderly 

transition, provide affected persons with 

adequate notice to obtain necessary 

documents, and ensure that adequate 

resources are 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 document or 

combination of documents other than 

valid passports will 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 

United States 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 


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17NEXUS Air is an airport border clearance pilot 

project implemented at one airport in Vancouver, 

Canada by CBP and the Canada Border Services 

Agency, pursuant to the Shared Border Accord and 

Smart Border Declaration between the United States 

and Canada. The NEXUS Air alternative inspection 

program allows pre-screened, low-risk travelers to 

be processed more efficiently by United States and 

Canadian border officials. 

DOS representatives attended over 30 

public sessions and town hall meetings 

throughout 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. 

The majority of the comments (1,910) 

addressed only potential changes to the 

documentation requirements at land 

border ports-of-entry. One hundred and 

fifty-two comments addressed changes 

to the documentation requirements for 

persons arriving at air or sea ports-ofentry. Comments were received from a 

wide range of United States and 

Canadian sources including: private 

citizens; businesses and associations; 

local, state, federal, and tribal 

governments; and members of the 

United States Congress and Canadian 

Parliament. 

Some of the comments pertaining to 

arrivals at air and sea ports-of-entry 

were also applicable to land border 

crossings and will therefore be 

addressed in both this rulemaking and 

a separate, future rulemaking specific to 

land border crossings. As this proposed 

rule deals only with changes to arrivals 

at air and sea ports-of-entry, the 

comments received regarding only land 

border crossings will not be addressed 

here. 

A general discussion of the comments 

relevant to this rulemaking follows. 

Complete responses to the comments 

from both the ANPRM and this NPRM 

regarding air and sea travel will be 

presented in the final rule. 

1. Passport as Only Acceptable 

Document for WHTI Air-and-Sea 

Arrivals 

Forty commenters contended that 

DHS should accept only a valid passport 

to satisfy documentary requirements for 

air and sea arrivals beginning January 1, 

2007. Thirty-six of the 40 comments 

were submitted by United States 

citizens and four comments were 

submitted by associations or businesses 

located in the United States. Eight 

commenters recommended that the 

implementation of a ‘‘passport only’’

requirement should not be delayed. 

Among the reasons for supporting a 

‘‘passport only’’ requirement, 

commenters expressed the need to 

enhance border security, prevent 

document forgeries, and simplify 

document review for CBP officers by 

utilizing one standardized document. 

One hundred and twelve commenters 

opposed any proposal that would 

require a valid passport to satisfy the 

documentation requirements for air and 

sea arrivals, but supported the goal of 

improving border security. 

Thirty-two comments stated that a 

‘‘passport only’’ requirement would 

significantly impede travel and tourism 

either by causing lengthy delays at the 

border or by preventing individuals who 

did not possess a passport from 

traveling. Some of these comments 

asserted that requiring passports could 

essentially prevent travelers from 

making spontaneous decisions to travel 

by air or sea within the Western 

Hemisphere. 

Thirty-four comments contended that 

due to the cost of a passport, a passport 

only requirement would be an 

unreasonable financial burden for many 

families. Citing the $97 cost of an initial 

adult passport and the $82 cost of a 

child’s passport, several commenters 

asserted that the costs are multiplied for 

a family traveling together. Thirty-nine 

comments contended that a ‘‘passport 

only’’ requirement would have a 

significant negative economic impact on 

businesses and local economies. Many 

of these commenters provided 

quantitative and qualitative information 

to illustrate their proffered economic 

impact. 

In addition, five commenters raised 

the concern that the demand for 

passports could exceed the passport 

processing capacity of DOS. 

2. Alternative Forms of Identification 

Eighty-one commenters submitted 

recommendations about the types of 

alternate documentation that could 

satisfy the requirements of section 7209 

of IRTPA. Many of these commenters 

noted that section 7209 of IRTPA 

provides that a passport substitute could 

be another document or combination of 

documents that sufficiently denote 

identity and citizenship. Fifty-nine 

commenters asserted that DHS should 

identify acceptable alternative 

documents that would be more 

convenient, affordable and easier to 

obtain than a passport. Many of these 

commenters noted that DHS has not 

identified other low-cost and easily 

obtainable documents in lieu of a 

passport. Several commenters also 

recommended that any new document 

should be small enough to carry in a 

wallet as opposed to the current 

booklet-style passport. 

Ten commenters recommended that 

DHS continue to accept a state-issued 

driver’s license and an original birth 

certificate as evidence of identity and 

citizenship. Numerous commenters 

asserted that a driver’s license combined 

with a birth certificate is the best-known 

and most generally accepted 

combination of documents that denote 

identity and citizenship. Several 

commenters reasoned that since these 

documents are sufficient to establish 

nationality and identity for the purpose 

of obtaining a passport, they should be 

acceptable at the border as well. 

One commenter recommended that 

the current NEXUS Air program 17

should be expanded to additional 

Canadian airports. Another commenter 

noted that acquiring a NEXUS Air card 

requires a lengthy processing time of 

approximately 6 to 8 weeks for the 

individual to become enrolled. 

3. One Implementation Date of January 

1, 2008 

Fifty-seven comments recommended 

that DHS and DOS delay the first stage 

of implementation for air and sea 

travelers by changing the 

implementation date from January 1, 

2007, to January 1, 2008, or an 

unspecified later date. Many of these 

commenters asserted that the January 1, 

2007, implementation date for air and 

sea travel does not allow adequate time 

for the traveling public and industry to 

prepare for the new regulations. 

Some commenters expressed concern 

that a phased-in approach would 

unnecessarily discriminate against one 

mode of travel in favor of another 

because those traveling by air and sea 

will be subject to more stringent 

documentation requirements than those 

traveling by land during 2007. Several 

comments asserted that there is no basis 

for treating travelers who arrive by air 

or sea any differently from those who 

travel over land borders. 

One commenter argued that the 

statutory deadline for implementation is 

January 1, 2008, and that IRTPA does 

not require implementation to be 

phased-in prior to that date. Several 

comments suggested that one 

implementation date would be less 

confusing to the traveling public and 

allow more time to educate the public 

about the new requirements and for 

proper consideration of alternative 

secure documents other than a passport. 

Finally, a few commenters 

recommended delaying the 

implementation date of January 1, 2007, 

for air and sea travelers by at least one 

week, until after the holiday travel 

season. 

4. Effective Communications Plan 

Thirty-eight commenters 

recommended that DHS and DOS work 


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with the travel industry to launch an 

effective communications campaign to 

inform and educate the traveling public 

about any new documentation 

requirements. According to several 

commenters, some Canadian and United 

States citizens mistakenly believe that a 

‘‘passport only’’ requirement is already 

in effect. One commenter noted that due 

to confusion around the implementation 

phase-in dates, many members of the 

public believe that the first phase-in 

period will apply to all persons 

traveling to the United States whether or 

not they travel by air, sea or land. 

Another commenter suggested that 

educating the public about changes to 

the documentation requirements is best 

accomplished by beginning outreach 

and public relations efforts far in 

advance of any new requirement. 

5. Passport Exemption for Children 

Under the Age of 16 

Thirty-one commenters recommended 

that children under the age of 16 should 

be exempt from a passport requirement 

and instead be able to use a citizenship 

document such as a birth certificate. 

Several commenters asserted that very 

few children possess passports so that 

for children under the age of 16 from 

both Canada and the United States, the 

current documentation requirements 

should be maintained. 

6. Reduce Cost of Passports or Institute 

Pricing Incentives 

Eleven commenters recommended 

that passports should be either less 

expensive or pricing incentives should 

be introduced for United States citizens 

who are obtaining a passport for the first 

time in advance of the implementation 

deadline. One commenter asserted that 

financial incentives would encourage 

United States citizens to obtain a firsttime passport or renew an existing 

passport. Several commenters 

specifically requested that passport 

costs be reduced for children less than 

16 years of age, students, senior citizens, 

and families. One commenter 

recommended that the federal 

government provide a financial subsidy 

or discount the cost of passports for 

low-income earners, welfare recipients, 

and families with more than two 

children. 

7. Bilateral or Multilateral Process 

Three commenters recommended that 

the implementation of new 

documentation requirements should be 

a collaborative, multilateral process 

with a United States-Canadian 

partnership and a United StatesMexican partnership. Commenters 

recommended that the United States 

and Canadian governments work 

together to explore acceptable forms of 

documents in lieu of a passport for 

Canadian citizens. Certain commenters 

noted that if the United States 

unilaterally develops a new form of 

alternative document for entry into the 

United States, there would be no 

guarantee that the Canadian and 

Mexican governments would accept the 

new form of documentation as an entry 

document. These commenters suggested 

that the United States Government 

should not act unilaterally because of 

the potential negative effects that this 

rulemaking might have on the economy, 

and international relations, including a 

negative public reaction. 

8. Native Americans 

Three commenters opposed any 

regulation that would require Native 

Americans traveling from Canada into 

the United States to carry and produce 

a United States or Canadian passport as 

identification. These commenters 

asserted that such a requirement would 

infringe upon the treaty rights of 

indigenous peoples living within the 

United States and Canada to travel 

freely across the border on the basis of 

their membership in a particular Native 

American tribe or nation. 

9. Mobile Offshore Drilling Units 

Working on the United States Outer 

Continental Shelf 

Three commenters recommended that 

offshore workers of United States 

citizenship working aboard Mobile 

Offshore Drilling Units (MODUs) on the 

United States Outer Continental Shelf 

(OCS) be specifically excluded from any 

new documentation requirements when 

traveling between the United States and 

MODUs. 

10. Passengers Traveling by Ferry 

Eight commenters raised concerns 

that the new documentation 

requirements might create long waits 

and substantial disruption at ferry 

terminals, resulting in a decrease in 

ferry traffic. Some of these commenters 

recommended that any change to the 

documentation requirements for ferry 

passengers should be postponed until 

the implementation of any new 

documentation requirements at land 

border ports-of-entry. 

11. Military Personnel 

Two commenters recommended that 

fees for passports, including fees for 

expedited processing, be eliminated for 

active duty military personnel and their 

dependents. 

III. Proposed Requirements for United 

States Citizens and Nonimmigrant 

Aliens Traveling by Air and Sea to the 

United States 

This NPRM proposes that, with some 

exceptions, United States citizens and 

nonimmigrant aliens from Canada, 

Bermuda, and Mexico traveling into the 

United States by air and sea from 

Western Hemisphere countries, be 

required to show a passport. This NPRM 

does not propose changes to the 

documentation requirements at land 

border ports-of-entry. 

This passport requirement would 

apply to most air and sea travel, 

including commercial air travel and 

commercial sea travel (including cruise 

ships). There are two categories of travel 

and one category of traveler, discussed 

in more detail below, which would not 

be subject to the passport requirement 

proposed here. First, this proposal 

would not apply to pleasure vessels 

used exclusively for pleasure and which 

are not for the transportation of persons 

or property for compensation or hire. 

Second, this proposal would not apply 

to travel by ferry. Finally, this proposal 

would not apply to United States citizen 

members of the Armed Forces on active 

duty. 

This NPRM also proposes to designate 

two documents, in addition to the 

passport, as sufficient to denote identity 

and citizenship under section 7209, and 

acceptable for air and sea travel. The 

first document is the Merchant Mariner 

Document (MMD) or ‘‘z-card’’ issued by 

the United States Coast Guard (Coast 

Guard) to Merchant Mariners. The 

second document is the NEXUS Air 

card when used with a NEXUS Air 

kiosk. Finally, this proposal would not 

apply to United States citizen members 

of the Armed Forces on active duty. 

A. Passports for Air and Sea Arrivals 

After reviewing the comments 

received and taking them into 

consideration, DHS and DOS jointly 

propose that, beginning January 8, 2007, 

most United States citizens and 

nonimmigrant aliens from Canada, 

Bermuda, and Mexico entering the 

United States at air or sea ports-of-entry 

from Western Hemisphere countries 

will be required to present a valid 

passport. DHS and DOS note that in 

response to comments, the originally 

proposed implementation date of 

January 1, 2007, for air and sea travelers 

is being delayed until January 8, 2007, 

to better accommodate the holiday 

travel season. The Departments do not 

believe that there will be an adverse 

effect on national security by delaying 

the implementation of this rule by one 


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18 In addition to affecting U.S. citizens who 

currently leave and enter the United States without 

a passport for travel within the Western 

Hemisphere, section 7209 requires the elimination 

of the exception to the U.S. passport requirement 

for U.S. citizen children under the age of 12 

included in the foreign parent’s passport and for 

U.S. citizens under age 21 who are members of the 

household of an official or employee of a foreign 

government or the United Nations and in 

possession of or included in a foreign passport. See 

22 CFR 53.2 (e) and (f). 

19See 22 CFR 53.2(b). 

20See 8 CFR 212.1 and 22 CFR 41.2. 

21This is based on the estimated time savings (5 

to 30 seconds) multiplied by the number of new 

passengers with a passport (5,905,462; from Chapter 

2 of the Regulatory Assessment) multiplied by the 

hourly cost of a CBP officer. The annual base salary 

for a GS–11/1 (in 2005) is $45,239. This is 

multiplied by a load factor of 1.4 to account for 

fringe benefits and locality pay, for an annual salary 

of $63,335. This is divided by 2,080 hours to reach 

an hourly rate of $30.45. 

week. Persons traveling prior to the 

effective date of the final rule 

implementing the air and sea stages of 

WHTI should plan to depart from the 

United States with documents sufficient 

to meet requirements that will be in 

place when they return. 

This proposed rule would implement 

Congress’ direction in IRTPA by 

eliminating the passport waiver for 

United States citizens,18 who enter the 

United States at air and sea ports-ofentry when traveling between the 

United States and any country, territory, 

or island adjacent thereto in North, 

South or Central America.19 In addition, 

this proposed rule would eliminate the 

passport waiver for nonimmigrant aliens 

who are Canadian citizens, citizens of 

Bermuda, and Mexican nationals 

entering the United States at air and sea 

ports-of-entry from any country, 

territory, or island adjacent thereto in 

North, South or Central America.20

As required by IRTPA, both DHS and 

DOS reviewed a variety of options for 

implementing the WHTI requirements, 

and jointly decided to phase-in the 

documentation requirement based upon 

risk management and operational 

considerations. As the ANPRM 

discussed, this phased approach is 

essential because a staggered 

implementation at air and sea ports-ofentry one year before the statutory 

deadline will enhance security 

requirements using existing 

infrastructure while allowing the 

Departments time to acquire and 

develop resources to meet the increased 

demand for the largest sector, the land 

border crossings. 

Requiring travelers to carry and 

produce passports for the air and sea 

environments has multiple security and 

operational benefits. WHTI will reduce 

the vulnerabilities identified in the final 

report of the National Commission on 

Terrorist Attacks Upon the United 

States (9/11 Commission). WHTI is 

intended not only to enhance security 

efforts at our Nation’s borders, but also 

to expedite the movement of legitimate 

travel within the Western Hemisphere. 

As the report of the 9/11 Commission 

observed, travel documents are as 

valuable as weapons to terrorists, and 

the passport is regarded as the most 

secure travel identity document in the 

world. After a review of current 

international travel documents and the 

available alternatives, DHS and DOS 

believe that the passport is the most 

reliable travel document to optimize 

safety and efficiency in the air and sea 

environments. 

Standardizing documentation 

requirements for all air and sea travelers 

entering the United States will enhance 

our national security and secure and 

streamline the entry process into the 

United States. A passport requirement 

for the majority of travelers 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 air and sea 

borders. Implementing standardized 

travel documents (i.e., passports) for 

citizens of the United States, Canada, 

Bermuda, and Mexico entering the 

United States at air and sea ports-ofentry would also reduce confusion for 

the airline industry and make the entry 

process more efficient for CBP officers 

and the public alike since the majority 

of travelers traveling internationally to 

or from an airport or seaport would 

require the passport as a travel 

document, regardless of destination. 

The 9/11 Commission noted that the 

current exemptions to the passport 

requirement are a weak link in our 

layered approach to security that can no 

longer be ignored. Cognizant of this 

concern and the realities of the modern 

world, DHS and DOS agree that any 

acceptable alternative documents must 

establish the identity and citizenship of 

the bearer in a way that can be 

electronically verified and must include 

significant security features. 

Passports incorporate a host of 

security features not normally found or 

available on other documents such as 

birth certificates and driver’s licenses. 

Security features include, but are not 

limited to, rigorous adjudication 

standards and document security 

features. The adjudication standards 

establish the individual’s citizenship 

and identity and ensure that the 

individual meets the qualifications for a 

United States passport. The document 

authentication features include digitized 

photographs, embossed seals, 

watermarks, ultraviolet and fluorescent 

light verification features, security 

laminations, micro-printing, and 

holograms. A United States passport is 

a document that is adjudicated by 

trained DOS experts and issued to 

persons who have documented their 

United States identity and citizenship 

by birth, naturalization or derivation. 

Applications are subject to additional 

Federal government checks to ensure 

the applicants are eligible to receive a 

U.S. passport under applicable 

standards (for example, those subject to 

outstanding federal warrants for arrest 

are not eligible for a U.S. passport). 

Finally, CBP Officers can verify and 

authenticate a U.S. passport through 

connectivity with the DOS passport 

database, allowing a real-time check on 

the validity of the passport. The primary 

purpose of the passport has always been 

to establish citizenship and identity. It 

has been used to facilitate travel to 

foreign countries by displaying any 

appropriate visas or entry/exit stamps. 

Passports are globally interoperable, 

consistent with worldwide standards, 

and usable regardless of the 

international destination of the traveler. 

Requiring passports for most air and 

sea travel would allow CBP officers to 

more efficiently process these travelers 

because there is a standard document to 

review which contains features that 

allow for quick reading of the relevant 

information. Reducing the number of 

acceptable travel documents would 

eliminate the need to examine a host of 

distinct and sometimes illegible, birth 

certificates and other documents—over 

8,000 types may be presented today. By 

requiring most air and sea passengers to 

possess a passport, CBP officers would 

reduce the time and effort used to 

manually enter passenger information 

into the computer system on arrival 

because the officer can quickly scan the 

machine-readable zone of the passport 

to process the information using 

standard passport readers used for all 

machine readable passports worldwide. 

It is difficult to precisely determine the 

improved efficiencies resulting from 

limiting the acceptable documents at air 

and sea environments. Based on 

information from CBP field operations, 

CBP estimates that presenting secure 

and machine-readable documentation 

may typically save CBP officers from 5 

to 30 seconds per air and sea passenger 

processed. This could result in an 

annual cost savings of $2.5 million to 

$15.0 million.21


jlentini on PROD1PC65 with PROPOSAL
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(5,905,462 travelers)(5 seconds)($30.45/hour) = 

$2,497,463 

(5,905,462 travelers)(30 seconds)($30.45/hour) = 

$14,984,778. 

22For a discussion regarding the documentation 

requirements for alien members of the United States 

Armed Forces, see section III.D.6. of this document. 

23Section 7209(b)(1) of IRTPA. 

24See 22 CFR 53.2(c). 

Protecting the national security is a 

fundamental mission of DHS. Initiating 

the first phase for all air and most sea 

travelers by January 8, 2007, will 

remedy significant vulnerabilities 

identified by the 9/11 Commission 

associated with the millions of travelers 

who enter the United States through air 

and sea ports-of-entry. This 

improvement will utilize the existing 

operational capabilities of both 

Departments without unduly burdening 

the traveling public. Phasing in the air 

and sea travel prior to land border 

crossings will provide near term border 

security benefits with regard to a 

significant number of arriving 

passengers without significant 

investment in new port-of-entry 

infrastructure. DHS estimates that CBP 

will be able to facilitate the processing 

of arriving passengers more efficiently 

when all arriving air and sea passengers 

carry and produce passports, MMD, or 

NEXUS Air card, instead of the broad 

range of documents now presented by 

arriving United States citizens and 

citizens of Canada, Bermuda, and 

Mexico. 

CBP estimates that approximately 21 

million United States citizens travel to 

Canada, Mexico, and the Caribbean 

annually, and that approximately six 

million of those air and sea travelers do 

not possess a passport (see section IV 

below, regarding the Regulatory 

Analyses). Airports and seaports 

currently have the personnel and 

equipment to inspect incoming 

passengers who carry passports, so the 

major operational requirement of the 

final rule resulting from this NPRM is 

for DOS to expand passport production 

capacity to meet passport demand. DOS 

is already expanding passport 

production capacity to meet the 

additional demand for passports and 

will be able to meet a significant 

increase in demand from the more than 

10 million passports produced in fiscal 

year 2005. DOS reports an estimated 25 

percent increase in passport 

applications so far in fiscal year 2006. 

DOS has increased passport production 

capacity with an aim towards 

processing 16 million passports in fiscal 

year 2007 and 19 million passports in 

fiscal year 2008. 

B. Exceptions to the Passport Proposal 

DHS and DOS do not propose any 

change in the requirements for travel by 

pleasure vessel and ferry at this time. 

The Departments also propose to 

postpone any change in the 

requirements for United States citizen 

members of the United States Armed 

Forces also discussed below. 

1. Passengers Arriving by Pleasure 

Vessel 

For purposes of this proposed rule, a 

pleasure vessel will be defined as a 

vessel that is used exclusively for 

recreational or personal purposes and 

not to transport passengers or property 

for hire. A day sailer or bareboat charter 

that is rented without a captain or crew 

and is used for recreational or personal 

purposes would be considered a 

pleasure vessel. This rule would not 

propose changes to the documentation 

requirements for United States citizens 

and nonimmigrant aliens from Canada, 

Bermuda, and Mexico who are aboard 

pleasure vessels arriving in the United 

States from a foreign port or place from 

within the Western Hemisphere. 

Pleasure vessel arrivals are treated 

similarly to land border crossings rather 

than like commercial vessel arrivals. 

These pleasure vessel passengers, who 

are frequent, short duration travelers, 

are similar to land border crossers and 

will be addressed in the WHTI second 

phase rulemaking. This will allow for 

more consistent processing of these 

travelers and the use of land border 

based inspection systems including 

registered/trusted traveler programs. 

Many of the pleasure vessel crossings 

are similar to bridge crossings because 

they are crossings of a short expanse of 

river or other waterway and are 

relatively short in duration. 

2. Passengers Arriving by Ferry 

For purposes of this proposed rule, 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. Since ferries will be 

subject to land border type entry 

processing on arrival from or departure 

to a foreign port or place, DHS and DOS 

propose that ferries be exempt from the 

new requirements of this rulemaking. 

Ferries will be addressed in the second 

phase rulemaking. Thus, current 

documentation requirements for ferry 

passengers will not change at this time. 

3. Members of the United States Armed 

Forces 

When this rule is promulgated, all 

active duty members of the United 

States Armed Forces regardless of 

citizenship will be exempt from the 

requirement to present a valid passport 

when entering the United States. 

Currently, under 22 CFR 53.2(d), 

citizens of the United States 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.22 Under this proposed rule, travel 

document requirements for United 

States citizens who are members of the 

United States Armed Forces would not 

change from the current requirements. 

Future changes, if any, to the current 

documentation requirements will be 

addressed during the second phase of 

the WHTI rulemaking process. 

Spouses and dependents of these 

military members would be required to 

present a passport or other document or 

combination of documents sufficient to 

denote identity and citizenship as 

discussed below, and a valid visa, if 

required, when entering the United 

States at air or sea ports-of-entry. 

C. Other Documents Deemed 

Acceptable To Denote Citizenship and 

Identity 

This NPRM also proposes to designate 

two documents, in addition to the 

passport, as sufficient to denote identity 

and citizenship under section 7209, and 

acceptable for air and sea travel. IRTPA 

gives the Secretary of Homeland 

Security the authority to determine 

what documents other than the passport 

are sufficient to denote identity and 

citizenship for all travel into the United 

States by United States citizens and 

citizens of Canada, Mexico, and 

Bermuda.23 Accordingly, the Merchant 

Mariner Document (MMD) when used 

in conjunction with maritime business, 

and the NEXUS Air card when used at 

a designated kiosk, are proposed as 

acceptable for air and sea travel into the 

United States from within the Western 

Hemisphere. 

1. Merchant Mariner Document 

Currently, an MMD or ‘‘z-card’’ is 

accepted for United States citizen 

crewmembers in lieu of a passport.24 To 

obtain an MMD, United States citizen 

Merchant Mariners must provide proof 

of their citizenship, must provide proof 

of their identity and must undergo an 

application process that includes a 

fingerprint background check submitted 

to the Federal Bureau of Investigation, a 

National Driver Register check, and a 

drug test from an authorized official that 

administers a drug testing program. 

The Secretary of Homeland Security 

proposes that an MMD when used in 


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25 71 FR 29462 (May 22, 2006). 

26 8 U.S.C. 1185(b). 

27 8 U.S.C. 1182(d)(4)(B). 

28 8 U.S.C. 1185(b). 

29 8 U.S.C. 1181. 

30See section 211(b) of the INA, 8 U.S.C. 1181(b). 

conjunction with maritime business 

would be sufficient to denote identity 

and citizenship when presented upon 

arrival at an air or sea port-of-entry. 

Accordingly, under this proposed rule, 

United States citizens who possess an 

MMD would continue to be exempt 

from the requirement to present a 

passport when arriving in the United 

States at air or sea ports-of-entry. 

However, the Coast Guard has proposed 

to phase-out the MMD over the next five 

years and streamline all existing 

Merchant Mariner credentials.25 DHS 

proposes to accept the MMD as long as 

it is an unexpired document. We also 

note that United States citizen Merchant 

Marines 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. 

2. NEXUS Air Program Membership 

Card 

NEXUS Air is an airport border 

clearance pilot project implemented by 

CBP and the Canada Border Services 

Agency, pursuant to the Shared Border 

Accord and Smart Border Declaration 

between the United States and Canada. 

The NEXUS Air program is an 

alternative inspection program designed 

to facilitate the entry formalities by 

registered users which allows prescreened, low-risk travelers to be 

processed more efficiently by United 

States and Canadian border officials. 

Enrollment in the program is limited 

to citizens of the United States and 

Canada, Lawful Permanent Residents 

(LPRs) of the United States, and 

permanent residents of Canada. To 

enroll in the NEXUS Air program, a 

participant must provide acceptable 

proof of citizenship or permanent 

resident status in Canada or the United 

States. United States citizens must 

provide an original birth certificate, 

along with a government-issued photo 

identification, a valid passport, or a 

certificate of naturalization. Canadian 

citizens must provide an original birth 

certificate, along with a governmentissued photo identification, a valid 

passport, citizenship certificate with 

photo identification, or a citizenship 

card. 

LPRs of the United States must 

provide evidence of citizenship and of 

permanent resident status to enroll in 

NEXUS Air. Because the scope of 

section 7209 of IRTPA does not include 

LPRs, membership in Nexus Air does 

not change their document 

requirements. Therefore, LPRs of the 

United States, whether or not 

participating in the NEXUS Air 

program, will continue to be required to 

present a valid Form I–551, Alien 

Registration Card, or other valid 

evidence of permanent resident status to 

enter the United States. Canadian 

permanent residents must provide an 

original birth certificate, along with a 

government-issued photo identification, 

a valid passport (and visa if applicable), 

and proof of permanent resident status 

when applying for NEXUS Air 

enrollment. 

An extensive background check 

against law enforcement databases and 

terrorist indices, including fingerprint 

checks, as well as a personal interview 

with a CBP officer is required of each 

applicant. Each NEXUS Air membership 

card has physical security features 

including digital photographs of the 

participant’s face. When a participant 

uses a NEXUS Air kiosk, he or she is 

prompted to look into a camera, which 

then biometrically verifies membership 

in NEXUS Air by taking a picture of the 

participant’s iris and matching it to the 

image stored in the database. 

The Secretary of Homeland Security 

proposes that a NEXUS Air membership 

card would be a document sufficient to 

denote identity and citizenship for 

United States citizens, Canadian 

citizens, and permanent residents of 

Canada when arriving in the United 

States as a NEXUS Air program 

participant and when using a NEXUS 

Air kiosk at designated airports. 

LPRs of the United States, whether or 

not participating in the NEXUS Air 

program, will continue to be required to 

present a valid Form I–551, Alien 

Registration Card, or other valid 

evidence of permanent resident status to 

enter the United States. 

D. Impact of This Rulemaking on 

Specific Groups and Populations 

1. Charter and Commercial Vessels 

Under this proposed rule, a 

commercial vessel will be defined as 

any civilian vessel being used to 

transport persons or property for 

compensation or hire to or from any 

port or place including all cruise ships. 

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 a commercial vessel. In 

contrast, a day sailer or bareboat charter 

that is rented without a captain or crew 

and is used for recreational or personal 

purposes would be considered a 

pleasure vessel as described above in 

section III.B.1. Under this proposed 

rule, commercial vessels will be treated 

as arrivals at sea ports-of-entry under 

this proposed rule. Passengers and crew 

aboard commercial vessels will need to 

possess a valid passport when arriving 

in the United States from a foreign port 

or place. 

Under applicable immigration law, 

sailing from a United States port into 

international waters, without a call at a 

foreign port, and returning to the United 

States, does not constitute a ‘‘departure’’

from the United States and, 

consequently, is not an ‘‘entry’’ into the 

United States that requires a passport 

under section 215(b) of the INA.26

Therefore, passports will not be 

required for persons (including 

commercial fishermen) onboard a vessel 

that sails from a United States port and 

returns without calling at a foreign port 

or place as the vessel is not considered 

to have departed the United States. 

Therefore, commercial fishermen would 

not be required to possess a passport 

unless they call at a foreign port or 

place. 

2. Aviation Passengers and Crew 

Under this proposed rule, all aviation 

passengers and crew, including 

commercial flights and general aviation 

flights (i.e., private planes), who arrive 

at air ports-of-entry in the United States 

from countries within the Western 

Hemisphere will be required to possess 

a valid passport beginning January 8, 

2007. The only exceptions to this 

requirement would be for United States 

citizens who are members of the United 

States Armed Forces traveling on active 

duty and travelers who possess either an 

MMD or NEXUS Air card, as described 

above. 

3. Lawful Permanent Residents 

Section 7209 of IRTPA applies to 

documentation requirements waived 

under section 212(d)(4)(B) of the 

INA27,27 which applies to 

nonimmigrant aliens, and section 215(b) 

of the INA,28 which applies to United 

States citizens. LPRs are exempt from 

the requirement to present a passport 

when arriving in the United States 

under Section 211 of the INA 29—

section 7209 does not apply to LPRs. 

LPRs will continue to be able to enter 

the United States upon presentation of 

a valid Form I–551, Alien Registration 

Card, or other valid evidence of 

permanent resident status.30 Form I–551 

is a secure, fully adjudicated document 

that can be verified and authenticated 


jlentini on PROD1PC65 with PROPOSAL
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31See 71 FR 42605. 

32See 8 CFR 235.1(f). 

33 8 CFR 212.1(c)(1)(i). Also, Mexican citizens 

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 have not been required to present a 

valid passport. This type of entry generally occurs 

at land borders. Land border entry for this purpose 

will be addressed in a separate, future rulemaking 

regarding documentation requirements at land 

border ports-of-entry. See 8 CFR 212.1(c)(1)(ii). 

34 8 U.S.C. 1354. 

35See also 8 CFR 235.1(c). 

36 8 U.S.C. 1354. 

37Agreement 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. 

38See also 8 CFR 235.1(c). 

39 8 U.S.C. 1182(d)(4)(B). 

40 8 U.S.C. 1359. 

41Canadian-born Inuits (Eskimos) do not have the 

same right to ‘‘pass’’ the borders of the United 

States. 

42See Akins v. Saxbe, 380 F.Supp. 1210, 1221 (D. 

Maine 1974) (‘‘[I]t is reasonable to assume that 

Congress’ purpose in using the Jay Treaty language 

in the 1928 Act was to recognize and secure the 

right of free passage as it had been guaranteed by 

that Treaty.’’) See also United States ex rel. Diabo 

v. McCandless, 18 F.2d 282 (E.D. Pa. 1927), aff’d, 

25 F.2d 71 (3rd Cir. 1928). 

43See Matter of Yellowquill, 16 I.&N. Dec. 576 

(BIA 1978). 

44See 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). 

45 8 U.S.C. 1401(b). 

by CBP at ports-of-entry. 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.31

4. Mexican Citizens 

Currently, Mexican citizens traveling 

to the United States for business or 

pleasure who are in possession of a BCC 

may be admitted, subject to certain 

limitations,32 without presenting a valid 

passport when coming from a 

contiguous territory.33 IRTPA, however, 

does not exempt Mexican citizens who 

possess a BCC from providing a passport 

or other document designated by DHS 

upon arrival in the United States. By 

this rulemaking, Mexican citizens, 

whether in possession of a BCC or not, 

would be required to present a valid 

passport when entering the United 

States by air or commercial sea vessel, 

except by ferry or pleasure vessel. 

This requirement for Mexican BCC 

holders is consistent with the 

requirements that are imposed on both 

other aliens and United States citizens. 

5. Children Under the Age of 16 

The United States government 

currently requires children under the 

age of 16 arriving from countries outside 

the Western Hemisphere to provide a 

passport when entering the United 

States. IRTPA does not contain an 

exemption from providing a passport or 

other document designated by DHS for 

children under the age of 16 when 

entering the United States from Western 

Hemisphere countries. Consequently, as 

there is no other statutory exemption, 

children under the age of 16 arriving 

from Western Hemisphere countries 

would be required to present a passport 

when entering the United States by air 

or commercial sea vessel, except by 

ferry or pleasure vessel. 

6. Alien Members of the United States 

Armed Forces 

Pursuant to section 284 of the INA ,34

alien members of the United States 

Armed Forces entering under official 

orders presenting military identification 

are not required to present a passport 

and visa.35 Because this statutory 

exemption does not fall within the 

scope of section 7209 of IRTPA, under 

this proposed rule alien members of the 

United States Armed Forces traveling on 

orders would continue to be exempt 

from the requirement to present a 

passport when arriving in the United 

States at air or sea ports-of-entry. 

Accordingly, under this NPRM, these 

individuals would continue to be 

required to present a military 

identification card and official orders. 

However, spouses and dependents of 

military members are not covered by the 

exemption set forth in section 284 of the 

INA.36 Under the proposed regulation 

they would continue to be required to 

present a passport (and visa if required) 

when entering the United States at air 

or sea ports-of-entry even when 

returning from travel in the Western 

Hemisphere. 

7. 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, 1951,37

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 I.D. card issued 

by their NATO party of nationality and 

official orders from an appropriate 

agency of that country or from NATO.38

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) of the INA ,39 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 air or sea 

ports-of-entry. 

8. Native Americans Born in Canada 

Section 289 of the INA 40 provides 

that nothing in the INA affects ‘‘the 

right’’ of Native Americans born in 

Canada to ‘‘pass the borders of the 

United States,’’ provided they possess at 

least 50 percentum of Native American 

blood.41 Historically, the courts have 

addressed the right of Native Americans 

born in Canada to ‘‘pass the borders of 

the United States’’ in the context of land 

border crossings.42 Subsequent case law 

has not expressly addressed the 

extension of the right to ‘‘pass the 

borders of the United States’’ by air or 

sea.43 Moreover, any right or privilege to 

‘‘pass the border’’ does not necessarily 

encompass a right to ‘‘pass the border’’

without sufficient proof of identity and 

citizenship. Under this proposed rule, 

Native Americans born in Canada 

would now be required to present a 

valid passport when entering the United 

States by air and commercial sea vessel, 

except by ferry or pleasure vessel. 

9. Native Americans Born in the United 

States 

Federal statutes apply to Native 

Americans born in the United States 

absent some clear indication that 

Congress did not intend for them to 

apply.44 IRTPA expressly applies to 

United States citizens and as a matter of 

law Native Americans born in the 

United States are United States 

citizens.45 Moreover, Congress did not 

indicate any intention to exclude Native 

Americans born in the United States 

from the requirements of IRTPA. Under 

this proposed rule, therefore, Native 

Americans born in the United States 

would now be required to present a 

valid passport when entering the United 

States by air and commercial sea vessel, 

except by ferry or pleasure vessel. 

10. American Indian Card Holders From 

Kickapoo Band of Texas and Tribe of 

Oklahoma 

DHS issues American Indian Cards 

(Form I–872) to both United States-born 


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46Pub. L. 97–429, 96 Stat. 2269 (1983), codified 

at 25 U.S.C. 1300b–11–1300b–16. 

47TBKA, 25 U.S.C. 1300b–13. 

48 8 U.S.C. 1185(c). 

49Article 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). 

Kickapoo Indians and Mexican-born 

Kickapoo Indians to document their 

status. The American Indian Card is 

issued pursuant to the Texas Band of 

Kickapoo Act of 1983 (TBKA).46 There 

are two versions of the American Indian 

Card: (1) For Kickapoos who opted to 

become United States citizens under the 

TBKA (the filing deadline for this 

benefit closed in 1989) and (2) for 

Kickapoos who opted not to become 

United States citizens, but instead were 

afforded ‘‘pass/repass’’ status. 

While certain Mexican born Kickapoo 

Indians may ‘‘pass the borders’’ between 

Mexico and the United States 47 under 

this authority, this authority has 

historically been used at land border 

crossings. Therefore, under this 

proposed rule, both United States and 

Mexican-born Kickapoo Indians would 

be required to present a valid passport 

when entering the United States by air 

and sea. Any changes to the land border 

requirements for Kickapoo Indians will 

be addressed in the WHTI second phase 

rulemaking. Mexican-born Kickapoo 

Indians arriving at air or sea ports-ofentry would be required to present their 

Mexican passport. 

As stated previously, federal statutes 

apply to Native Americans born in the 

United States absent some clear 

indication that Congress did not intend 

for them to apply. IRTPA expressly 

applies to United States citizens and as 

a matter of law American Indians born 

in the United States are United States 

citizens. As a result, American-born 

Kickapoo Indians will be required to 

present a valid passport when entering 

the United States by air and commercial 

sea vessel, except by ferry or pleasure 

vessel. 

11. Travel From Territories Subject to 

the Jurisdiction of the United States 

Pursuant to section 215(c) of the 

INA ,48 the term ‘‘United States’’ as used 

in section 215 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 IRTPA 

section 7209, includes Guam, Puerto 

Rico, the U.S. Virgin Islands, American 

Samoa, Swains Island, and the 

Commonwealth of the Northern Mariana 

Islands. Because section 7209’s 

requirements apply only to persons 

traveling between the United States and 

foreign countries, these requirements 

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. 

12. Outer Continental Shelf Employees 

In response to comments received to 

the ANPRM, DHS and DOS are 

clarifying that, under this proposed rule, 

offshore workers who work aboard 

Mobile Offshore Drilling Units (MODUs) 

attached to the United States Outer 

Continental Shelf (OCS) and travel to 

and from them would not need to 

possess a passport to re-enter the United 

States if they depart the United States 

and do not enter a foreign port or place. 

Upon return to the United States from 

a MODU, such an individual would not 

be considered a new ‘‘entry’’ for 

inspection purposes under 8 CFR 235.1. 

Therefore, this individual would not 

need to possess a passport 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 when arriving at the 

U.S. port-of-entry by air or commercial 

sea vessel, except by ferry. 

13. International Boundary and Water 

Commission Employees 

In response to comments received to 

the ANPRM, DHS and DOS are 

clarifying that, under this proposed rule, 

documentation requirements for direct 

and indirect employees of the 

International Boundary and Water 

Commission crossing the United StatesMexico border while on official 

business will not change.49

E. Section-by-Section Discussion of 

Proposed Amendments 

Based on the discussion above, the 

following changes are necessary to the 

regulations. 

8 CFR 212.1 

The amendment to this section would 

revise paragraphs (a)(1) and (a)(2), 

which provide a passport exemption for 

Canadian citizens and citizens of the 

British Overseas Territory of Bermuda. 

New language would be added that 

requires a passport for these groups 

when they enter the United States from 

within the Western Hemisphere except 

by land, ferry, or pleasure vessel. 

Canadian citizens who are participants 

in the NEXUS Air program may present 

other documentation in the form of a 

NEXUS Air membership card pursuant 

to 8 CFR 235.1(e). 

In addition, this section involves a 

revision of paragraph (c)(1)(i), which 

concerns Mexican nationals entering the 

United States who are in possession of 

a BCC. New language would be added 

that specifies that the passport 

exemption applies when entering the 

United States from contiguous territory 

by land, ferry, or pleasure vessel. 

8 CFR 235.1 

The amendment to this section would 

involve adding a new paragraph (d), 

which provides that United States 

citizens who are holders of a Merchant 

Mariner Document (MMD or ‘‘z-card’’) 

issued by the Coast Guard traveling on 

maritime business may present, in lieu 

of a passport, an MMD. This new 

paragraph would be added because the 

Secretary of Homeland Security 

proposes that an MMD, when used on 

maritime business and presented upon 

arrival, will be deemed sufficient 

documentation to denote identity and 

citizenship under IRTPA. 

In addition, this section involves 

adding a new paragraph (e), which 

provides that United States citizens, 

Canadian citizens, and permanent 

residents of Canada who enter the 

United States as NEXUS Air 

participants by using a NEXUS Air 

kiosk, may present, in lieu of a passport, 

a valid NEXUS Air membership card 

when entering the United States. 

22 CFR 41.1 

The amendment to this section would 

revise paragraph (b), which provides a 

passport exemption for American 

Indians born in Canada, having at least 

50 per centum of blood of the American 

Indian race. New language would be 

added to clarify that the passport 

exemption applies only to those persons 

entering from contiguous territory by 

land, ferry, pleasure vessel, or as 

participants in the NEXUS Air program. 

22 CFR 41.2 

The amendment to this section would 

revise paragraphs (a) and (b), which 

provide a passport exemption for 

Canadian citizens and citizens of 

Bermuda. New language would be 

added to clarify that the passport 

exemption applies only to travel into 

the United States from within the 

Western Hemisphere by land, ferry, 

pleasure vessel, or in conjunction with 

the NEXUS Air program, as applicable. 

In addition, this section would revise 

paragraph (g), which concerns Mexican 

nationals entering the United States 

who are in possession of a Form DSP–


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150, B–1/B–2 Visa and Border Crossing 

Card. Subparagraph (g)(2) would be 

eliminated as redundant because Form 

DSP–150 is a B–1/B–2 visa as well as a 

Border Crossing Card. Subparagraph 

(g)(4) would be eliminated because 22 

CFR 41.32 has been amended to require 

that all applicants for Border Crossing 

Cards present a valid passport; section 

41.32 no longer provides conditions for 

a waiver of the passport requirement. 

New language would be added that 

specifies that the passport exemption 

applies only when entering the United 

States at a land border port-of-entry or 

by pleasure vessel or ferry. 

22 CFR 53.1 

The amendments to this part would 

revise 22 CFR 53.1 to provide that it is 

unlawful for a United States citizen, 

except as provided in 22 CFR 53.2, to 

depart from or enter, or attempt to 

depart from or enter, the United States 

unless he or she bears a valid passport. 

They also revise 22 CFR 53.1 to provide 

definitions of ‘‘commercial vessel,’’

‘‘ferry,’’ ‘‘pleasure vessel,’’ and ‘‘United 

States.’’

22 CFR 53.2 

The amendments to this part would 

revise the exceptions to the passport 

requirement stated in 22 CFR 53.2 so 

that they are consistent with this 

rulemaking. One change would narrow 

the so-called ‘‘Western Hemisphere’’

exception so that it only applies to 

entries to and departures from Canada 

and Mexico by land, while another 

provides exceptions for entries and 

departures aboard pleasure vessels and 

ferries. In addition, the amendments 

would make it clear that the exception 

for members of the U.S. Armed Forces 

traveling on active duty will be 

maintained. The amendment would also 

contain an exception for U.S. citizen 

seamen on maritime business who are 

carrying Merchant Marine Documents 

(MMDs or Z-cards). The amendment 

would also contain an exception for 

United States citizens who are carrying 

a NEXUS Air membership card and 

participating in the NEXUS Air program 

by using a NEXUS Air kiosk. 

The amendments would eliminate the 

exception for cards of identity or 

registration issued at consular offices 

abroad because such cards are no longer 

issued; for U.S. citizen children 

included in a foreign passport of an 

alien parent; for child of members of a 

foreign government or the United 

Nations included on a foreign passport; 

and the current broad exception for 

waivers authorized by the Secretary of 

State in 22 CFR 53.2(h). Instead, new 

exceptions that are consistent with 

IRTPA would be substituted for those 

that would be eliminated (i.e., providing 

exceptions for documentation deemed 

sufficient to denote identity and 

citizenship by the Secretary of 

Homeland Security, and allowing for 

waiver in individual cases when an 

unforeseen emergency occurs and 

individual cases for humanitarian or 

national interest reasons). 

22 CFR 53.4 

The amendments to this part would 

clarify the point that nothing in this rule 

would prevent a United States citizen 

from presenting a U.S. passport in 

circumstances where that passport is 

not required. 

IV. 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 

complete and detailed ‘‘Regulatory 

Assessment’’ can be found in the docket 

for this rulemaking: 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. 

This rule will affect certain travelers 

to the Western Hemisphere countries for 

whom there are no current requirements 

to present a United States passport for 

entry. While United States citizens may 

not need a passport to enter these 

countries, they would need to carry a 

passport to leave the United States and 

for inspection upon re-entry to the 

United States. This analysis considers 

air travelers on commercial flights, 

travelers using general aviation, and 

cruise ship passengers. 

Based on data from the Department of 

Commerce, approximately 22 million 

travelers will be covered by the 

proposed rule. Based on additional 

available data sources, DHS and DOS 

assume that a large portion of these 

travelers already hold passports and 

thus will not be affected (i.e., they will 

not need to obtain a passport as a result 

of this rule). If the provisions of the 

proposed rule are finalized, DHS and 

DOS estimate that approximately 6 

million passports will be required in the 

first year the rule is in effect, at a direct 

cost to traveling individuals of $941 

million. These estimates are presented 

in Table 1. 

TABLE 1.—FIRST YEAR DIRECT COSTS TO TRAVELERS OF THE PROPOSED RULE

Travelers to WHTI countries, first year ........................................................................... 21,792,788 ............................ ............................

1st quartile Median 3rd quartile 

Passports demanded: 

Air travelers .................................................................................................................. 3,942,859 4,084,204 4,364,197 

Cruise passengers ....................................................................................................... 1,751,988 1,821,258 1,877,324 

Total .......................................................................................................................... 5,694,846 5,905,462 6,241,521 

Total cost of passports demanded: 

Air travelers .................................................................................................................. $579,379,344 $600,142,162 $641,283,623 

Cruise passengers ....................................................................................................... 259,398,916 269,658,495 277,962,482 

Total .......................................................................................................................... $838,778,260 $869,800,657 $919,246,105 

Expedited service fees (20% of passports): 

Number of passports .................................................................................................... 1,138,969 1,181,092 1,248,304 

Cost of expedited service ............................................................................................ $68,338,158 $70,865,540 $74,898,252 

Grand total cost ........................................................................................................ $907,116,418 $940,666,196 $994,144,357 


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50 ‘‘As the 9/11 staff report on terrorist travel 

declared, ‘The challenge for national security in an 

age of terrorism is to prevent the people who may 

pose overwhelming risk from entering the United 

States undetected.’ The Judiciary sections of title III 

require Americans returning from most parts of the 

Western Hemisphere to possess passports; require 

Canadians seeking entry into the United States to 

present a passport or other secure identification; 

authorize additional immigration agents and 

investigators; reduce the risk of identity and 

document fraud; provide for the expedited removal 

of illegal aliens; limit asylum abuse by terrorists; 

and streamline the removal of terrorists and other 

criminal aliens. These provisions reflect both 

commission recommendations and legislation that 

was pending in the House.’’ Congressional Record, 

October 7, 2004, H8685. 

51 ‘‘Americans should not be exempt from 

carrying biometric passports or otherwise enabling 

their identities to be securely verified when they 

enter the United States; nor should Canadians or 

Mexicans. Currently U.S. persons are exempt from 

carrying passports when returning from Canada, 

Mexico, and the Caribbean. The current system 

enables non-U.S. citizens to gain entry by showing 

minimal identification. The 9/11 experience shows 

that terrorists study and exploit America’s 

vulnerabilities.’’ The 9/11 Commission Report, p. 

388. 

Following the first year, the costs will 

diminish as most United States travelers 

in the air and sea environments would 

then hold passports. Because the 

number of travelers to the affected 

Western Hemisphere countries has been 

growing, a small number of ‘‘new’’

travelers who did not previously hold 

passports will now have to obtain them 

in order to travel. The estimated costs 

for new passport acquisition in the 

second year the rule is in effect are 

presented in Table 2. 

TABLE 2.—SECOND YEAR DIRECT COSTS TO TRAVELERS OF THE PROPOSED RULE

‘‘New’’ travelers to WHTI countries, second year ........................................................... 1,313,091 ............................ ............................

1st quartile Median 3rd quartile 

Passports demanded: 

Air travelers .................................................................................................................. 195,638 202,409 216,428 

Cruise passengers ....................................................................................................... 140,159 145,701 150,186 

Total .......................................................................................................................... 335,797 348,110 366,614 

Total cost of passports demanded: 

Air travelers .................................................................................................................. $28,744,708 $29,742,623 $31,801,499 

Cruise passengers ....................................................................................................... 20,751,913 21,572,680 22,236,999 

Total .......................................................................................................................... $49,496,622 $51,315,302 $54,038,497 

Expedited service fees (20% of passports): 

Number of passports .................................................................................................... 67,159 69,622 73,323 

Cost of expedited service ............................................................................................ $4,029,570 $4,177,321 $4,399,366 

Grand total cost ........................................................................................................ $53,526,192 $55,492,623 $58,437,863 

This rule could also impose indirect 

costs to those industries that support the 

traveling public. If some travelers do not 

obtain passports because of the cost or 

inconvenience and forego travel to 

Western Hemisphere destinations, 

certain industries would incur the 

indirect consequences of the foregone 

foreign travel. These industries include 

(but are not limited to): 

• Air carriers and cruise ship 

companies; 

• Airports, cruise terminals, and their 

support services; 

• Traveler accommodations; travel 

agents; dining services; retail shopping; 

• Tour operators; 

• Scenic and sightseeing 

transportation; 

• Hired transportation (rental cars, 

taxis, buses); 

• Arts, entertainment, and recreation. 

DHS and DOS expect that foreign 

businesses whose services are 

consumed largely outside of the United 

States (with the exception of United 

States air carriers, cruise ship 

companies, travel agents, and airport 

and cruise terminal services) will 

primarily be impacted. If domestic 

travel is substituted for international 

travel, domestic industries in these 

areas would gain. DHS and DOS expect, 

however, that United States travel and 

tourism could also be indirectly affected 

by the proposed rule if fewer Canadian, 

Mexican BCC holders, and Bermudan 

travelers visit the United States (these 

travelers do not currently need a 

passport for entry to the United States 

but will require one under the proposed 

rule). In this case, United States 

businesses in these sectors would be 

affected. Thus, gains in domestic 

consumption may be offset by losses in 

services provided to the citizens and 

residents of the Western Hemisphere 

countries affected. In both cases, we 

expect the gains and losses to be 

marginal as the vast majority of travelers 

(based on our Regulatory Assessment, 

an estimated 96 percent of United States 

air and sea travelers and 99 percent of 

Canadian, Mexican, and Bermudan air 

and sea travelers) are expected to obtain 

passports and continue traveling 

internationally. 

The benefits of the proposed rule are 

virtually impossible to quantify in 

monetary terms. The benefits of the 

proposed rule are significant and real in 

terms of increased security in the air 

and sea environments provided by more 

secure documents and facilitation of 

inspections provided by the limited 

types of documents that would be 

accepted. In fact, this proposed rule 

addresses a vulnerability of the United 

States to entry by terrorists or other 

persons by false documents or fraud 

under the current documentary 

exemptions for travel within the 

Western Hemisphere, which has been 

noted extensively by Congress and 

others: 

• During the debate on IRTPA, 

several members of Congress, including 

the Chairman of the House Judiciary 

Committee commented on the need for 

more secure documents for travelers.50

• The 9/11 Commission 

recommendations, which provide much 

of the foundation for IRTPA, specifically 

include a recommendation to address 

travel documents in the Western 

Hemisphere.51

• Finally, in May 2003, a 

subcommittee of the House Judiciary 

Committee held a hearing focused on a 

fraudulent U.S. document ring in the 

Caribbean, the exploitation of which 

allowed the notorious Washington D.C. 

‘‘sniper,’’ John Allen Muhammad, to 

support himself while living in Antigua. 

A Government Accountability Office 

(GAO) investigator at that hearing 

testified as to the ease of entering the 

United States with fraudulent birth 

certificates and drivers’ licenses. 

A uniform document requirement 

would assist CBP officers in verifying 

the identity and citizenship of travelers 

who enter the United States, and 


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improving their ability to detect 

fraudulent documents or false claims to 

citizenship and deny entry to such 

persons. Further, such standardized 

documents would enable more rapid 

processing of travelers who enter the 

United States because an individual’s 

identity would be easier to confirm and 

he or she could be processed through 

CBP more efficiently. 

Alternatives to the Proposed Rule 

CBP considered the following five 

alternatives to the proposed rulemaking: 

1. The No Action alternative (status 

quo); 

2. Require United States travelers to 

present a state-issued photo ID and 

proof of citizenship (such as birth 

certificates) upon return to the United 

States from countries in the Western 

Hemisphere; 

3. Allow United States citizens who 

possess a Transportation Worker 

Identification Card (TWIC) to use the 

card as a travel document in the air and 

sea environments; 

4. Allow Mexican citizens to present 

their Border Crossing Cards (BCCs) in 

the air and sea environments in lieu of 

a passport; and 

5. Develop and designate a low-cost 

PASS card as an acceptable document 

for United States citizens. 

Calculations of costs (if any) for the 

alternatives can be found in the 

Regulatory Assessment. 

Alternative 1: The No Action Alternative 

The No Action alternative would have 

zero costs (or benefits) associated with 

it. This alternative was rejected because 

section 7209 of the IRTPA specifically 

provides that, by January 1, 2008, 

United States citizens and 

nonimmigrant aliens may enter the 

United States only with passports or 

such alternative documents as the 

Secretary of Homeland Security may 

designate as satisfactorily establishing 

identity and citizenship. Current 

documentation requirements leave 

major gaps in security at U.S. airports 

and seaports and do not satisfy the 

requirements under the IRTPA that 

travel documents for entry into the 

United States must denote identity and 

citizenship. 

Alternative 2: Require United States 

Travelers To Present a State-Issued 

Photo ID and Proof of Citizenship 

The second alternative would require 

United States citizens to present stateissued photo identification in 

combination with a birth certificate to 

establish citizenship and identity. This 

alternative is similar to the status quo. 

The U.S. birth certificate can be used as 

evidence of birth in the United States; 

however, it does not provide definitive 

proof of citizenship (e.g., children born 

in the U.S. to foreign diplomats do not 

acquire U.S. citizenship at birth). Highly 

trained passport specialists and 

consular officers abroad adjudicate 

passport applications, utilizing identity 

and citizenship documents (like U.S. 

birth certificates, naturalization 

certificates, consular reports of birth 

abroad, etc.). These specialists have 

resources available, including fraud and 

document experts, to assist when 

reviewing documents and are not faced 

with the same time constraints as 

officers at ports-of-entry. These factors 

are critical in determining that a birth 

certificate and driver’s license may be 

presented as documentary evidence of 

citizenship and identity for an 

application for a passport but are not 

sufficient under WHTI for entry to the 

United States. There are, in addition, 

other circumstances where a non-U.S. 

birth certificate does not provide 

definitive proof of citizenship (e.g., 

dual-nationals, foreign birth to U.S. 

citizen parents, foreign-born adopted 

children, and naturalized citizens). In 

addition, there is no current way to 

validate that the person presenting the 

birth certificate for inspection is, in fact, 

the same person to whom it was issued. 

The lack of security features and the 

plethora of birth certificates issued in 

the United States (issued by more than 

8,000 entities) currently make it difficult 

to reliably verify or authenticate a birth 

certificate. A state-issued photo 

identification provides positive 

identification with name, address, and 

photograph. However, a state-issued 

photo identification does not provide 

proof of citizenship. 

Alternative 2 was rejected for several 

reasons. Because birth certificates and 

driver’s licenses are issued by numerous 

government entities, there is no 

standard format for either document, 

and, at present, it is not possible to 

authenticate quickly and reliably either 

document. Some states only issue 

photocopies as replacements of birth 

certificates, some states issue 

replacement birth certificates by mail or 

through the Internet, and some states 

will not issue photo identification to 

minors. Both documents lack security 

features and are susceptible to 

counterfeiting or alteration. While most 

states require that driver’s licenses 

contain correct address information, it is 

not uncommon for the address 

information to be outdated. Neither the 

birth certificate nor the state-issued 

identification was designed to be a 

travel document. Birth certificates can 

easily deteriorate when used frequently 

as travel documents because they are 

normally made from some sort of paper 

with a raised seal, so they cannot be 

laminated or otherwise protected when 

under repeated use. 

Because these documents are not 

standardized, CBP officers require 

additional time to locate the necessary 

information on the documents. This 

may result in cumulative delays at air 

and sea ports of entry. If the information 

is not current, travelers may need to be 

referred to secondary inspection for 

additional processing. CBP, DHS, and 

DOS believe that the risk of 

counterfeiting and fraud associated with 

these documents makes them 

unacceptable documents for travel 

under IRTPA. 

Because neither document has a 

machine-readable zone, CBP will not be 

able to front-load information on the 

traveler to expedite the initial 

inspection processing, including checks 

necessary to protect the national 

security of the United States. Birth 

certificates are issued by thousands of 

authorities, and are currently impossible 

to validate or vet sufficiently. Both 

documents are readily available for 

purchase to assume a false identity. 

Because the birth certificate and stateissued photo ID have limited or nonexistent security features, they are more 

susceptible to alteration. Therefore, the 

actual, rather than claimed, identity and 

citizenship of the traveler using these 

documents cannot always be 

determined. 

The costs of this alternative are 

associated with minors obtaining photo 

identification for travel. Currently, all 

adult travelers in the air and sea 

environments must present photo 

identification (usually a driver’s license) 

along with proof of citizenship (usually 

a birth certificate) when they check in 

for their flights and voyages (per the 

requirements of the air and sea carriers). 

Additionally, all countries in the 

Western Hemisphere require a passport 

or these documents for entry into their 

countries. The exception, however, is 

for minor travelers. Currently, parents 

may orally vouch for their children 

upon exit and entry into the United 

States to and from the Western 

Hemisphere, and some Western 

Hemisphere countries allow children to 

present school identification as 

sufficient proof of identity. To comply 

with a requirement that would allow a 

photo ID in combination with a birth 

certificate for travel in the Western 

Hemisphere, minors would most likely 

need to obtain state-issued photo 

identification. There could also be 

additional costs in the form of lost 


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52Table 22, U.S. Travelers to Overseas Countries 

2004, State of Residence of Travelers, OTTI, 2005. 

53See the nationwide DMV guide at 

www.dmv.org. 

54Of the 11 states examined in the analysis of this 

alternative, Florida, Massachusetts, New Jersey, and 

Pennsylvania have a minimum age requirement for 

obtaining a photo ID. The minimum age to obtain 

a photo ID in Florida is 12, in Massachusetts is 16, 

in New Jersey is 17, and in Pennsylvania is 16. 

55Pub. L. 107–295, 116 Stat. 2064 (Nov. 25, 

2002). 

56 71 FR 29396 and 29462 (May 22, 2006). 

57 Department of Homeland Security, 

Transportation Security Administration, and U.S. 

Coast Guard, Regulatory Evaluation for the Notice 

of Proposed Rulemaking Transportation Worker 

Identification Credential (TWIC) Implementation in 

the Maritime Sector, 49 (2006). Dockets TSA–2006–

24191 or USCG–2006–24196. 

efficiency upon entry to United States 

ports-of-entry. If CBP officers need to 

spend more time examining a variety of 

documents to determine what they are 

and if they are fraudulent, and if CBP 

officers need to enter data by hand 

rather than routinely utilize machinereadable technology to obtain 

information on arriving passengers, this 

would have time-delay impacts at 

airports and seaports. CBP is unable to 

quantify this loss of efficiency and 

presents only the cost to minors to 

obtain a photo ID. 

Based on data from the Department of 

Commerce’s Office of Travel & Tourism 

Industries (OTTI), eleven states with the 

highest number of international 

travelers (to the Western Hemisphere or 

otherwise) (California, New York, New 

Jersey, Florida, Texas, Illinois, Virginia, 

Pennsylvania, Washington, 

Massachusetts, and Ohio) account for 

almost three-quarters of international air 

travelers.52 Most requirements for 

obtaining a photo identification are 

similar across these states: completion 

of a department of motor vehicles 

(DMV) form, submission of a form or 

declaration attesting that the applicant 

is the parent or legal guardian of the 

minor receiving the identification, and 

presentation of a birth certificate and 

social security card. If the applicant is 

a minor, he or she must appear in 

person with a parent or guardian. Fees 

for these states range from $3 (Florida) 

to $21 (California), and identifications 

are valid for an average of five years.53

As stated previously, some states will 

not issue photo ID to minors under a 

certain age.54 For the purposes of this 

analysis only, we assume all minors 

would be able to obtain state-issued 

photo identification. 

CBP estimates that there are 1,643,606 

minors that will be covered by this 

proposed rule, 557,365 of whom do not 

currently hold a passport. CBP has used 

the average of the photo identification 

fees from the 11 states above ($15) and 

added the cost of the time it takes to 

complete the forms and submit them to 

the DMV ($41, the same time cost CBP 

estimated to obtain the passport) for a 

total of approximately $55 per minor. 

Thus, assuming that a birth certificate is 

readily available, the cost of this 

alternative ID for minors would be $30.7 

million. 

Alternative 3: Designate TWIC as an 

Acceptable Document for United States 

Citizens 

The third alternative would allow 

U.S. transportation workers to use their 

TWICs in lieu of a passport. Section 102 

of the Maritime Transportation Security 

Act of 2002 requires the Secretary of 

Homeland Security to issue a biometric 

transportation security card to 

individuals with unescorted access to 

secure areas of vessels and facilities.55

In addition, these individuals must 

undergo a security threat assessment to 

determine that they do not pose a 

security threat prior to receiving the 

biometric card and access to the secure 

areas. The security threat assessment 

must include a review of criminal, 

immigration, and pertinent intelligence 

records in determining whether the 

individual poses a threat, and 

individuals must have the opportunity 

to appeal an adverse determination or 

apply for a waiver of the standards. The 

regulations to implement the TWIC in 

the maritime environment are in the 

proposed rule stage and are pending 

finalization subject to public comment 

and revision.56 For the sake of 

comparison, CBP assumes that TWICs 

are available to all transportation 

workers covered by the proposed rule. 

Additionally, analysis of this alternative 

assumes that CBP would accept the 

TWIC for any travel. 

The Transportation Security 

Administration (TSA) and Coast Guard 

estimate that the initial population of 

cards holders will be approximately 

750,000.57 This population includes 

such individuals as United States MMD 

holders, port truck drivers, contractors, 

longshoremen, and rail workers. As 

discussed previously, MMD holders will 

not be affected by the proposed WHTI 

air and sea rule, because the MMD will 

be an acceptable document under the 

proposed rule. The other TWIC holders 

do not likely leave the country on 

vessels for the purposes of work-related 

activities. For the purposes of this 

economic analysis only, CBP estimates 

the cost savings to these individuals of 

using TWICs in the air and sea 

environments for non-work-related 

travel. 

CBP does not know how TWIC 

holders overlap with the United States 

population traveling to the affected 

WHTI countries. As calculated 

previously, CBP estimates there are 

approximately 22 million unique 

travelers covered by the proposed rule, 

and approximately 6 million (27 

percent) of them will require passports 

since they do not already have them. 

For the purposes of this analysis of 

alternatives, CBP assumes that the 

population requiring passports fully 

encompasses TWIC holders. This is an 

extreme best-case assumption, as most 

of the TWIC holders will not be 

traveling internationally in the air and 

sea environments as part of their work. 

Thus in the best-case, 27 percent of the 

750,000 TWIC holders (approximately 

203,000 individuals) would not need 

passports. At a cost of $149 per passport 

($97 application fee for an adult, $11 for 

photos and $41 for the time costs of 

completing the necessary paperwork), 

this would result in a savings of, at best, 

$30.2 million. This is approximately 3 

percent of the total rule cost. The 

savings are likely to be lower than that 

because the TWIC-holding population 

in the maritime environment is unlikely 

to be entirely included in the United 

States traveling population covered by 

the proposed rule. 

The TWIC cannot be read by current 

CBP technology installed in air and sea 

ports-of-entry. While there is 

information embedded in the chip on 

the TWIC, only the name of the 

individual and a photo ID are apparent 

to a CBP officer upon presentation. DHS 

would have to install chip readers in all 

air and sea ports-of-entry to access other 

information and verify the validity of 

the document. TSA estimates that this 

cost could be $7,200 per card reader. 

Additionally, CBP believes that it would 

cost $500,000 to develop databases, 

cross-reference information and 

coordinate with TSA and Coast Guard, 

and test equipment installed in airports 

and seaports. 

For this analysis CBP assumes that a 

card reader would need to be installed 

in each CBP booth in airports and 4 

mobile readers would be required in 

seaports that receive cruise passengers. 

CBP estimates that there are 2,000 air 

and sea ‘‘lanes’’ nationwide that would 

need a TWIC reader. The cost for 

readers is thus $14.4 million and with 

the additional cost for reprogramming 

and adapting existing systems, the total 

cost is $14.9 million in the first year. 

Following the first year, CBP would 

expect to pay approximately 25 percent 

of the initial cost for operations and 


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58With the exception of Tucson, Arizona, where 

travel is limited to 75 miles. 59 Information for aircraft to be submitted 

includes: full name, date of birth, gender, 

citizenship, country of residence, status on board 

the aircraft, travel document type, passport 

information if passport is required (number, 

country of issuance, expiration date), alien 

registration number where applicable, address 

while in the United States (unless a U.S. citizen, 

lawful permanent resident, or person in transit to 

a location outside the United States), Passenger 

Name Record locator if available, foreign code of 

foreign port/place where transportation to the 

United States began, code of port/place of first 

arrival, code of final foreign port/place of 

destination for in-transit passengers, airline carrier 

code, flight number, and date of aircraft arrival. 

Information for vessels is comparable, with 

requirements appropriate to vessels: vessel name, 

vessel country of registry/flag, vessel number, and 

voyage number (for multiple arrivals on the same 

calendar day). 

maintenance. The net first-year savings 

would be, again at best, $15.3 million. 

This is a 2 percent difference from the 

costs of the chosen alternative (i.e., 

$15.3 million divided by $941 million). 

This alternative was rejected because 

the TWIC does not denote citizenship 

on its face and it was not designed as 

a travel document but rather, to 

positively identify the holder and hold 

the results of a security threat 

assessment, and as a tool for use in 

access control systems. Because the 

TWIC does not provide citizenship 

information on its face, the holder 

would need to present at least one other 

document that proves citizenship. CBP 

would need to take additional time at 

primary inspection to establish 

citizenship, or the traveler would have 

to be referred to secondary inspections 

for further processing. The overall result 

could be increased delays at ports of 

entry. 

Alternative 4: Designate the BCC as an 

Acceptable Document for Mexican 

Citizens 

Alternative 4 would allow Mexican 

citizens to present their BCCs upon 

entry to this country. This alternative 

would have no impact on the cost of the 

rule to United States citizens. The BCC 

is a credit card-size document with 

many security features and 10-year 

validity. Also called a ‘‘laser visa,’’ the 

card is both a BCC and a B1/B2 visitor’s 

visa. This alternative could be less 

expensive for a percentage of Mexican 

citizens. A Mexican passport is required 

to obtain a BCC; however, there are 

some Mexican citizens that hold a BCC 

without a valid passport because the 

passport has expired prior to the 

expiration of the BCC. The BCC is 

currently limited to use on the southern 

land border and the traveler is required 

to remain within 25 miles of the border 

unless the traveler obtains an I–94 prior 

to traveling further into the United 

States.58

This alternative was rejected because 

the BCC cannot be used with CBP’s 

Advance Passenger Information System 

(APIS), which collects data from 

travelers prior to their arrival in and 

departure from the United States.59 The 

passport requirement for Mexican 

citizens who hold BCC in the air and sea 

environments is consistent with the 

requirement for passports for most 

United States citizens and foreign 

nationals. 

Alternative 5: Develop and Designate a 

Low Cost PASS Card as an Acceptable 

Document for United States Citizens 

DOS, in consultation with DHS, has 

begun developing an alternative travel 

document, a card-format, limited use 

passport called a People Access Security 

Service card (PASS card). Like a 

traditional passport booklet, the PASS 

card will be a secure travel document 

that establishes the identity and 

citizenship of the bearer. The PASS card 

is being designed to benefit those 

citizens in border communities who 

regularly cross the northern and 

southern borders every day and where 

such travel is an integral part of their 

daily lives. As currently envisioned, it 

will be the size of a credit card and will 

have a fee structure that is lower than 

for a traditional passport booklet. The 

application process for the PASS card 

will be comparable to that for the 

passport booklet in that each applicant 

will have to establish United States 

citizenship, personal identity, and 

entitlement to obtain the document. 

The cost of the PASS card has yet to 

be determined. Strictly for the purposes 

of this analysis of alternatives, we 

assume the fee for a first-time adult 

PASS card would be $45 and for a 

minor would be $35. The cost for photos 

is $11. Because the application process 

would be comparable to that for a 

traditional passport, the personal time 

cost would continue to be $41, as 

estimated previously for the primary 

analysis of the cost of the proposed rule. 

Using the same methodology as used for 

the primary analysis (most likely 

scenario) but assuming that all travelers 

who do not currently hold a passport 

obtain a PASS card rather than the 

traditional passport booklet, we estimate 

that the first-year cost would be $668 

million. At this lower cost, 

approximately 6.2 million PASS cards 

would be demanded, approximately 

300,000 more than under the proposed 

rule, an increase of 5 percent. 

Use of this alternative passport card 

was rejected for the air and sea 

environments for a number of reasons. 

This rule is proposed to take effect on 

January 8, 2007, and there is not 

sufficient time for the Department of 

State to develop and issue the PASS 

card by that time. The PASS card is 

intended to be a limited-use passport 

and will not meet all the international 

standards for passports and other 

official travel documents (for example, 

the size of the PASS card does not 

comport with the International Civil 

Aviation Organization 9303 travel 

document standards). 

The following table presents a 

comparison of the costs of the proposed 

rule and the alternatives considered. 

COMPARISON OF REGULATORY ALTERNATIVES IN FIRST YEAR

[Costs in millions] 

Alternative First-year cost 

Cost 

compared to 

status quo 

Cost compared to proposed rule Reason rejected 

Proposed rule (passports, 

MMDs, Air Nexus).

$941 +$941 n/a ..................................

Status quo ....................... $0 n/a ¥$941 ............................ Status quo does not meet requirements of IRTPA. 

State-issued photo ID + 

birth certificate in lieu 

of U.S. passport.

$31 +$31 ¥$910 ............................ Identity and citizenship of the traveler cannot always be reasonably assumed or ascertained 

using these documents; minors may not be able 

to obtain IDs in all states; delays in processing 

entries because neither document is standardized. 


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60 5 U.S.C. 601–612. 

61Small Business Administration, Office of 

Advocacy, A Guide for Government Agencies: How 

to Comply with the Regulatory Flexibility Act, May 

2003. 

62 Id. at 69. 63 Id. at 20. 

COMPARISON OF REGULATORY ALTERNATIVES IN FIRST YEAR—Continued 

[Costs in millions] 

Alternative First-year cost 

Cost 

compared to 

status quo 

Cost compared to proposed rule Reason rejected 

TWICs in lieu of U.S. 

passport.

$910 +$910 ¥$15 .............................. TWICs do not yet exist in the maritime environment; TWIC not designed as a travel document; 

citizenship not included; CBP would have to install card readers and modify their own systems 

to accept TWICs. 

BCCs in lieu of Mexican 

passport.

No direct costs 

for U.S. citizens 

$0 May be slightly less 

expensive for BCC 

holders.

Cannot be used in conjunction with APIS in the air 

and sea environments. 

PASS card in lieu of traditional passport booklet.$668 +$668 ¥$273 ............................ PASS cards cannot be used because they do not 

yet exist. 

Accounting Statement 

As required by OMB Circular A–4 

(available at www.whitehouse.gov/omb/ 

circulars/index.html), CBP has prepared 

an accounting statement showing the 

classification of the expenditures 

associated with this rule. The table 

provides an estimate of the dollar 

amount of these costs and benefits, 

expressed in 2005 dollars, at three 

percent and seven percent discount 

rates. DHS and DOS estimate that the 

cost of this rule will be approximately 

$237 million annualized (7 percent 

discount rate) and approximately $233 

million annualized (3 percent discount 

rate). Non-quantified benefits are 

enhanced security and efficiency. 

ACCOUNTING STATEMENT: CLASSIFICATION OF EXPENDITURES, 2006 THROUGH 2016 

[2005 dollars] 

3% discount rate 7% discount rate 

COSTS 

Annualized monetized costs ............................................................. $233 million ................................. $237 million. 

Annualized quantified, but un-monetized costs ................................ None ........................................... None. 

Qualitative (un-quantified) costs ....................................................... Indirect costs to the travel and 

tourism industry.

Indirect costs to the travel and tourism 

industry. 

BENEFITS 

Annualized monetized benefits ......................................................... None quantified ........................... None quantified. 

Annualized quantified, but un-monetized costs ................................ None quantified ........................... None quantified. 

Qualitative (un-quantified) costs ....................................................... Enhanced security and efficiency Enhanced security and efficiency. 

In accordance with the provisions of 

EO 12866, this regulation was reviewed 

by OMB. 

B. Regulatory Flexibility Act 

We have prepared this section to 

examine the impacts of the proposed 

rule on small entities as required by the 

Regulatory Flexibility Act (RFA).60 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). 

When considering the impacts on 

small entities for the purpose of 

complying with the RFA, we consulted 

the Small Business Administration’s 

guidance document for conducting 

regulatory flexibility analysis.61 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.62 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. We do 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.’’ 63

As described in the Regulatory 

Assessment for this rulemaking, we 

could not quantify the indirect impacts 

of the proposed rule with any degree of 

certainty; we instead focused our 

analysis on the direct costs to 

individuals recognizing that some small 

entities will face indirect impacts. 

Many 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 the 

domestic travel and tourism industry. 

Most travelers—an estimated 96 percent 

of United States travelers and 99 percent 

of Canadian, Mexican, and Bermudan 

travelers (based on the Regulatory 


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Assessment summarized above)—are 

expected to 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. 

Industries likely affected include (but 

may not be limited to): 

• Air carriers; 

• Cruise ship companies; 

• Airports; 

• Cruise terminals and their support 

services; 

• Traveler accommodations; 

• Travel agents; 

• Dining services; 

• Retail shopping; 

• Tour operators; 

• Scenic and sightseeing 

transportation; 

• Hired transportation (rental cars, 

taxis, buses); 

• Arts, entertainment, and recreation. 

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. However, we 

welcome comments on that assumption. 

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 United States citizens and 

nonimmigrant aliens from Canada, 

Bermuda and Mexico entering the 

United States by air or sea from Western 

Hemisphere countries to present a valid 

passport. 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. Executive Order 12988: Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Executive Order 12988 requires agencies 

to conduct reviews on civil justice and 

litigation impact issues before proposing 

legislation or issuing proposed 

regulations. The order requires agencies 

to exert reasonable efforts to ensure that 

the regulation identifies clearly 

preemptive effects, effects on existing 

federal laws or regulations, identifies 

any retroactive effects of the regulation, 

and other matters. DHS and DOS have 

determined that this regulation meets 

the requirements of Executive Order 

12988 because it does not involve 

retroactive effects, preemptive effects, or 

the other matters addressed in the 

Executive Order. 

E. 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. This impact is 

discussed under the Executive Order 

12866 discussion. 

F. Paperwork Reduction Act 

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 14th 

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 OMBapproved 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. First time 

applicants must use the DS–11. The 

proposed 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 83I (Paperwork Reduction Act 

Submission) relating to the DS–11 to 

reflect these increases. 


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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 total reporting and/or 

recordkeeping burden over 3 years: 37.4 

million hours. 

Estimated annual average reporting 

and/or recordkeeping burden: 12.5 

million hours. 

Estimated total number of 

respondents over 3 years: 26.4 million. 

Estimated annual average number of 

respondents: 8.8 million. 

Estimated average burden per 

respondent: 1 hour 25 minutes. 

Estimated frequency of responses: 

every 10 years (adult passport 

application); every 5 years (minor 

passport application). 

Comments on the 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. 

G. Privacy Statement 

A Privacy Impact Assessment (PIA) is 

being posted to the DHS Web site (at 

http://www.dhs.gov/dhspublic/ 

interapp/editorial/editorial_0511.xml) 

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 United States citizens from having to 

present a passport in connection with 

Western Hemisphere travel, such that 

those individuals must now present a 

passport 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) (a 

System of Records Notice for which is 

published at 66 FR 53029). By removing 

the exception for submitting passport 

information from United States 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 

Passport Requirement and Exceptions; 

parameters for U.S. citizen travel and 

definitions. 

Amendment of the Regulations 

For the reasons stated in the 

preamble, DHS and DOS propose to 

amend 8 CFR parts 211 and 235 and 22 

CFR parts 41 and 53 as set forth below. 

PART 212—DOCUMENTARY 

REQUIREMENTS: NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE 

1. The authority citation for part 212 

is amended to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1102, 

1103, 1182 and note, 1184, 1187, 1223, 1225, 

1226, 1227; 8 U.S.C. 1185 note (section 7209 

of Pub. L. 108–458). 

2. Section 212.1 is amended by: 

a. Revising paragraphs (a)(1) and 

(a)(2); and 

b. Revising paragraphs (c)(1)(i), as 

follows: 

§ 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 not 

required. A passport is not required for 

Canadian citizens entering the United 

States from within the Western 

Hemisphere by land, ferry, pleasure 

vessel as defined in 22 CFR 53.1(b), or 

as participants in the NEXUS Air 

program pursuant to 8 CFR 235.1(e). A 

passport is otherwise required for 

Canadian citizens arriving in the United 

States by aircraft or by commercial sea 

vessels as defined in 22 CFR 53.1(b). 

(2) Citizens of the British Overseas 

Territory of Bermuda. A visa is not 

required. A passport is not required for 

Citizens of the British Overseas 

Territory of Bermuda entering the 

United States from within the Western 

Hemisphere by land, ferry, or pleasure 

vessel, as defined in 22 CFR 53.1(b). A 

passport is otherwise required for 

Citizens of the British Overseas 

Territory of Bermuda arriving in the 

United States by aircraft or by 

commercial sea vessels as defined in 22 

CFR 53.1(b). 

* * * * * 

(c) Mexican nationals. (1) A visa and 

a passport are not required of a Mexican 

national who: 

(i) 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 DOS 

and is applying for admission as a 

temporary visitor for business or 

pleasure from a contiguous territory by 

land, ferry, or pleasure vessel, as 

defined in 22 CFR 53.1(b). 

* * * * * 

PART 235—INSPECTION OF PERSONS 

APPLYING FOR ADMISSION 

3. The authority citation for part 235 

is amended 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). 

4. Section 235.1 is amended by: 

a. Redesignating current paragraphs 

(d), (e), and (f) as paragraphs (f), (g), and 

(h); 

b. Adding a new paragraph (d); and 

c. Adding a new paragraph (e). 

The additions and revisions read as 

follows: 


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§ 235.1 Scope of Examination. 

* * * * * 

(d) U.S. Merchant Mariners. United 

States citizens who are holders of a 

Merchant Mariner Document (MMD or 

Z-card) issued by the U.S. Coast Guard 

may present, in lieu of a passport, an 

MMD used in conjunction with 

maritime business when entering the 

United States. 

(e) NEXUS Air Program Participants. 

United States citizens, Canadian 

citizens, and permanent residents of 

Canada who are traveling as participants 

in the NEXUS Air program, may 

present, in lieu of a passport, a valid 

NEXUS Air membership card when 

using a NEXUS Air kiosk prior to 

entering the United States. 

* * * * * 

PART 41—VISAS: DOCUMENTATION 

OF NONIMMIGRANTS UNDER THE 

IMMIGRATION AND NATIONALITY 

ACT, AS AMENDED 

5. The authority citation for part 41 is 

amended 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). 

6. Section 41.1 is amended revising 

paragraph (b) to read as follows: 

* * * * * 

(b) American Indians born in Canada. 

An American Indian born in Canada, 

having at least 50 per centum of blood 

of the American Indian race, entering 

from contiguous territory by land, ferry, 

pleasure vessel as defined in 22 CFR 

53.1(b), or as participants in the NEXUS 

Air program pursuant to 8 CFR 235.1(e) 

(sec. 289, 66 Stat. 234; 8 U.S.C. 1359). 

* * * * * 

7. Section 41.2 is amended by: 

a. Revising paragraphs (a) and (b); 

b. Revising paragraph (g)(1); 

c. Removing paragraphs (g)(2) and 

(g)(4); and 

d. Redesignating paragraphs (g)(3) as 

(g)(2), (g)(5) as (g)(3), and (g)(6) as (g)(4); 

* * * * * 

(a) Canadian nationals. A visa is not 

required. A passport is not required for 

Canadian citizens entering the United 

States from within the Western 

Hemisphere by land, ferry, pleasure 

vessel as defined in 22 CFR 53.1(b), or 

as participants in the NEXUS Air 

program pursuant to 8 CFR 235.1(e). A 

passport is required for Canadian 

citizens arriving in the United States by 

aircraft or by commercial sea vessels as 

defined in 22 CFR 53.1(b). 

(b) Citizens of the British Overseas 

Territory of Bermuda. A visa is not 

required. A passport is not required for 

Citizens of the British Overseas 

Territory of Bermuda entering the 

United States from within the Western 

Hemisphere by land, ferry, or pleasure 

vessel, as defined in 22 CFR 53.1(b). A 

passport is required for Citizens of the 

British Overseas Territory of Bermuda 

arriving in the United States by aircraft 

or by commercial sea vessels as defined 

in 22 CFR 53.1(b). 

* * * * * 

(g) Mexican nationals. (1) A visa and 

a passport are not required of a Mexican 

national in possession of a Form DSP–

150, B–1/B–2 Visa and Border Crossing 

Card, containing a machine-readable 

biometric identifier, applying for 

admission as a temporary visitor for 

business or pleasure from a contiguous 

territory by land, ferry, or pleasure 

vessel, as defined in 22 CFR 53.1(b). 

* * * * * 

8. Part 53 is revised to read as follows: 

PART 53—PASSPORT REQUIREMENT 

AND EXCEPTIONS 

Sec. 

53.1 Passport requirement; definitions. 

53.2 Exceptions. 

53.3 Attempt of a citizen to enter without 

a valid passport. 

53.4 Optional use of a valid passport. 

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). 

§ 53.1 Passport requirement; definitions. 

(a) It is unlawful for a citizen of the 

United States, unless excepted under 22 

CFR 53.2, to enter or depart, or attempt 

to enter or depart, the United States, 

without a valid U.S. passport. 

(b) For purposes of this part: 

(1) Commercial sea vessel means any 

civilian vessel being used to transport 

persons or property for compensation or 

hire to or from any port or place 

including all cruise ships. 

(2) 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. 

(3) Pleasure vessel means a vessel that 

is used exclusively for recreational or 

personal purposes and not to transport 

passengers or property for hire. 

(4) United States means ‘‘United 

States’’ as defined in § 215(c) of the 

Immigration and Nationality Act of 

1952, as amended (8 U.S.C. 1185(c)). 

§ 53.2 Exceptions. 

A U.S. citizen is not required to bear 

a valid U.S. passport to enter or depart 

the United States: 

(a) When traveling directly between 

parts of the United States as defined in 

§ 50.1 of this chapter; or 

(b) When entering the United States 

from, or departing the United States for, 

Mexico or Canada by land; or 

(c) When entering from or departing 

to a foreign port or place within the 

Western Hemisphere, excluding Cuba, 

by pleasure vessel; or 

(d) When entering from or departing 

to a foreign port or place within the 

Western Hemisphere, excluding Cuba, 

by ferry; or 

(e) When traveling as a member of the 

Armed Forces of the United States on 

active duty; or 

(f) When traveling as a U.S. citizen 

seaman, carrying a Merchant Marine 

Document (MMD or Z-card) in 

conjunction with maritime business. 

The MMD is not sufficient to establish 

citizenship for purposes of issuance of 

a United States passport under 22 CFR 

Part 51; or 

(g) When traveling as a participant in 

the NEXUS Air program with a valid 

NEXUS Air membership card. United 

States citizens who are traveling as 

participants in the NEXUS Air program, 

may present, in lieu of a passport, a 

valid NEXUS Air membership card 

when using a NEXUS Air kiosk prior to 

entering the United States. The NEXUS 

Air card is not sufficient to establish 

citizenship for purposes of issuance of 

a U.S. passport under 22 CFR Part 51; 

or 

(h) When the U.S. citizen bears 

another document, or combination of 

documents, that the Secretary of 

Homeland Security has determined 

under Section 7209(b) of Public Law 

108–458 (8 U.S.C. 1185 note) to be 

sufficient to denote identity and 

citizenship; or 

(i) 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; or 

(j) 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 

(k) When the Department of State 

waives, pursuant to EO 13323 of 

December 30, 2003, Sec 2, the 

requirement with respect to the U.S. 


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46174 Federal Register / Vol. 71, No. 155 / Friday, August 11, 2006 / Proposed Rules 

citizen for humanitarian or national 

interest reasons. 

§ 53.3 Attempt of a citizen to enter without 

a valid passport. 

The appropriate officer at the port of 

entry shall report to the Department of 

State any citizen of the United States 

who attempts to enter the United States 

contrary to the provisions of this part, 

so that the Department of State may 

apply the waiver provisions of § 53.2 (i) 

and § 53.2(j) to such citizen, if 

appropriate. 

§ 53.4 Optional use of a valid passport. 

Nothing in this part shall be 

construed to prevent a citizen from 

using a valid U.S. passport in a case in 

which that passport is not required by 

this part 53, provided such travel is not 

otherwise prohibited. 

Dated: August 7, 2006, 

Michael Chertoff, 

Secretary of Homeland Security, Department 

of Homeland Security. 

Henrietta H. Fore, 

Under Secretary for Management, 

Department of State. 

[FR Doc. 06–6854 Filed 8–10–06; 8:45 am] 

BILLING CODE 9111–14–P 

DEPARTMENT OF JUSTICE 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives 

27 CFR Part 555 

[Docket No. ATF 9P; AG Order No. 2830–

2006] 

RIN 1140–AA24 

Commerce in Explosives—Amended 

Definition of ‘‘Propellant Actuated 

Device’’ (2004R–3P) 

AGENCY: Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF), 

Department of Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Justice is 

proposing to amend the regulations of 

the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF) to 

clarify that the term ‘‘propellant 

actuated device’’ does not include 

hobby rocket motors or rocket-motor 

reload kits consisting of or containing 

ammonium perchlorate composite 

propellant (APCP), black powder, or 

other similar low explosives. 

DATES: Comments must be submitted on 

or before November 9, 2006. 

ADDRESSES: Send written comments to: 

James P. Ficaretta, Program Manager; 

Room 5250; Bureau of Alcohol, 

Tobacco, Firearms, and Explosives; P.O. 

Box 50221; Washington, DC 20091–

0221; ATTN: ATF 9P. Written 

comments must include your mailing 

address and be signed, and may be of 

any length. 

Comments may also be submitted 

electronically to ATF at nprm@atf.gov 

or to http://www.regulations.gov by 

using the electronic comment form 

provided on that site. You may also 

view an electronic version of this 

proposed rule at the http:// 

www.regulations.gov site. Comments 

submitted electronically must contain 

your name, mailing address and, if 

submitted by e-mail, your e-mail 

address. They must also reference this 

document docket number, as noted 

above, and be legible when printed on 

81⁄2′′ x 11′′ paper. ATF will treat 

comments submitted electronically as 

originals and ATF will not acknowledge 

receipt of comments submitted 

electronically. See the Public 

Participation section at the end of the 

SUPPLEMENTARY INFORMATION section for 

requirements for submitting written 

comments by facsimile. 

FOR FURTHER INFORMATION CONTACT: 

James P. Ficaretta; Enforcement 

Programs and Services; Bureau of 

Alcohol, Tobacco, Firearms, and 

Explosives; U.S. Department of Justice; 

650 Massachusetts Avenue, NW., 

Washington, DC 20226, telephone (202) 

927–8203. 

SUPPLEMENTARY INFORMATION:

Background 

ATF is responsible for implementing 

Title XI, Regulation of Explosives (18 

United States Code chapter 40), of the 

Organized Crime Control Act of 1970 

(‘‘Title XI’’). One of the stated purposes 

of that Act is to reduce the hazards to 

persons and property arising from 

misuse and unsafe or insecure storage of 

explosive materials. Under section 847 

of title 18, United States Code, the 

Attorney General ‘‘may prescribe such 

rules and regulations as he deems 

reasonably necessary to carry out the 

provisions of this chapter.’’ Regulations 

that implement the provisions of 

chapter 40 are contained in title 27, 

Code of Federal Regulations (CFR), part 

555 (‘‘Commerce in Explosives’’). 

Section 841(d) of title 18 sets forth the 

definition of ‘‘explosives.’’ ‘‘Propellant 

actuated devices’’ along with gasoline, 

fertilizers, and propellant actuated 

industrial tools manufactured, 

imported, or distributed for their 

intended purposes are exempted from 

this statutory definition by 27 CFR 

555.141(a)(8). 

In 1970, when Title XI was enacted by 

Congress, the Judiciary Committee of 

the United States House of 

Representatives specifically considered 

and supported an exception for 

propellant actuated devices. H.R. Rep. 

No. 91–1549, 91st Cong., 2nd Sess. 64 

(1970), reprinted in 1970 U.S.C.C.A.N. 

4007, 4041. Neither the statute nor the 

legislative history defines ‘‘propellant 

actuated device.’’ In 1981, however, 

ATF added the following definition of 

‘‘propellant actuated device’’ to its 

regulations: ‘‘[a]ny tool or special 

mechanized device or gas generator 

system which is actuated by a 

propellant or which releases and directs 

work through a propellant charge.’’ 27 

CFR 555.11. 

In applying the regulatory definition, 

ATF has classified certain products as 

propellant actuated devices: aircraft 

slide inflation cartridges, inflatable 

automobile occupant restraint systems, 

nail guns, and diesel and jet engine 

starter cartridges. ATF also examined 

hobby rocket motors to determine 

whether they could be classified as 

propellant actuated devices. To be 

classified as a ‘‘propellant actuated 

device,’’ it is, in view of the definition 

set forth at 27 CFR 555.11, at a 

minimum necessary that a particular 

item be susceptible of being deemed a 

‘‘tool,’’ a ‘‘special mechanized device,’’ 

or a ‘‘gas generator system.’’ 

Additionally, logic dictates that it is 

necessary that a propellant actuated 

device contain and be actuated by 

propellant. 

To ascertain the common, 

contemporary meanings of ‘‘tool,’’ 

‘‘special mechanized device,’’ and ‘‘gas 

generator system,’’ it is useful to look to 

Merriam-Webster’s Collegiate Dictionary 

(10th Ed., 1997) (‘‘Webster’s’’). 

Webster’s defines ‘‘tool’’ in pertinent 

part as follows: ‘‘a handheld device that 

aids in accomplishing a task * * *[;] 

the cutting or shaping part in a machine 

or machine tool * * *[;] a machine for 

shaping metal * * * ’’ Id. at 1243. 

‘‘Device’’ is defined as ‘‘something 

* * * contrived’’ and, more 

specifically, as ‘‘a piece of equipment or 

a mechanism designed to perform a 

special function.’’ Id. at 317. For a 

particular device to be a ‘‘special 

mechanized device,’’ Webster’s suggests 

it would be necessary that it be both 

unique and of a mechanical nature. (See 

definition of ‘‘special,’’ id. at 1128; 

definition of ‘‘mechanize,’’ id. at 721.) 

As to the term ‘‘gas generator system,’’ 

Webster’s defines ‘‘generator’’ as ‘‘an 

apparatus in which vapor or gas is 

formed’’ and as ‘‘a machine by which 

mechanical energy is changed into 

electrical energy.’’ Id. at 485. Further, 

Webster’s defines ‘‘system’’ as ‘‘a 

regularly interacting or interdependent 


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