[Federal Register Volume 71, Number 155 (Friday, August 11, 2006)]
[Proposed Rules]
[Pages 46155-46174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6854]


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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.

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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 ports-of-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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> 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

[[Page 46156]]

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.
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    \1\ Section 215(b) of the Immigration and Nationality Act (INA), 
8 U.S.C. 1185(b).
    \2\ See 22 CFR 53.2(b), which waived the passport requirement 
pursuant to section 215(b) of the INA, 8 U.S.C. 1185(b).
    \3\ United 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).
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    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 ports-of-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-of-entry 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.
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    \5\ Section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 
1182(a)(7)(B)(i).
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1. Canadian Citizens and Citizens of the British Overseas Territory of 
Bermuda
    In most cases, Canadian citizens and citizens of the British 
Overseas Territory of Bermuda (Bermuda) 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

[[Page 46157]]

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.
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    \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.
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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 ports-of-entry.
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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).
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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.
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    \8\ 8 U.S.C. 1185(b).
    \9\ 8 U.S.C. 1182(d)(4)(B).
    \10\ Section 7209 does not apply to Lawful Permanent Residents, 
who will continue to be able to enter the United States upon 
presentation of a valid Form I-551, 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.
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    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\
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    \11\ See section 212(d)(4)(B) of the INA, 8 U.S.C. 
1182(d)(4)(B), and section 215(b) of the INA, 8 U.S.C. 1185(b).
    \12\ 8 U.S.C. 1182(d)(4)(B).
    \13\ 8 U.S.C. 1185(b).
    \14\ Section 7209(c)(2) of IRTPA.
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    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\
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    \15\ 8 U.S.C. 1185(b) and 8 U.S.C. 1182(d)(4)(B).
    \16\ 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).
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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

[[Page 46158]]

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-of-
entry. 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.
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    \17\ NEXUS 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.
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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

[[Page 46159]]

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 first-
time 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 States-
Mexican 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

[[Page 46160]]

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-of-entry 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\
---------------------------------------------------------------------------

    \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).
    \19\ See 22 CFR 53.2(b).
    \20\ See 8 CFR 212.1 and 22 CFR 41.2.
---------------------------------------------------------------------------

    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-of-entry 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-of-entry 
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\
---------------------------------------------------------------------------

    \21\ This 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.
    (5,905,462 travelers)(5 seconds)($30.45/hour) = $2,497,463
    (5,905,462 travelers)(30 seconds)($30.45/hour) = $14,984,778.

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[[Page 46161]]

    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.
---------------------------------------------------------------------------

    \22\ For a discussion regarding the documentation requirements 
for alien members of the United States Armed Forces, see section 
III.D.6. of this document.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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

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.
---------------------------------------------------------------------------

    \24\ See 22 CFR 53.2(c).
---------------------------------------------------------------------------

    The Secretary of Homeland Security proposes that an MMD when used 
in

[[Page 46162]]

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.
---------------------------------------------------------------------------

    \25\ 71 FR 29462 (May 22, 2006).
---------------------------------------------------------------------------

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 pre-screened, 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 government-issued 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.
---------------------------------------------------------------------------

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

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

[[Page 46163]]

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\
---------------------------------------------------------------------------

    \27\ 8 U.S.C. 1182(d)(4)(B).
    \28\ 8 U.S.C. 1185(b).
    \29\ 8 U.S.C. 1181.
    \30\ See section 211(b) of the INA, 8 U.S.C. 1181(b).
    \31\ See 71 FR 42605.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \32\ See 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \34\ 8 U.S.C. 1354.
    \35\ See also 8 CFR 235.1(c).
    \36\ 8 U.S.C. 1354.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \37\ Agreement Between the Parties to the North Atlantic Treaty 
Regarding the Status of Their Forces, June 19, 1951, [1953, pt.2] 4 
U.S.T. 1792, T.I.A.S. No. 2846 (effective Aug. 23, 1953). NATO 
member countries are: Belgium, Bulgaria, Canada, the Czech Republic, 
Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, 
Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, 
Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, the United 
Kingdom of Great Britain and Northern Ireland, and the United 
States.
    \38\ See also 8 CFR 235.1(c).
    \39\ 8 U.S.C. 1182(d)(4)(B).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \40\ 8 U.S.C. 1359.
    \41\ Canadian-born Inuits (Eskimos) do not have the same right 
to ``pass'' the borders of the United States.
    \42\ See 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).
    \43\ See Matter of Yellowquill, 16 I.&N. Dec. 576 (BIA 1978).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \44\ See Federal Power Commission v. Tuscarora Indian Nation, 
362 U.S. 99, 120 (1960); Taylor v. Ala. Intertribal Council Title IV 
J.T.P.A., 261 F.3d 1032, 1034-1035 (11th Cir. 2001).
    \45\ 8 U.S.C. 1401(b).
---------------------------------------------------------------------------

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

[[Page 46164]]

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.
---------------------------------------------------------------------------

    \46\ Pub. L. 97-429, 96 Stat. 2269 (1983), codified at 25 U.S.C. 
1300b-11-1300b-16.
---------------------------------------------------------------------------

    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-of-entry would be required to present 
their Mexican passport.
---------------------------------------------------------------------------

    \47\ TBKA, 25 U.S.C. 1300b-13.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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

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 States-Mexico border while on 
official business will not change.\49\
---------------------------------------------------------------------------

    \49\ Article 20 of the 1944 Treaty Between the United States and 
Mexico (regarding division of boundary water and the functions of 
International Boundary and Water Commission), TS 922, Bevan 1166, 59 
Stat. 1219; 8 CFR 212.1(c)(5).
---------------------------------------------------------------------------

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-

[[Page 46165]]

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
----------------------------------------------------------------------------------------------------------------


[[Page 46166]]

    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):
    <bullet> Air carriers and cruise ship companies;
    <bullet> Airports, cruise terminals, and their support services;
    <bullet> Traveler accommodations; travel agents; dining services; 
retail shopping;
    <bullet> Tour operators;
    <bullet> Scenic and sightseeing transportation;
    <bullet> Hired transportation (rental cars, taxis, buses);
    <bullet> 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:
    <bullet> 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    <bullet> 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    <bullet> 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

[[Page 46167]]

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 state-issued 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 
state-issued photo ID have limited or non-existent 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

[[Page 46168]]

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 machine-readable 
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.
---------------------------------------------------------------------------

    \52\ Table 22, U.S. Travelers to Overseas Countries 2004, State 
of Residence of Travelers, OTTI, 2005.
    \53\ See the nationwide DMV guide at www.dmv.org.
    \54\ Of 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \55\ Pub. L. 107-295, 116 Stat. 2064 (Nov. 25, 2002).
    \56\ 71 FR 29396 and 29462 (May 22, 2006).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 46169]]

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\
---------------------------------------------------------------------------

    \58\ With the exception of Tucson, Arizona, where travel is 
limited to 75 miles.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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]
----------------------------------------------------------------------------------------------------------------
                                                     Cost  compared   Cost compared to
           Alternative             First-year cost    to status quo     proposed rule        Reason rejected
----------------------------------------------------------------------------------------------------------------
Proposed rule (passports, MMDs,                $941           +$941  n/a...............  .......................
 Air Nexus).
Status quo......................                 $0             n/a  -$941.............  Status quo does not
                                                                                          meet requirements of
                                                                                          IRTPA.
State-issued photo ID + birth                   $31            +$31  -$910.............  Identity and
 certificate in lieu of U.S.                                                              citizenship of the
 passport.                                                                                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.

[[Page 46170]]

 
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             $0    May be slightly   Cannot be used in
                                             for U.S.                   less expensive    conjunction with APIS
                                             citizens                   for BCC holders.  in the air and sea
                                                                                          environments.
PASS card in lieu of traditional               $668           +$668  -$273.............  PASS cards cannot be
 passport booklet.                                                                        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-      None.................  None.
 monetized costs.
Qualitative (un-quantified) costs.  Indirect costs to the  Indirect costs to the travel and tourism industry.
                                     travel and tourism
                                     industry.
----------------------------------------------------------------------------------------------------------------
                                                    BENEFITS
----------------------------------------------------------------------------------------------------------------
Annualized monetized benefits.....  None quantified......  None quantified.
Annualized quantified, but un-      None quantified......  None quantified.
 monetized costs.
Qualitative (un-quantified) costs.  Enhanced security and  Enhanced security and efficiency.
                                     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).
---------------------------------------------------------------------------

    \60\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \61\ Small 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.
---------------------------------------------------------------------------

    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

[[Page 46171]]

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):
    <bullet> Air carriers;
    <bullet> Cruise ship companies;
    <bullet> Airports;
    <bullet> Cruise terminals and their support services;
    <bullet> Traveler accommodations;
    <bullet> Travel agents;
    <bullet> Dining services;
    <bullet> Retail shopping;
    <bullet> Tour operators;
    <bullet> Scenic and sightseeing transportation;
    <bullet> Hired transportation (rental cars, taxis, buses);
    <bullet> 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 OMB-approved application forms for 
passports, the DS-11 Application for a U.S. Passport (OMB Approval No. 
1405-0004) and the DS-82 Application for a U.S. Passport by Mail. 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.

[[Page 46172]]

    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:


Sec.  212.1  Documentary requirements for nonimmigrants.

* * * * *
    (a) Citizens of Canada or Bermuda, Bahamian nationals or British 
subjects resident in certain islands.--(1) Canadian citizens. A visa is 
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:

[[Page 46173]]

Sec.  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).


Sec.  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 Sec.  
215(c) of the Immigration and Nationality Act of 1952, as amended (8 
U.S.C. 1185(c)).


Sec.  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 Sec.  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.

[[Page 46174]]

citizen for humanitarian or national interest reasons.


Sec.  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 Sec.  
53.2 (i) and Sec.  53.2(j) to such citizen, if appropriate.


Sec.  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]
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