[Federal Register Volume 71, Number 155 (Friday, August 11, 2006)]
[Proposed Rules]
[Pages 46155-46174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6854]
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DEPARTMENT OF HOMELAND SECURITY
Bureau of Customs and Border Protection
8 CFR Parts 212 and 235
[USCBP 2006-0097]
RIN 1651-AA66
DEPARTMENT OF STATE
22 CFR Parts 41 and 53
RIN 1400-AC10
Documents Required for Travelers Arriving in the United States at
Air and Sea Ports-of-Entry From Within the Western Hemisphere
AGENCY: Bureau of Customs and Border Protection, Department of Homeland
Security; Bureau of Consular Affairs, Department of State.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Intelligence Reform and Terrorism Prevention Act of 2004
provides that by January 1, 2008, United States citizens and
nonimmigrant aliens may enter the United States only with passports or
such alternative documents as the Secretary of Homeland Security may
designate as satisfactorily establishing identity and citizenship. This
notice of proposed rulemaking (NPRM) is the first phase of a joint
Department of Homeland Security and Department of State plan to
implement these new requirements. This NPRM proposes that, beginning
January 8, 2007, United States citizens and nonimmigrant aliens from
Canada, Bermuda, and Mexico entering the United States at air ports-of-
entry and most sea ports-of-entry, with certain limited exceptions,
will generally be required to present a valid passport. This NPRM does
not propose to change the requirements for United States citizens and
nonimmigrant aliens from Canada, Bermuda, and Mexico entering the
United States at land border ports-of-entry and certain types of
arrivals by sea (ferries and pleasure vessels) which will be addressed
in a separate, future rulemaking.
DATES: Written comments must be submitted on or before September 25,
2006.
ADDRESSES: Comments, identified by docket number USCBP 2006-0097, must
be submitted by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Comments by mail are to be addressed to the Bureau
of Customs and Border Protection, Office of Regulations and Rulings,
Border Security Regulations Branch, 1300 Pennsylvania Avenue, NW.,
Washington, DC 20229. Submitted comments by mail may be inspected at
the Bureau of Customs and Border Protection at 799 9th Street, NW.,
Washington, DC. To inspect comments, please call (202) 572-8768 to
arrange for an appointment.
Instructions: All submissions must include the agency name and
docket number USCBP 2006-0097. All comments will be posted without
change to http://www.regulations.gov, including any personal
information sent with each comment. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Participation in Rulemaking Process'' heading
of the SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
submitted comments, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Department of Homeland Security:
Robert Rawls, Office of Field Operations, Bureau of Customs and Border
Protection, 1300 Pennsylvania Avenue, NW., Room 5.4-D, Washington, DC
20229, telephone number (202) 344-2847.
Department of State: Consuelo Pachon, Office of Passport Policy,
Planning and Advisory Services, Bureau of Consular Affairs, telephone
number (202) 663-2662.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Current Entry Requirements for United States Citizens
Arriving by Air or Sea
B. Current Entry Requirements for Nonimmigrant Aliens Arriving
by Air or Sea
1. Canadian Citizens and Citizens of the British Overseas
Territory of Bermuda
2. Mexican Citizens
C. Intelligence Reform and Terrorism Prevention Act of 2004
D. Advance Notice of Proposed Rulemaking
1. Passport as Only Acceptable Document for WHTI Air-and-Sea
Arrivals
2. Alternative Forms of Identification
3. One Implementation Date of January 1, 2008
4. Effective Communications Plan
5. Passport Exemption for Children Under the Age of 16
6. Reduce Cost of Passports or Institute Pricing Incentives
7. Bilateral or Multilateral Process
8. Native Americans
9. Mobile Offshore Drilling Units Working on the United States
Outer Continental Shelf
10. Passengers Traveling by Ferry
11. Military Personnel
III. Proposed Requirements for United States Citizens and
Nonimmigrant Aliens Traveling by Air and Sea to the United States
A. Passports for Air and Sea Arrivals
B. Exceptions to the Passport Proposal
1. Pleasure Vessels
[[Page 46156]]
2. Passengers Arriving by Ferry
3. Members of the United States Armed Forces
C. Other Documents Deemed Acceptable To Denote Citizenship and
Identity
1. Merchant Mariner Document
2. Nexus Air Program Membership Card
D. Impact of This Rulemaking on Specific Groups and Populations
1. Charter and Commercial Vessels
2. Aviation Passengers and Crew
3. Lawful Permanent Residents
4. Mexican Citizens
5. Children Under the Age of 16
6. Alien Members of the United States Armed Forces
7. Members of NATO Armed Forces
8. Native Americans Born in Canada
9. Native Americans Born in the United States
10. American Indian Card Holders From Kickapoo Band of Texas and
Tribe of Oklahoma
11. Travel From Territories Subject to the Jurisdiction of the
United States
12. Outer Continental Shelf Employees
13. International Boundary and Water Commission Employees
E. Section-by-Section Discussion of Proposed Amendments
IV. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act
C. Executive Order 13132: Federalism
D. Executive Order 12988: Civil Justice Reform
E. Unfunded Mandates Reform Act Assessment
F. Paperwork Reduction Act
G. Privacy Statement
List of Subjects
Abbreviations and Terms Used in This Document
ANPRM--Advance Notice of Proposed Rulemaking
APIS--Advance Passenger Information System
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--Bureau of Customs and Border Protection
DHS--Department of Homeland Security
DMV--Department of Motor Vehicles
DOS--Department of State
FAST--Free and Secure Trade
IBWC--International Boundary and Water Commission
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
MMD--Merchant Mariner Document
MODU--Mobile Offshore Drilling Unit
NATO--North Atlantic Treaty Organization
NPRM--Notice of Proposed Rulemaking
OCS--Outer Continental Shelf
OTTI--Office of Travel & Tourism Industries
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
TSA--Transportation Security Administration
TWIC--Transportation Worker Identification Card
US-VISIT--United States Visitor and Immigrant Status Indicator
Technology Program
WHTI--Western Hemisphere Travel Initiative
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. The Department of Homeland Security (DHS) and the
Department of State (DOS) also invite comments that relate to the
economic or environmental effects or the federalism implications that
might result from this proposed rule. Comments that will provide the
most assistance to DHS and DOS in developing these procedures will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. See ADDRESSES above for
information on how to submit comments.
II. Background
A. Current Entry Requirements for United States Citizens Arriving by
Air or Sea
In general, under federal law it is ``unlawful for any citizen of
the United States to depart from or enter * * * the United States
unless he bears a valid United States passport.'' \1\ However, the
statutory passport requirement has not been applied to United States
citizens when departing from or entering into the United States from
within the Western Hemisphere other than from Cuba.\2\ Currently, a
United States citizen entering the United States from within the
Western Hemisphere, other than from Cuba, is inspected at an air or sea
port-of-entry by a DHS Bureau of Customs and Border Protection (CBP)
officer.\3\ To lawfully enter the United States, a person need only
satisfy the CBP officer of his or her United States citizenship.\4\ In
addition to assessing the verbal declaration and examining the
documentation the person submits, the CBP officer may ask for
additional identification and evidence of citizenship until the officer
is satisfied that the person is a United States citizen.
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\1\ Section 215(b) of the Immigration and Nationality Act (INA),
8 U.S.C. 1185(b).
\2\ See 22 CFR 53.2(b), which waived the passport requirement
pursuant to section 215(b) of the INA, 8 U.S.C. 1185(b).
\3\ United States citizens entering the United States at land
border ports-of-entry from within the Western Hemisphere are also
inspected by a CBP officer. However, such travelers are outside the
scope of this proposed rulemaking and will be addressed in a
separate, future rulemaking.
\4\ 8 CFR 235.1(b).
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As a result of this procedure, United States citizens arriving at
air or sea ports-of-entry from within the Western Hemisphere currently
produce a variety of documents to establish their citizenship and right
to enter the United States. A driver's license issued by a state motor
vehicle administration or other competent state government authority is
a common form of identity document now accepted by CBP at the border
even though such documents do not denote citizenship. Citizenship
documents currently accepted at ports-of-entry generally include birth
certificates issued by a United States jurisdiction, Consular Reports
of Birth Abroad, Certificates of Naturalization, and Certificates of
Citizenship.
B. Current Entry Requirements for Nonimmigrant Aliens Arriving by Air
or Sea
Currently, each nonimmigrant alien arriving in the United States
must present to the CBP officer at the port-of-entry a valid unexpired
passport issued by his or her country of citizenship and, if required,
a valid unexpired visa issued by a United States embassy or consulate
abroad.\5\ Nonimmigrant aliens entering the United States must also
satisfy any other applicable entry requirements (e.g., United States
Visitor and Immigrant Status Indicator Technology Program (US-VISIT)).
For nonimmigrant aliens arriving in the United States, the only current
general exceptions to the passport requirement apply to the admission
of (1) citizens of Canada and Bermuda arriving from anywhere in the
Western Hemisphere and (2) Mexican nationals with a Border Crossing
Card (BCC) arriving from contiguous territory.
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\5\ Section 212(a)(7)(B)(i) of the INA, 8 U.S.C.
1182(a)(7)(B)(i).
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1. Canadian Citizens and Citizens of the British Overseas Territory of
Bermuda
In most cases, Canadian citizens and citizens of the British
Overseas Territory of Bermuda (Bermuda) currently are not required to
present a valid passport and visa when entering the United States as
nonimmigrant visitors from countries in the Western Hemisphere.\6\
Nevertheless, these travelers are currently required to satisfy the
inspecting CBP officer of their identity and citizenship at the time of
their application for admission. Entering aliens may present any
evidence of identity and citizenship in their possession. Individuals
who
[[Page 46157]]
initially fail to satisfy the examining CBP officer may then be
required to provide further identification and evidence of citizenship
such as a birth certificate, passport, or citizenship card.
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\6\ 8 CFR 212.1(a)(1)(Canadian citizens) and 8 CFR
212.1(a)(2)(Citizens of Bermuda). See also 22 CFR 41.2.
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2. Mexican Citizens
Mexican citizens arriving in the United States at ports-of-entry
who possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC)
are currently admitted without presenting a valid passport if they are
coming from contiguous territory.\7\ A BCC is a machine-readable,
biometric card, issued by the Department of State, Bureau of Consular
Affairs. The use of a BCC without a passport is atypical in the air/sea
environment, but it continues to be permitted. Although the use of a
BCC is much more common in the land environment, this NPRM deals solely
with arrivals at air and sea ports-of-entry.
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\7\ 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g). If they are
only traveling within a certain geographic area along the United
States border with Mexico: usually up to 25 miles from the border
but within 75 miles under the exception for Tucson, Arizona, they do
not need to obtain a form I-94. If they travel outside of that
geographic area, they must obtain an I-94 from CBP at the port-of-
entry. 8 CFR 235.1(f)(1).
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C. Intelligence Reform and Terrorism Prevention Act of 2004
This NPRM is the first phase of the joint DHS and DOS
implementation of section 7209 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (IRTPA), Pub. L. 108-458, 118 Stat. 3638 (Dec.
17, 2004). Section 7209 of IRTPA requires that the Secretary of
Homeland Security, in consultation with the Secretary of State, develop
and implement a plan to require travelers entering the United States to
present a passport, other document, or combination of documents, that
are ``deemed by the Secretary of Homeland Security to be sufficient to
denote identity and citizenship.'' Section 7209 expressly limits the
waiver of documentation requirements for United States citizens under
section 215(b) of the Immigration and Nationality Act (INA) \8\ and
eliminates the waiver of documentation requirements for categories of
individuals for whom documentation requirements have previously been
waived (citizens of Canada, Mexico, and Bermuda) under section
212(d)(4)(B) of the INA.\9\ United States citizens and nonimmigrant
aliens from Canada, Mexico, and Bermuda will be required to comply with
the new document requirements of section 7209.\10\ IRTPA requires that
the Secretary of Homeland Security, in consultation with the Secretary
of State, develop and implement the plan by January 1, 2008.
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\8\ 8 U.S.C. 1185(b).
\9\ 8 U.S.C. 1182(d)(4)(B).
\10\ Section 7209 does not apply to Lawful Permanent Residents,
who will continue to be able to enter the United States upon
presentation of a valid Form I-551, Alien Registration Card, or
other valid evidence of permanent resident status. Section 211(b) of
the INA, 8 U.S.C. 1181(b). It also does not apply to alien members
of United States Armed Forces traveling under official orders.
Section 284 of INA, 8 U.S.C. 1354. Additionally, section 7209 does
not apply to nonimmigrant aliens from anywhere other than Canada,
Mexico, or Bermuda. See section 212(d)(4)(B) of the INA, 8 U.S.C.
1182(d)(4)(B) and 8 C.F.R. 212.1.
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Section 7209 limits the Secretaries' respective authorities \11\ to
waive generally applicable documentation requirements by providing
that, after the complete implementation of the plan, neither the
Secretary of State nor the Secretary of Homeland Security may exercise
the authority of section 212(d)(4)(B) of the INA \12\ to waive the
passport requirement on the basis of reciprocity for nonimmigrant
aliens who are nationals of foreign contiguous territory or adjacent
islands. In addition, section 7209 of IRTPA provides that the President
may exercise the authority of section 215(b) of the INA \13\ to waive
the new documentation requirements for United States citizens departing
from or entering the United States only in three specific
circumstances: (1) When the Secretary of Homeland Security determines
that ``alternative documentation'' different from what is required
under section 7209 is sufficient to denote citizenship and identity;
(2) in an individual case of an unforeseen emergency; or (3) in an
individual case based on ``humanitarian or national interest reasons.''
\14\
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\11\ See section 212(d)(4)(B) of the INA, 8 U.S.C.
1182(d)(4)(B), and section 215(b) of the INA, 8 U.S.C. 1185(b).
\12\ 8 U.S.C. 1182(d)(4)(B).
\13\ 8 U.S.C. 1185(b).
\14\ Section 7209(c)(2) of IRTPA.
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United States citizens and nonimmigrant aliens, who currently are
not required to have passports pursuant to sections 215(b) and
212(d)(4)(B) of the INA \15\ respectively, would be required to present
a passport or other identity and citizenship document deemed sufficient
by the Secretary of Homeland Security when entering the United States
from countries within the Western Hemisphere. The principal groups
affected by this provision of IRTPA are United States citizens,
Canadian citizens, citizens of Bermuda, and Mexican citizens holding
BCC cards. These groups of individuals are currently exempt from the
general passport requirement when entering the United States from
within the Western Hemisphere.\16\
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\15\ 8 U.S.C. 1185(b) and 8 U.S.C. 1182(d)(4)(B).
\16\ Section 212(d)(4)(B) of the INA, 8 U.S.C. 1182(d)(4)(B) and
section 215(b) of the INA, 8 U.S.C. 1185(b).
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D. Advance Notice of Proposed Rulemaking
On September 1, 2005, DHS and DOS published in the Federal Register
(70 FR 52037) an advance notice of proposed rulemaking (ANPRM) that
announced that DHS and DOS were planning to amend their respective
regulations to implement section 7209 of IRTPA. The DHS and DOS plan to
implement section 7209 is also known as the Western Hemisphere Travel
Initiative (WHTI). As stated in the ANPRM, DHS and DOS proposed to
develop a plan that would require citizens of the United States,
Canada, Bermuda, and Mexico to possess a passport or other acceptable
secure document to enter the United States from within the Western
Hemisphere by January 1, 2008. The ANPRM invited comments on the
possible means of implementation and specifically invited comments on
what documents, other than passports, should be accepted as sufficient
under section 7209.
The ANPRM announced that DHS and DOS anticipated implementing the
documentation requirements of section 7209 in two stages. The first
stage would affect travelers entering the United States at air and sea
ports-of-entry beginning January 1, 2007. The second stage would
address travelers arriving at land border ports-of-entry beginning
January 1, 2008. The two-stage approach is intended to ensure an
orderly transition, provide affected persons with adequate notice to
obtain necessary documents, and ensure that adequate resources are
available to issue additional passports or other authorized documents.
In the ANPRM, DHS and DOS sought public comment to assist the
Secretary of Homeland Security to make a final determination of which
document or combination of documents other than valid passports will be
accepted at ports-of-entry to satisfy section 7209. DHS and DOS also
solicited public comments regarding the economic impact of implementing
section 7209, the costs anticipated to be incurred by United States
citizens and others as a result of new document requirements, potential
benefits of the rulemaking, alternative methods of complying with the
legislation, and the proposed stages for implementation. In addition to
receiving written comments, DHS and
[[Page 46158]]
DOS representatives attended over 30 public sessions and town hall
meetings throughout the country and met with community leaders and
stakeholders to discuss the initiative.
DHS and DOS received 2,062 written comments in response to the
ANPRM. The majority of the comments (1,910) addressed only potential
changes to the documentation requirements at land border ports-of-
entry. One hundred and fifty-two comments addressed changes to the
documentation requirements for persons arriving at air or sea ports-of-
entry. Comments were received from a wide range of United States and
Canadian sources including: private citizens; businesses and
associations; local, state, federal, and tribal governments; and
members of the United States Congress and Canadian Parliament.
Some of the comments pertaining to arrivals at air and sea ports-
of-entry were also applicable to land border crossings and will
therefore be addressed in both this rulemaking and a separate, future
rulemaking specific to land border crossings. As this proposed rule
deals only with changes to arrivals at air and sea ports-of-entry, the
comments received regarding only land border crossings will not be
addressed here.
A general discussion of the comments relevant to this rulemaking
follows. Complete responses to the comments from both the ANPRM and
this NPRM regarding air and sea travel will be presented in the final
rule.
1. Passport as Only Acceptable Document for WHTI Air-and-Sea Arrivals
Forty commenters contended that DHS should accept only a valid
passport to satisfy documentary requirements for air and sea arrivals
beginning January 1, 2007. Thirty-six of the 40 comments were submitted
by United States citizens and four comments were submitted by
associations or businesses located in the United States. Eight
commenters recommended that the implementation of a ``passport only''
requirement should not be delayed. Among the reasons for supporting a
``passport only'' requirement, commenters expressed the need to enhance
border security, prevent document forgeries, and simplify document
review for CBP officers by utilizing one standardized document.
One hundred and twelve commenters opposed any proposal that would
require a valid passport to satisfy the documentation requirements for
air and sea arrivals, but supported the goal of improving border
security.
Thirty-two comments stated that a ``passport only'' requirement
would significantly impede travel and tourism either by causing lengthy
delays at the border or by preventing individuals who did not possess a
passport from traveling. Some of these comments asserted that requiring
passports could essentially prevent travelers from making spontaneous
decisions to travel by air or sea within the Western Hemisphere.
Thirty-four comments contended that due to the cost of a passport,
a passport only requirement would be an unreasonable financial burden
for many families. Citing the $97 cost of an initial adult passport and
the $82 cost of a child's passport, several commenters asserted that
the costs are multiplied for a family traveling together. Thirty-nine
comments contended that a ``passport only'' requirement would have a
significant negative economic impact on businesses and local economies.
Many of these commenters provided quantitative and qualitative
information to illustrate their proffered economic impact.
In addition, five commenters raised the concern that the demand for
passports could exceed the passport processing capacity of DOS.
2. Alternative Forms of Identification
Eighty-one commenters submitted recommendations about the types of
alternate documentation that could satisfy the requirements of section
7209 of IRTPA. Many of these commenters noted that section 7209 of
IRTPA provides that a passport substitute could be another document or
combination of documents that sufficiently denote identity and
citizenship. Fifty-nine commenters asserted that DHS should identify
acceptable alternative documents that would be more convenient,
affordable and easier to obtain than a passport. Many of these
commenters noted that DHS has not identified other low-cost and easily
obtainable documents in lieu of a passport. Several commenters also
recommended that any new document should be small enough to carry in a
wallet as opposed to the current booklet-style passport.
Ten commenters recommended that DHS continue to accept a state-
issued driver's license and an original birth certificate as evidence
of identity and citizenship. Numerous commenters asserted that a
driver's license combined with a birth certificate is the best-known
and most generally accepted combination of documents that denote
identity and citizenship. Several commenters reasoned that since these
documents are sufficient to establish nationality and identity for the
purpose of obtaining a passport, they should be acceptable at the
border as well.
One commenter recommended that the current NEXUS Air program \17\
should be expanded to additional Canadian airports. Another commenter
noted that acquiring a NEXUS Air card requires a lengthy processing
time of approximately 6 to 8 weeks for the individual to become
enrolled.
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\17\ NEXUS Air is an airport border clearance pilot project
implemented at one airport in Vancouver, Canada by CBP and the
Canada Border Services Agency, pursuant to the Shared Border Accord
and Smart Border Declaration between the United States and Canada.
The NEXUS Air alternative inspection program allows pre-screened,
low-risk travelers to be processed more efficiently by United States
and Canadian border officials.
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3. One Implementation Date of January 1, 2008
Fifty-seven comments recommended that DHS and DOS delay the first
stage of implementation for air and sea travelers by changing the
implementation date from January 1, 2007, to January 1, 2008, or an
unspecified later date. Many of these commenters asserted that the
January 1, 2007, implementation date for air and sea travel does not
allow adequate time for the traveling public and industry to prepare
for the new regulations.
Some commenters expressed concern that a phased-in approach would
unnecessarily discriminate against one mode of travel in favor of
another because those traveling by air and sea will be subject to more
stringent documentation requirements than those traveling by land
during 2007. Several comments asserted that there is no basis for
treating travelers who arrive by air or sea any differently from those
who travel over land borders.
One commenter argued that the statutory deadline for implementation
is January 1, 2008, and that IRTPA does not require implementation to
be phased-in prior to that date. Several comments suggested that one
implementation date would be less confusing to the traveling public and
allow more time to educate the public about the new requirements and
for proper consideration of alternative secure documents other than a
passport.
Finally, a few commenters recommended delaying the implementation
date of January 1, 2007, for air and sea travelers by at least one
week, until after the holiday travel season.
4. Effective Communications Plan
Thirty-eight commenters recommended that DHS and DOS work
[[Page 46159]]
with the travel industry to launch an effective communications campaign
to inform and educate the traveling public about any new documentation
requirements. According to several commenters, some Canadian and United
States citizens mistakenly believe that a ``passport only'' requirement
is already in effect. One commenter noted that due to confusion around
the implementation phase-in dates, many members of the public believe
that the first phase-in period will apply to all persons traveling to
the United States whether or not they travel by air, sea or land.
Another commenter suggested that educating the public about changes to
the documentation requirements is best accomplished by beginning
outreach and public relations efforts far in advance of any new
requirement.
5. Passport Exemption for Children Under the Age of 16
Thirty-one commenters recommended that children under the age of 16
should be exempt from a passport requirement and instead be able to use
a citizenship document such as a birth certificate. Several commenters
asserted that very few children possess passports so that for children
under the age of 16 from both Canada and the United States, the current
documentation requirements should be maintained.
6. Reduce Cost of Passports or Institute Pricing Incentives
Eleven commenters recommended that passports should be either less
expensive or pricing incentives should be introduced for United States
citizens who are obtaining a passport for the first time in advance of
the implementation deadline. One commenter asserted that financial
incentives would encourage United States citizens to obtain a first-
time passport or renew an existing passport. Several commenters
specifically requested that passport costs be reduced for children less
than 16 years of age, students, senior citizens, and families. One
commenter recommended that the federal government provide a financial
subsidy or discount the cost of passports for low-income earners,
welfare recipients, and families with more than two children.
7. Bilateral or Multilateral Process
Three commenters recommended that the implementation of new
documentation requirements should be a collaborative, multilateral
process with a United States-Canadian partnership and a United States-
Mexican partnership. Commenters recommended that the United States and
Canadian governments work together to explore acceptable forms of
documents in lieu of a passport for Canadian citizens. Certain
commenters noted that if the United States unilaterally develops a new
form of alternative document for entry into the United States, there
would be no guarantee that the Canadian and Mexican governments would
accept the new form of documentation as an entry document. These
commenters suggested that the United States Government should not act
unilaterally because of the potential negative effects that this
rulemaking might have on the economy, and international relations,
including a negative public reaction.
8. Native Americans
Three commenters opposed any regulation that would require Native
Americans traveling from Canada into the United States to carry and
produce a United States or Canadian passport as identification. These
commenters asserted that such a requirement would infringe upon the
treaty rights of indigenous peoples living within the United States and
Canada to travel freely across the border on the basis of their
membership in a particular Native American tribe or nation.
9. Mobile Offshore Drilling Units Working on the United States Outer
Continental Shelf
Three commenters recommended that offshore workers of United States
citizenship working aboard Mobile Offshore Drilling Units (MODUs) on
the United States Outer Continental Shelf (OCS) be specifically
excluded from any new documentation requirements when traveling between
the United States and MODUs.
10. Passengers Traveling by Ferry
Eight commenters raised concerns that the new documentation
requirements might create long waits and substantial disruption at
ferry terminals, resulting in a decrease in ferry traffic. Some of
these commenters recommended that any change to the documentation
requirements for ferry passengers should be postponed until the
implementation of any new documentation requirements at land border
ports-of-entry.
11. Military Personnel
Two commenters recommended that fees for passports, including fees
for expedited processing, be eliminated for active duty military
personnel and their dependents.
III. Proposed Requirements for United States Citizens and Nonimmigrant
Aliens Traveling by Air and Sea to the United States
This NPRM proposes that, with some exceptions, United States
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico
traveling into the United States by air and sea from Western Hemisphere
countries, be required to show a passport. This NPRM does not propose
changes to the documentation requirements at land border ports-of-
entry.
This passport requirement would apply to most air and sea travel,
including commercial air travel and commercial sea travel (including
cruise ships). There are two categories of travel and one category of
traveler, discussed in more detail below, which would not be subject to
the passport requirement proposed here. First, this proposal would not
apply to pleasure vessels used exclusively for pleasure and which are
not for the transportation of persons or property for compensation or
hire. Second, this proposal would not apply to travel by ferry.
Finally, this proposal would not apply to United States citizen members
of the Armed Forces on active duty.
This NPRM also proposes to designate two documents, in addition to
the passport, as sufficient to denote identity and citizenship under
section 7209, and acceptable for air and sea travel. The first document
is the Merchant Mariner Document (MMD) or ``z-card'' issued by the
United States Coast Guard (Coast Guard) to Merchant Mariners. The
second document is the NEXUS Air card when used with a NEXUS Air kiosk.
Finally, this proposal would not apply to United States citizen members
of the Armed Forces on active duty.
A. Passports for Air and Sea Arrivals
After reviewing the comments received and taking them into
consideration, DHS and DOS jointly propose that, beginning January 8,
2007, most United States citizens and nonimmigrant aliens from Canada,
Bermuda, and Mexico entering the United States at air or sea ports-of-
entry from Western Hemisphere countries will be required to present a
valid passport. DHS and DOS note that in response to comments, the
originally proposed implementation date of January 1, 2007, for air and
sea travelers is being delayed until January 8, 2007, to better
accommodate the holiday travel season. The Departments do not believe
that there will be an adverse effect on national security by delaying
the implementation of this rule by one
[[Page 46160]]
week. Persons traveling prior to the effective date of the final rule
implementing the air and sea stages of WHTI should plan to depart from
the United States with documents sufficient to meet requirements that
will be in place when they return.
This proposed rule would implement Congress' direction in IRTPA by
eliminating the passport waiver for United States citizens,\18\ who
enter the United States at air and sea ports-of-entry when traveling
between the United States and any country, territory, or island
adjacent thereto in North, South or Central America.\19\ In addition,
this proposed rule would eliminate the passport waiver for nonimmigrant
aliens who are Canadian citizens, citizens of Bermuda, and Mexican
nationals entering the United States at air and sea ports-of-entry from
any country, territory, or island adjacent thereto in North, South or
Central America.\20\
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\18\ In addition to affecting U.S. citizens who currently leave
and enter the United States without a passport for travel within the
Western Hemisphere, section 7209 requires the elimination of the
exception to the U.S. passport requirement for U.S. citizen children
under the age of 12 included in the foreign parent's passport and
for U.S. citizens under age 21 who are members of the household of
an official or employee of a foreign government or the United
Nations and in possession of or included in a foreign passport. See
22 CFR 53.2 (e) and (f).
\19\ See 22 CFR 53.2(b).
\20\ See 8 CFR 212.1 and 22 CFR 41.2.
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As required by IRTPA, both DHS and DOS reviewed a variety of
options for implementing the WHTI requirements, and jointly decided to
phase-in the documentation requirement based upon risk management and
operational considerations. As the ANPRM discussed, this phased
approach is essential because a staggered implementation at air and sea
ports-of-entry one year before the statutory deadline will enhance
security requirements using existing infrastructure while allowing the
Departments time to acquire and develop resources to meet the increased
demand for the largest sector, the land border crossings.
Requiring travelers to carry and produce passports for the air and
sea environments has multiple security and operational benefits. WHTI
will reduce the vulnerabilities identified in the final report of the
National Commission on Terrorist Attacks Upon the United States (9/11
Commission). WHTI is intended not only to enhance security efforts at
our Nation's borders, but also to expedite the movement of legitimate
travel within the Western Hemisphere.
As the report of the 9/11 Commission observed, travel documents are
as valuable as weapons to terrorists, and the passport is regarded as
the most secure travel identity document in the world. After a review
of current international travel documents and the available
alternatives, DHS and DOS believe that the passport is the most
reliable travel document to optimize safety and efficiency in the air
and sea environments.
Standardizing documentation requirements for all air and sea
travelers entering the United States will enhance our national security
and secure and streamline the entry process into the United States. A
passport requirement for the majority of travelers would allow border
security officials to quickly, efficiently, accurately, and reliably
review documentation, identify persons of concern to national security,
and determine eligibility for entry of legitimate travelers without
disrupting the critically important movement of people and goods across
our air and sea borders. Implementing standardized travel documents
(i.e., passports) for citizens of the United States, Canada, Bermuda,
and Mexico entering the United States at air and sea ports-of-entry
would also reduce confusion for the airline industry and make the entry
process more efficient for CBP officers and the public alike since the
majority of travelers traveling internationally to or from an airport
or seaport would require the passport as a travel document, regardless
of destination.
The 9/11 Commission noted that the current exemptions to the
passport requirement are a weak link in our layered approach to
security that can no longer be ignored. Cognizant of this concern and
the realities of the modern world, DHS and DOS agree that any
acceptable alternative documents must establish the identity and
citizenship of the bearer in a way that can be electronically verified
and must include significant security features.
Passports incorporate a host of security features not normally
found or available on other documents such as birth certificates and
driver's licenses. Security features include, but are not limited to,
rigorous adjudication standards and document security features. The
adjudication standards establish the individual's citizenship and
identity and ensure that the individual meets the qualifications for a
United States passport. The document authentication features include
digitized photographs, embossed seals, watermarks, ultraviolet and
fluorescent light verification features, security laminations, micro-
printing, and holograms. A United States passport is a document that is
adjudicated by trained DOS experts and issued to persons who have
documented their United States identity and citizenship by birth,
naturalization or derivation. Applications are subject to additional
Federal government checks to ensure the applicants are eligible to
receive a U.S. passport under applicable standards (for example, those
subject to outstanding federal warrants for arrest are not eligible for
a U.S. passport). Finally, CBP Officers can verify and authenticate a
U.S. passport through connectivity with the DOS passport database,
allowing a real-time check on the validity of the passport. The primary
purpose of the passport has always been to establish citizenship and
identity. It has been used to facilitate travel to foreign countries by
displaying any appropriate visas or entry/exit stamps. Passports are
globally interoperable, consistent with worldwide standards, and usable
regardless of the international destination of the traveler.
Requiring passports for most air and sea travel would allow CBP
officers to more efficiently process these travelers because there is a
standard document to review which contains features that allow for
quick reading of the relevant information. Reducing the number of
acceptable travel documents would eliminate the need to examine a host
of distinct and sometimes illegible, birth certificates and other
documents--over 8,000 types may be presented today. By requiring most
air and sea passengers to possess a passport, CBP officers would reduce
the time and effort used to manually enter passenger information into
the computer system on arrival because the officer can quickly scan the
machine-readable zone of the passport to process the information using
standard passport readers used for all machine readable passports
worldwide. It is difficult to precisely determine the improved
efficiencies resulting from limiting the acceptable documents at air
and sea environments. Based on information from CBP field operations,
CBP estimates that presenting secure and machine-readable documentation
may typically save CBP officers from 5 to 30 seconds per air and sea
passenger processed. This could result in an annual cost savings of
$2.5 million to $15.0 million.\21\
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\21\ This is based on the estimated time savings (5 to 30
seconds) multiplied by the number of new passengers with a passport
(5,905,462; from Chapter 2 of the Regulatory Assessment) multiplied
by the hourly cost of a CBP officer. The annual base salary for a
GS-11/1 (in 2005) is $45,239. This is multiplied by a load factor of
1.4 to account for fringe benefits and locality pay, for an annual
salary of $63,335. This is divided by 2,080 hours to reach an hourly
rate of $30.45.
(5,905,462 travelers)(5 seconds)($30.45/hour) = $2,497,463
(5,905,462 travelers)(30 seconds)($30.45/hour) = $14,984,778.
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[[Page 46161]]
Protecting the national security is a fundamental mission of DHS.
Initiating the first phase for all air and most sea travelers by
January 8, 2007, will remedy significant vulnerabilities identified by
the 9/11 Commission associated with the millions of travelers who enter
the United States through air and sea ports-of-entry. This improvement
will utilize the existing operational capabilities of both Departments
without unduly burdening the traveling public. Phasing in the air and
sea travel prior to land border crossings will provide near term border
security benefits with regard to a significant number of arriving
passengers without significant investment in new port-of-entry
infrastructure. DHS estimates that CBP will be able to facilitate the
processing of arriving passengers more efficiently when all arriving
air and sea passengers carry and produce passports, MMD, or NEXUS Air
card, instead of the broad range of documents now presented by arriving
United States citizens and citizens of Canada, Bermuda, and Mexico.
CBP estimates that approximately 21 million United States citizens
travel to Canada, Mexico, and the Caribbean annually, and that
approximately six million of those air and sea travelers do not possess
a passport (see section IV below, regarding the Regulatory Analyses).
Airports and seaports currently have the personnel and equipment to
inspect incoming passengers who carry passports, so the major
operational requirement of the final rule resulting from this NPRM is
for DOS to expand passport production capacity to meet passport demand.
DOS is already expanding passport production capacity to meet the
additional demand for passports and will be able to meet a significant
increase in demand from the more than 10 million passports produced in
fiscal year 2005. DOS reports an estimated 25 percent increase in
passport applications so far in fiscal year 2006. DOS has increased
passport production capacity with an aim towards processing 16 million
passports in fiscal year 2007 and 19 million passports in fiscal year
2008.
B. Exceptions to the Passport Proposal
DHS and DOS do not propose any change in the requirements for
travel by pleasure vessel and ferry at this time. The Departments also
propose to postpone any change in the requirements for United States
citizen members of the United States Armed Forces also discussed below.
1. Passengers Arriving by Pleasure Vessel
For purposes of this proposed rule, a pleasure vessel will be
defined as a vessel that is used exclusively for recreational or
personal purposes and not to transport passengers or property for hire.
A day sailer or bareboat charter that is rented without a captain or
crew and is used for recreational or personal purposes would be
considered a pleasure vessel. This rule would not propose changes to
the documentation requirements for United States citizens and
nonimmigrant aliens from Canada, Bermuda, and Mexico who are aboard
pleasure vessels arriving in the United States from a foreign port or
place from within the Western Hemisphere.
Pleasure vessel arrivals are treated similarly to land border
crossings rather than like commercial vessel arrivals. These pleasure
vessel passengers, who are frequent, short duration travelers, are
similar to land border crossers and will be addressed in the WHTI
second phase rulemaking. This will allow for more consistent processing
of these travelers and the use of land border based inspection systems
including registered/trusted traveler programs. Many of the pleasure
vessel crossings are similar to bridge crossings because they are
crossings of a short expanse of river or other waterway and are
relatively short in duration.
2. Passengers Arriving by Ferry
For purposes of this proposed rule, a ferry is defined as any
vessel: (1) Operating on a pre-determined fixed schedule; (2) providing
transportation only between places that are no more than 300 miles
apart; and (3) transporting passengers, vehicles, and/or railroad cars.
Since ferries will be subject to land border type entry processing on
arrival from or departure to a foreign port or place, DHS and DOS
propose that ferries be exempt from the new requirements of this
rulemaking. Ferries will be addressed in the second phase rulemaking.
Thus, current documentation requirements for ferry passengers will not
change at this time.
3. Members of the United States Armed Forces
When this rule is promulgated, all active duty members of the
United States Armed Forces regardless of citizenship will be exempt
from the requirement to present a valid passport when entering the
United States. Currently, under 22 CFR 53.2(d), citizens of the United
States are not required to possess a valid passport to enter or depart
the United States when traveling as a member of the Armed Forces of the
United States on active duty.\22\ Under this proposed rule, travel
document requirements for United States citizens who are members of the
United States Armed Forces would not change from the current
requirements. Future changes, if any, to the current documentation
requirements will be addressed during the second phase of the WHTI
rulemaking process.
---------------------------------------------------------------------------
\22\ For a discussion regarding the documentation requirements
for alien members of the United States Armed Forces, see section
III.D.6. of this document.
---------------------------------------------------------------------------
Spouses and dependents of these military members would be required
to present a passport or other document or combination of documents
sufficient to denote identity and citizenship as discussed below, and a
valid visa, if required, when entering the United States at air or sea
ports-of-entry.
C. Other Documents Deemed Acceptable To Denote Citizenship and Identity
This NPRM also proposes to designate two documents, in addition to
the passport, as sufficient to denote identity and citizenship under
section 7209, and acceptable for air and sea travel. IRTPA gives the
Secretary of Homeland Security the authority to determine what
documents other than the passport are sufficient to denote identity and
citizenship for all travel into the United States by United States
citizens and citizens of Canada, Mexico, and Bermuda.\23\ Accordingly,
the Merchant Mariner Document (MMD) when used in conjunction with
maritime business, and the NEXUS Air card when used at a designated
kiosk, are proposed as acceptable for air and sea travel into the
United States from within the Western Hemisphere.
---------------------------------------------------------------------------
\23\ Section 7209(b)(1) of IRTPA.
---------------------------------------------------------------------------
1. Merchant Mariner Document
Currently, an MMD or ``z-card'' is accepted for United States
citizen crewmembers in lieu of a passport.\24\ To obtain an MMD, United
States citizen Merchant Mariners must provide proof of their
citizenship, must provide proof of their identity and must undergo an
application process that includes a fingerprint background check
submitted to the Federal Bureau of Investigation, a National Driver
Register check, and a drug test from an authorized official that
administers a drug testing program.
---------------------------------------------------------------------------
\24\ See 22 CFR 53.2(c).
---------------------------------------------------------------------------
The Secretary of Homeland Security proposes that an MMD when used
in
[[Page 46162]]
conjunction with maritime business would be sufficient to denote
identity and citizenship when presented upon arrival at an air or sea
port-of-entry. Accordingly, under this proposed rule, United States
citizens who possess an MMD would continue to be exempt from the
requirement to present a passport when arriving in the United States at
air or sea ports-of-entry. However, the Coast Guard has proposed to
phase-out the MMD over the next five years and streamline all existing
Merchant Mariner credentials.\25\ DHS proposes to accept the MMD as
long as it is an unexpired document. We also note that United States
citizen Merchant Marines serving on U.S. flag vessels are eligible for
no fee U.S. passports upon presentation of a letter from the employer
and an MMD, in addition to the standard evidence of citizenship and
identity.
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\25\ 71 FR 29462 (May 22, 2006).
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2. NEXUS Air Program Membership Card
NEXUS Air is an airport border clearance pilot project implemented
by CBP and the Canada Border Services Agency, pursuant to the Shared
Border Accord and Smart Border Declaration between the United States
and Canada. The NEXUS Air program is an alternative inspection program
designed to facilitate the entry formalities by registered users which
allows pre-screened, low-risk travelers to be processed more
efficiently by United States and Canadian border officials.
Enrollment in the program is limited to citizens of the United
States and Canada, Lawful Permanent Residents (LPRs) of the United
States, and permanent residents of Canada. To enroll in the NEXUS Air
program, a participant must provide acceptable proof of citizenship or
permanent resident status in Canada or the United States. United States
citizens must provide an original birth certificate, along with a
government-issued photo identification, a valid passport, or a
certificate of naturalization. Canadian citizens must provide an
original birth certificate, along with a government-issued photo
identification, a valid passport, citizenship certificate with photo
identification, or a citizenship card.
LPRs of the United States must provide evidence of citizenship and
of permanent resident status to enroll in NEXUS Air. Because the scope
of section 7209 of IRTPA does not include LPRs, membership in Nexus Air
does not change their document requirements. Therefore, LPRs of the
United States, whether or not participating in the NEXUS Air program,
will continue to be required to present a valid Form I-551, Alien
Registration Card, or other valid evidence of permanent resident status
to enter the United States. Canadian permanent residents must provide
an original birth certificate, along with a government-issued photo
identification, a valid passport (and visa if applicable), and proof of
permanent resident status when applying for NEXUS Air enrollment.
An extensive background check against law enforcement databases and
terrorist indices, including fingerprint checks, as well as a personal
interview with a CBP officer is required of each applicant. Each NEXUS
Air membership card has physical security features including digital
photographs of the participant's face. When a participant uses a NEXUS
Air kiosk, he or she is prompted to look into a camera, which then
biometrically verifies membership in NEXUS Air by taking a picture of
the participant's iris and matching it to the image stored in the
database.
The Secretary of Homeland Security proposes that a NEXUS Air
membership card would be a document sufficient to denote identity and
citizenship for United States citizens, Canadian citizens, and
permanent residents of Canada when arriving in the United States as a
NEXUS Air program participant and when using a NEXUS Air kiosk at
designated airports.
LPRs of the United States, whether or not participating in the
NEXUS Air program, will continue to be required to present a valid Form
I-551, Alien Registration Card, or other valid evidence of permanent
resident status to enter the United States.
D. Impact of This Rulemaking on Specific Groups and Populations
1. Charter and Commercial Vessels
Under this proposed rule, a commercial vessel will be defined as
any civilian vessel being used to transport persons or property for
compensation or hire to or from any port or place including all cruise
ships. A charter vessel, that is leased or contracted to transport
persons or property for compensation or hire to or from any port or
place, would be considered a commercial vessel. In contrast, a day
sailer or bareboat charter that is rented without a captain or crew and
is used for recreational or personal purposes would be considered a
pleasure vessel as described above in section III.B.1. Under this
proposed rule, commercial vessels will be treated as arrivals at sea
ports-of-entry under this proposed rule. Passengers and crew aboard
commercial vessels will need to possess a valid passport when arriving
in the United States from a foreign port or place.
Under applicable immigration law, sailing from a United States port
into international waters, without a call at a foreign port, and
returning to the United States, does not constitute a ``departure''
from the United States and, consequently, is not an ``entry'' into the
United States that requires a passport under section 215(b) of the
INA.\26\ Therefore, passports will not be required for persons
(including commercial fishermen) onboard a vessel that sails from a
United States port and returns without calling at a foreign port or
place as the vessel is not considered to have departed the United
States. Therefore, commercial fishermen would not be required to
possess a passport unless they call at a foreign port or place.
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\26\ 8 U.S.C. 1185(b).
---------------------------------------------------------------------------
2. Aviation Passengers and Crew
Under this proposed rule, all aviation passengers and crew,
including commercial flights and general aviation flights (i.e.,
private planes), who arrive at air ports-of-entry in the United States
from countries within the Western Hemisphere will be required to
possess a valid passport beginning January 8, 2007. The only exceptions
to this requirement would be for United States citizens who are members
of the United States Armed Forces traveling on active duty and
travelers who possess either an MMD or NEXUS Air card, as described
above.
3. Lawful Permanent Residents
Section 7209 of IRTPA applies to documentation requirements waived
under section 212(d)(4)(B) of the INA27,\27\ which applies to
nonimmigrant aliens, and section 215(b) of the INA,\28\ which applies
to United States citizens. LPRs are exempt from the requirement to
present a passport when arriving in the United States under Section 211
of the INA \29\--section 7209 does not apply to LPRs. LPRs will
continue to be able to enter the United States upon presentation of a
valid Form I-551, Alien Registration Card, or other valid evidence of
permanent resident status.\30\ Form I-551 is a secure, fully
adjudicated document that can be verified and authenticated
[[Page 46163]]
by CBP at ports-of-entry. DHS published a notice of proposed rulemaking
in the Federal Register on July 27, 2006, that proposes to collect and
verify the identity of LPRs arriving at air and sea ports-of-entry, or
requiring secondary inspection at land ports of entry, through US-
VISIT.\31\
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\27\ 8 U.S.C. 1182(d)(4)(B).
\28\ 8 U.S.C. 1185(b).
\29\ 8 U.S.C. 1181.
\30\ See section 211(b) of the INA, 8 U.S.C. 1181(b).
\31\ See 71 FR 42605.
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4. Mexican Citizens
Currently, Mexican citizens traveling to the United States for
business or pleasure who are in possession of a BCC may be admitted,
subject to certain limitations,\32\ without presenting a valid passport
when coming from a contiguous territory.\33\ IRTPA, however, does not
exempt Mexican citizens who possess a BCC from providing a passport or
other document designated by DHS upon arrival in the United States. By
this rulemaking, Mexican citizens, whether in possession of a BCC or
not, would be required to present a valid passport when entering the
United States by air or commercial sea vessel, except by ferry or
pleasure vessel.
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\32\ See 8 CFR 235.1(f).
\33\ 8 CFR 212.1(c)(1)(i). Also, Mexican citizens who enter the
United States from Mexico solely to apply for a Mexican passport or
other ``official Mexican document'' at a Mexican consulate in the
United States have not been required to present a valid passport.
This type of entry generally occurs at land borders. Land border
entry for this purpose will be addressed in a separate, future
rulemaking regarding documentation requirements at land border
ports-of-entry. See 8 CFR 212.1(c)(1)(ii).
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This requirement for Mexican BCC holders is consistent with the
requirements that are imposed on both other aliens and United States
citizens.
5. Children Under the Age of 16
The United States government currently requires children under the
age of 16 arriving from countries outside the Western Hemisphere to
provide a passport when entering the United States. IRTPA does not
contain an exemption from providing a passport or other document
designated by DHS for children under the age of 16 when entering the
United States from Western Hemisphere countries. Consequently, as there
is no other statutory exemption, children under the age of 16 arriving
from Western Hemisphere countries would be required to present a
passport when entering the United States by air or commercial sea
vessel, except by ferry or pleasure vessel.
6. Alien Members of the United States Armed Forces
Pursuant to section 284 of the INA ,\34\ alien members of the
United States Armed Forces entering under official orders presenting
military identification are not required to present a passport and
visa.\35\ Because this statutory exemption does not fall within the
scope of section 7209 of IRTPA, under this proposed rule alien members
of the United States Armed Forces traveling on orders would continue to
be exempt from the requirement to present a passport when arriving in
the United States at air or sea ports-of-entry. Accordingly, under this
NPRM, these individuals would continue to be required to present a
military identification card and official orders. However, spouses and
dependents of military members are not covered by the exemption set
forth in section 284 of the INA.\36\ Under the proposed regulation they
would continue to be required to present a passport (and visa if
required) when entering the United States at air or sea ports-of-entry
even when returning from travel in the Western Hemisphere.
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\34\ 8 U.S.C. 1354.
\35\ See also 8 CFR 235.1(c).
\36\ 8 U.S.C. 1354.
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7. Members of NATO Armed Forces
Pursuant to Article III of the Agreement Between the Parties to the
North Atlantic Treaty Regarding the Status of Their Forces, June 19,
1951,\37\ North Atlantic Treaty Organization (NATO) military personnel
on official duty are normally exempt from passport and visa regulations
and immigration inspection on entering and leaving the territory of a
NATO party, but if asked must present a personal I.D. card issued by
their NATO party of nationality and official orders from an appropriate
agency of that country or from NATO.\38\ Because their exemption from
the passport requirement is based on the NATO Status of Forces
Agreement rather than a waiver under section 212(d)(4)(B) of the INA
,\39\ they are not subject to section 7209 of IRTPA. Therefore,
notwithstanding this proposed rule, NATO military personnel would not
be subject to the requirement to present a passport when arriving in
the United States at air or sea ports-of-entry.
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\37\ Agreement Between the Parties to the North Atlantic Treaty
Regarding the Status of Their Forces, June 19, 1951, [1953, pt.2] 4
U.S.T. 1792, T.I.A.S. No. 2846 (effective Aug. 23, 1953). NATO
member countries are: Belgium, Bulgaria, Canada, the Czech Republic,
Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy,
Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland,
Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, the United
Kingdom of Great Britain and Northern Ireland, and the United
States.
\38\ See also 8 CFR 235.1(c).
\39\ 8 U.S.C. 1182(d)(4)(B).
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8. Native Americans Born in Canada
Section 289 of the INA \40\ provides that nothing in the INA
affects ``the right'' of Native Americans born in Canada to ``pass the
borders of the United States,'' provided they possess at least 50
percentum of Native American blood.\41\ Historically, the courts have
addressed the right of Native Americans born in Canada to ``pass the
borders of the United States'' in the context of land border
crossings.\42\ Subsequent case law has not expressly addressed the
extension of the right to ``pass the borders of the United States'' by
air or sea.\43\ Moreover, any right or privilege to ``pass the border''
does not necessarily encompass a right to ``pass the border'' without
sufficient proof of identity and citizenship. Under this proposed rule,
Native Americans born in Canada would now be required to present a
valid passport when entering the United States by air and commercial
sea vessel, except by ferry or pleasure vessel.
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\40\ 8 U.S.C. 1359.
\41\ Canadian-born Inuits (Eskimos) do not have the same right
to ``pass'' the borders of the United States.
\42\ See Akins v. Saxbe, 380 F.Supp. 1210, 1221 (D. Maine 1974)
(``[I]t is reasonable to assume that Congress' purpose in using the
Jay Treaty language in the 1928 Act was to recognize and secure the
right of free passage as it had been guaranteed by that Treaty.'')
See also United States ex rel. Diabo v. McCandless, 18 F.2d 282
(E.D. Pa. 1927), aff'd, 25 F.2d 71 (3rd Cir. 1928).
\43\ See Matter of Yellowquill, 16 I.&N. Dec. 576 (BIA 1978).
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9. Native Americans Born in the United States
Federal statutes apply to Native Americans born in the United
States absent some clear indication that Congress did not intend for
them to apply.\44\ IRTPA expressly applies to United States citizens
and as a matter of law Native Americans born in the United States are
United States citizens.\45\ Moreover, Congress did not indicate any
intention to exclude Native Americans born in the United States from
the requirements of IRTPA. Under this proposed rule, therefore, Native
Americans born in the United States would now be required to present a
valid passport when entering the United States by air and commercial
sea vessel, except by ferry or pleasure vessel.
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\44\ See Federal Power Commission v. Tuscarora Indian Nation,
362 U.S. 99, 120 (1960); Taylor v. Ala. Intertribal Council Title IV
J.T.P.A., 261 F.3d 1032, 1034-1035 (11th Cir. 2001).
\45\ 8 U.S.C. 1401(b).
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10. American Indian Card Holders From Kickapoo Band of Texas and Tribe
of Oklahoma
DHS issues American Indian Cards (Form I-872) to both United
States-born
[[Page 46164]]
Kickapoo Indians and Mexican-born Kickapoo Indians to document their
status. The American Indian Card is issued pursuant to the Texas Band
of Kickapoo Act of 1983 (TBKA).\46\ There are two versions of the
American Indian Card: (1) For Kickapoos who opted to become United
States citizens under the TBKA (the filing deadline for this benefit
closed in 1989) and (2) for Kickapoos who opted not to become United
States citizens, but instead were afforded ``pass/repass'' status.
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\46\ Pub. L. 97-429, 96 Stat. 2269 (1983), codified at 25 U.S.C.
1300b-11-1300b-16.
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While certain Mexican born Kickapoo Indians may ``pass the
borders'' between Mexico and the United States \47\ under this
authority, this authority has historically been used at land border
crossings. Therefore, under this proposed rule, both United States and
Mexican-born Kickapoo Indians would be required to present a valid
passport when entering the United States by air and sea. Any changes to
the land border requirements for Kickapoo Indians will be addressed in
the WHTI second phase rulemaking. Mexican-born Kickapoo Indians
arriving at air or sea ports-of-entry would be required to present
their Mexican passport.
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\47\ TBKA, 25 U.S.C. 1300b-13.
---------------------------------------------------------------------------
As stated previously, federal statutes apply to Native Americans
born in the United States absent some clear indication that Congress
did not intend for them to apply. IRTPA expressly applies to United
States citizens and as a matter of law American Indians born in the
United States are United States citizens. As a result, American-born
Kickapoo Indians will be required to present a valid passport when
entering the United States by air and commercial sea vessel, except by
ferry or pleasure vessel.
11. Travel From Territories Subject to the Jurisdiction of the United
States
Pursuant to section 215(c) of the INA ,\48\ the term ``United
States'' as used in section 215 includes all territory and waters,
continental or insular, subject to the jurisdiction of the United
States. The United States, for purposes of section 215 of the INA and
IRTPA section 7209, includes Guam, Puerto Rico, the U.S. Virgin
Islands, American Samoa, Swains Island, and the Commonwealth of the
Northern Mariana Islands. Because section 7209's requirements apply
only to persons traveling between the United States and foreign
countries, these requirements will not apply to United States citizens
and nationals who travel directly between parts of the United States,
as defined in section 215(c) of the INA, without touching at a foreign
port or place.
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\48\ 8 U.S.C. 1185(c).
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12. Outer Continental Shelf Employees
In response to comments received to the ANPRM, DHS and DOS are
clarifying that, under this proposed rule, offshore workers who work
aboard Mobile Offshore Drilling Units (MODUs) attached to the United
States Outer Continental Shelf (OCS) and travel to and from them would
not need to possess a passport to re-enter the United States if they
depart the United States and do not enter a foreign port or place. Upon
return to the United States from a MODU, such an individual would not
be considered a new ``entry'' for inspection purposes under 8 CFR
235.1. Therefore, this individual would not need to possess a passport
when returning to the United States. However, an individual who travels
to a MODU from outside of the United States and, therefore has not been
previously inspected and admitted to the United States, would be
required to possess a passport and visa when arriving at the U.S. port-
of-entry by air or commercial sea vessel, except by ferry.
13. International Boundary and Water Commission Employees
In response to comments received to the ANPRM, DHS and DOS are
clarifying that, under this proposed rule, documentation requirements
for direct and indirect employees of the International Boundary and
Water Commission crossing the United States-Mexico border while on
official business will not change.\49\
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\49\ Article 20 of the 1944 Treaty Between the United States and
Mexico (regarding division of boundary water and the functions of
International Boundary and Water Commission), TS 922, Bevan 1166, 59
Stat. 1219; 8 CFR 212.1(c)(5).
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E. Section-by-Section Discussion of Proposed Amendments
Based on the discussion above, the following changes are necessary
to the regulations.
8 CFR 212.1
The amendment to this section would revise paragraphs (a)(1) and
(a)(2), which provide a passport exemption for Canadian citizens and
citizens of the British Overseas Territory of Bermuda. New language
would be added that requires a passport for these groups when they
enter the United States from within the Western Hemisphere except by
land, ferry, or pleasure vessel. Canadian citizens who are participants
in the NEXUS Air program may present other documentation in the form of
a NEXUS Air membership card pursuant to 8 CFR 235.1(e).
In addition, this section involves a revision of paragraph
(c)(1)(i), which concerns Mexican nationals entering the United States
who are in possession of a BCC. New language would be added that
specifies that the passport exemption applies when entering the United
States from contiguous territory by land, ferry, or pleasure vessel.
8 CFR 235.1
The amendment to this section would involve adding a new paragraph
(d), which provides that United States citizens who are holders of a
Merchant Mariner Document (MMD or ``z-card'') issued by the Coast Guard
traveling on maritime business may present, in lieu of a passport, an
MMD. This new paragraph would be added because the Secretary of
Homeland Security proposes that an MMD, when used on maritime business
and presented upon arrival, will be deemed sufficient documentation to
denote identity and citizenship under IRTPA.
In addition, this section involves adding a new paragraph (e),
which provides that United States citizens, Canadian citizens, and
permanent residents of Canada who enter the United States as NEXUS Air
participants by using a NEXUS Air kiosk, may present, in lieu of a
passport, a valid NEXUS Air membership card when entering the United
States.
22 CFR 41.1
The amendment to this section would revise paragraph (b), which
provides a passport exemption for American Indians born in Canada,
having at least 50 per centum of blood of the American Indian race. New
language would be added to clarify that the passport exemption applies
only to those persons entering from contiguous territory by land,
ferry, pleasure vessel, or as participants in the NEXUS Air program.
22 CFR 41.2
The amendment to this section would revise paragraphs (a) and (b),
which provide a passport exemption for Canadian citizens and citizens
of Bermuda. New language would be added to clarify that the passport
exemption applies only to travel into the United States from within the
Western Hemisphere by land, ferry, pleasure vessel, or in conjunction
with the NEXUS Air program, as applicable. In addition, this section
would revise paragraph (g), which concerns Mexican nationals entering
the United States who are in possession of a Form DSP-
[[Page 46165]]
150, B-1/B-2 Visa and Border Crossing Card. Subparagraph (g)(2) would
be eliminated as redundant because Form DSP-150 is a B-1/B-2 visa as
well as a Border Crossing Card. Subparagraph (g)(4) would be eliminated
because 22 CFR 41.32 has been amended to require that all applicants
for Border Crossing Cards present a valid passport; section 41.32 no
longer provides conditions for a waiver of the passport requirement.
New language would be added that specifies that the passport exemption
applies only when entering the United States at a land border port-of-
entry or by pleasure vessel or ferry.
22 CFR 53.1
The amendments to this part would revise 22 CFR 53.1 to provide
that it is unlawful for a United States citizen, except as provided in
22 CFR 53.2, to depart from or enter, or attempt to depart from or
enter, the United States unless he or she bears a valid passport. They
also revise 22 CFR 53.1 to provide definitions of ``commercial
vessel,'' ``ferry,'' ``pleasure vessel,'' and ``United States.''
22 CFR 53.2
The amendments to this part would revise the exceptions to the
passport requirement stated in 22 CFR 53.2 so that they are consistent
with this rulemaking. One change would narrow the so-called ``Western
Hemisphere'' exception so that it only applies to entries to and
departures from Canada and Mexico by land, while another provides
exceptions for entries and departures aboard pleasure vessels and
ferries. In addition, the amendments would make it clear that the
exception for members of the U.S. Armed Forces traveling on active duty
will be maintained. The amendment would also contain an exception for
U.S. citizen seamen on maritime business who are carrying Merchant
Marine Documents (MMDs or Z-cards). The amendment would also contain an
exception for United States citizens who are carrying a NEXUS Air
membership card and participating in the NEXUS Air program by using a
NEXUS Air kiosk.
The amendments would eliminate the exception for cards of identity
or registration issued at consular offices abroad because such cards
are no longer issued; for U.S. citizen children included in a foreign
passport of an alien parent; for child of members of a foreign
government or the United Nations included on a foreign passport; and
the current broad exception for waivers authorized by the Secretary of
State in 22 CFR 53.2(h). Instead, new exceptions that are consistent
with IRTPA would be substituted for those that would be eliminated
(i.e., providing exceptions for documentation deemed sufficient to
denote identity and citizenship by the Secretary of Homeland Security,
and allowing for waiver in individual cases when an unforeseen
emergency occurs and individual cases for humanitarian or national
interest reasons).
22 CFR 53.4
The amendments to this part would clarify the point that nothing in
this rule would prevent a United States citizen from presenting a U.S.
passport in circumstances where that passport is not required.
IV. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
This rule is considered to be an economically significant
regulatory action under Executive Order 12866 because it may result in
the expenditure of over $100 million in any one year. Accordingly, this
proposed rule has been reviewed by the Office of Management and Budget
(OMB). The following summary presents the costs and benefits of the
proposed rule plus a range of alternatives considered. The complete and
detailed ``Regulatory Assessment'' can be found in the docket for this
rulemaking: http://www.regulations.gov (see also http://www.cbp.gov).
Comments regarding the analysis and the underlying assumptions are
encouraged and may be submitted by any of the methods described under
the Addresses section of this document.
This rule will affect certain travelers to the Western Hemisphere
countries for whom there are no current requirements to present a
United States passport for entry. While United States citizens may not
need a passport to enter these countries, they would need to carry a
passport to leave the United States and for inspection upon re-entry to
the United States. This analysis considers air travelers on commercial
flights, travelers using general aviation, and cruise ship passengers.
Based on data from the Department of Commerce, approximately 22
million travelers will be covered by the proposed rule. Based on
additional available data sources, DHS and DOS assume that a large
portion of these travelers already hold passports and thus will not be
affected (i.e., they will not need to obtain a passport as a result of
this rule). If the provisions of the proposed rule are finalized, DHS
and DOS estimate that approximately 6 million passports will be
required in the first year the rule is in effect, at a direct cost to
traveling individuals of $941 million. These estimates are presented in
Table 1.
Table 1.--First Year Direct Costs to Travelers of the Proposed Rule
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Travelers to WHTI countries, first year................... 21,792,788 ................ ................
1st quartile Median 3rd quartile
Passports demanded:
Air travelers........................................... 3,942,859 4,084,204 4,364,197
Cruise passengers....................................... 1,751,988 1,821,258 1,877,324
-----------------------------------------------------
Total................................................. 5,694,846 5,905,462 6,241,521
Total cost of passports demanded:
Air travelers........................................... $579,379,344 $600,142,162 $641,283,623
Cruise passengers....................................... 259,398,916 269,658,495 277,962,482
-----------------------------------------------------
Total................................................. $838,778,260 $869,800,657 $919,246,105
Expedited service fees (20% of passports):
Number of passports..................................... 1,138,969 1,181,092 1,248,304
Cost of expedited service............................... $68,338,158 $70,865,540 $74,898,252
-----------------------------------------------------
Grand total cost...................................... $907,116,418 $940,666,196 $994,144,357
----------------------------------------------------------------------------------------------------------------
[[Page 46166]]
Following the first year, the costs will diminish as most United
States travelers in the air and sea environments would then hold
passports. Because the number of travelers to the affected Western
Hemisphere countries has been growing, a small number of ``new''
travelers who did not previously hold passports will now have to obtain
them in order to travel. The estimated costs for new passport
acquisition in the second year the rule is in effect are presented in
Table 2.
Table 2.--Second Year Direct Costs to Travelers of the Proposed Rule
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
``New'' travelers to WHTI countries, second year.......... 1,313,091 ................ ................
1st quartile Median 3rd quartile
Passports demanded:
Air travelers........................................... 195,638 202,409 216,428
Cruise passengers....................................... 140,159 145,701 150,186
-----------------------------------------------------
Total................................................. 335,797 348,110 366,614
Total cost of passports demanded:
Air travelers........................................... $28,744,708 $29,742,623 $31,801,499
Cruise passengers....................................... 20,751,913 21,572,680 22,236,999
-----------------------------------------------------
Total................................................. $49,496,622 $51,315,302 $54,038,497
Expedited service fees (20% of passports):
Number of passports..................................... 67,159 69,622 73,323
Cost of expedited service............................... $4,029,570 $4,177,321 $4,399,366
-----------------------------------------------------
Grand total cost...................................... $53,526,192 $55,492,623 $58,437,863
----------------------------------------------------------------------------------------------------------------
This rule could also impose indirect costs to those industries that
support the traveling public. If some travelers do not obtain passports
because of the cost or inconvenience and forego travel to Western
Hemisphere destinations, certain industries would incur the indirect
consequences of the foregone foreign travel. These industries include
(but are not limited to):
Air carriers and cruise ship companies;
Airports, cruise terminals, and their support services;
Traveler accommodations; travel agents; dining services;
retail shopping;
Tour operators;
Scenic and sightseeing transportation;
Hired transportation (rental cars, taxis, buses);
Arts, entertainment, and recreation.
DHS and DOS expect that foreign businesses whose services are
consumed largely outside of the United States (with the exception of
United States air carriers, cruise ship companies, travel agents, and
airport and cruise terminal services) will primarily be impacted. If
domestic travel is substituted for international travel, domestic
industries in these areas would gain. DHS and DOS expect, however, that
United States travel and tourism could also be indirectly affected by
the proposed rule if fewer Canadian, Mexican BCC holders, and Bermudan
travelers visit the United States (these travelers do not currently
need a passport for entry to the United States but will require one
under the proposed rule). In this case, United States businesses in
these sectors would be affected. Thus, gains in domestic consumption
may be offset by losses in services provided to the citizens and
residents of the Western Hemisphere countries affected. In both cases,
we expect the gains and losses to be marginal as the vast majority of
travelers (based on our Regulatory Assessment, an estimated 96 percent
of United States air and sea travelers and 99 percent of Canadian,
Mexican, and Bermudan air and sea travelers) are expected to obtain
passports and continue traveling internationally.
The benefits of the proposed rule are virtually impossible to
quantify in monetary terms. The benefits of the proposed rule are
significant and real in terms of increased security in the air and sea
environments provided by more secure documents and facilitation of
inspections provided by the limited types of documents that would be
accepted. In fact, this proposed rule addresses a vulnerability of the
United States to entry by terrorists or other persons by false
documents or fraud under the current documentary exemptions for travel
within the Western Hemisphere, which has been noted extensively by
Congress and others:
During the debate on IRTPA, several members of Congress,
including the Chairman of the House Judiciary Committee commented on
the need for more secure documents for travelers.\50\
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\50\ ``As the 9/11 staff report on terrorist travel declared,
`The challenge for national security in an age of terrorism is to
prevent the people who may pose overwhelming risk from entering the
United States undetected.' The Judiciary sections of title III
require Americans returning from most parts of the Western
Hemisphere to possess passports; require Canadians seeking entry
into the United States to present a passport or other secure
identification; authorize additional immigration agents and
investigators; reduce the risk of identity and document fraud;
provide for the expedited removal of illegal aliens; limit asylum
abuse by terrorists; and streamline the removal of terrorists and
other criminal aliens. These provisions reflect both commission
recommendations and legislation that was pending in the House.''
Congressional Record, October 7, 2004, H8685.
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The 9/11 Commission recommendations, which provide much of
the foundation for IRTPA, specifically include a recommendation to
address travel documents in the Western Hemisphere.\51\
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\51\ ``Americans should not be exempt from carrying biometric
passports or otherwise enabling their identities to be securely
verified when they enter the United States; nor should Canadians or
Mexicans. Currently U.S. persons are exempt from carrying passports
when returning from Canada, Mexico, and the Caribbean. The current
system enables non-U.S. citizens to gain entry by showing minimal
identification. The 9/11 experience shows that terrorists study and
exploit America's vulnerabilities.'' The 9/11 Commission Report, p.
388.
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Finally, in May 2003, a subcommittee of the House
Judiciary Committee held a hearing focused on a fraudulent U.S.
document ring in the Caribbean, the exploitation of which allowed the
notorious Washington D.C. ``sniper,'' John Allen Muhammad, to support
himself while living in Antigua. A Government Accountability Office
(GAO) investigator at that hearing testified as to the ease of entering
the United States with fraudulent birth certificates and drivers'
licenses.
A uniform document requirement would assist CBP officers in
verifying the identity and citizenship of travelers who enter the
United States, and
[[Page 46167]]
improving their ability to detect fraudulent documents or false claims
to citizenship and deny entry to such persons. Further, such
standardized documents would enable more rapid processing of travelers
who enter the United States because an individual's identity would be
easier to confirm and he or she could be processed through CBP more
efficiently.
Alternatives to the Proposed Rule
CBP considered the following five alternatives to the proposed
rulemaking:
1. The No Action alternative (status quo);
2. Require United States travelers to present a state-issued photo
ID and proof of citizenship (such as birth certificates) upon return to
the United States from countries in the Western Hemisphere;
3. Allow United States citizens who possess a Transportation Worker
Identification Card (TWIC) to use the card as a travel document in the
air and sea environments;
4. Allow Mexican citizens to present their Border Crossing Cards
(BCCs) in the air and sea environments in lieu of a passport; and
5. Develop and designate a low-cost PASS card as an acceptable
document for United States citizens.
Calculations of costs (if any) for the alternatives can be found in
the Regulatory Assessment.
Alternative 1: The No Action Alternative
The No Action alternative would have zero costs (or benefits)
associated with it. This alternative was rejected because section 7209
of the IRTPA specifically provides that, by January 1, 2008, United
States citizens and nonimmigrant aliens may enter the United States
only with passports or such alternative documents as the Secretary of
Homeland Security may designate as satisfactorily establishing identity
and citizenship. Current documentation requirements leave major gaps in
security at U.S. airports and seaports and do not satisfy the
requirements under the IRTPA that travel documents for entry into the
United States must denote identity and citizenship.
Alternative 2: Require United States Travelers To Present a State-
Issued Photo ID and Proof of Citizenship
The second alternative would require United States citizens to
present state-issued photo identification in combination with a birth
certificate to establish citizenship and identity. This alternative is
similar to the status quo. The U.S. birth certificate can be used as
evidence of birth in the United States; however, it does not provide
definitive proof of citizenship (e.g., children born in the U.S. to
foreign diplomats do not acquire U.S. citizenship at birth). Highly
trained passport specialists and consular officers abroad adjudicate
passport applications, utilizing identity and citizenship documents
(like U.S. birth certificates, naturalization certificates, consular
reports of birth abroad, etc.). These specialists have resources
available, including fraud and document experts, to assist when
reviewing documents and are not faced with the same time constraints as
officers at ports-of-entry. These factors are critical in determining
that a birth certificate and driver's license may be presented as
documentary evidence of citizenship and identity for an application for
a passport but are not sufficient under WHTI for entry to the United
States. There are, in addition, other circumstances where a non-U.S.
birth certificate does not provide definitive proof of citizenship
(e.g., dual-nationals, foreign birth to U.S. citizen parents, foreign-
born adopted children, and naturalized citizens). In addition, there is
no current way to validate that the person presenting the birth
certificate for inspection is, in fact, the same person to whom it was
issued. The lack of security features and the plethora of birth
certificates issued in the United States (issued by more than 8,000
entities) currently make it difficult to reliably verify or
authenticate a birth certificate. A state-issued photo identification
provides positive identification with name, address, and photograph.
However, a state-issued photo identification does not provide proof of
citizenship.
Alternative 2 was rejected for several reasons. Because birth
certificates and driver's licenses are issued by numerous government
entities, there is no standard format for either document, and, at
present, it is not possible to authenticate quickly and reliably either
document. Some states only issue photocopies as replacements of birth
certificates, some states issue replacement birth certificates by mail
or through the Internet, and some states will not issue photo
identification to minors. Both documents lack security features and are
susceptible to counterfeiting or alteration. While most states require
that driver's licenses contain correct address information, it is not
uncommon for the address information to be outdated. Neither the birth
certificate nor the state-issued identification was designed to be a
travel document. Birth certificates can easily deteriorate when used
frequently as travel documents because they are normally made from some
sort of paper with a raised seal, so they cannot be laminated or
otherwise protected when under repeated use.
Because these documents are not standardized, CBP officers require
additional time to locate the necessary information on the documents.
This may result in cumulative delays at air and sea ports of entry. If
the information is not current, travelers may need to be referred to
secondary inspection for additional processing. CBP, DHS, and DOS
believe that the risk of counterfeiting and fraud associated with these
documents makes them unacceptable documents for travel under IRTPA.
Because neither document has a machine-readable zone, CBP will not
be able to front-load information on the traveler to expedite the
initial inspection processing, including checks necessary to protect
the national security of the United States. Birth certificates are
issued by thousands of authorities, and are currently impossible to
validate or vet sufficiently. Both documents are readily available for
purchase to assume a false identity. Because the birth certificate and
state-issued photo ID have limited or non-existent security features,
they are more susceptible to alteration. Therefore, the actual, rather
than claimed, identity and citizenship of the traveler using these
documents cannot always be determined.
The costs of this alternative are associated with minors obtaining
photo identification for travel. Currently, all adult travelers in the
air and sea environments must present photo identification (usually a
driver's license) along with proof of citizenship (usually a birth
certificate) when they check in for their flights and voyages (per the
requirements of the air and sea carriers). Additionally, all countries
in the Western Hemisphere require a passport or these documents for
entry into their countries. The exception, however, is for minor
travelers. Currently, parents may orally vouch for their children upon
exit and entry into the United States to and from the Western
Hemisphere, and some Western Hemisphere countries allow children to
present school identification as sufficient proof of identity. To
comply with a requirement that would allow a photo ID in combination
with a birth certificate for travel in the Western Hemisphere, minors
would most likely need to obtain state-issued photo identification.
There could also be additional costs in the form of lost
[[Page 46168]]
efficiency upon entry to United States ports-of-entry. If CBP officers
need to spend more time examining a variety of documents to determine
what they are and if they are fraudulent, and if CBP officers need to
enter data by hand rather than routinely utilize machine-readable
technology to obtain information on arriving passengers, this would
have time-delay impacts at airports and seaports. CBP is unable to
quantify this loss of efficiency and presents only the cost to minors
to obtain a photo ID.
Based on data from the Department of Commerce's Office of Travel &
Tourism Industries (OTTI), eleven states with the highest number of
international travelers (to the Western Hemisphere or otherwise)
(California, New York, New Jersey, Florida, Texas, Illinois, Virginia,
Pennsylvania, Washington, Massachusetts, and Ohio) account for almost
three-quarters of international air travelers.\52\ Most requirements
for obtaining a photo identification are similar across these states:
completion of a department of motor vehicles (DMV) form, submission of
a form or declaration attesting that the applicant is the parent or
legal guardian of the minor receiving the identification, and
presentation of a birth certificate and social security card. If the
applicant is a minor, he or she must appear in person with a parent or
guardian. Fees for these states range from $3 (Florida) to $21
(California), and identifications are valid for an average of five
years.\53\ As stated previously, some states will not issue photo ID to
minors under a certain age.\54\ For the purposes of this analysis only,
we assume all minors would be able to obtain state-issued photo
identification.
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\52\ Table 22, U.S. Travelers to Overseas Countries 2004, State
of Residence of Travelers, OTTI, 2005.
\53\ See the nationwide DMV guide at www.dmv.org.
\54\ Of the 11 states examined in the analysis of this
alternative, Florida, Massachusetts, New Jersey, and Pennsylvania
have a minimum age requirement for obtaining a photo ID. The minimum
age to obtain a photo ID in Florida is 12, in Massachusetts is 16,
in New Jersey is 17, and in Pennsylvania is 16.
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CBP estimates that there are 1,643,606 minors that will be covered
by this proposed rule, 557,365 of whom do not currently hold a
passport. CBP has used the average of the photo identification fees
from the 11 states above ($15) and added the cost of the time it takes
to complete the forms and submit them to the DMV ($41, the same time
cost CBP estimated to obtain the passport) for a total of approximately
$55 per minor. Thus, assuming that a birth certificate is readily
available, the cost of this alternative ID for minors would be $30.7
million.
Alternative 3: Designate TWIC as an Acceptable Document for United
States Citizens
The third alternative would allow U.S. transportation workers to
use their TWICs in lieu of a passport. Section 102 of the Maritime
Transportation Security Act of 2002 requires the Secretary of Homeland
Security to issue a biometric transportation security card to
individuals with unescorted access to secure areas of vessels and
facilities.\55\ In addition, these individuals must undergo a security
threat assessment to determine that they do not pose a security threat
prior to receiving the biometric card and access to the secure areas.
The security threat assessment must include a review of criminal,
immigration, and pertinent intelligence records in determining whether
the individual poses a threat, and individuals must have the
opportunity to appeal an adverse determination or apply for a waiver of
the standards. The regulations to implement the TWIC in the maritime
environment are in the proposed rule stage and are pending finalization
subject to public comment and revision.\56\ For the sake of comparison,
CBP assumes that TWICs are available to all transportation workers
covered by the proposed rule. Additionally, analysis of this
alternative assumes that CBP would accept the TWIC for any travel.
---------------------------------------------------------------------------
\55\ Pub. L. 107-295, 116 Stat. 2064 (Nov. 25, 2002).
\56\ 71 FR 29396 and 29462 (May 22, 2006).
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The Transportation Security Administration (TSA) and Coast Guard
estimate that the initial population of cards holders will be
approximately 750,000.\57\ This population includes such individuals as
United States MMD holders, port truck drivers, contractors,
longshoremen, and rail workers. As discussed previously, MMD holders
will not be affected by the proposed WHTI air and sea rule, because the
MMD will be an acceptable document under the proposed rule. The other
TWIC holders do not likely leave the country on vessels for the
purposes of work-related activities. For the purposes of this economic
analysis only, CBP estimates the cost savings to these individuals of
using TWICs in the air and sea environments for non-work-related
travel.
---------------------------------------------------------------------------
\57\ Department of Homeland Security, Transportation Security
Administration, and U.S. Coast Guard, Regulatory Evaluation for the
Notice of Proposed Rulemaking Transportation Worker Identification
Credential (TWIC) Implementation in the Maritime Sector, 49 (2006).
Dockets TSA-2006-24191 or USCG-2006-24196.
---------------------------------------------------------------------------
CBP does not know how TWIC holders overlap with the United States
population traveling to the affected WHTI countries. As calculated
previously, CBP estimates there are approximately 22 million unique
travelers covered by the proposed rule, and approximately 6 million (27
percent) of them will require passports since they do not already have
them. For the purposes of this analysis of alternatives, CBP assumes
that the population requiring passports fully encompasses TWIC holders.
This is an extreme best-case assumption, as most of the TWIC holders
will not be traveling internationally in the air and sea environments
as part of their work. Thus in the best-case, 27 percent of the 750,000
TWIC holders (approximately 203,000 individuals) would not need
passports. At a cost of $149 per passport ($97 application fee for an
adult, $11 for photos and $41 for the time costs of completing the
necessary paperwork), this would result in a savings of, at best, $30.2
million. This is approximately 3 percent of the total rule cost. The
savings are likely to be lower than that because the TWIC-holding
population in the maritime environment is unlikely to be entirely
included in the United States traveling population covered by the
proposed rule.
The TWIC cannot be read by current CBP technology installed in air
and sea ports-of-entry. While there is information embedded in the chip
on the TWIC, only the name of the individual and a photo ID are
apparent to a CBP officer upon presentation. DHS would have to install
chip readers in all air and sea ports-of-entry to access other
information and verify the validity of the document. TSA estimates that
this cost could be $7,200 per card reader. Additionally, CBP believes
that it would cost $500,000 to develop databases, cross-reference
information and coordinate with TSA and Coast Guard, and test equipment
installed in airports and seaports.
For this analysis CBP assumes that a card reader would need to be
installed in each CBP booth in airports and 4 mobile readers would be
required in seaports that receive cruise passengers. CBP estimates that
there are 2,000 air and sea ``lanes'' nationwide that would need a TWIC
reader. The cost for readers is thus $14.4 million and with the
additional cost for reprogramming and adapting existing systems, the
total cost is $14.9 million in the first year. Following the first
year, CBP would expect to pay approximately 25 percent of the initial
cost for operations and
[[Page 46169]]
maintenance. The net first-year savings would be, again at best, $15.3
million. This is a 2 percent difference from the costs of the chosen
alternative (i.e., $15.3 million divided by $941 million).
This alternative was rejected because the TWIC does not denote
citizenship on its face and it was not designed as a travel document
but rather, to positively identify the holder and hold the results of a
security threat assessment, and as a tool for use in access control
systems. Because the TWIC does not provide citizenship information on
its face, the holder would need to present at least one other document
that proves citizenship. CBP would need to take additional time at
primary inspection to establish citizenship, or the traveler would have
to be referred to secondary inspections for further processing. The
overall result could be increased delays at ports of entry.
Alternative 4: Designate the BCC as an Acceptable Document for Mexican
Citizens
Alternative 4 would allow Mexican citizens to present their BCCs
upon entry to this country. This alternative would have no impact on
the cost of the rule to United States citizens. The BCC is a credit
card-size document with many security features and 10-year validity.
Also called a ``laser visa,'' the card is both a BCC and a B1/B2
visitor's visa. This alternative could be less expensive for a
percentage of Mexican citizens. A Mexican passport is required to
obtain a BCC; however, there are some Mexican citizens that hold a BCC
without a valid passport because the passport has expired prior to the
expiration of the BCC. The BCC is currently limited to use on the
southern land border and the traveler is required to remain within 25
miles of the border unless the traveler obtains an I-94 prior to
traveling further into the United States.\58\
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\58\ With the exception of Tucson, Arizona, where travel is
limited to 75 miles.
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This alternative was rejected because the BCC cannot be used with
CBP's Advance Passenger Information System (APIS), which collects data
from travelers prior to their arrival in and departure from the United
States.\59\ The passport requirement for Mexican citizens who hold BCC
in the air and sea environments is consistent with the requirement for
passports for most United States citizens and foreign nationals.
---------------------------------------------------------------------------
\59\ Information for aircraft to be submitted includes: full
name, date of birth, gender, citizenship, country of residence,
status on board the aircraft, travel document type, passport
information if passport is required (number, country of issuance,
expiration date), alien registration number where applicable,
address while in the United States (unless a U.S. citizen, lawful
permanent resident, or person in transit to a location outside the
United States), Passenger Name Record locator if available, foreign
code of foreign port/place where transportation to the United States
began, code of port/place of first arrival, code of final foreign
port/place of destination for in-transit passengers, airline carrier
code, flight number, and date of aircraft arrival. Information for
vessels is comparable, with requirements appropriate to vessels:
vessel name, vessel country of registry/flag, vessel number, and
voyage number (for multiple arrivals on the same calendar day).
---------------------------------------------------------------------------
Alternative 5: Develop and Designate a Low Cost PASS Card as an
Acceptable Document for United States Citizens
DOS, in consultation with DHS, has begun developing an alternative
travel document, a card-format, limited use passport called a People
Access Security Service card (PASS card). Like a traditional passport
booklet, the PASS card will be a secure travel document that
establishes the identity and citizenship of the bearer. The PASS card
is being designed to benefit those citizens in border communities who
regularly cross the northern and southern borders every day and where
such travel is an integral part of their daily lives. As currently
envisioned, it will be the size of a credit card and will have a fee
structure that is lower than for a traditional passport booklet. The
application process for the PASS card will be comparable to that for
the passport booklet in that each applicant will have to establish
United States citizenship, personal identity, and entitlement to obtain
the document.
The cost of the PASS card has yet to be determined. Strictly for
the purposes of this analysis of alternatives, we assume the fee for a
first-time adult PASS card would be $45 and for a minor would be $35.
The cost for photos is $11. Because the application process would be
comparable to that for a traditional passport, the personal time cost
would continue to be $41, as estimated previously for the primary
analysis of the cost of the proposed rule. Using the same methodology
as used for the primary analysis (most likely scenario) but assuming
that all travelers who do not currently hold a passport obtain a PASS
card rather than the traditional passport booklet, we estimate that the
first-year cost would be $668 million. At this lower cost,
approximately 6.2 million PASS cards would be demanded, approximately
300,000 more than under the proposed rule, an increase of 5 percent.
Use of this alternative passport card was rejected for the air and
sea environments for a number of reasons. This rule is proposed to take
effect on January 8, 2007, and there is not sufficient time for the
Department of State to develop and issue the PASS card by that time.
The PASS card is intended to be a limited-use passport and will not
meet all the international standards for passports and other official
travel documents (for example, the size of the PASS card does not
comport with the International Civil Aviation Organization 9303 travel
document standards).
The following table presents a comparison of the costs of the
proposed rule and the alternatives considered.
Comparison of Regulatory Alternatives in First Year
[Costs in millions]
----------------------------------------------------------------------------------------------------------------
Cost compared Cost compared to
Alternative First-year cost to status quo proposed rule Reason rejected
----------------------------------------------------------------------------------------------------------------
Proposed rule (passports, MMDs, $941 +$941 n/a............... .......................
Air Nexus).
Status quo...................... $0 n/a -$941............. Status quo does not
meet requirements of
IRTPA.
State-issued photo ID + birth $31 +$31 -$910............. Identity and
certificate in lieu of U.S. citizenship of the
passport. traveler cannot always
be reasonably assumed
or ascertained using
these documents;
minors may not be able
to obtain IDs in all
states; delays in
processing entries
because neither
document is
standardized.
[[Page 46170]]
TWICs in lieu of U.S. passport.. $910 +$910 -$15.............. TWICs do not yet exist
in the maritime
environment; TWIC not
designed as a travel
document; citizenship
not included; CBP
would have to install
card readers and
modify their own
systems to accept
TWICs.
BCCs in lieu of Mexican passport No direct costs $0 May be slightly Cannot be used in
for U.S. less expensive conjunction with APIS
citizens for BCC holders. in the air and sea
environments.
PASS card in lieu of traditional $668 +$668 -$273............. PASS cards cannot be
passport booklet. used because they do
not yet exist.
----------------------------------------------------------------------------------------------------------------
Accounting Statement
As required by OMB Circular A-4 (available at www.whitehouse.gov/omb/circulars/index.html), CBP has prepared an accounting statement
showing the classification of the expenditures associated with this
rule. The table provides an estimate of the dollar amount of these
costs and benefits, expressed in 2005 dollars, at three percent and
seven percent discount rates. DHS and DOS estimate that the cost of
this rule will be approximately $237 million annualized (7 percent
discount rate) and approximately $233 million annualized (3 percent
discount rate). Non-quantified benefits are enhanced security and
efficiency.
Accounting Statement: Classification of Expenditures, 2006 through 2016
[2005 dollars]
----------------------------------------------------------------------------------------------------------------
3% discount rate 7% discount rate
----------------------------------------------------------------------------------------------------------------
COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs........ $233 million......... $237 million.
Annualized quantified, but un- None................. None.
monetized costs.
Qualitative (un-quantified) costs. Indirect costs to the Indirect costs to the travel and tourism industry.
travel and tourism
industry.
----------------------------------------------------------------------------------------------------------------
BENEFITS
----------------------------------------------------------------------------------------------------------------
Annualized monetized benefits..... None quantified...... None quantified.
Annualized quantified, but un- None quantified...... None quantified.
monetized costs.
Qualitative (un-quantified) costs. Enhanced security and Enhanced security and efficiency.
efficiency.
----------------------------------------------------------------------------------------------------------------
In accordance with the provisions of EO 12866, this regulation was
reviewed by OMB.
B. Regulatory Flexibility Act
We have prepared this section to examine the impacts of the
proposed rule on small entities as required by the Regulatory
Flexibility Act (RFA).\60\ A small entity may be a small business
(defined as any independently owned and operated business not dominant
in its field that qualifies as a small business per the Small Business
Act); a small not-for-profit organization; or a small governmental
jurisdiction (locality with fewer than 50,000 people).
---------------------------------------------------------------------------
\60\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------
When considering the impacts on small entities for the purpose of
complying with the RFA, we consulted the Small Business
Administration's guidance document for conducting regulatory
flexibility analysis.\61\ Per this guidance, a regulatory flexibility
analysis is required when an agency determines that the rule will have
a significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule.\62\ This guidance
document also includes a good discussion describing how direct and
indirect costs of a regulation are considered differently for the
purposes of the RFA. We do not believe that small entities are subject
to the requirements of the proposed rule; individuals are subject to
the requirements, and individuals are not considered small entities. To
wit, ``The courts have held that the RFA requires an agency to perform
a regulatory flexibility analysis of small entity impacts only when a
rule directly regulates them.'' \63\
---------------------------------------------------------------------------
\61\ Small Business Administration, Office of Advocacy, A Guide
for Government Agencies: How to Comply with the Regulatory
Flexibility Act, May 2003.
\62\ Id. at 69.
\63\ Id. at 20.
---------------------------------------------------------------------------
As described in the Regulatory Assessment for this rulemaking, we
could not quantify the indirect impacts of the proposed rule with any
degree of certainty; we instead focused our analysis on the direct
costs to individuals recognizing that some small entities will face
indirect impacts.
Many of the small entities indirectly affected will be foreign
owned and will be located outside the United States. Additionally,
reductions in international travel that result from the proposed rule
could lead to gains for the domestic travel and tourism industry. Most
travelers--an estimated 96 percent of United States travelers and 99
percent of Canadian, Mexican, and Bermudan travelers (based on the
Regulatory
[[Page 46171]]
Assessment summarized above)--are expected to obtain passports and
continue traveling. Consequently, indirect effects are expected to be
spread over wide swaths of domestic and foreign economies.
Small businesses may be indirectly affected by the proposed rule if
international travelers forego travel to affected Western Hemisphere
countries. Industries likely affected include (but may not be limited
to):
Air carriers;
Cruise ship companies;
Airports;
Cruise terminals and their support services;
Traveler accommodations;
Travel agents;
Dining services;
Retail shopping;
Tour operators;
Scenic and sightseeing transportation;
Hired transportation (rental cars, taxis, buses);
Arts, entertainment, and recreation.
Because this rule does not directly regulate small entities, we do
not believe that this rule has a significant economic impact on a
substantial number of small entities. However, we welcome comments on
that assumption. The most helpful comments are those that can provide
specific information or examples of a direct impact on small entities.
If we do not receive comments that demonstrate that the rule causes
small entities to incur direct costs, we may certify that this action
does not have a significant economic impact on a substantial number of
small entities during the final rule.
The complete analysis of impacts to small entities for this
proposed rulemaking is available on the CBP Web site at: http://www.regulations.gov; see also http://www.cbp.gov. Comments regarding
the analysis and the underlying assumptions are encouraged and may be
submitted by any of the methods described under the ADDRESSES section
of this document.
C. Executive Order 13132: Federalism
Executive Order 13132 requires DHS and DOS to develop a process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' Policies that have federalism implications are defined
in the Executive Order to include rules that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' DHS and DOS
have analyzed the proposed rule in accordance with the principles and
criteria in the Executive Order and have determined that it does not
have federalism implications or a substantial direct effect on the
States. The proposed rule requires United States citizens and
nonimmigrant aliens from Canada, Bermuda and Mexico entering the United
States by air or sea from Western Hemisphere countries to present a
valid passport. States do not conduct activities with which this rule
would interfere. For these reasons, this proposed rule would not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
D. Executive Order 12988: Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988. Executive Order 12988 requires
agencies to conduct reviews on civil justice and litigation impact
issues before proposing legislation or issuing proposed regulations.
The order requires agencies to exert reasonable efforts to ensure that
the regulation identifies clearly preemptive effects, effects on
existing federal laws or regulations, identifies any retroactive
effects of the regulation, and other matters. DHS and DOS have
determined that this regulation meets the requirements of Executive
Order 12988 because it does not involve retroactive effects, preemptive
effects, or the other matters addressed in the Executive Order.
E. Unfunded Mandates Reform Act Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
enacted as Public Law 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the UMRA is any
provision in a Federal agency regulation that will impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section
204(a), provides that before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals.
This proposal would not impose a significant cost or uniquely
affect small governments. The proposal does have an effect on the
private sector of $100 million or more. This impact is discussed under
the Executive Order 12866 discussion.
F. Paperwork Reduction Act
The collection of information requirement for passports is
contained in 22 CFR 51.20 and 51.21. The required information is
necessary for DOS Passport Services to issue a United States passport
in the exercise of authorities granted to the Secretary of State in 22
U.S.C. Section 211a et seq. and Executive Order 11295 (August 5, 1966)
for the issuance of passports to United States citizens and non-citizen
nationals. The issuance of U.S. passports requires the determination of
identity and nationality with reference to the provisions of Title III
of the Immigration and Nationality Act (8 U.S.C. sections 1401-1504),
the 14th Amendment to the Constitution of the United States, and other
applicable treaties and laws. The primary purpose for soliciting the
information is to establish nationality, identity, and entitlement to
the issuance of a United States passport or related service and to
properly administer and enforce the laws pertaining to issuance
thereof.
There are currently two OMB-approved application forms for
passports, the DS-11 Application for a U.S. Passport (OMB Approval No.
1405-0004) and the DS-82 Application for a U.S. Passport by Mail. First
time applicants must use the DS-11. The proposed rule would not create
any new collection of information requiring OMB approval under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507). It would result in an
increase in the number of persons filing the DS-11, and a corresponding
increase in the annual reporting and/or record-keeping burden. In
conjunction with publication of the final rule, DOS will amend the OMB
form 83I (Paperwork Reduction Act Submission) relating to the DS-11 to
reflect these increases.
[[Page 46172]]
The collection of information encompassed within this proposed rule
has been submitted to the OMB for review in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not
conduct, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number assigned by OMB.
Estimated total reporting and/or recordkeeping burden over 3 years:
37.4 million hours.
Estimated annual average reporting and/or recordkeeping burden:
12.5 million hours.
Estimated total number of respondents over 3 years: 26.4 million.
Estimated annual average number of respondents: 8.8 million.
Estimated average burden per respondent: 1 hour 25 minutes.
Estimated frequency of responses: every 10 years (adult passport
application); every 5 years (minor passport application).
Comments on the collection of information should be sent to the
Office of Management and Budget, Attention: Desk Officer of the
Department of State, Office of Information and Regulatory Affairs,
Washington, DC 20503. Comments should be submitted within the time
frame that comments are due regarding the substance of the proposal.
Comments are invited on: (a) Whether the collection is necessary
for the proper performance of the functions of the agency, including
whether the information will have practical utility; (b) the accuracy
of the agency's estimate of the burden of the collection of the
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; (d) ways to minimize the burden of the
collection of information on respondents, including through the use of
automated collection techniques or other forms of information
technology; and (e) estimates of capital or startup costs and costs of
operations, maintenance, and purchases of services to provide
information.
G. Privacy Statement
A Privacy Impact Assessment (PIA) is being posted to the DHS Web
site (at http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0511.xml) in conjunction with the publication of this proposed rule in
the Federal Register. The changes proposed in this rule involve the
removal of an exception for United States citizens from having to
present a passport in connection with Western Hemisphere travel, such
that those individuals must now present a passport when traveling from
points of origin both within and without of the Western Hemisphere. The
rule expands the number of individuals submitting passport information
for travel within the Western Hemisphere, but does not involve the
collection of any new data elements. Presently, CBP collects and stores
passport information from all travelers, required to provide such
information pursuant to the Aviation and Transportation Security Act of
2001 (ATSA) and the Enhanced Border Security and Visa Reform Act of
2002 (EBSA), in the Treasury Enforcement Communications System (TECS)
(a System of Records Notice for which is published at 66 FR 53029). By
removing the exception for submitting passport information from United
States citizens traveling within the Western Hemisphere, DOS and CBP
are requiring these individuals to comply with the general requirement
to submit passport information when traveling to and from the United
States.
List of Subjects
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
22 CFR Part 41
Aliens, Nonimmigrants, Passports and visas.
22 CFR Part 53
Passport Requirement and Exceptions; parameters for U.S. citizen
travel and definitions.
Amendment of the Regulations
For the reasons stated in the preamble, DHS and DOS propose to
amend 8 CFR parts 211 and 235 and 22 CFR parts 41 and 53 as set forth
below.
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
1. The authority citation for part 212 is amended to read as
follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227; 8 U.S.C. 1185 note (section 7209
of Pub. L. 108-458).
2. Section 212.1 is amended by:
a. Revising paragraphs (a)(1) and (a)(2); and
b. Revising paragraphs (c)(1)(i), as follows:
Sec. 212.1 Documentary requirements for nonimmigrants.
* * * * *
(a) Citizens of Canada or Bermuda, Bahamian nationals or British
subjects resident in certain islands.--(1) Canadian citizens. A visa is
not required. A passport is not required for Canadian citizens entering
the United States from within the Western Hemisphere by land, ferry,
pleasure vessel as defined in 22 CFR 53.1(b), or as participants in the
NEXUS Air program pursuant to 8 CFR 235.1(e). A passport is otherwise
required for Canadian citizens arriving in the United States by
aircraft or by commercial sea vessels as defined in 22 CFR 53.1(b).
(2) Citizens of the British Overseas Territory of Bermuda. A visa
is not required. A passport is not required for Citizens of the British
Overseas Territory of Bermuda entering the United States from within
the Western Hemisphere by land, ferry, or pleasure vessel, as defined
in 22 CFR 53.1(b). A passport is otherwise required for Citizens of the
British Overseas Territory of Bermuda arriving in the United States by
aircraft or by commercial sea vessels as defined in 22 CFR 53.1(b).
* * * * *
(c) Mexican nationals. (1) A visa and a passport are not required
of a Mexican national who:
(i) Is in possession of a Form DSP-150, B-1/B-2 Visa and Border
Crossing Card, containing a machine-readable biometric identifier,
issued by the DOS and is applying for admission as a temporary visitor
for business or pleasure from a contiguous territory by land, ferry, or
pleasure vessel, as defined in 22 CFR 53.1(b).
* * * * *
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
3. The authority citation for part 235 is amended to read as
follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226,
1228, 1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of
Pub. L. 108-458).
4. Section 235.1 is amended by:
a. Redesignating current paragraphs (d), (e), and (f) as paragraphs
(f), (g), and (h);
b. Adding a new paragraph (d); and
c. Adding a new paragraph (e).
The additions and revisions read as follows:
[[Page 46173]]
Sec. 235.1 Scope of Examination.
* * * * *
(d) U.S. Merchant Mariners. United States citizens who are holders
of a Merchant Mariner Document (MMD or Z-card) issued by the U.S. Coast
Guard may present, in lieu of a passport, an MMD used in conjunction
with maritime business when entering the United States.
(e) NEXUS Air Program Participants. United States citizens,
Canadian citizens, and permanent residents of Canada who are traveling
as participants in the NEXUS Air program, may present, in lieu of a
passport, a valid NEXUS Air membership card when using a NEXUS Air
kiosk prior to entering the United States.
* * * * *
PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY ACT, AS AMENDED
5. The authority citation for part 41 is amended to read as
follows:
Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795
through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458).
6. Section 41.1 is amended revising paragraph (b) to read as
follows:
* * * * *
(b) American Indians born in Canada. An American Indian born in
Canada, having at least 50 per centum of blood of the American Indian
race, entering from contiguous territory by land, ferry, pleasure
vessel as defined in 22 CFR 53.1(b), or as participants in the NEXUS
Air program pursuant to 8 CFR 235.1(e) (sec. 289, 66 Stat. 234; 8
U.S.C. 1359).
* * * * *
7. Section 41.2 is amended by:
a. Revising paragraphs (a) and (b);
b. Revising paragraph (g)(1);
c. Removing paragraphs (g)(2) and (g)(4); and
d. Redesignating paragraphs (g)(3) as (g)(2), (g)(5) as (g)(3), and
(g)(6) as (g)(4);
* * * * *
(a) Canadian nationals. A visa is not required. A passport is not
required for Canadian citizens entering the United States from within
the Western Hemisphere by land, ferry, pleasure vessel as defined in 22
CFR 53.1(b), or as participants in the NEXUS Air program pursuant to 8
CFR 235.1(e). A passport is required for Canadian citizens arriving in
the United States by aircraft or by commercial sea vessels as defined
in 22 CFR 53.1(b).
(b) Citizens of the British Overseas Territory of Bermuda. A visa
is not required. A passport is not required for Citizens of the British
Overseas Territory of Bermuda entering the United States from within
the Western Hemisphere by land, ferry, or pleasure vessel, as defined
in 22 CFR 53.1(b). A passport is required for Citizens of the British
Overseas Territory of Bermuda arriving in the United States by aircraft
or by commercial sea vessels as defined in 22 CFR 53.1(b).
* * * * *
(g) Mexican nationals. (1) A visa and a passport are not required
of a Mexican national in possession of a Form DSP-150, B-1/B-2 Visa and
Border Crossing Card, containing a machine-readable biometric
identifier, applying for admission as a temporary visitor for business
or pleasure from a contiguous territory by land, ferry, or pleasure
vessel, as defined in 22 CFR 53.1(b).
* * * * *
8. Part 53 is revised to read as follows:
PART 53--PASSPORT REQUIREMENT AND EXCEPTIONS
Sec.
53.1 Passport requirement; definitions.
53.2 Exceptions.
53.3 Attempt of a citizen to enter without a valid passport.
53.4 Optional use of a valid passport.
Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 note (section 7209 of
Pub.L. 108-458); E.O. 13323, 69 FR 241 (Dec. 30, 2003).
Sec. 53.1 Passport requirement; definitions.
(a) It is unlawful for a citizen of the United States, unless
excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or
depart, the United States, without a valid U.S. passport.
(b) For purposes of this part:
(1) Commercial sea vessel means any civilian vessel being used to
transport persons or property for compensation or hire to or from any
port or place including all cruise ships.
(2) Ferry means any vessel operating on a pre-determined fixed
schedule and route, which is being used solely to provide
transportation between places that are no more than 300 miles apart and
which is being used to transport passengers, vehicles, and/or railroad
cars.
(3) Pleasure vessel means a vessel that is used exclusively for
recreational or personal purposes and not to transport passengers or
property for hire.
(4) United States means ``United States'' as defined in Sec.
215(c) of the Immigration and Nationality Act of 1952, as amended (8
U.S.C. 1185(c)).
Sec. 53.2 Exceptions.
A U.S. citizen is not required to bear a valid U.S. passport to
enter or depart the United States:
(a) When traveling directly between parts of the United States as
defined in Sec. 50.1 of this chapter; or
(b) When entering the United States from, or departing the United
States for, Mexico or Canada by land; or
(c) When entering from or departing to a foreign port or place
within the Western Hemisphere, excluding Cuba, by pleasure vessel; or
(d) When entering from or departing to a foreign port or place
within the Western Hemisphere, excluding Cuba, by ferry; or
(e) When traveling as a member of the Armed Forces of the United
States on active duty; or
(f) When traveling as a U.S. citizen seaman, carrying a Merchant
Marine Document (MMD or Z-card) in conjunction with maritime business.
The MMD is not sufficient to establish citizenship for purposes of
issuance of a United States passport under 22 CFR Part 51; or
(g) When traveling as a participant in the NEXUS Air program with a
valid NEXUS Air membership card. United States citizens who are
traveling as participants in the NEXUS Air program, may present, in
lieu of a passport, a valid NEXUS Air membership card when using a
NEXUS Air kiosk prior to entering the United States. The NEXUS Air card
is not sufficient to establish citizenship for purposes of issuance of
a U.S. passport under 22 CFR Part 51; or
(h) When the U.S. citizen bears another document, or combination of
documents, that the Secretary of Homeland Security has determined under
Section 7209(b) of Public Law 108-458 (8 U.S.C. 1185 note) to be
sufficient to denote identity and citizenship; or
(i) When the U.S. citizen is employed directly or indirectly on the
construction, operation, or maintenance of works undertaken in
accordance with the treaty concluded on February 3, 1944, between the
United States and Mexico regarding the functions of the International
Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat.
1219, or other related agreements provided that the U.S. citizen bears
an official identification card issued by the IBWC; or
(j) When the Department of State waives, pursuant to EO 13323 of
December 30, 2003, Sec 2, the requirement with respect to the U.S.
citizen because there is an unforeseen emergency; or
(k) When the Department of State waives, pursuant to EO 13323 of
December 30, 2003, Sec 2, the requirement with respect to the U.S.
[[Page 46174]]
citizen for humanitarian or national interest reasons.
Sec. 53.3 Attempt of a citizen to enter without a valid passport.
The appropriate officer at the port of entry shall report to the
Department of State any citizen of the United States who attempts to
enter the United States contrary to the provisions of this part, so
that the Department of State may apply the waiver provisions of Sec.
53.2 (i) and Sec. 53.2(j) to such citizen, if appropriate.
Sec. 53.4 Optional use of a valid passport.
Nothing in this part shall be construed to prevent a citizen from
using a valid U.S. passport in a case in which that passport is not
required by this part 53, provided such travel is not otherwise
prohibited.
Dated: August 7, 2006,
Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.
Henrietta H. Fore,
Under Secretary for Management, Department of State.
[FR Doc. 06-6854 Filed 8-10-06; 8:45 am]
BILLING CODE 9111-14-P