This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

52037 

Vol. 70, No. 169 

Thursday, September 1, 2005 

DEPARTMENT OF HOMELAND 

SECURITY 

Bureau of Customs and Border 

Protection 

8 CFR Chapter I 

[DHS 2005–0023] 

RIN 1651–AA66 

DEPARTMENT OF STATE 

22 CFR Chapter I 

RIN 1400–AC10 

Documents Required for Travel Within 

the Western Hemisphere 

AGENCY: Bureau of Customs and Border 

Protection, Department of Homeland 

Security, Bureau of Consular Affairs, 

Department of State. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: Under the Immigration and 

Nationality Act (INA), nonimmigrant 

aliens and United States citizens are 

generally required to present passports 

to enter the United States. The Secretary 

of Homeland Security and the Secretary 

of State have the joint authority to waive 

this requirement for nonimmigrant 

aliens under certain circumstances and 

the Secretary of State has the authority 

to make exceptions to the requirement 

for United States citizens. In accordance 

with those authorities, current 

regulations permit United States 

citizens and nonimmigrant aliens from 

Canada, Bermuda and Mexico to enter 

the United States from certain Western 

Hemisphere countries without 

presenting a passport. 

On December 17, 2004, the President 

signed the Intelligence Reform and 

Terrorism Prevention Act of 2004 

(IRTPA). Section 7209 of this statute 

limits the Secretaries’ discretion to 

waive or to make exceptions to the 

passport requirements under the INA 

and expressly provides that, by January 

1, 2008, United States citizens and 

nonimmigrant aliens may enter the 

United States only with passports or 

such alternatives as the Secretary of 

Homeland Security may designate as 

satisfactorily establishing identity and 

citizenship. In the future, as a result of 

the implementation of the new statute, 

travel to the United States by United 

States citizens and others from the 

Western Hemisphere will require a 

passport or acceptable alternative 

documents in circumstances where 

travel was previously permitted without 

such documents. 

Section 7209 directs that the Secretary 

of Homeland Security, in consultation 

with the Secretary of State, develop and 

implement a plan relating to the new 

requirements ‘‘as expeditiously as 

possible.’’ The statute provides that this 

plan shall be implemented no later than 

January 1, 2008. The Secretary of 

Homeland Security, in consultation 

with the Secretary of State, will be 

deciding how to implement the new 

law. This Advance Notice of Proposed 

Rulemaking announces the rulemakings 

that are expected to implement the new 

law, invites comments on the possible 

means of implementation and 

specifically invites comments on the 

documents other than passports that 

should be accepted under section 7209 

as sufficient to establish citizenship and 

identity. 

DATES: Written comments must be 

submitted on or before October 31, 

2005. 

ADDRESSES: Comments, identified by 

docket number or RIN number, may be 

submitted by one of the following 

methods: 

• EPA Federal Partner EDOCKET 

Web Site: http://www.epa.gov/ 

feddocket. Follow instructions for 

submitting comments on the Web site. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Comments by mail are to be 

addressed to the Bureau of Customs and 

Border Protection, Office of Regulations 

and Rulings, Regulations Branch, 1300 

Pennsylvania Avenue, NW., 

Washington, DC 20229. Submitted 

comments by mail may be inspected at 

the Bureau of Customs and Border 

Protection at 799 9th Street, NW., 

Washington, DC. To inspect comments, 

please call (202) 572–8768 to arrange for 

an appointment. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Information 

Number (RIN) for this rulemaking. All 

comments will be posted without 

change to http://www.epa.gov/ 

feddocket, including any personal 

information sent with each comment. 

For detailed instructions on submitting 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation in Rulemaking 

Process’’ heading of the SUPPLEMENTARY

INFORMATION section of this document. 

Docket: For access to the docket to 

read background documents or 

submitted comments, go to http:// 

www.epa.gov/feddocket. You may also 

access the Federal eRulemaking Portal 

at http://www.regulations.gov. 

Submitted comments may also be 

inspected at the Bureau of Customs and 

Border Protection at 799 9th Street, 

NW., Washington, DC. To inspect 

comments, please call (202) 572–8768 to 

arrange for an appointment. 

FOR FURTHER INFORMATION CONTACT: 

Department of Homeland Security: 

Theresa Brown, Office of Policy and 

Planning, Bureau of Customs and 

Border Protection, 1300 Pennsylvania 

Avenue, NW., Room 4.4–D, Washington, 

DC 20229, telephone number (202) 344– 

3022. 

Department of State: Sharon PalmerRoyston, Office of Passport Policy, 

Planning and Advisory Services, Bureau 

of Consular Affairs, telephone number 

(202) 663–2662. 

SUPPLEMENTARY INFORMATION: 

Abbreviations and Terms Used in This 

Document 

ANPRM—Advance Notice of Proposed 

Rulemaking 

BCC—Form DSP–150, B–1/B–2 Visa and 

Border Crossing Card 

CBP—Bureau of Customs and Border 

Protection 

DHS—Department of Homeland Security 

DOS—Department of State 

FAST—Free and Secure Trade 

INA—Immigration and Nationality Act 

IRTPA—Intelligence Reform and Terrorism 

Prevention Act of 2004 

LPR—Lawful Permanent Resident 

SENTRI—Secure Electronic Network for 

Travelers Rapid Inspection 

Background 

Enactment of Intelligence Reform and 

Terrorism Prevention Act of 2004 

The President signed the Intelligence 

Reform and Terrorism Prevention Act of 

2004 (IRTPA), Pub. L. 108–458, 118 

Stat. 3638, on December 17, 2004. The 

52038 Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / Proposed Rules 

1Section 7209 does not apply to Lawful 

Permanent Residents (LPR), who will continue to be 

able to enter the United States upon presentation 

of a valid Form I–551, Alien Registration Card, or 

other valid evidence of permanent resident status. 

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

does not apply to military personnel traveling 

under orders. Section 284 of INA, 8 U.S.C. 1354. 

2See section 215(b) of the INA, 8 U.S.C. 1185(b). 

3See 22 CFR 53.2(b), which waived the passport 

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

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

4See INA § 212(a)(7)(B)(i), 8 U.S.C. 

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

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

212.1(a)(2)(Citizens of Bermuda). 

6See 8 CFR 212.1(c)(1)(i). There are other very 

narrow exceptions for Mexican citizens such as a 

Mexican citizen who is entering the United States 

from Mexico solely to apply for a Mexican passport 

or other ‘‘official Mexican document’’ at a Mexican 

consulate in the United States. See 8 CFR 

212.1(c)(1)(ii). 

7Section 7209 requires this change by limiting 

the authority previously used by the Secretaries to 

waive the generally applicable document 

requirements. This authority is set out in Section 

212(d)(4)(B) of the INA, 8 U.S.C. 1182(d)(4)(B), and 

section 215(b) of the INA, 8 U.S.C. 1185(d)(4)(B) 

(delegated to the Secretary of State under Executive 

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

8Other statutory waiver authority is not affected 

so that waivers may still be granted in individual 

statute obligates the Secretary of 

Homeland Security to develop and 

implement a plan to require United 

States citizens and nationals of certain 

Western Hemisphere countries to 

present a passport or other identity and 

citizenship documents when entering 

the United States from countries in the 

Western Hemisphere.1 As a result of the 

enactment of section 7209 of IRTPA, the 

Secretary of Homeland Security, in 

consultation with the Secretary of State, 

must develop and implement the plan 

by January 1, 2008. 

Current Entry Requirements for United 

States Citizens 

In general, under federal law it is 

‘‘unlawful for any citizen of the United 

States to depart from or enter * * * the 

United States unless he bears a valid 

United States passport.’’ 2 However, 

United States citizens now are exempt 

from the statutory passport requirement 

when coming from the Western 

Hemisphere other than from Cuba.3

Currently, a United States citizen 

entering the United States from the 

Western Hemisphere, other than from 

Cuba, is inspected at the border by a 

Bureau of Customs and Border 

Protection (CBP) officer. To lawfully 

enter the United States, the arriving 

individual need only satisfy the CBP 

officer of his or her United States 

citizenship. In addition to examining 

whatever documentation the individual 

submits, the CBP officer may ask for 

additional identification and proof of 

citizenship until such time as the CBP 

officer is satisfied that the entering 

individual is a United States citizen. 

As a result of this procedure, United 

States citizens arriving from within the 

Western Hemisphere now may provide 

other documents in lieu of a passport to 

satisfy a CBP officer. A driver’s license 

issued by a state motor vehicle 

administration or other competent state 

government authority is the most 

common form of identity document now 

accepted at the border. The citizenship 

documents now accepted at the border 

include birth certificates issued by a 

United States jurisdiction, Certificates of 

Naturalization, and Certificates of 

Citizenship. 

Current Entry Requirements for 

Nonimmigrant Aliens 

Currently, each nonimmigrant alien 

arriving in the United States must 

present to the CBP officer at the border 

a valid unexpired passport issued by his 

or her country of citizenship and a valid 

unexpired visa issued by a United States 

embassy or consulate abroad.4 The only 

current general exception to the 

passport requirement applies to the 

admission of (1) nationals of Canada 

and Bermuda arriving from anywhere in 

the Western Hemisphere other than 

Cuba and (2) Mexican nationals with a 

Border Crossing Card (BCC) arriving 

from contiguous territory. 

Canadian Citizens and Citizens of the 

British Overseas Territory of Bermuda 

When entering the United States as 

nonimmigrant visitors from countries in 

the Western Hemisphere other than 

Cuba, Canadian citizens and citizens of 

the British Overseas Territory of 

Bermuda need not present a valid 

passport and visa.5 They currently are 

required, however, to satisfy the 

inspecting CBP officer of their identity 

and citizenship at the time of 

application for admission. The entering 

alien may present any proof of 

citizenship in his or her possession. An 

individual who initially fails to satisfy 

the examining CBP officer that he or she 

is a Canadian citizen or citizen of the 

British Overseas Territory of Bermuda 

may then be required by CBP to provide 

further identification and proof of 

citizenship such as a birth certificate, 

passport, or citizenship card. 

Mexican Citizens 

Mexican citizens traveling to the 

United States for pleasure or for 

business who are in possession of a 

Form DSP–150, B–1/B–2 Visa and 

Border Crossing Card (BCC) are not 

required to present a valid passport 

when coming from contiguous 

territory.6 A BCC is a machine-readable, 

biometric card, issued by the U.S. 

Department of State, Bureau of Consular 

Affairs. DHS anticipates that BCCs will 

continue to be acceptable under IRTPA. 

Travel Document Requirements Under 

the Intelligence Reform and Terrorism 

Prevention Act of 2004 

Under section 7209 of IRTPA, both 

United States citizens and 

nonimmigrant aliens who currently do 

not require passports to enter the United 

States, will require a valid passport or 

other identity and citizenship document 

to enter the United States.7 At that time, 

United States citizens and 

nonimmigrant aliens will need to 

present documents when traveling from 

countries within the Western 

Hemisphere to the United States that 

have not been required in the past. The 

principal groups affected are United 

States citizens, Canadian citizens, 

citizens of the British Overseas Territory 

of Bermuda, and Mexican citizens. 

These are the groups currently exempt 

from the general passport requirement 

when entering the United States from 

within the Western Hemisphere. Section 

7209 sets January 1, 2008 as the 

deadline for the development and 

implementation of the plan relating to 

the new requirements. 

Section 7209 of IRTPA also requires 

that the Secretaries of Homeland 

Security and State expedite the travel of 

frequent travelers, including those who 

reside in border communities. Section 

7209 specifically requires that the 

Secretaries make readily available a 

registered traveler program as one 

means to expedite travel for frequent 

travelers. DHS currently operates 

registered traveler programs that benefit 

United States citizens and foreign 

nationals entering the United States 

from Canada and Mexico, such as the 

Secure Electronic Network for Travelers 

Rapid Inspection (SENTRI) program and 

the joint United States-Canadian 

NEXUS program. In addition, the Free 

and Secure Trade (FAST) program 

allows expedited clearance of registered 

commercial vehicle drivers. DHS will 

continue to improve and expand travel 

facilitation programs consistent with the 

requirements of IRTPA. 

According to IRTPA, following the 

complete implementation of this plan, 

neither the Secretary of State nor the 

Secretary of Homeland Security may 

waive these document requirements for 

classes of nonimmigrant aliens traveling 

to the United States.8 For United States 

Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / Proposed Rules 52039 

cases of unforeseen emergency pursuant to section 

212(d)(4)(A) of the INA, 8 U.S.C. 1182(d)(4)(A), and 

pursuant to section 212(d)(4)(C) of the INA, 8 U.S.C. 

1182(d)(4)(C), for persons transiting the United 

States. 

citizens, the new document 

requirements may be waived but only in 

three circumstances specifically spelled 

out in section 7209: (1) When the 

Secretary of Homeland Security 

determines that ‘‘alternative 

documentation’’ different from that then 

being required under section 7209 is 

sufficient; (2) in an individual case of an 

unforeseen emergency; or (3) in an 

individual case based on ‘‘humanitarian 

or national interest reasons.’’

To comply with IRTPA, DHS and 

DOS plan to amend to their respective 

regulations. Prior to promulgating such 

regulations, DHS and DOS, through this 

advance notice of proposed rulemaking 

(ANPRM), are soliciting comments from 

the public on the implementation of 

section 7209. Comments received by 

DHS and DOS on the ANPRM will be 

addressed in the future rulemaking 

actions that promulgate any regulations 

necessary to implement the 

requirements of IRTPA. 

The Secretary of Homeland Security, 

in consultation with the Secretary of 

State, must determine what documents, 

other than a valid passport, are 

acceptable under section 7209 because 

they are ‘‘sufficient to denote identity 

and citizenship.’’ At the conclusion of 

this public rulemaking process, a notice 

setting forth the acceptable documents 

will be published in the Federal 

Register. 

Plan for Two Stage Implementation of 

IRTPA Requirements 

DHS and DOS envision implementing 

the new requirements in the following 

two stages to ensure that the transition 

is orderly, to provide affected persons 

with adequate notice to obtain necessary 

documents, to designate the alternate 

documents that will satisfy the 

requirements, and to ensure that 

adequate resources are available to issue 

additional passports or other authorized 

documents. 

a. Air and Sea Crossings: Beginning 

December 31, 2006, all individuals 

traveling to the United States by air or 

sea will be asked to present a valid 

passport or other document, or 

combination of documents that have 

been deemed by the Secretary of 

Homeland Security to be sufficient to 

establish identity and citizenship. A 

valid passport will satisfy this 

requirement and other documents will 

be considered as possible alternatives to 

passports in advance of this 

implementation date. DHS and DOS 

anticipate soliciting comments through 

a notice of proposed rulemaking in 

order to fully consider possible 

alternatives to passports. This 

rulemaking process will take place 

sufficiently in advance of the 

implementation date for this phase of 

the program. 

b. Land Crossings: Beginning 

December 31, 2007, all individuals 

arriving at United States land border 

crossings will have to present either a 

valid passport or another document, or 

combination of documents, deemed by 

the Secretary of Homeland Security to 

be sufficient to establish identity and 

citizenship. We expect that BCCs and 

registered traveler programs such as 

SENTRI, NEXUS, and FAST will be 

accepted. DHS and DOS also anticipate 

soliciting comments on the 

implementation of this phase of the 

program well prior to December 31, 

2007 through a notice of proposed 

rulemaking. 

Persons traveling during the 

implementation of IRTPA should plan 

to depart from the United States with 

documents sufficient to meet any new 

requirements that will be in place when 

they return. 

Rulemaking To Establish Document 

Requirements Under IRTPA 

While a valid passport will always 

satisfy IRTPA, DHS is currently 

considering what other documents may 

be deemed by the Secretary of 

Homeland Security to be sufficient to 

denote identity and citizenship. Based 

on the section 7209 requirement that the 

Secretaries of Homeland Security and 

State shall seek to expedite the travel of 

frequent travelers and make readily 

available a registered traveler program, 

DHS and DOS expect that NEXUS cards, 

SENTRI cards, BCCs, and FAST driver 

identification cards may be accepted in 

lieu of a passport. 

Public Participation in Rulemaking 

Process 

The new requirements set forth by 

IRTPA will result in changes to the 

types of documents that United States 

citizens and certain Western 

Hemisphere nonimmigrant aliens must 

have when traveling from countries in 

the Western Hemisphere to the United 

States. The public is invited to comment 

specifically on this aspect of the 

implementation plan in order to assist 

the Secretary of Homeland Security, in 

consultation with the Secretary of State, 

in making a final determination on what 

documents will be accepted to satisfy 

section 7209 of IRTPA. 

Interested persons are invited to 

participate generally in this rulemaking 

process by submitting written data, 

views, or arguments on all aspects of 

this advance notice of proposed 

rulemaking. See ADDRESSES above for 

information on how to submit 

comments. In addition, public hearings 

may be held at strategic locations to 

provide an open forum pertaining to the 

proposed changes. 

Comments that will provide the most 

assistance to DHS in this rulemaking 

include, but are not limited to: 

a. The types of documents denoting 

identity and citizenship that should be 

acceptable as alternatives to a passport 

under section 7209 of IRTPA; 

b. The economic impact (both longterm and short-term, quantifiable and 

qualitative) of the implementation of 

section 7209 of IRTPA, including 

potential impacts on State, local, and 

tribal governments of the United States; 

potential impacts on cross-border trade 

along United States-Canada and United 

States-Mexico borders; potential 

impacts on travel, travelers and the 

travel industry; and potential impacts 

on small businesses; 

c. The monetary and other costs 

anticipated to be incurred by United 

States citizens and others as a result of 

the new document requirements such as 

the costs in time and money that an 

individual may incur to obtain a 

passport or other document(s) 

determined to be sufficient. These costs 

may or may not be quantifiable and may 

include actual monetary outlays, 

transitional costs incurred to obtain 

alternative documents, and the costs 

that will be incurred in connection with 

delays at the border; 

d. The benefits of this rulemaking; 

e. Any alternative methods of 

complying with the legislation; and 

f. The proposed stages for 

implementation of the requirements of 

section 7209 of IRTPA. 

Dated: August 26, 2005. 

Michael Chertoff, 

Secretary of Homeland Security, Department 

of Homeland Security. 

Condoleezza Rice, 

Secretary of State, Department of State. 

[FR Doc. 05–17533 Filed 8–31–05; 8:45 am] 

BILLING CODE 4820–02–P