68412 Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 

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 

Departing From or Arriving in the 

United States at Air 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: Final rule. 

SUMMARY: This rule finalizes the first 

phase of a joint Department of 

Homeland Security and Department of 

State plan, known as the Western 

Hemisphere Travel Initiative, to 

implement new documentation 

requirements for certain United States 

citizens and nonimmigrant aliens 

entering the United States. As a result 

of this final rule, with limited 

exceptions discussed below, beginning 

January 23, 2007, all United States 

citizens and nonimmigrant aliens from 

Canada, Bermuda, and Mexico 

departing from or entering the United 

States from within the Western 

Hemisphere at air ports-of-entry will be 

required to present a valid passport. 

This final rule differs from the Notice of 

Proposed Rulemaking (NPRM) 

published in the Federal Register on 

August 11, 2006, by finalizing new 

documentation requirements for only 

travelers arriving in the United States by 

air. The portion of the NPRM that 

proposed changes in documentation 

requirements for travelers arriving by 

sea will not be finalized under this rule. 

Requirements for United States citizens 

and nonimmigrant aliens from Canada, 

Bermuda, and Mexico departing from or 

entering the United States at land and 

sea ports-of-entry will be addressed in a 

separate, future rulemaking. 

DATES: This final rule is effective on 

January 23, 2007. 

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. Background 

A. Documentation Requirements Prior to 

the Effective Date of this Rule 

1. U.S. Citizens 

2. Nonimmigrant Aliens from Canada 

Citizens and the British Overseas 

Territory of Bermuda 

3. Mexican Citizens 

B. Statutory and Regulatory History 

II. Summary of Changes from NPRM and 

New Document Requirements 

III. Discussion of Comments 

A. General 

B. Timeline 

C. Passports 

1. General 

2. Cost of Passports 

3. Obtaining Passports 

4. Children 

5. DOS Issuance Capacity 

D. Alternative Documents 

1. General 

2. Driver’s License and Birth Certificate 

3. Real ID Act Compliant Driver’s Licenses 

4. Border Crossing Cards 

5. Merchant Mariner Cards 

6. NEXUS Air Cards 

7. Passport Cards 

8. Tribal Documents 

E. Implementation and Effect on Specific 

Populations 

1. General 

2. Outer Continental Shelf 

3. Emergencies 

F. Outside the Scope of this Rulemaking 

G. Public Relations 

H. Regulatory Analyses 

1. General 

2. Executive Order 12866 

3. Regulatory Flexibility Act 

IV. Conclusion 

V. 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 

Amendments to the Regulations 

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 

ICAO—International Civil Aviation 

Organization 

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. Background 

For a detailed discussion of the 

current documentation requirements for 

travelers entering the United States from 

within the Western Hemisphere, the 

statutory and regulatory histories, and 

the applicability of the rule related to 

specific groups, please see the NPRM 

published on August 11, 2006, at 71 FR 

46155. 

A. Documentation Requirements Prior 

to the Effective Date of This Rule 

The documentation requirements for 

travelers entering the United States by 

air generally depend on the nationality 

of the traveler and whether or not the 

traveler is entering the United States 

from a country within the Western 

Hemisphere. The following is an 

overview of the documentation 

requirements for citizens of the United 

States, Canada, British Overseas 

Territory of Bermuda, and Mexico who 

enter the United States at air ports-ofentry prior to the effective date of this 

rule. 

1. U.S. Citizens 

U.S. citizens must possess a valid U.S. 

passport to depart from or enter the 


cprice-sewell on PROD1PC66 with RULES3
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1Section 215(b) of the Immigration and 

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

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

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

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

3 In lieu of a passport, U.S. citizens have been 

permitted to present a variety of documents to 

establish their identity and 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. Citizenship documents 

generally include birth certificates issued by a 

United States jurisdiction, Consular Reports of Birth 

Abroad, Certificates of Naturalization, and 

Certificates of Citizenship. 

4Section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 

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

5 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR 

212.1(a)(2) (Citizens of Bermuda). See also 22 CFR 

41.2. 

6Entering aliens may present any evidence of 

identity and citizenship in their possession. 

Individuals who 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. 

7A BCC is a machine-readable, biometric card, 

issued by the Department of State, Bureau of 

Consular Affairs. 

8 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). 

9Pub. L. 108–458, 118 Stat. 3638 (Dec. 17, 2004). 

10Air Nexus is an airport border clearance pilot 

project. 

11Pub. L. 109–295, 120 Stat. 1355 (Oct. 4, 2006). 

12 Id. at § 546. See Congressional Record, 109th 

cong. 2nd sess., September 29, 2006 at H7964. 

United States.1 However, this passport 

requirement has not applied to U.S. 

citizens who depart from or enter the 

United States from within the Western 

Hemisphere other than from Cuba.2

United States citizens have been 

required to satisfy the inspecting 

officers of their identities and 

citizenship. Accordingly, U.S. citizens 

have not been required to present a 

valid passport when entering the United 

States by air from within the Western 

Hemisphere other than Cuba.3

2. Nonimmigrant Aliens From Canada 

and the British Overseas Territory of 

Bermuda 

Each nonimmigrant alien arriving in 

the United States must present 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.4 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)). In most cases, 

Canadian citizens and citizens of the 

British Overseas Territory of Bermuda 

(Bermuda) have not been required to 

present a valid passport and visa when 

entering the United States as 

nonimmigrant visitors from countries in 

the Western Hemisphere.5 These 

travelers have been required to satisfy 

the inspecting CBP officer of their 

identities and citizenship at the time of 

their application for admission.6

3. Mexican Citizens 

Mexican citizens are generally 

required to present a valid unexpired 

passport and visa when entering the 

United States. However, 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) 7 currently may be admitted 

without presenting a valid passport if 

they are coming from contiguous 

territory.8 While the use of a BCC 

without a passport is atypical in the air 

environment, it has been permitted. 

B. Statutory and Regulatory History 

On December 17, 2004, the President 

signed into law the Intelligence Reform 

and Terrorism Prevention Act of 2004 

(IRTPA).9 Section 7209 of IRTPA, as 

amended by the Department of 

Homeland Security Appropriations Act 

of 2007, provides 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.’’ As a result, 

United States citizens and 

nonimmigrant aliens from Canada, 

Mexico, and Bermuda will be required 

to comply with the new documentation 

requirements. 

On September 1, 2005, the 

Department of Homeland Security 

(DHS) and the Department of State 

(DOS) published in the Federal Register 

at 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. For further information, 

please see the ANPRM document that 

was published in the Federal Register 

on September 1, 2005, at 70 FR 52037. 

On August 11, 2006, DHS and DOS 

published in the Federal Register at 71 

FR 46155, an NPRM that announced 

that DHS and DOS were planning to 

amend their respective regulations to 

implement section 7209 of IRTPA. The 

NPRM proposed 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. The NPRM 

did not propose changes to the 

documentation requirements at land 

border ports-of-entry. 

The NPRM proposed that the passport 

requirement would apply to all air and 

most sea travel, including commercial 

air travel and commercial sea travel. 

According to the NPRM, there were two 

categories of travel and one category of 

traveler that would not be subject to the 

passport requirement proposed for air 

and sea travel, but would be addressed 

in the second phase rulemaking for land 

border travel. First, the NPRM provided 

that the passport requirement 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, the NPRM stated that the 

passport requirement would not apply 

to travel by ferry. Finally, the NPRM 

provided that the passport requirement 

would not apply to United States citizen 

members of the Armed Forces on active 

duty. 

The NPRM also proposed 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 was the Merchant 

Mariner Document (MMD) or ‘‘z-card’’

issued by the United States Coast Guard 

(Coast Guard) to Merchant Mariners. 

The second document was the NEXUS 

Air card when used with a NEXUS Air 

kiosk.10

On October 4, 2006, the President 

signed into law the Department of 

Homeland Security Appropriations Act 

of 2007 (DHS Appropriations Act of 

2007).11 Section 546 of the DHS 

Appropriations Act of 2007 amended 

section 7209 of IRTPA by stressing the 

need for DHS and DOS to expeditiously 

implement the requirements by the 

earlier of two dates, June 1, 2009, or 

three months after the Secretaries of 

Homeland Security and State certify 

that certain criteria have been met. The 

section requires ‘‘expeditious[ ]’’ action 

and states that requirements must be 

satisfied by the ‘‘earlier’’ of dates 

identified. By using this language, the 

drafters expressed an intention for rapid 

action.12 Congress also expressed an 

interest in having the requirements for 

land and sea implemented at the same 


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13 Id. 

14 71 FR 60928. 

time as part of the DHS Appropriations 

Act of 2007.13

On October 17, 2006, to meet the 

documentary requirements of the 

Western Hemisphere Travel Initiative 

and to facilitate the frequent travel of 

persons living in border communities, 

the Department of State, in consultation 

with the Department of Homeland 

Security, proposed to develop a cardformat passport, called the Passport 

Card, for international travel by United 

States citizens through land and sea 

ports of entry between the United 

States, Canada, Mexico, or the 

Caribbean and Bermuda.14

II. Summary of Changes From NPRM 

and New Document Requirements 

Under this final rule, beginning 

January 23, 2007, United States citizens 

and nonimmigrant aliens from Canada, 

Bermuda, and Mexico entering the 

United States at air ports-of-entry will 

generally be required to present a valid 

passport. Accordingly, 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 23, 

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; travelers who present a Merchant 

Mariner Document traveling in 

conjunction with maritime business; 

and travelers who present a NEXUS Air 

card used at a NEXUS Air kiosk. 

This final rule does not change the 

documentation requirements for United 

States citizens and nonimmigrant aliens 

from Canada, Bermuda, and Mexico 

who arrive at sea ports-of-entry. Based 

on DOS’ recent proposal to allow the 

use of the Passport Card in the sea 

environment, Congress’ intent with 

respect to the land and sea 

environments, and the public 

comments, DHS and DOS have decided 

to defer decisions on the proposed 

changes to documentation requirements 

for arrivals by sea. Arrivals by sea and 

land will be addressed in a separate, 

future rulemaking. 

III. Discussion of Comments 

In both the ANPRM and NPRM, DHS 

and DOS sought public comment to 

assist the Secretary of Homeland 

Security to make a final determination 

concerning which document, or 

combination of documents, other than 

valid passports, would be accepted at 

ports-of-entry. 

DHS and DOS received 2,062 written 

comments in response to the ANPRM 

and 104 written comments in response 

to the NPRM. The majority of the 

comments (1,910 from the ANPRM) 

addressed only potential changes to the 

documentation requirements at land 

border ports-of-entry. One hundred and 

fifty-two comments from the ANPRM 

addressed changes to the documentation 

requirements for persons arriving at air 

or sea ports-of-entry. Comments in 

response to both the ANPRM and NPRM 

were received from a wide range of 

sources including: private citizens; 

businesses and associations; local, state, 

federal, and tribal governments; 

members of the United States Congress; 

and foreign government officials. 

Since this final rule addresses solely 

the changes to the documentation 

requirements for travelers arriving at air 

ports-of-entry, the comments received in 

response to the ANPRM and NPRM 

regarding arrivals by land and sea will 

not be addressed in this rulemaking. A 

summary of the comments from both the 

ANPRM and the NPRM primarily 

regarding air travel follows with 

complete responses to the comments. 

A. General 

Forty-nine commenters agreed with a 

passport requirement. 

In contrast, eleven commenters 

expressed general disagreement with a 

passport requirement for travel within 

the Western Hemisphere where such 

documentation was previously not 

required. 

B. Timeline 

Comment 

We received many comments 

regarding the implementation timeline 

for new documentation requirements. 

Nine commenters stated that the 

requirements for all air, sea, and landborder crossings should be implemented 

without delay. Two commenters agreed 

with the timelines for a phased-in 

approach. One commenter stated that 

the January 1, 2007, timeline announced 

in the ANPRM should be maintained. 

Forty-five commenters asked for a 

single implementation date for land, air, 

and sea. Fifty-seven commenters 

requested that the implementation date 

be delayed to December 31, 2007, or 

later. Several commenters asserted that 

the implementation date for cruise 

passengers not occur earlier than the 

statutory deadline. Among the reasons 

to support a single and delayed 

implementation date, commenters 

asserted that one timeline would be 

more fair, provide adequate time for 

travelers to comply with the new 

regulations, and allow time to 

communicate the requirements to the 

public. One commenter reasoned that 

one timeline would ensure that 

infrastructure and technology is in place 

to support the initiative. Another 

commenter requested that changes to 

the requirements for commercial 

fishermen transiting between Alaska 

and Washington be delayed and 

addressed with persons arriving by 

pleasure boats and ferries, not with 

commercial vessels as proposed. One 

commenter requested that general 

aviation have the same implementation 

date as pleasure boats and land-border 

crossings. 

Response 

DHS and DOS agree with the 

commenters that the implementation 

date for new documentation 

requirements for travelers arriving by 

sea should be delayed. In the NPRM, 

DHS and DOS proposed to implement 

new documentation requirements for 

travelers arriving at air ports-of-entry 

and most sea ports-of-entry. However, 

based on DOS’ recent Passport Card 

proposal which would allow the 

Passport Card for sea travel, the 

Departments have decided to delay new 

requirements for arrivals by sea until the 

Passport Card is available for use in the 

sea environment. Delaying the 

implementation date for the sea 

environment will allow the Departments 

to develop the Passport Card and 

enhance the infrastructure and 

technology to support the Passport Card 

for arrivals by sea. This is also 

consistent with Congress’ intent to 

implement the land and sea 

environments at the same time as 

expressed in section 546 of the DHS 

Appropriations Act of 2007. 

Additionally, this delay will address the 

concerns for commercial fishermen 

transiting between Alaska and the 

United States by not implementing new 

requirements until the Passport Card is 

operational. It will also be less 

confusing to the public to implement 

sea and land requirements, both of 

which would accept the Passport Card, 

at the same time. Therefore, the 

documentation requirements for 

travelers arriving by sea, whether aboard 

commercial vessels, pleasure vessels, or 

ferries, will not change under this final 

rule. 

DHS and DOS have determined that 

the proposed implementation date of 

January 23, 2007, is appropriate for air 

travel because of operational 

considerations and available resources. 

This phased approach is essential 


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because a staggered implementation in 

advance of 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 sea and land-border entries. 

C. Passports 

1. General 

Comment 

One commenter raised concerns about 

the security of U.S. and foreign 

passports, stating that passports may be 

easily falsified or altered. Another 

commenter stated that terrorists could 

misuse passports. One commenter 

stated that Radio Frequency 

Identification (RFID), as related to 

electronic passports, poses a safety 

concern because it can be read from a 

distance. 

Response 

Passports are acceptable at the border 

as a matter of law. 

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. 

U.S. passports incorporate a host of 

security features. These 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 U.S. passport. The document 

security features include digitized 

photographs, embossed seals, 

watermarks, ultraviolet and fluorescent 

light verification features, security 

laminations, micro-printing, and 

holograms to authenticate passports. A 

U.S. 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). 

Foreign passports accepted for 

admission to the United States must 

meet the standards set out in 

International Civil Aviation 

Organization (ICAO) 9303. Passports 

issued by Canada, Mexico, and Bermuda 

meet these international standards and 

are, therefore, acceptable. Finally, the 

Customs and Border Protection (CBP) 

Officer verifies and authenticates the 

passport presented for entry. 

Privacy and security concerns related 

to RFID technology were addressed in 

extensive detail in the final rule for 

electronic passports published by DOS 

on October 25, 2005, at 70 FR 61553. 

Comment 

Two commenters asked if non-U.S. 

citizens would be allowed to depart the 

United States without a passport, 

regardless of their intent to return to the 

United States. 

Response 

Currently, if an individual is not 

required to present a passport upon 

entry to the United States, that 

individual does not need to present a 

passport upon exit. Under this final 

rule, however, if an individual must 

present a passport upon entry, then that 

individual will also need to bear one 

upon exit. In the event that non-U.S. 

citizens’ passports are lost or stolen, 

those individuals would need to contact 

their nearest consular office to have the 

documents replaced prior to departing 

the United States. 

2. Cost of Passports 

Comment 

Nineteen commenters stated that the 

cost for a U.S. passport is high and that 

the process for obtaining a passport 

should be made easier. One commenter 

stated that while the passport cost is 

‘‘high’’ it should not outweigh safety 

and security. Twenty-one commenters 

stated that the cost for a U.S. passport 

is high. Several commenters requested 

that DOS offer discounted or free 

passports to certain groups such as 

students, senior citizens, families with 

children, welfare recipients, group 

purchases, and early purchasers. Two 

commenters stated that the cost of a 

passport should be significantly 

lessened for citizens below the poverty 

level. Six commenters stated that the 

passport cost should be greatly reduced. 

Response 

At this time, DOS does not intend to 

offer discounts or no-fee passports for 

any of the specific groups mentioned. 

The passport fee reflects the actual costs 

of adjudicating a passport application 

and producing a passport. Because the 

requirements for adjudication and 

production remain the same for all 

applicants, DOS does not intend to offer 

discounts. 

Comment 

One commenter to the NPRM stated 

that the cost for a Canadian passport is 

high and that the process for obtaining 

a passport should be made easier. 

Response 

While the U.S. Government is 

working closely with passport agencies 

throughout the Western Hemisphere on 

WHTI and other travel document 

security matters, each nation’s 

government ultimately controls the 

process and cost for obtaining a 

passport. The application process for 

and cost of a Canadian Government 

issued document is outside the scope of 

this rulemaking. 

3. Obtaining Passports 

Comment 

One commenter stated that the 

process for obtaining a passport should 

be made easier. One commenter stated 

that the passport application process is 

very burdensome for travelers in remote 

areas. 

Response 

While some applicants may find the 

current process burdensome, the 

application process is standard across 

the U.S. and is intended to establish 

nationality, identity, and entitlement to 

the issuance of a U.S. passport. Due to 

statutory requirements and established 

regulations, a complete end-to-end 

electronic submission for the DS–11 

form (Application for a U.S. Passport) is 

currently not possible. However, in an 

effort to provide customers with an 

electronic alternative to the paper-based 

form, the DS–11 form is posted on the 

DOS Web site, where it can be filled out 

online and printed for submission. 

There are over 7,500 acceptance 

facilities nationwide including many 

Federal, state and probate courts, post 

offices, some public libraries and a 

number of county and municipal 

offices. Additionally, there are 14 

regional passport agencies and 1 

Gateway City Agency that serve 

customers who are traveling within 2 

weeks or who need foreign visas for 

travel. Complete information on how to 

obtain, replace, or change a passport can 

be found at the DOS Web site: http:// 

travel.state.gov/passport/ 

passport_1738.html. 

4. Children 

Comment 

Thirty-nine commenters asked to 

allow travelers under the age of 16 to be 

exempt from a passport requirement and 

able to use a birth certificate as 

sufficient proof of identity and 


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citizenship. One commenter suggested 

simplifying passport procedures for 

children under 16. 

One commenter stated that children 

under 16 should not be exempt from a 

passport requirement in the Western 

Hemisphere. 

Response 

The United States Government 

currently requires all U.S. citizens, 

including children, arriving from 

countries outside the Western 

Hemisphere to provide a passport when 

entering the United States. IRTPA, as 

amended, does not contain a general 

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, 

children under the age of 16 arriving 

from Western Hemisphere countries 

will be required to present a passport 

when entering the United States by air. 

Requiring passports for children 

departing from or entering the United 

States will also assist the U.S. 

Government, as well as foreign 

governments within the Western 

Hemisphere, to prevent child 

abductions. Of the nearly 600 

international parental child abductions 

brought to the attention of the State 

Department each year, outgoing parental 

abductions of American children from 

the U.S. to Canada and Mexico 

represent about one-quarter. 

5. DOS Issuance Capacity 

Comment 

Seven commenters expressed concern 

that DOS may not be able to issue 

several million new passports in the 

timeframe required and without 

significant delay. 

Two commenters to the NPRM 

expressed concern about whether DHS 

and DOS would be able to successfully 

implement the new passport 

requirements by January 8, 2007. 

Response 

DOS appreciates the commenters’

concerns and is already expanding 

passport production capacity to meet 

the additional demand for passports. 

DOS will be able to meet a significant 

increase in demand from the more than 

10 million passports produced in fiscal 

year 2005. DOS estimates a 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. 

The Departments have taken the 

appropriate measures to ensure the 

implementation of the new 

requirements by the implementation 

date. 

D. Alternative Documents 

1. General 

Comment 

Twenty-four commenters asked for a 

clear definition of other secure 

documents that will be accepted in 

addition to a passport. Eight 

commenters asked that NEXUS, 

SENTRI, and FAST cards be accepted in 

lieu of a passport. Three commenters 

stated that other travel documents 

should be used in lieu of a passport 

where practicable. 

One commenter asked that WHTI 

should be linked to the evolution of the 

Registered Traveler program. 

Response 

Other acceptable documents are 

designated in this rule by the Secretary 

of DHS to sufficiently establish identity 

and citizenship at airports. The 

documents designated in this rule are 

sufficiently secure to impede 

counterfeiting and alterations for 

fraudulent purposes. Along with the 

passport, the Secretary of Homeland 

Security is designating the MMD and 

the NEXUS Air card when used at a 

NEXUS Air kiosk as sufficient to denote 

identity and citizenship under section 

7209 and acceptable for air travel. 

Currently, the rest of the NEXUS 

program cards, as well as SENTRI and 

FAST cards, are accepted only at 

designated lanes at land-border ports-ofentry and not in the air environment. 

Currently, the Transportation Security 

Administration’s (TSA) Registered 

Traveler program is for domestic travel 

only. 

Comment 

One commenter asked that a 

Transportation Worker Identification 

Card (TWIC) be designated as an 

acceptable document to denote 

citizenship and identity. 

Response 

A TWIC card will not be suitable as 

an alternative document because it does 

not denote citizenship and is not 

intended as a travel document. 

Although a TWIC card would positively 

identify the bearer of the card, 

citizenship would have to be 

established through a paper-based 

document because a TWIC card does not 

provide citizenship information. 

Because, as proposed, TWIC cards may 

be issued to non-U.S. citizens and they 

do not denote citizenship, they could 

not be used in place of passports. In 

addition, the TWIC could not be read by 

current CBP technology installed in air 

ports-of-entry. While there will be 

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. CBP 

could not validate this document at 

primary inspection for the reasons 

outlined in the next section addressing 

the use of birth certificates. 

Comment 

One commenter asked that an 

International Boundary Water 

Commission (IBWC) identification be 

acceptable for land, air, and sea travel. 

Response 

In the NPRM, DHS and DOS clarified 

that documentation requirements for 

direct and indirect employees of the 

IBWC (Article 20 of the 1944 Treaty 

Between the United States and Mexico 

regarding division of boundary water 

and the functions of (IBWC), TS 922, 

Bevan 1166, 59 Stat. 1219; 8 CFR 

212.1(c)(5)) crossing the United StatesMexico border while on official 

business would not change under this 

final rule. 

2. Driver’s License and Birth Certificate 

Comment 

We received many comments stating 

that driver’s licenses and birth 

certificates should be acceptable to 

denote an individual’s citizenship and 

identity. Many commenters stated that 

these documents are affordable and 

easily obtainable and their acceptance 

would not dissuade travel. Several 

commenters stated that because a 

driver’s license and birth certificate are 

most commonly used to obtain a 

passport, these documents should also 

be sufficient to establish citizenship and 

identity at ports-of-entry. 

Response 

DHS and DOS disagree with the 

commenters. 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 either document quickly or 

reliably. 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. Neither the 

birth certificate nor the state-issued 

identification is designed to be a travel 

document. Birth certificates can easily 


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Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 68417 

15Pub. L. 109–13, codified at 49 U.S.C. 30301 

note. 

16 In very limited circumstances, foreign nationals 

who are enrolled as students at the U.S. Merchant 

Marine Academy may obtain an MMD. However, 

the number of international students who may 

attend the Academy at any one time is 30 (46 CFR 

310.66); therefore, the number of MMDs issued to 

foreign nationals at any one time is limited to 30. 

These MMDs denote citizenship on their face and 

are valid only while a cadet in the U.S. Merchant 

Marine Academy (46 CFR 12.25–25). These foreign 

nationals will not be permitted to use the MMD for 

entry purposes. 

deteriorate when used frequently as 

travel documents because they are 

normally made from paper with a raised 

seal, and they cannot be laminated or 

otherwise protected from repeated use. 

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 (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 CBP 

officers at ports-of-entry. These factors 

explain why a birth certificate and 

driver’s license may be sufficient 

documentary evidence of citizenship 

and identity for an application for a 

passport, but are not sufficient under 

WHTI for entry to the United States. 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 certificate issuers in 

the United States (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. 

3. Real ID Act Compliant Driver’s 

Licenses 

Comment 

In response to the ANPRM, twenty 

commenters asked DHS and DOS to 

work with state governments on 

possible use of driver’s licenses to verify 

U.S. citizenship. In response to the 

NPRM, eleven commenters asked DHS 

and DOS to accept driver’s licenses that 

are in compliance with the REAL ID Act 

of 2005.15

Response 

As previously stated, driver’s licenses 

currently do not denote citizenship. The 

REAL ID specifications are still under 

consideration, therefore the Secretary of 

Homeland Security cannot designate 

these documents for travel in the 

Western Hemisphere. Once documents 

are available that comply with the 

requirements of the REAL ID Act, the 

Secretary may consider these 

documents for WHTI purposes. DHS 

will be issuing a proposed rule 

implementing REAL ID driver’s license 

standards. At that time, DHS would 

encourage States interested in 

developing driver’s licenses that will 

meet both the REAL ID and WHIT 

requirements to work closely with us to 

that end. 

4. Border Crossing Cards 

Comment 

In response to the ANPRM, two 

commenters recommended that Border 

Crossing Cards (BCCs) be acceptable 

documentation for citizens of Mexico 

entering the United States through 

airports. One commenter to the NPRM 

stated that the proposed rule would 

eliminate the BCC as an acceptable 

entry document. 

Response 

At this time, DHS and DOS do not 

support allowing the BCC without any 

additional documents in the air 

environment. The BCC is not 

compatible with CBP’s Advance 

Passenger Information System (APIS), 

which collects data from travelers prior 

to their arrival in and departure from 

the United States, and thus the BCC 

does not meet the security objectives of 

WHTI. Accordingly, DHS has not 

designated the BCC as a document 

sufficient to denote identity and 

citizenship for the purposes of air travel 

into the United States when used by 

itself. However, this final rule does not 

change the status of the BCC as a valid 

entry document at sea and land-border 

ports-of-entry. 

5. Merchant Mariner Cards 

Comment 

We received two comments to the 

NPRM that endorse the proposal that a 

Merchant Mariners’ Document (MMD) 

be accepted as proof of citizenship and 

identity. These commenters also 

asserted that the MMD should also be 

accepted for legal aliens because a U.S. 

Coast Guard-issued MMD will provide 

the required proof of citizenship and 

identity for these individuals. 

Response 

The U.S. Coast Guard primarily issues 

MMDs to U.S. citizen Merchant 

Mariners.16 The Secretary of Homeland 

Security has determined that an MMD, 

when used in conjunction with 

maritime business, would be sufficient 

to denote identity and citizenship when 

presented upon arrival at an air port-ofentry. Accordingly, under this 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 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. DHS will accept 

the MMD as long as it is an unexpired 

document. We also note that United 

States citizen Merchant Mariners 

serving on U.S. flag vessels are eligible 

for no-fee U.S. passports upon 

presentation of a letter from the 

employer and an MMD, in addition to 

the standard evidence of citizenship and 

identity. 

6. NEXUS Air Cards 

Comment 

Eleven commenters recommended 

that the NEXUS Air program be 

accelerated and expanded. One 

commenter also added that the U.S. 

government should attempt to reduce 

the costs of programs such as NEXUS 

Air. 

Response 

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. CBP is 

planning to expand the program beyond 

the Vancouver international airport to 

other Canadian airports, but does not 

intend to lower the costs of the program 

at this time. Travelers interested in 

joining the NEXUS Air or any other 

CBP-sponsored trusted traveler program 

should consult the CBP Web site 

(http://www.cbp.gov) for future 

expansion plans, current availability, 

acceptance, and instructions on how to 

enroll in the program. 


cprice-sewell on PROD1PC66 with RULES3
68418 Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 

17 8 U.S.C. 1359. 

18See 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). 

19See Matter of Yellowquill, 16 I. & N. Dec. 576 

(BIA 1978). 

20See 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). 

21 8 U.S.C. 1401(b). 

7. Passport Cards 

Comment 

We received many comments asking 

DHS and DOS to develop low-cost 

alternative travel documents. Eight 

commenters stated that an alternative, 

secure travel document must be costeffective and available in a timely 

fashion for the average traveler. Fifteen 

commenters asked that a low-cost travel 

card be developed. One commenter 

asked that a card replace the traditional 

passport book, stating that paper 

documentation is outdated. One 

commenter stated that the document 

should fit in a wallet and be more 

durable than the traditional passport 

book. 

Two commenters stated that any 

technology contained in a secure travel 

document should be determined before 

an implementation date is finalized. 

Nine commenters stated that the 

Passport Card’s scope should be 

expanded to all modes of travel between 

the U.S., Mexico, and Canada. One 

commenter stressed that the U.S. should 

work with Canada to develop a similar 

low-cost travel document in Canada. 

One commenter asked that a Passport 

Card be available for infrequent, as well 

as frequent, travelers. 

Response 

DOS, in consultation with DHS, has 

begun developing an alternative format 

passport: a card-format, limited-use 

Passport Card. Like a traditional 

passport book, the Passport Card will be 

a secure travel document that 

establishes the identity and citizenship 

of the bearer. The Passport Card is being 

designed to benefit those citizens in 

border communities who regularly cross 

the northern and southern borders every 

day 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 be less expensive than a 

traditional passport book. The 

application process for the Passport 

Card will be the same as that for the 

passport book in that each applicant 

will have to establish United States 

citizenship, personal identity, and 

entitlement to obtain the document. 

DOS intends to make the Passport Card 

available by summer 2007. For more 

information see 71 FR 60928 (October 

17, 2006). The Secretaries of DHS and 

DOS have worked closely with the 

Canadian and Mexican governments on 

numerous fronts, including the Security 

and Prosperity Partnership (SPP) of 

North America, the Smart Border 

Declaration, and the Shared Border 

Accord. 

8. Tribal Documents 

Comment 

Three commenters to the NPRM 

stated that Native Americans should be 

able to use their Tribal documents in the 

air environment because treaty rights 

assure cross-border travel between the 

U.S. and Canada. 

Response 

Section 289 of the INA 17 provides 

that Native Americans born in Canada 

may ‘‘pass the borders of the United 

States,’’ provided they possess at least 

50 percentum of Native American 

blood. 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.18 Case law has not 

expressly addressed the extension of the 

right to ‘‘pass the borders of the United 

States’’ by air.19 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 the final 

rule, Native Americans born in Canada 

will be required to present a valid 

passport when departing from or 

entering the United States by air. 

Regarding Native Americans born in 

the United States, Federal statutes apply 

absent some clear indication that 

Congress did not intend for them to 

apply.20 IRTPA expressly applies to 

United States citizens and as a matter of 

law Native Americans born in the 

United States are United States 

citizens.21 Moreover, Congress did not 

indicate any intention to exclude Native 

Americans born in the United States 

from the requirements of IRTPA. Under 

this final rule, therefore, Native 

Americans born in the United States 

will be required to present a valid 

passport when entering the United 

States by air. 

E. Implementation and Effect on 

Specific Populations 

Numerous commenters raised 

questions about how the new rule 

would be implemented and how it 

would affect specific populations. 

1. General 

Comment 

Two commenters to the NPRM noted 

that a U.S. citizen cannot be denied 

entry to the United States. One 

commenter stated that the NPRM did 

not address U.S. citizens that arrive at 

ports-of-entry without a valid travel 

document. 

Response 

Section 215(b) of the INA requires 

U.S. citizens to bear passports unless 

excepted by the President. By section 

7209, Congress has limited this 

exception authority to those individuals 

bearing other documents acceptable to 

the Secretary of Homeland Security. 

Comment 

Three commenters asked if they 

would need passports if the effective 

date of the rule falls between their 

departure and return dates. One 

commenter asked that CBP refrain from 

penalizing air carriers that transport 

travelers who, under the new passport 

requirements, are improperly 

documented. 

Response 

Persons returning to the United States 

after the effective date of 

implementation should plan to depart 

from the United States with documents 

sufficient to meet requirements that will 

be in place when they return. Current 

regulations do not contain penalty 

provisions for carriers that transport 

U.S. citizens to the United States 

without proper documentation. 

However, under the current law (8 

U.S.C. 1323) carriers that transport nonU.S. citizens into the United States who 

are not properly documented are subject 

to penalties. 

Comment 

One commenter stated that the NPRM 

is contrary to U.S. obligations under 

international human rights law, free 

trade agreements, and U.S. statutes, 

including the International Covenant on 

Civil and Political Rights, the Charter of 

the Organization of American States, the 

North American Free Trade Agreement 

(NAFTA), and the NAFTA 

Implementation Act, because the rules 

restrict free movement of people in the 

Western Hemisphere. 

Response 

By requiring a valid passport as an 

entry document, DHS and DOS are not 

denying U.S. or non-U.S. citizens the 

ability to travel to and from the United 


cprice-sewell on PROD1PC66 with RULES3
Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 68419 

22See 71 FR 42605. 

States. Requiring sufficient proof of 

identity and citizenship through 

presentation of a passport or other 

acceptable document upon entry to the 

United States is fully within DHS and 

DOS’s authority pursuant to 8 U.S.C. 

1182(d)(4)(B) and 1185(b). 

Comment 

One commenter to the NPRM stated 

that this rule violates the Convention on 

International Civil Aviation (ICAO), 

claiming that, under Annex 9, a 

contracting State shall allow airline 

crew possessing a crewmember 

certificate to enter the country without 

a passport or visa. 

Response 

The commenter cited provision 3.74 

in Annex 9 of the Convention on ICAO. 

However, on March 25, 2004, provision 

3.74 was amended and replaced with a 

new provision 3.76 (Amendment 19). 

Under the new provision, contracting 

states shall waive the visa requirement 

for arriving crewmembers presenting 

crewmember certificates, when arriving 

in a duty status on an international 

flight and seeking temporary entry for 

the period allowed by the receiving state 

before joining their next assigned flight 

in a duty status. Therefore, the 

exception cited by the commenter only 

applies to visas and not to passports. 

Therefore, requiring a valid passport 

does not violate the Convention on 

ICAO. 

Comment 

One commenter to the NPRM stated 

that because the passport is machine 

readable, it would speed up the 

immigration process. Another 

commenter stated that such timesavings 

are not benefits because the cost has 

been ‘‘shifted’’ to citizens. 

Response 

As stated in the NPRM, by requiring 

the vast majority of air 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 in 

the air environment. 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 passenger 

processed. This could result in an 

annual cost savings of $1.7 million to 

$10.4 million. 

2. Outer Continental Shelf 

Comment 

One commenter to the NPRM stated 

that the proposed regulations do not 

clearly address the offshore community, 

creating ambiguity for CBP officers to 

either not require a passport or to 

require them based on the CBP officer’s 

knowledge of offshore operations. This 

commenter also suggested that the 

regulations be amended to include a 

definition of a Mobile Offshore Drilling 

Units (MODU). Six commenters 

suggested that the regulations expressly 

provide that U.S. citizens should be 

exempt from bearing a valid passport 

when entering or departing the United 

States when traveling as an employee of 

an offshore drilling company directly 

between the United States and a MODU 

operating, attached, or transiting 

between well sites on the United States 

Outer Continental Shelf (OCS). 

Response 

DHS and DOS do not intend to create 

an exemption in the regulations 

specifically for employees on the United 

States OCS. When these employees have 

not departed the United States or have 

already been cleared by CBP upon entry 

from a foreign port or place, they will 

not be required to present a passport 

upon re-entry. As described in the 

NPRM, offshore workers who work 

aboard a MODU attached to the United 

States OCS and travel to and from such 

a MODU 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. DHS and 

DOS note that offshore employees on 

MODUs underway, which are not 

considered attached, would not need to 

present a passport for re-entry to the 

United States mainland if they do not 

enter a foreign port or place during 

transit. However, an individual who 

travels to a MODU from outside the 

United States OCS and, therefore, has 

not been previously inspected and 

admitted to the United States, would be 

required to possess a passport and visa 

when arriving at the United States portof-entry by air. Likewise, an individual 

who travels by air to a foreign flagged 

MODU, who has not been previously 

inspected or admitted to the United 

States by CBP, must present a passport 

or alternative document and, if required, 

a visa because they have traveled to a 

foreign port or place. 

As stated previously, arrivals by sea 

will not be finalized in this rule but will 

be addressed in a future rulemaking for 

sea and land-border ports-of-entry. 

3. Emergencies 

Comment 

Three commenters expressed concern 

about the passport requirement and 

emergencies (medical, natural disasters) 

that might require air transport across a 

border. 

Response 

IRTPA provides for situations in 

which documentation requirements may 

be waived on a case-by-case basis for 

unforeseen emergencies or 

‘‘humanitarian or national interest 

reasons.’’ See section 7209(c)(2) of 

IRTPA. 

F. Outside the Scope of This 

Rulemaking 

Comment 

One commenter to the NPRM made 

numerous comments on the technical 

specifications for DOS’s Passport Card. 

Response 

Comments regarding the technical 

specifications for the DOS-issued 

Passport Card are beyond the scope of 

this rule; however, please see the 

recently published NPRM at 71 FR 

60928 (Oct. 17, 2006). 

Comment 

One commenter stated that the NPRM 

correctly acknowledges that the Lawful 

Permanent Resident (LPR) card is a 

sufficiently secure document issued by 

the U.S. government. 

Response 

DHS and DOS are allowing the 

Permanent Resident Card to be 

presented upon entry to the U.S. not 

because the Secretary has made a 

determination that this is an acceptable 

alternative document, but because LPRs 

are not covered by section 7209 of 

IRTPA. Section 211(b) of the INA 

specifically establishes that an LPR can 

present a valid, unexpired Form I–551 

(Permanent Resident Card) alone when 

applying for readmission to the U.S. 

after being absent from the U.S. for less 

than one year. Form I–551 is a secure, 

fully adjudicated document that can be 

verified and authenticated 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. 22


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68420 Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 

23See NPRM at 71 FR 46155. 

G. Public Relations 

Comment 

We received seven comments 

recommending that the U.S. 

Government work multilaterally with 

Canada and Mexico to address WHTI 

issues. 

Response 

The Secretaries of DHS and DOS have 

worked closely with the Canadian and 

Mexican governments on numerous 

fronts, including the Security and 

Prosperity Partnership (SPP) of North 

America, the Smart Border Declaration, 

and the Shared Border Accord. The 

objectives of the initiatives are to 

establish a common approach to 

security to protect North America from 

external threats, prevent and respond to 

threats within North America, and 

further streamline the secure and 

efficient movement of legitimate traffic 

across our shared borders. The 

Secretaries are committed to working 

with our international partners to 

establish a common security strategy. 

Comment 

We received fifty-seven comments to 

the ANPRM on public outreach and the 

importance of educating the traveling 

public about the passport requirements 

for the Western Hemisphere. Several 

commenters asked that DHS and DOS 

work with the private sector on an 

aggressive outreach campaign. 

Response 

DHS and DOS are committed to an 

effective and intensive communications 

strategy during the implementation of 

WHTI. To that end, the Departments 

will continue to issue detailed press 

releases, address the public’s frequently 

asked questions, supply travel 

information on their Web sites, and hold 

public meetings in affected 

communities. 

H. Regulatory Analyses 

1. General 

Comment 

We received ten comments expressing 

concern that this rule will adversely 

affect spontaneous travel to destinations 

in the Western Hemisphere. 

Response 

This rule may have an impact on 

unplanned travel within the Western 

Hemisphere. We found that most air 

travelers make their plans in advance of 

their travel date and can obtain or 

already possess a passport (see the 

Regulatory Assessment that 

accompanies this rule which is available 

on the public docket). Additionally, 

travelers in need of a passport quickly 

may request expedited processing at an 

additional cost. We believe that the 

majority of travelers will be able to 

obtain a passport in time to make their 

scheduled trips. Travelers are strongly 

encouraged to obtain the necessary 

documentation in advance of all 

international travel. 

Comment 

We received thirty-eight comments 

expressing concern that the rule would 

negatively affect tourism by impeding 

travel within the Western Hemisphere. 

Several commenters stated they would 

no longer take trips to Canada, Mexico, 

and the Caribbean if these rules go into 

effect. 

Response 

This rule could have an impact on 

tourism. These impacts were explored 

in detail in the Regulatory Assessment 

for this rule, which was made available 

upon publication of the NPRM. 23 An 

updated Regulatory Assessment is 

published with this final rule and is 

available on the docket. 

2. Executive Order 12866 

Comment 

Nine commenters to the NPRM argued 

that the economic analysis does not 

sufficiently address negative impacts to 

the economy. 

Response 

While these commenters were 

dissatisfied with the economic analysis, 

none of them submitted specific 

information that would enhance the 

current analysis, nor did they submit 

alternative analyses that more robustly 

consider the impacts on the U.S. and 

foreign economies. The direct costs to 

the traveling public, which were the 

focus of the Regulatory Assessment, 

were extensively explored, researched, 

and analyzed. 

According to the Office of 

Management and Budget (OMB) 

Circular A–4, an economic analysis 

should ‘‘look beyond the direct benefits 

and direct costs and consider any 

important ancillary benefits and 

countervailing risks’’ (page 26). This 

Circular notes, however, ‘‘some 

important benefits and costs * * * may 

be inherently too difficult to quantify or 

monetize given current data and 

methods’’ (pages 26–27). Given the data 

available for this analysis and the 

limitations of using this data to assess 

indirect costs of the rule, CBP’s 

Regulatory Assessment concentrated on 

the direct impacts to U.S. citizens who 

will need to obtain a passport in order 

to continue traveling by air in the 

Western Hemisphere, including the 

costs to the traveler of opting to forgo 

travel. In that assessment, CBP 

anticipated that the vast majority (96 

percent) of U.S. travelers to Western 

Hemisphere destinations already have 

or will obtain a passport and will 

continue traveling in the Western 

Hemisphere. As stated in the 

assessment, we cannot look at the 

number of travelers who choose to forgo 

travel as a result of the rule and 

determine what the welfare losses to 

travelers or gains and losses to different 

players in different economies will be—

we simply cannot determine adequately 

what each individual traveler (or even 

bloc of travelers) will do to express his 

preferences for goods and services given 

a change in price in one portion of his 

travel cost. Thus, again per Circular 

A–4, we presented the relevant 

quantitative information available, its 

strengths and weaknesses, and a 

description of the non-quantified 

effects. Furthermore, CBP conducted a 

formal probabilistic modeling in the 

form of a Monte Carlo analysis to 

measure the uncertainty and variance of 

the estimates presented. We discussed 

the industries we expect to be affected 

by this rule and noted that any impacts 

will be spread over wide swaths of the 

domestic and foreign economies. 

It is extremely difficult to estimate the 

indirect costs with any certainty. The 

analysis made many assumptions 

regarding direct costs that may carry 

errors or over- or underestimate indirect 

costs. Travelers are faced with complex 

decisions and myriad substitutes for 

particular trips that could still maximize 

their utility. There is evidence in the 

travel literature cited throughout the 

analysis that price may not be a very big 

determinant of destination selection. 

CBP chose to estimate direct costs using 

demand elasticities to avoid 

misrepresenting direct costs (we would 

not want to assume that travelers’

decisions will be completely unaffected 

by the passport requirement), knowing 

that we may then be overstating the 

simplicity of the traveler’s decisionmaking process. In doing this, we have 

likely overstated indirect costs. 

Because such a small percentage of 

the covered traveling population is 

likely to forgo travel (even with our 

application of the binary choice for the 

traveler), the macro-economic impacts 

of the proposed rule are likely small as 

well. Unfortunately, given the dearth of 

specific data, we have only rough 

estimates of how many people travel, 

where they come from, and where they 


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Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 68421 

go. We know even less about how they 

will alter their behavior if they do, in 

fact, forgo obtaining a passport. 

Comment 

One commenter to the NPRM stated 

that the economic analysis cannot be 

considered reliable because it examines 

a program that is not yet in place. 

Response 

Per Executive Order 12866, an 

economic analysis is required for all 

major rulemakings prior to final 

implementation. This analysis must 

contain an identification of the 

regulatory ‘‘baseline’’ as well as the 

anticipated costs and benefits of the rule 

on relevant stakeholders. The analysis 

prepared for the NPRM was reviewed by 

OMB in accordance with Executive 

Order 12866 and OMB Circular A–4. 

Comment 

One commenter stated that the only 

alternative to the proposed rule 

considered was the current practice of 

accepting existing documents (driver’s 

licenses and birth certificates). 

Response 

Executive Order 12866 and OMB 

Circular A–4 require the full analysis of 

regulatory alternatives as part of the 

rulemaking development process. As 

presented in the Regulatory Assessment 

published with the NPRM and finalized 

with this final rule, there were five 

alternatives to the proposed rule 

considered and analyzed. The first was 

the ‘‘No Action’’ alternative. The second 

was to require United States travelers to 

present a state-issued photo ID and 

proof of citizenship. The third was to 

designate TWIC as an acceptable 

document for United States citizens. 

The fourth was to designate the Border 

Crossing Card (BCC) as an acceptable 

document for Mexican citizens. The 

fifth was to develop and designate a 

low-cost Passport Card as an acceptable 

document for United States citizens. 

OMB reviewed the analysis prepared for 

the NPRM in accordance with Executive 

Order 12866. 

Comment 

One commenter stated that the 

Regulatory Assessment’s assertion that 

primarily foreign businesses will be 

affected by the rule is false because 

Canadians spend more money in the 

U.S. than Americans spend in Canada. 

Response 

This commenter appears to have 

incorrectly focused exclusively on travel 

between the U.S. and Canada. It is 

important to remember that U.S. 

travelers to Mexico, the Caribbean, 

Central America, and South America 

will also be affected by this rule. As 

estimated, almost twice as many U.S. 

citizens will be covered by this rule as 

non-U.S. citizens (14.2 million versus 

7.7 million, of which 4.4 million are 

Canadian). Thus, foreign businesses in 

these regions are most likely to 

experience adverse impacts as a result 

of this rule because there are more U.S. 

travelers covered by the rule than nonU.S. travelers, and U.S. citizens and a 

very small percentage of these travelers 

(an estimated 4 percent) may choose to 

forgo travel by air to these regions given 

the passport requirement. 

Comment 

One commenter argued that the cost 

to obtain a passport is significantly 

underestimated because the time 

estimated to obtain a passport is too 

low. 

Response 

We appreciate this comment and the 

detail that accompanied the estimate 

provided in the comment. However, the 

commenter presented an estimate that 

was overly pessimistic and represented 

an absolute ‘‘worst-case’’ scenario that 

would rarely, if ever, be realized. The 

time estimate presented in the 

Regulatory Assessment is from DOS’s 

Supporting Statement for the Paperwork 

Reduction Act Submission for DS–11—

Application for a U.S. Passport (OMB 

Control #1405–0004). The estimated 

number of minutes required per 

response is based on a recent sampling 

of the time required to search existing 

data sources, gather the necessary 

information, provide the information 

required, review the final collection, 

and submit the collection to Passport 

Services for processing. The sampling 

was completed through consultation 

with a small group of actual 

respondents. Passport Services found 

that the overall average for the estimated 

time required for this information 

collection was 1 hour and 25 minutes 

per response. This Collection of 

Information was reviewed and approved 

by OMB in September 2005. 

Comment 

One commenter argued that many 

passports are never used, but are 

needed: people obtain them in order to 

be able to travel whenever it may be 

necessary. These costs were not 

included in the analysis. 

Response 

The commenter is correct that we did 

not include these costs in the Regulatory 

Assessment. The purpose of an 

economic analysis is to estimate the 

costs and benefits of a rulemaking based 

on an identified baseline and the 

anticipated change from that baseline 

that is directly attributable to the 

regulation under consideration. 

Individuals that choose to obtain a 

passport ‘‘just to have one’’ should not 

be considered in this regulatory analysis 

because they are not obtaining a 

passport specifically for air travel in the 

Western Hemisphere, but worldwide as 

circumstances arise. 

Comment 

One commenter argued that the 

assumption that gains in domestic travel 

would be offset by losses from reduced 

travelers from Canada, Mexico, and 

Bermuda trivialized the impact of 

Canadian visitors who spent $10 billion 

in the United States in 2005. 

Response 

It is important to note that this 

analysis does not assert that domestic 

gains will equal losses from reduced 

foreign travelers; it simply states that 

while the U.S. economy may gain 

slightly if a small percentage of U.S. 

citizens travel domestically rather than 

in the rest of the Western Hemisphere, 

the U.S. economy will also likely lose 

slightly if a small percentage of non-U.S. 

citizens forgo travel to the United States. 

The net impacts are not known. 

Furthermore, it is important to note that 

the majority of the $10 billion spent by 

Canadians in this country in 2005 is 

through cross-border trade and tourism 

conducted via land-border ports-ofentry. Economic impacts for land-border 

entries will be addressed in a future 

rulemaking for land and sea entries. 

3. Regulatory Flexibility Act 

Comment 

Six commenters asserted the rule 

would have a disproportionate effect on 

small entities and argued that DHS and 

DOS should conduct a small business 

analysis for any proposed rule. 

Response 

When considering the impacts on 

small entities for the purpose of 

complying with the Regulatory 

Flexibility Act (RFA), we consulted the 

Small Business Administration’s 

guidance document for conducting 

regulatory flexibility analysis. 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. This guidance document also 

includes a good discussion describing 


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24As defined in section 215(c) of the INA (8 

U.S.C. 1185(c)), the term ‘‘United States’’ includes 

all territory and waters, continental or insular, 

subject to the jurisdiction of the United States. 

how direct and indirect costs of a 

regulation are considered differently for 

the purposes of the RFA. With the 

possible exception of certain ‘‘sole 

proprietors,’’ 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. As stated in 

the Small Business Administration’s 

guidance document, ‘‘[t]he 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.’’ Consequently, 

CBP prepared an extensive analysis of 

the direct economic impacts of this rule 

and believes that it adequately 

considered the economic impacts of this 

rule on small businesses for the 

purposes of the RFA. Additionally, our 

analysis did not reveal any 

‘‘disproportionate effect’’ of the rule on 

small entities. 

Comment 

One commenter noted several 

examples of individuals who would be 

considered small businesses, including 

a freelance graphic artist, a selfemployed provider of business training 

services, and a sole proprietor soliciting 

bids for fabrication or assembly of a new 

product, that would be directly 

impacted by the proposed rule. 

Response 

We agree that certain ‘‘sole 

proprietors’’ would be considered small 

businesses and could be directly 

affected by the rule if their occupation 

requires travel within the Western 

Hemisphere where a passport was not 

previously required. The number of 

such sole proprietors is not available 

from the Small Business Administration 

or other available business databases. 

However, as estimated in the Regulatory 

Assessment available in the public 

docket, the cost to such businesses 

would be only $149 for a first-time 

passport applicant, or $209 if expedited 

service were requested, and would only 

be incurred if the individual needed a 

passport. We believe such an expense 

would not rise to the level of being a 

‘‘significant economic impact.’’

IV. Conclusion 

Based on the analysis of comments, 

the recently issued DOS NPRM 

proposing to create a Passport Card, and 

section 7209 of IRTPA, DHS and DOS 

have determined that beginning January 

23, 2007, United States citizens and 

nonimmigrant aliens from Canada, 

Bermuda, and Mexico entering the 

United States at air ports-of-entry from 

the Western Hemisphere will be 

required to present a valid passport, a 

NEXUS Air Card, or a Merchant Mariner 

Document. 

An MMD is a document sufficient to 

denote identity and citizenship for 

United States citizens. Accordingly, 

United States citizens who present an 

MMD in conjunction with maritime 

business would continue to be exempt 

from the requirement to present a 

passport when arriving in the United 

States at air ports-of-entry. In addition, 

a NEXUS Air membership card is 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. Accordingly, 

United States and Canadian citizens 

who present an NEXUS Air card when 

using a NEXUS Air kiosk, would 

continue to be exempt from the 

requirement to present a passport when 

arriving in the United States at air portsof-entry. 

In addition, 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. Therefore, travel document 

requirements for United States citizens 

who are members of the United States 

Armed Forces will not change from the 

current requirements. 

The new passport requirement does 

not apply to travelers arriving at land or 

sea ports-of-entry. Additionally, U.S. 

citizens and nationals who travel 

directly between parts of the United 

States,24 which includes Guam, Puerto 

Rico, the U.S. Virgin Islands, American 

Samoa, Swains Island, and the 

Commonwealth of the Northern Mariana 

Islands, without touching at a foreign 

port or place, are not required to present 

a valid passport. 

V. 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, the Office of Management 

and Budget (OMB) has reviewed this 

rule. The following summary presents 

the costs and benefits of the 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. 

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 and 

travelers using general aviation. 

Based on data from the Department of 

Commerce, approximately 14 million 

travelers will be covered by the 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). 

DHS and DOS estimate that 

approximately 4 million passports will 

be required in the first year the rule is 

in effect, at a direct cost to traveling 

individuals of $649 million. These 

estimates are presented in Table 1. 

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

Travelers to WHTI countries, first year ....................................................................................... 14,299,093 ........................ ........................

1st quartile Median 3rd quartile 

Passports demanded ................................................................................................................... 3,942,859 4,084,204 4,364,197 

Total cost of passports demanded .............................................................................................. $579,379,344 $600,142,162 $641,283,623 

Expedited service fees (20% of passports): 

Number of passports ............................................................................................................ 788,572 816,841 872,839 


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Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 68423 

25 ‘‘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. 

26 ‘‘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. 

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

Cost of expedited service ..................................................................................................... $47,314,302 $49,010,449 $52,370,370 

Grand total cost ............................................................................................................. $626,693,646 $649,152,611 $693,653,992 

Following the first year, the costs will 

diminish as most United States travelers 

in the air environment would then hold 

passports. Because the number of 

travelers to the affected Western 

Hemisphere countries has been growing 

and turnover in the traveling population 

is not 100 percent on an annual basis, 

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 RULE

‘‘New’’ travelers to WHTI countries, second year ....................................................................... 1,994,380 ........................ ........................

1st quartile Median 3rd quartile 

Passports demanded ................................................................................................................... 566,350 584,364 625,893 

Total cost of passports demanded .............................................................................................. $83,213,742 $85,866,599 $91,966,740 

Expedited service fees (20% of passports): 

Number of passports ............................................................................................................ 113,270 116,873 125,179 

Cost of expedited service ..................................................................................................... $6,796,196 $7,012,365 $7,510,711 

Grand total cost ............................................................................................................. $90,009,938 $92,878,964 $99,477,450 

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 forgo travel to 

Western Hemisphere destinations, 

certain industries would incur the 

indirect consequences of the forgone 

foreign travel. These industries include 

(but are not limited to): 

• Air carriers; 

• Airports and their support services; 

• Traveler accommodations; travel 

agents; dining services; retail shopping; 

• Tour operators; 

• Scenic and sightseeing 

transportation; 

• Hired transportation (rental cars, 

taxis, buses); 

• Arts, entertainment, and recreation. 

DHS and DOS expect that foreign 

businesses whose services are 

consumed largely outside of the United 

States (with the exception of United 

States air carriers, travel agents, and 

airport 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 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 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 available in the public 

docket, an estimated 96 percent of 

United States air travelers and 99 

percent of Canadian, Mexican, and 

Bermudan air travelers) are expected to 

obtain passports and continue traveling 

internationally. 

The benefits of the rule are virtually 

impossible to quantify in monetary 

terms. The benefits of the rule are 

significant and real in terms of 

increased security in the air 

environment provided by more secure 

documents and facilitation of 

inspections provided by the limited 

types of documents that would be 

accepted. In fact, this rule addresses a 

vulnerability of the United States to 

entry by terrorists or other persons by 

false documents or fraud under the 

current documentary exemptions for 

travel within the Western Hemisphere, 

which has been noted extensively by 

Congress and others: 

• During the debate on IRTPA, 

several members of Congress, including 

the Chairman of the House Judiciary 

Committee commented on the need for 

more secure documents for travelers.25

• 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.26

• Finally, in May 2003, a 

subcommittee of the House Judiciary 

Committee held a hearing focused on a 

fraudulent U.S. document ring in the 

Caribbean, the exploitation of which 

allowed the notorious Washington D.C. 

‘‘sniper,’’ John Allen Muhammad to 

support himself while living in Antigua. 

A Government Accountability Office 

(GAO) investigator at that hearing 

testified as to the ease of entering the 

United States with fraudulent birth 

certificates and drivers’ licenses. 

A uniform document requirement 

would assist CBP officers in verifying 

the identity and citizenship of travelers 

who enter the United States, and 


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68424 Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 

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 Rule 

CBP considered the following five 

alternatives to the rule: 

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 

environment; 

4. Allow Mexican citizens to present 

their Border Crossing Cards (BCCs) in 

the air in lieu of a passport; and 

5. Develop and designate a low-cost 

Passport 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 IRTPA specifically 

provides for the expeditious 

implementation of the requirement that 

United States citizens and 

nonimmigrant aliens must have 

passports or such alternative documents 

as the Secretary of Homeland Security 

may designate as satisfactorily 

establishing identity and citizenship to 

depart from or enter the United States. 

Current documentation requirements 

leave major gaps in security at U.S. 

airports and do not satisfy the 

requirements under the IRTPA that 

travel documents for entry into the 

United States must denote identity and 

citizenship. 

Alternative 2: Require United States 

Travelers to Present a State-Issued Photo 

ID and Proof of Citizenship 

The second alternative would require 

United States citizens to present stateissued photo identification in 

combination with a birth certificate to 

establish citizenship and identity. This 

alternative is similar to the status quo. 

The U.S. birth certificate can be used as 

evidence of birth in the United States; 

however, it does not provide definitive 

proof of citizenship (e.g., children born 

in the U.S. to foreign diplomats do not 

acquire U.S. citizenship at birth). Highly 

trained passport specialists and 

consular officers abroad adjudicate 

passport applications, utilizing identity 

and citizenship documents (like U.S. 

birth certificates, naturalization 

certificates, consular reports of birth 

abroad, etc.). These specialists have 

resources available, including fraud and 

document experts, to assist when 

reviewing documents and are not faced 

with the same time constraints as 

officers at ports-of-entry. These factors 

are critical in determining that a birth 

certificate and driver’s license may be 

presented as documentary evidence of 

citizenship and identity for an 

application for a passport but are not 

sufficient under WHTI for entry to the 

United States. 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. Section 7209 requires that U.S. 

citizens have a passport, other 

documents or combination of 

documents deemed sufficient by the 

Secretary of DHS to denote citizenship 

and identity when departing or entering 

the United States. 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 

airports of entry. 

Because neither document has a 

machine-readable zone, CBP will not be 

able to front-load information on the 

traveler to expedite the initial 

inspection processing, including checks 

necessary to protect the national 

security of the United States. Birth 

certificates are issued by thousands of 

authorities, and are currently impossible 

to validate or vet sufficiently. Both 

documents are readily available for 

purchase to assume a false identity. 

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

susceptible to alteration. Therefore, the 

actual, rather than claimed, identity and 

citizenship of the traveler using these 

documents cannot always be 

determined. DHS and DOS believe that 

the risk of counterfeiting and fraud 

associated with these documents makes 

them unacceptable documents for travel 

under IRTPA. For all of these reasons, 

these documents are not sufficient to 

reliably establish citizenship and 

identity. 

The costs of this alternative include 

those for minors to obtain photo 

identification for travel. Currently, all 

adult travelers in the air environment 

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 (per the requirements of the air 

carriers). Additionally, all countries in 

the Western Hemisphere require a 

passport or other proof of citizenship 

(i.e., birth certificate) and photo 

identification for entry into their 

countries via air. 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 


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27Table 22, U.S. Travelers to Overseas Countries 

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

28See the nationwide DMV guide at http:// 

www.dmv.org. 

29Of 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. 

30Pub. L. 107–295, 116 Stat. 2064 (Nov. 25, 

2002). 

31 71 FR 29396 and 29462 (May 22, 2006). 

32 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. 

additional costs in the form of lost 

efficiency upon entry to United States 

ports-of-entry. If CBP officers need to 

spend more time examining a variety of 

documents to determine what they are 

and if they are fraudulent, and if CBP 

officers need to enter data by hand 

rather than routinely utilize machinereadable technology to obtain 

information on arriving passengers, this 

would result in delays at airports. 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 

(California, New York, New Jersey, 

Florida, Texas, Illinois, Virginia, 

Pennsylvania, Washington, 

Massachusetts, and Ohio) account for 

almost three-quarters of international air 

travelers.27 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.28

As stated previously, some states will 

not issue photo ID to minors under a 

certain age.29 For the purposes of this 

analysis only, we assume all minors 

would be able to obtain state-issued 

photo identification. 

CBP estimates that there are 496,597 

minors that will be covered by this rule, 

416,858 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 $27.4 

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.30

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 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 have been 

proposed and were subject to public 

comment.31 For the sake of comparison, 

CBP assumes that TWICs are available 

to all transportation workers covered by 

the rule. Additionally, analysis of this 

alternative assumes that CBP would 

accept the TWIC for any travel. 

The Transportation Security 

Administration (TSA) and Coast Guard 

estimate that the initial population of 

cards holders will be approximately 

750,000.32 This population includes 

such individuals as United States MMD 

holders, port truck drivers, contractors, 

longshoremen, and some rail workers. 

Again, for the purposes of this economic 

analysis only, we estimate the cost 

savings to these individuals of using 

TWICs in the air environment for nonwork-related travel. (These TWIC 

holders would not likely leave the 

country via air for the purposes of workrelated activities.) 

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 14 million unique 

travelers covered by the rule, and 

approximately 4 million (29 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 bestcase assumption, as most of the TWIC 

holders will not be traveling 

internationally in the air environment as 

part of their work. Thus in the best-case, 

29 percent of the 750,000 TWIC holders 

(approximately 227,000 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, $21.9 million. 

This is approximately 3 percent of the 

total rule cost. The savings are likely to 

be lower because the TWIC-holders are 

unlikely to be entirely included in the 

United States air-traveling population 

covered by the rule. 

The TWIC cannot be read by current 

CBP technology installed in air ports-ofentry. 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 airports 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. 

For this analysis CBP assumes that a 

card reader would need to be installed 

in each CBP booth in airports. CBP 

estimates that there are 2,000 air ‘‘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 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 ($649 million). 

This alternative was rejected because 

the TWIC does not denote citizenship 

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, the holder 

would need to present at least one other 

document that proves citizenship. CBP 

would need to take additional time at 


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68426 Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / Rules and Regulations 

33 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. 

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, without also 

presenting a passport. 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. Mexican citizens must have a 

passport to apply for and 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. 

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.33 The 

passport requirement for Mexican 

citizens who hold BCC in the air 

environment is consistent with the 

requirement for passports for most 

United States citizens and foreign 

nationals. 

Alternative 5: Develop and Designate a 

Low Cost Passport Card as an 

Acceptable Document for United States 

Citizens 

DOS, in consultation with DHS, has 

begun developing an alternative travel 

document, a card-format passport. Like 

a traditional passport book, the Passport 

Card will be a secure travel document 

that establishes the identity and 

citizenship of the bearer. The Passport 

Card is being designed to primarily 

benefit those citizens in border 

communities who regularly cross the 

northern and southern borders every 

day 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 

book. The application process for the 

Passport Card will be identical to that 

for the passport book in that each 

applicant will have to establish United 

States citizenship, personal identity, 

and entitlement to obtain the document. 

The cost of the Passport Card has yet 

to be finalized. However, in the NPRM 

published October 17, 2006, DOS 

proposed the application fees for the 

Passport Card. For the purposes of this 

analysis of alternatives, using the fees 

proposed in the NPRM, the fee for a 

first-time adult Passport 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 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 

Passport Card rather than the traditional 

passport book, we estimate that the firstyear cost would be $463 million. At this 

lower cost, approximately 4.3 million 

Passport Cards would be demanded, 

approximately 230,000 more than under 

this rule, an increase of 5 percent. 

Use of this alternative Passport Card 

was rejected for the air environment for 

a number of reasons. DHS and DOS 

believe that accepting the Passport Card 

in the air environment for air travel 

within the Western Hemisphere could 

potentially lead to confusion for air 

travelers who may attempt to use the 

Passport Card, rather than a traditional 

passport book, to fly outside of the 

Western Hemisphere. As developed by 

the Department of State, the Passport 

Card is intended to be a limited-use 

passport designed to address the needs 

of border communities, but not the 

operational needs of inspection at 

airports. See 71 FR 60928, 60930 (Oct. 

17, 2006). Because the Passport Card is 

not designed to be a globally 

interoperable document as defined by 

the International Civil Aviation 

Organization (ICAO), it does not meet 

all the international standards for 

passports and other official travel 

documents (for example, the size of the 

Passport Card does not comport with 

ICAO 9303 travel document standards). 

The DOS Passport Card NPRM 

explained that ‘‘[d]esigning a card 

format passport for wide use, including 

by air travelers, would inadvertently 

undercut the broad based international 

effort to strengthen civil aviation 

security and travel document 

specifications to address the post 9/11 

threat environment.’’ Id. at 60928. 

Therefore, excluding the Passport Card 

for air travel within the Western 

Hemisphere would reduce the 

possibility that travelers would attempt 

to fly outside of the Western 

Hemisphere to countries where the 

Passport Card may not be accepted. 

Finally, as stated in the Regulatory 

Assessment, many air travelers already 

possess a passport book for ease of use, 

because air carriers require it, or 

because the countries they are visiting 

require it. 

The following table presents a 

comparison of the costs of this rule and 

the alternatives considered. 

COMPARISON OF REGULATORY ALTERNATIVES IN FIRST YEAR

[Costs in millions] 

Alternative First-year cost 

Cost compared to 

status quo 

Cost compared to 

final rule Reason rejected 

Final rule (passports, Air Nexus) ...... $649 ..................... +$649 n/a ........................

Status quo ........................................ 0 ........................... n/a ¥$649 .................. Status quo does not meet requirements of 

IRTPA. 


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34 5 U.S.C. 601–612. 

35Small Business Administration, Office of 

Advocacy, A Guide for Government Agencies: How 

to Comply with the Regulatory Flexibility Act, May 

2003. 

36 Id. at 69. 37 Id. at 20. 

COMPARISON OF REGULATORY ALTERNATIVES IN FIRST YEAR—Continued 

[Costs in millions] 

Alternative First-year cost 

Cost compared to 

status quo 

Cost compared to 

final rule Reason rejected 

State-issued photo ID + birth certificate in lieu of U.S. passport.27 ......................... +$27 ¥622 .................... Identity and citizenship of the traveler cannot always be reasonably assumed or ascertained 

using these documents; minors may not be 

able to obtain IDs in all states; delays in 

processing entries because neither document 

is standardized. 

TWICs in lieu of U.S. passport ......... 642 ....................... +642 ¥7 ........................ TWIC is not designed as a travel document; 

citizenship not included; CBP would have to 

install card readers and modify their own systems to accept TWICs. 

BCCs in lieu of Mexican passport .... No direct costs for 

U.S. citizens.

0 May be slightly 

less expensive 

for BCC holders.

Cannot be used in conjunction with APIS in the 

air environment. 

Passport card in lieu of traditional 

passport book.

463 ....................... +463 ¥186 .................... Passport cards cannot be used because they 

do not yet exist. 

Accounting Statement 

As required by OMB Circular A–4 

(available at http:// 

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 

$206 million annualized (7 percent 

discount rate) and approximately $204 

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 ...................... $204 million ...................................................... $206 million.

Annualized quantified, but un-monetized 

costs.

None ................................................................. None. 

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

Benefits: 

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

Annualized quantified, but un-monetized 

costs.

None quantified ................................................ None quantified. 

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

In accordance with the provisions of 

EO 12866, this regulation was reviewed 

by OMB. 

B. Regulatory Flexibility Act 

We have prepared this section to 

examine the impacts of the rule on 

small entities as required by the 

Regulatory Flexibility Act (RFA).34 A 

small entity may be a small business 

(defined as any independently owned 

and operated business not dominant in 

its field that qualifies as a small 

business per the Small Business Act); a 

small not-for-profit organization; or a 

small governmental jurisdiction 

(locality with fewer than 50,000 people). 

When considering the impacts on 

small entities for the purpose of 

complying with the RFA, we consulted 

the Small Business Administration’s 

guidance document for conducting 

regulatory flexibility analysis.35 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.36 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. With the 

exception of certain sole proprietors, we 

do not believe that small entities are 

subject to the requirements of the rule; 

individuals are subject to the 

requirements, and individuals are not 

considered small entities. As stated in 

the Small Business Administration’s 

guidance document, ‘‘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.’’ 37

As described in the Regulatory 

Assessment for this rule, we could not 

quantify the indirect impacts of the 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. 


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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 

rule could lead to gains for the domestic 

travel and tourism industry. Most air 

travelers—an estimated 96 percent of 

United States travelers and 99 percent of 

Canadian, Mexican, and Bermudan 

travelers (based on the Regulatory 

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 rule if international 

travelers forgo travel to affected Western 

Hemisphere countries. Industries likely 

affected include (but may not be limited 

to): 

• Air carriers; 

• Airports and their support services; 

• Traveler accommodations; 

• Travel agents; 

• Dining services; 

• Retail shopping; 

• Tour operators; 

• Scenic and sightseeing 

transportation; 

• Hired transportation (rental cars, 

taxis, buses); 

• Arts, entertainment, and recreation. 

In the NPRM, we asked specifically 

for comments on direct impacts to small 

entities. No comments were received 

that addressed direct impacts to small 

entities with the exception of certain 

‘‘sole proprietors.’’ Notwithstanding this 

exception for certain ‘‘sole proprietors,’’

this rule does not directly regulate small 

entities. Based on our extensive analysis 

of the direct economic effects of this 

rule (which is available in the public 

docket) and the consideration of 

comments to the proposed rule, we 

certify that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The complete analysis of impacts to 

small entities for this rule is available 

on the CBP Web site at: http:// 

www.regulations.gov; see also http:// 

www.cbp.gov. 

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 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 rule requires 

United States citizens and 

nonimmigrant aliens from Canada, 

Bermuda and Mexico departing from or 

entering the United States by air from 

Western Hemisphere countries to bear a 

valid passport or other document 

designated by the Secretary of 

Homeland Security. States are not 

subject to this rule. For these reasons, 

this rule would not have sufficient 

federalism implications warranting 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, identifies effects on 

existing federal laws or regulations, 

identifies any retroactive effects of the 

regulation, and identifies 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 

Pub. L. 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 rule would not impose a 

significant cost or uniquely affect small 

governments. The rule 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. 1401–1504), the 14th 

Amendment to the Constitution of the 

United States, and other applicable 

treaties and laws. The primary purpose 

for soliciting the information is to 

establish nationality, identity, and 

entitlement to the issuance of a United 

States passport or related service and to 

properly administer and enforce the 

laws pertaining to issuance thereof. 

There are currently two OMBapproved application forms for 

passports, the DS–11 Application for a 

U.S. Passport (OMB Approval No. 1405–

0004) and the DS–82 Application for a 

U.S. Passport by Mail. First time 

applicants must use the DS–11. The 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 


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will amend the OMB form 83I 

(Paperwork Reduction Act Submission) 

relating to the DS–11 to reflect these 

increases. 

The collection of information 

encompassed within this rule has been 

submitted to the OMB for review in 

accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3507). 

An agency may not conduct, and a 

person is not required to respond to, a 

collection of information unless the 

collection of information displays a 

valid control number assigned by OMB. 

The estimated average burden per 

respondent is 1 hour and 25 minutes. 

The estimated frequency of responses is 

once every 10 years (adult passport 

application) and once every 5 years 

(minor passport application). 

Comments concerning the accuracy of 

this burden estimate and suggestions for 

reducing this burden, should be 

directed to the Office of Management 

and Budget, Attention: Desk Officer of 

the Department of State, Office of 

Information and Regulatory Affairs, 

Washington, DC 20503. 

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 rule in the Federal Register. The 

changes made by this rule involve the 

removal of an exception for United 

States citizens from having to present a 

passport in connection with Western 

Hemisphere air travel, such that those 

individuals must now present a 

passport when traveling by air 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 by air 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 amend 8 CFR parts 212 

and 235 and 22 CFR parts 41 and 53 as 

set forth below. 

8 CFR PART 212—DOCUMENTARY 

REQUIREMENTS: NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE 

■ 1. The authority citation for part 212 

is revised to read as follows: 

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

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

1226, 1227; 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 paragraph (c)(1)(i), as 

follows: 

§ 212.1 Documentary requirements for 

nonimmigrants. 

* * * * * 

(a) Citizens of Canada or Bermuda, 

Bahamian nationals or British subjects 

resident in certain islands—(1) 

Canadian citizens. A visa is not 

required. A passport is not required for 

Canadian citizens entering the United 

States from within the Western 

Hemisphere by land or sea, or as 

participants in the NEXUS Air program 

at a NEXUS Air kiosk pursuant to 8 CFR 

235.1(e). A passport is otherwise 

required for Canadian citizens arriving 

in the United States by aircraft. 

(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 or sea. A passport 

is required for Citizens of the British 

Overseas Territory of Bermuda arriving 

in the United States by aircraft. 

* * * * * 

(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 or sea. 

* * * * * 

8 CFR PART 235—INSPECTION OF 

PERSONS APPLYING FOR ADMISSION 

■ 3. The authority citation for part 235 

is revised to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 

published January 2, 2004), 1201, 1224, 1225, 

1226, 1228, 1365a note, 1379, 1731–32; 8 

U.S.C. 1185 note (section 7209 of Pub. L. 

108–458). 

■ 4. Section 235.1 is amended by: 

■ a. Redesignating current paragraphs 

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

(h); and 

■ b. Adding a new paragraphs (d) and 

(e). 

The additions read as follows: 

§ 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 

unexpired 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. 

* * * * * 

22 CFR PART 41—VISAS: 

DOCUMENTATION OF 

NONIMMIGRANTS UNDER THE 

IMMIGRATION AND NATIONALITY 

ACT, AS AMENDED 

■ 5. The authority citation for part 41 is 

revised to read as follows: 

Authority: 8 U.S.C. 1104; Pub. L. 105–277, 

112 Stat. 2681–795 through 2681–801; 8 

U.S.C. 1185 note (section 7209 of Pub. L. 

108–458). 


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■ 6. Section 41.1 is amended by revising 

paragraph (b) to read as follows: 

§ 41.1 Exemption by law or treaty from 

passport and visa requirements. 

* * * * * 

(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 or sea 

(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). 

§ 41.2 Waiver by Secretary of State and 

Secretary of Homeland Security of passport 

and/or visa requirements for certain 

categories of nonimmigrants. 

* * * * * 

(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 or sea, or by air 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. 

(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 or sea. A passport 

is required for Citizens of the British 

Overseas Territory of Bermuda arriving 

in the United States by aircraft. 

* * * * * 

(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 or sea. 

* * * * * 

■ 8. Part 53 is revised to read as follows: 

22 CFR PART 53—PASSPORT 

REQUIREMENT AND EXCEPTIONS 

Sec. 

53.1 Passport requirement; definitions. 

53.2 Exceptions. 

53.3 Attempt of a citizen to enter without 

a valid passport. 

53.4 Optional use of a valid passport. 

Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 

note (section 7209 of Pub. L. 108–458); E.O. 

13323, 69 FR 241 (Dec. 30, 2003). 

§ 53.1 Passport requirement; definitions. 

(a) It is unlawful for a citizen of the 

United States, unless excepted under 22 

CFR 53.2, to enter or depart, or attempt 

to enter or depart, the United States, 

without a valid U.S. passport. 

(b) For purposes of this part ‘‘United 

States’’ means ‘‘United States’’ as 

defined in section 215(c) of the 

Immigration and Nationality Act of 

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

§ 53.2 Exceptions. 

A U.S. citizen is not required to bear 

a valid U.S. passport to enter or depart 

the United States: 

(a) When traveling directly between 

parts of the United States as defined in 

§ 50.1 of this chapter; or 

(b) When entering from or departing 

to a foreign port or place within the 

Western Hemisphere, excluding Cuba, 

by land or by sea; or 

(c) When traveling as a member of the 

Armed Forces of the United States on 

active duty; or 

(d) 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 

(e) 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 

(f) 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 Pub. L. 108–

458 (8 U.S.C. 1185 note) to be sufficient 

to denote identity and citizenship; or 

(g) 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 

(h) 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 

(i) When the Department of State 

waives, pursuant to EO 13323 of 

December 30, 2003, Sec 2, the 

requirement with respect to the U.S. 

citizen for humanitarian or national 

interest reasons. 

§ 53.3 Attempt of a citizen to enter without 

a valid passport. 

The appropriate officer at the port of 

entry shall report to the Department of 

State any citizen of the United States 

who attempts to enter the United States 

contrary to the provisions of this part, 

so that the Department of State may 

apply the waiver provisions of § 53.2(h) 

and § 53.2(i) to such citizen, if 

appropriate. 

§ 53.4 Optional use of a valid passport. 

Nothing in this part shall be 

construed to prevent a citizen from 

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

which that passport is not required by 

this part 53, provided such travel is not 

otherwise prohibited. 

Dated: November 17, 2006. 

Michael Chertoff, 

Secretary of Homeland Security, Department 

of Homeland Security. 

Dated: November 17, 2006. 

Henrietta H. Fore, 

Under Secretary for Management, 

Department of State. 

[FR Doc. 06–9402 Filed 11–22–06; 8:45 am] 

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