[Federal Register Volume 71, Number 226 (Friday, November 24, 2006)]
[Rules and Regulations]
[Pages 68412-68430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9402]
[[Page 68411]]
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Part V
Department of Homeland Security
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Bureau of Customs and Border Protection
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Department of State
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8 CFR Parts 212 and 235
22 CFR Parts 41 and 53
Documents Required for Travelers Departing From or Arriving in the
United States at Air Ports-of-Entry From Within the Western Hemisphere;
Final Rule
Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 /
Rules and Regulations
[[Page 68412]]
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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 Departing From or Arriving in
the United States at Air Ports-of-Entry From Within the Western
Hemisphere
AGENCY: Bureau of Customs and Border Protection, Department of Homeland
Security; Bureau of Consular Affairs, Department of State.
ACTION: Final rule.
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SUMMARY: This rule finalizes the first phase of a joint Department of
Homeland Security and Department of State plan, known as the Western
Hemisphere Travel Initiative, to implement new documentation
requirements for certain United States citizens and nonimmigrant aliens
entering the United States. As a result of this final rule, with
limited exceptions discussed below, beginning January 23, 2007, all
United States citizens and nonimmigrant aliens from Canada, Bermuda,
and Mexico departing from or entering the United States from within the
Western Hemisphere at air ports-of-entry will be required to present a
valid passport. This final rule differs from the Notice of Proposed
Rulemaking (NPRM) published in the Federal Register on August 11, 2006,
by finalizing new documentation requirements for only travelers
arriving in the United States by air. The portion of the NPRM that
proposed changes in documentation requirements for travelers arriving
by sea will not be finalized under this rule. Requirements for United
States citizens and nonimmigrant aliens from Canada, Bermuda, and
Mexico departing from or entering the United States at land and sea
ports-of-entry will be addressed in a separate, future rulemaking.
DATES: This final rule is effective on January 23, 2007.
FOR FURTHER INFORMATION CONTACT:
Department of Homeland Security: Robert Rawls, Office of Field
Operations, Bureau of Customs and Border Protection, 1300 Pennsylvania
Avenue, NW., Room 5.4-D, Washington, DC 20229, telephone number (202)
344-2847.
Department of State: Consuelo Pachon, Office of Passport Policy,
Planning and Advisory Services, Bureau of Consular Affairs, telephone
number (202) 663-2662.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Documentation Requirements Prior to the Effective Date of
this Rule
1. U.S. Citizens
2. Nonimmigrant Aliens from Canada Citizens and the British
Overseas Territory of Bermuda
3. Mexican Citizens
B. Statutory and Regulatory History
II. Summary of Changes from NPRM and New Document Requirements
III. Discussion of Comments
A. General
B. Timeline
C. Passports
1. General
2. Cost of Passports
3. Obtaining Passports
4. Children
5. DOS Issuance Capacity
D. Alternative Documents
1. General
2. Driver's License and Birth Certificate
3. Real ID Act Compliant Driver's Licenses
4. Border Crossing Cards
5. Merchant Mariner Cards
6. NEXUS Air Cards
7. Passport Cards
8. Tribal Documents
E. Implementation and Effect on Specific Populations
1. General
2. Outer Continental Shelf
3. Emergencies
F. Outside the Scope of this Rulemaking
G. Public Relations
H. Regulatory Analyses
1. General
2. Executive Order 12866
3. Regulatory Flexibility Act
IV. Conclusion
V. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act
C. Executive Order 13132: Federalism
D. Executive Order 12988: Civil Justice Reform
E. Unfunded Mandates Reform Act Assessment
F. Paperwork Reduction Act
G. Privacy Statement
List of Subjects
Amendments to the Regulations
Abbreviations and Terms Used in This Document
ANPRM--Advance Notice of Proposed Rulemaking
APIS--Advance Passenger Information System
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--Bureau of Customs and Border Protection
DHS--Department of Homeland Security
DMV--Department of Motor Vehicles
DOS--Department of State
FAST--Free and Secure Trade
IBWC--International Boundary and Water Commission
ICAO--International Civil Aviation Organization
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
MMD--Merchant Mariner Document
MODU--Mobile Offshore Drilling Unit
NATO--North Atlantic Treaty Organization
NPRM--Notice of Proposed Rulemaking
OCS--Outer Continental Shelf
OTTI--Office of Travel & Tourism Industries
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
TSA--Transportation Security Administration
TWIC--Transportation Worker Identification Card
US-VISIT--United States Visitor and Immigrant Status Indicator
Technology Program
WHTI--Western Hemisphere Travel Initiative
I. Background
For a detailed discussion of the current documentation requirements
for travelers entering the United States from within the Western
Hemisphere, the statutory and regulatory histories, and the
applicability of the rule related to specific groups, please see the
NPRM published on August 11, 2006, at 71 FR 46155.
A. Documentation Requirements Prior to the Effective Date of This Rule
The documentation requirements for travelers entering the United
States by air generally depend on the nationality of the traveler and
whether or not the traveler is entering the United States from a
country within the Western Hemisphere. The following is an overview of
the documentation requirements for citizens of the United States,
Canada, British Overseas Territory of Bermuda, and Mexico who enter the
United States at air ports-of-entry prior to the effective date of this
rule.
1. U.S. Citizens
U.S. citizens must possess a valid U.S. passport to depart from or
enter the
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United States.\1\ However, this passport requirement has not applied to
U.S. citizens who depart from or enter the United States from within
the Western Hemisphere other than from Cuba.\2\ United States citizens
have been required to satisfy the inspecting officers of their
identities and citizenship. Accordingly, U.S. citizens have not been
required to present a valid passport when entering the United States by
air from within the Western Hemisphere other than Cuba.\3\
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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\ In lieu of a passport, U.S. citizens have been permitted to
present a variety of documents to establish their identity and
citizenship and right to enter the United States. A driver's license
issued by a state motor vehicle administration or other competent
state government authority is a common form of identity document.
Citizenship documents generally include birth certificates issued by
a United States jurisdiction, Consular Reports of Birth Abroad,
Certificates of Naturalization, and Certificates of Citizenship.
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2. Nonimmigrant Aliens From Canada and the British Overseas Territory
of Bermuda
Each nonimmigrant alien arriving in the United States must present
a valid unexpired passport issued by his or her country of citizenship
and, if required, a valid unexpired visa issued by a United States
embassy or consulate abroad.\4\ Nonimmigrant aliens entering the United
States must also satisfy any other applicable entry requirements (e.g.,
United States Visitor and Immigrant Status Indicator Technology Program
(US-VISIT)). In most cases, Canadian citizens and citizens of the
British Overseas Territory of Bermuda (Bermuda) have not been required
to present a valid passport and visa when entering the United States as
nonimmigrant visitors from countries in the Western Hemisphere.\5\
These travelers have been required to satisfy the inspecting CBP
officer of their identities and citizenship at the time of their
application for admission.\6\
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\4\ Section 212(a)(7)(B)(i) of the INA, 8 U.S.C.
1182(a)(7)(B)(i).
\5\ 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR 212.1(a)(2)
(Citizens of Bermuda). See also 22 CFR 41.2.
\6\ Entering aliens may present any evidence of identity and
citizenship in their possession. Individuals who initially fail to
satisfy the examining CBP officer may then be required to provide
further identification and evidence of citizenship such as a birth
certificate, passport, or citizenship card.
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3. Mexican Citizens
Mexican citizens are generally required to present a valid
unexpired passport and visa when entering the United States. However,
Mexican citizens arriving in the United States at ports-of-entry who
possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) \7\
currently may be admitted without presenting a valid passport if they
are coming from contiguous territory.\8\ While the use of a BCC without
a passport is atypical in the air environment, it has been permitted.
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\7\ A BCC is a machine-readable, biometric card, issued by the
Department of State, Bureau of Consular Affairs.
\8\ 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g). If they are
only traveling within a certain geographic area along the United
States' border with Mexico: usually up to 25 miles from the border
but within 75 miles under the exception for Tucson, Arizona, they do
not need to obtain a form I-94. If they travel outside of that
geographic area, they must obtain an I-94 from CBP at the port-of-
entry. 8 CFR 235.1(f)(1).
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B. Statutory and Regulatory History
On December 17, 2004, the President signed into law the
Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).\9\
Section 7209 of IRTPA, as amended by the Department of Homeland
Security Appropriations Act of 2007, provides that the Secretary of
Homeland Security, in consultation with the Secretary of State, develop
and implement a plan to require travelers entering the United States to
present a passport, other document, or combination of documents, that
are ``deemed by the Secretary of Homeland Security to be sufficient to
denote identity and citizenship.'' As a result, United States citizens
and nonimmigrant aliens from Canada, Mexico, and Bermuda will be
required to comply with the new documentation requirements.
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\9\ Pub. L. 108-458, 118 Stat. 3638 (Dec. 17, 2004).
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On September 1, 2005, the Department of Homeland Security (DHS) and
the Department of State (DOS) published in the Federal Register at 70
FR 52037, an advance notice of proposed rulemaking (ANPRM) that
announced that DHS and DOS were planning to amend their respective
regulations to implement section 7209 of IRTPA. For further
information, please see the ANPRM document that was published in the
Federal Register on September 1, 2005, at 70 FR 52037.
On August 11, 2006, DHS and DOS published in the Federal Register
at 71 FR 46155, an NPRM that announced that DHS and DOS were planning
to amend their respective regulations to implement section 7209 of
IRTPA. The NPRM proposed that, with some exceptions, United States
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico
traveling into the United States by air and sea from Western Hemisphere
countries, be required to show a passport. The NPRM did not propose
changes to the documentation requirements at land border ports-of-
entry.
The NPRM proposed that the passport requirement would apply to all
air and most sea travel, including commercial air travel and commercial
sea travel. According to the NPRM, there were two categories of travel
and one category of traveler that would not be subject to the passport
requirement proposed for air and sea travel, but would be addressed in
the second phase rulemaking for land border travel. First, the NPRM
provided that the passport requirement would not apply to pleasure
vessels used exclusively for pleasure and which are not for the
transportation of persons or property for compensation or hire. Second,
the NPRM stated that the passport requirement would not apply to travel
by ferry. Finally, the NPRM provided that the passport requirement
would not apply to United States citizen members of the Armed Forces on
active duty.
The NPRM also proposed to designate two documents, in addition to
the passport, as sufficient to denote identity and citizenship under
section 7209, and acceptable for air and sea travel. The first document
was the Merchant Mariner Document (MMD) or ``z-card'' issued by the
United States Coast Guard (Coast Guard) to Merchant Mariners. The
second document was the NEXUS Air card when used with a NEXUS Air
kiosk.\10\
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\10\ Air Nexus is an airport border clearance pilot project.
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On October 4, 2006, the President signed into law the Department of
Homeland Security Appropriations Act of 2007 (DHS Appropriations Act of
2007).\11\ Section 546 of the DHS Appropriations Act of 2007 amended
section 7209 of IRTPA by stressing the need for DHS and DOS to
expeditiously implement the requirements by the earlier of two dates,
June 1, 2009, or three months after the Secretaries of Homeland
Security and State certify that certain criteria have been met. The
section requires ``expeditious[ ]'' action and states that requirements
must be satisfied by the ``earlier'' of dates identified. By using this
language, the drafters expressed an intention for rapid action.\12\
Congress also expressed an interest in having the requirements for land
and sea implemented at the same
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time as part of the DHS Appropriations Act of 2007.\13\
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\11\ Pub. L. 109-295, 120 Stat. 1355 (Oct. 4, 2006).
\12\ Id. at Sec. 546. See Congressional Record, 109th cong. 2nd
sess., September 29, 2006 at H7964.
\13\ Id.
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On October 17, 2006, to meet the documentary requirements of the
Western Hemisphere Travel Initiative and to facilitate the frequent
travel of persons living in border communities, the Department of
State, in consultation with the Department of Homeland Security,
proposed to develop a card-format passport, called the Passport Card,
for international travel by United States citizens through land and sea
ports of entry between the United States, Canada, Mexico, or the
Caribbean and Bermuda.\14\
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\14\ 71 FR 60928.
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II. Summary of Changes From NPRM and New Document Requirements
Under this final rule, beginning January 23, 2007, United States
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico
entering the United States at air ports-of-entry will generally be
required to present a valid passport. Accordingly, all aviation
passengers and crew, including commercial flights and general aviation
flights (i.e., private planes), who arrive at air ports-of-entry in the
United States from countries within the Western Hemisphere will be
required to possess a valid passport beginning January 23, 2007. The
only exceptions to this requirement would be for United States citizens
who are members of the United States Armed Forces traveling on active
duty; travelers who present a Merchant Mariner Document traveling in
conjunction with maritime business; and travelers who present a NEXUS
Air card used at a NEXUS Air kiosk.
This final rule does not change the documentation requirements for
United States citizens and nonimmigrant aliens from Canada, Bermuda,
and Mexico who arrive at sea ports-of-entry. Based on DOS' recent
proposal to allow the use of the Passport Card in the sea environment,
Congress' intent with respect to the land and sea environments, and the
public comments, DHS and DOS have decided to defer decisions on the
proposed changes to documentation requirements for arrivals by sea.
Arrivals by sea and land will be addressed in a separate, future
rulemaking.
III. Discussion of Comments
In both the ANPRM and NPRM, DHS and DOS sought public comment to
assist the Secretary of Homeland Security to make a final determination
concerning which document, or combination of documents, other than
valid passports, would be accepted at ports-of-entry.
DHS and DOS received 2,062 written comments in response to the
ANPRM and 104 written comments in response to the NPRM. The majority of
the comments (1,910 from the ANPRM) addressed only potential changes to
the documentation requirements at land border ports-of-entry. One
hundred and fifty-two comments from the ANPRM addressed changes to the
documentation requirements for persons arriving at air or sea ports-of-
entry. Comments in response to both the ANPRM and NPRM were received
from a wide range of sources including: private citizens; businesses
and associations; local, state, federal, and tribal governments;
members of the United States Congress; and foreign government
officials.
Since this final rule addresses solely the changes to the
documentation requirements for travelers arriving at air ports-of-
entry, the comments received in response to the ANPRM and NPRM
regarding arrivals by land and sea will not be addressed in this
rulemaking. A summary of the comments from both the ANPRM and the NPRM
primarily regarding air travel follows with complete responses to the
comments.
A. General
Forty-nine commenters agreed with a passport requirement.
In contrast, eleven commenters expressed general disagreement with
a passport requirement for travel within the Western Hemisphere where
such documentation was previously not required.
B. Timeline
Comment
We received many comments regarding the implementation timeline for
new documentation requirements. Nine commenters stated that the
requirements for all air, sea, and land-border crossings should be
implemented without delay. Two commenters agreed with the timelines for
a phased-in approach. One commenter stated that the January 1, 2007,
timeline announced in the ANPRM should be maintained.
Forty-five commenters asked for a single implementation date for
land, air, and sea. Fifty-seven commenters requested that the
implementation date be delayed to December 31, 2007, or later. Several
commenters asserted that the implementation date for cruise passengers
not occur earlier than the statutory deadline. Among the reasons to
support a single and delayed implementation date, commenters asserted
that one timeline would be more fair, provide adequate time for
travelers to comply with the new regulations, and allow time to
communicate the requirements to the public. One commenter reasoned that
one timeline would ensure that infrastructure and technology is in
place to support the initiative. Another commenter requested that
changes to the requirements for commercial fishermen transiting between
Alaska and Washington be delayed and addressed with persons arriving by
pleasure boats and ferries, not with commercial vessels as proposed.
One commenter requested that general aviation have the same
implementation date as pleasure boats and land-border crossings.
Response
DHS and DOS agree with the commenters that the implementation date
for new documentation requirements for travelers arriving by sea should
be delayed. In the NPRM, DHS and DOS proposed to implement new
documentation requirements for travelers arriving at air ports-of-entry
and most sea ports-of-entry. However, based on DOS' recent Passport
Card proposal which would allow the Passport Card for sea travel, the
Departments have decided to delay new requirements for arrivals by sea
until the Passport Card is available for use in the sea environment.
Delaying the implementation date for the sea environment will allow the
Departments to develop the Passport Card and enhance the infrastructure
and technology to support the Passport Card for arrivals by sea. This
is also consistent with Congress' intent to implement the land and sea
environments at the same time as expressed in section 546 of the DHS
Appropriations Act of 2007. Additionally, this delay will address the
concerns for commercial fishermen transiting between Alaska and the
United States by not implementing new requirements until the Passport
Card is operational. It will also be less confusing to the public to
implement sea and land requirements, both of which would accept the
Passport Card, at the same time. Therefore, the documentation
requirements for travelers arriving by sea, whether aboard commercial
vessels, pleasure vessels, or ferries, will not change under this final
rule.
DHS and DOS have determined that the proposed implementation date
of January 23, 2007, is appropriate for air travel because of
operational considerations and available resources. This phased
approach is essential
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because a staggered implementation in advance of the statutory deadline
will enhance security requirements using existing infrastructure while
allowing the Departments time to acquire and develop resources to meet
the increased demand for sea and land-border entries.
C. Passports
1. General
Comment
One commenter raised concerns about the security of U.S. and
foreign passports, stating that passports may be easily falsified or
altered. Another commenter stated that terrorists could misuse
passports. One commenter stated that Radio Frequency Identification
(RFID), as related to electronic passports, poses a safety concern
because it can be read from a distance.
Response
Passports are acceptable at the border as a matter of law.
The primary purpose of the passport has always been to establish
citizenship and identity. It has been used to facilitate travel to
foreign countries by displaying any appropriate visas or entry/exit
stamps. Passports are globally interoperable, consistent with worldwide
standards, and usable regardless of the international destination of
the traveler.
U.S. passports incorporate a host of security features. These
security features include, but are not limited to, rigorous
adjudication standards and document security features. The adjudication
standards establish the individual's citizenship and identity and
ensure that the individual meets the qualifications for a U.S.
passport. The document security features include digitized photographs,
embossed seals, watermarks, ultraviolet and fluorescent light
verification features, security laminations, micro-printing, and
holograms to authenticate passports. A U.S. passport is a document that
is adjudicated by trained DOS experts and issued to persons who have
documented their United States identity and citizenship by birth,
naturalization or derivation. Applications are subject to additional
Federal government checks to ensure the applicants are eligible to
receive a U.S. passport under applicable standards (for example, those
subject to outstanding federal warrants for arrest are not eligible for
a U.S. passport).
Foreign passports accepted for admission to the United States must
meet the standards set out in International Civil Aviation Organization
(ICAO) 9303. Passports issued by Canada, Mexico, and Bermuda meet these
international standards and are, therefore, acceptable. Finally, the
Customs and Border Protection (CBP) Officer verifies and authenticates
the passport presented for entry.
Privacy and security concerns related to RFID technology were
addressed in extensive detail in the final rule for electronic
passports published by DOS on October 25, 2005, at 70 FR 61553.
Comment
Two commenters asked if non-U.S. citizens would be allowed to
depart the United States without a passport, regardless of their intent
to return to the United States.
Response
Currently, if an individual is not required to present a passport
upon entry to the United States, that individual does not need to
present a passport upon exit. Under this final rule, however, if an
individual must present a passport upon entry, then that individual
will also need to bear one upon exit. In the event that non-U.S.
citizens' passports are lost or stolen, those individuals would need to
contact their nearest consular office to have the documents replaced
prior to departing the United States.
2. Cost of Passports
Comment
Nineteen commenters stated that the cost for a U.S. passport is
high and that the process for obtaining a passport should be made
easier. One commenter stated that while the passport cost is ``high''
it should not outweigh safety and security. Twenty-one commenters
stated that the cost for a U.S. passport is high. Several commenters
requested that DOS offer discounted or free passports to certain groups
such as students, senior citizens, families with children, welfare
recipients, group purchases, and early purchasers. Two commenters
stated that the cost of a passport should be significantly lessened for
citizens below the poverty level. Six commenters stated that the
passport cost should be greatly reduced.
Response
At this time, DOS does not intend to offer discounts or no-fee
passports for any of the specific groups mentioned. The passport fee
reflects the actual costs of adjudicating a passport application and
producing a passport. Because the requirements for adjudication and
production remain the same for all applicants, DOS does not intend to
offer discounts.
Comment
One commenter to the NPRM stated that the cost for a Canadian
passport is high and that the process for obtaining a passport should
be made easier.
Response
While the U.S. Government is working closely with passport agencies
throughout the Western Hemisphere on WHTI and other travel document
security matters, each nation's government ultimately controls the
process and cost for obtaining a passport. The application process for
and cost of a Canadian Government issued document is outside the scope
of this rulemaking.
3. Obtaining Passports
Comment
One commenter stated that the process for obtaining a passport
should be made easier. One commenter stated that the passport
application process is very burdensome for travelers in remote areas.
Response
While some applicants may find the current process burdensome, the
application process is standard across the U.S. and is intended to
establish nationality, identity, and entitlement to the issuance of a
U.S. passport. Due to statutory requirements and established
regulations, a complete end-to-end electronic submission for the DS-11
form (Application for a U.S. Passport) is currently not possible.
However, in an effort to provide customers with an electronic
alternative to the paper-based form, the DS-11 form is posted on the
DOS Web site, where it can be filled out online and printed for
submission. There are over 7,500 acceptance facilities nationwide
including many Federal, state and probate courts, post offices, some
public libraries and a number of county and municipal offices.
Additionally, there are 14 regional passport agencies and 1 Gateway
City Agency that serve customers who are traveling within 2 weeks or
who need foreign visas for travel. Complete information on how to
obtain, replace, or change a passport can be found at the DOS Web site:
http://travel.state.gov/passport/passport_1738.html.
4. Children
Comment
Thirty-nine commenters asked to allow travelers under the age of 16
to be exempt from a passport requirement and able to use a birth
certificate as sufficient proof of identity and
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citizenship. One commenter suggested simplifying passport procedures
for children under 16.
One commenter stated that children under 16 should not be exempt
from a passport requirement in the Western Hemisphere.
Response
The United States Government currently requires all U.S. citizens,
including children, arriving from countries outside the Western
Hemisphere to provide a passport when entering the United States.
IRTPA, as amended, does not contain a general exemption from providing
a passport or other document designated by DHS for children under the
age of 16 when entering the United States from Western Hemisphere
countries. Consequently, children under the age of 16 arriving from
Western Hemisphere countries will be required to present a passport
when entering the United States by air. Requiring passports for
children departing from or entering the United States will also assist
the U.S. Government, as well as foreign governments within the Western
Hemisphere, to prevent child abductions. Of the nearly 600
international parental child abductions brought to the attention of the
State Department each year, outgoing parental abductions of American
children from the U.S. to Canada and Mexico represent about one-
quarter.
5. DOS Issuance Capacity
Comment
Seven commenters expressed concern that DOS may not be able to
issue several million new passports in the timeframe required and
without significant delay.
Two commenters to the NPRM expressed concern about whether DHS and
DOS would be able to successfully implement the new passport
requirements by January 8, 2007.
Response
DOS appreciates the commenters' concerns and is already expanding
passport production capacity to meet the additional demand for
passports. DOS will be able to meet a significant increase in demand
from the more than 10 million passports produced in fiscal year 2005.
DOS estimates a 25 percent increase in passport applications so far in
fiscal year 2006. DOS has increased passport production capacity with
an aim towards processing 16 million passports in fiscal year 2007 and
19 million passports in fiscal year 2008. The Departments have taken
the appropriate measures to ensure the implementation of the new
requirements by the implementation date.
D. Alternative Documents
1. General
Comment
Twenty-four commenters asked for a clear definition of other secure
documents that will be accepted in addition to a passport. Eight
commenters asked that NEXUS, SENTRI, and FAST cards be accepted in lieu
of a passport. Three commenters stated that other travel documents
should be used in lieu of a passport where practicable.
One commenter asked that WHTI should be linked to the evolution of
the Registered Traveler program.
Response
Other acceptable documents are designated in this rule by the
Secretary of DHS to sufficiently establish identity and citizenship at
airports. The documents designated in this rule are sufficiently secure
to impede counterfeiting and alterations for fraudulent purposes. Along
with the passport, the Secretary of Homeland Security is designating
the MMD and the NEXUS Air card when used at a NEXUS Air kiosk as
sufficient to denote identity and citizenship under section 7209 and
acceptable for air travel. Currently, the rest of the NEXUS program
cards, as well as SENTRI and FAST cards, are accepted only at
designated lanes at land-border ports-of-entry and not in the air
environment. Currently, the Transportation Security Administration's
(TSA) Registered Traveler program is for domestic travel only.
Comment
One commenter asked that a Transportation Worker Identification
Card (TWIC) be designated as an acceptable document to denote
citizenship and identity.
Response
A TWIC card will not be suitable as an alternative document because
it does not denote citizenship and is not intended as a travel
document. Although a TWIC card would positively identify the bearer of
the card, citizenship would have to be established through a paper-
based document because a TWIC card does not provide citizenship
information. Because, as proposed, TWIC cards may be issued to non-U.S.
citizens and they do not denote citizenship, they could not be used in
place of passports. In addition, the TWIC could not be read by current
CBP technology installed in air ports-of-entry. While there will be
information embedded in the chip on the TWIC, only the name of the
individual and a photo ID are apparent to a CBP officer upon
presentation. CBP could not validate this document at primary
inspection for the reasons outlined in the next section addressing the
use of birth certificates.
Comment
One commenter asked that an International Boundary Water Commission
(IBWC) identification be acceptable for land, air, and sea travel.
Response
In the NPRM, DHS and DOS clarified that documentation requirements
for direct and indirect employees of the IBWC (Article 20 of the 1944
Treaty Between the United States and Mexico regarding division of
boundary water and the functions of (IBWC), TS 922, Bevan 1166, 59
Stat. 1219; 8 CFR 212.1(c)(5)) crossing the United States-Mexico border
while on official business would not change under this final rule.
2. Driver's License and Birth Certificate
Comment
We received many comments stating that driver's licenses and birth
certificates should be acceptable to denote an individual's citizenship
and identity. Many commenters stated that these documents are
affordable and easily obtainable and their acceptance would not
dissuade travel. Several commenters stated that because a driver's
license and birth certificate are most commonly used to obtain a
passport, these documents should also be sufficient to establish
citizenship and identity at ports-of-entry.
Response
DHS and DOS disagree with the commenters. Because birth
certificates and driver's licenses are issued by numerous government
entities, there is no standard format for either document, and, at
present, it is not possible to authenticate either document quickly or
reliably. Some states only issue photocopies as replacements of birth
certificates, some states issue replacement birth certificates by mail
or through the Internet, and some states will not issue photo
identification to minors. Both documents lack security features and are
susceptible to counterfeiting or alteration. Neither the birth
certificate nor the state-issued identification is designed to be a
travel document. Birth certificates can easily
[[Page 68417]]
deteriorate when used frequently as travel documents because they are
normally made from paper with a raised seal, and they cannot be
laminated or otherwise protected from repeated use.
The U.S. birth certificate can be used as evidence of birth in the
United States; however, it does not provide definitive proof of
citizenship (e.g., children born in the U.S. to foreign diplomats do
not acquire U.S. citizenship at birth). Highly trained passport
specialists and consular officers abroad adjudicate passport
applications, utilizing identity and citizenship documents (U.S. birth
certificates, naturalization certificates, consular reports of birth
abroad, etc.). These specialists have resources available, including
fraud and document experts, to assist when reviewing documents and are
not faced with the same time constraints as CBP officers at ports-of-
entry. These factors explain why a birth certificate and driver's
license may be sufficient documentary evidence of citizenship and
identity for an application for a passport, but are not sufficient
under WHTI for entry to the United States. In addition, there is no
current way to validate that the person presenting the birth
certificate for inspection is, in fact, the same person to whom it was
issued. The lack of security features and the plethora of birth
certificate issuers in the United States (more than 8,000 entities)
currently make it difficult to reliably verify or authenticate a birth
certificate. A state-issued photo identification provides positive
identification with name, address, and photograph. However, a state-
issued photo identification does not provide proof of citizenship.
3. Real ID Act Compliant Driver's Licenses
Comment
In response to the ANPRM, twenty commenters asked DHS and DOS to
work with state governments on possible use of driver's licenses to
verify U.S. citizenship. In response to the NPRM, eleven commenters
asked DHS and DOS to accept driver's licenses that are in compliance
with the REAL ID Act of 2005.\15\
---------------------------------------------------------------------------
\15\ Pub. L. 109-13, codified at 49 U.S.C. 30301 note.
---------------------------------------------------------------------------
Response
As previously stated, driver's licenses currently do not denote
citizenship. The REAL ID specifications are still under consideration,
therefore the Secretary of Homeland Security cannot designate these
documents for travel in the Western Hemisphere. Once documents are
available that comply with the requirements of the REAL ID Act, the
Secretary may consider these documents for WHTI purposes. DHS will be
issuing a proposed rule implementing REAL ID driver's license
standards. At that time, DHS would encourage States interested in
developing driver's licenses that will meet both the REAL ID and WHIT
requirements to work closely with us to that end.
4. Border Crossing Cards
Comment
In response to the ANPRM, two commenters recommended that Border
Crossing Cards (BCCs) be acceptable documentation for citizens of
Mexico entering the United States through airports. One commenter to
the NPRM stated that the proposed rule would eliminate the BCC as an
acceptable entry document.
Response
At this time, DHS and DOS do not support allowing the BCC without
any additional documents in the air environment. The BCC is not
compatible with CBP's Advance Passenger Information System (APIS),
which collects data from travelers prior to their arrival in and
departure from the United States, and thus the BCC does not meet the
security objectives of WHTI. Accordingly, DHS has not designated the
BCC as a document sufficient to denote identity and citizenship for the
purposes of air travel into the United States when used by itself.
However, this final rule does not change the status of the BCC as a
valid entry document at sea and land-border ports-of-entry.
5. Merchant Mariner Cards
Comment
We received two comments to the NPRM that endorse the proposal that
a Merchant Mariners' Document (MMD) be accepted as proof of citizenship
and identity. These commenters also asserted that the MMD should also
be accepted for legal aliens because a U.S. Coast Guard-issued MMD will
provide the required proof of citizenship and identity for these
individuals.
Response
The U.S. Coast Guard primarily issues MMDs to U.S. citizen Merchant
Mariners.\16\ The Secretary of Homeland Security has determined that an
MMD, when used in conjunction with maritime business, would be
sufficient to denote identity and citizenship when presented upon
arrival at an air port-of-entry. Accordingly, under this rule, United
States citizens who possess an MMD would continue to be exempt from the
requirement to present a passport when arriving in the United States at
air ports-of-entry. However, the Coast Guard has proposed to phase-out
the MMD over the next five years and streamline all existing Merchant
Mariner credentials. DHS will accept the MMD as long as it is an
unexpired document. We also note that United States citizen Merchant
Mariners serving on U.S. flag vessels are eligible for no-fee U.S.
passports upon presentation of a letter from the employer and an MMD,
in addition to the standard evidence of citizenship and identity.
---------------------------------------------------------------------------
\16\ In very limited circumstances, foreign nationals who are
enrolled as students at the U.S. Merchant Marine Academy may obtain
an MMD. However, the number of international students who may attend
the Academy at any one time is 30 (46 CFR 310.66); therefore, the
number of MMDs issued to foreign nationals at any one time is
limited to 30. These MMDs denote citizenship on their face and are
valid only while a cadet in the U.S. Merchant Marine Academy (46 CFR
12.25-25). These foreign nationals will not be permitted to use the
MMD for entry purposes.
---------------------------------------------------------------------------
6. NEXUS Air Cards
Comment
Eleven commenters recommended that the NEXUS Air program be
accelerated and expanded. One commenter also added that the U.S.
government should attempt to reduce the costs of programs such as NEXUS
Air.
Response
NEXUS Air is an airport border clearance pilot project implemented
at one airport in Vancouver, Canada, by CBP and the Canada Border
Services Agency pursuant to the Shared Border Accord and Smart Border
Declaration between the United States and Canada. The NEXUS Air
alternative inspection program allows pre-screened, low-risk travelers
to be processed more efficiently by United States and Canadian border
officials. CBP is planning to expand the program beyond the Vancouver
international airport to other Canadian airports, but does not intend
to lower the costs of the program at this time. Travelers interested in
joining the NEXUS Air or any other CBP-sponsored trusted traveler
program should consult the CBP Web site (http://www.cbp.gov) for future
expansion plans, current availability, acceptance, and instructions on
how to enroll in the program.
[[Page 68418]]
7. Passport Cards
Comment
We received many comments asking DHS and DOS to develop low-cost
alternative travel documents. Eight commenters stated that an
alternative, secure travel document must be cost-effective and
available in a timely fashion for the average traveler. Fifteen
commenters asked that a low-cost travel card be developed. One
commenter asked that a card replace the traditional passport book,
stating that paper documentation is outdated. One commenter stated that
the document should fit in a wallet and be more durable than the
traditional passport book.
Two commenters stated that any technology contained in a secure
travel document should be determined before an implementation date is
finalized. Nine commenters stated that the Passport Card's scope should
be expanded to all modes of travel between the U.S., Mexico, and
Canada. One commenter stressed that the U.S. should work with Canada to
develop a similar low-cost travel document in Canada. One commenter
asked that a Passport Card be available for infrequent, as well as
frequent, travelers.
Response
DOS, in consultation with DHS, has begun developing an alternative
format passport: a card-format, limited-use Passport Card. Like a
traditional passport book, the Passport Card will be a secure travel
document that establishes the identity and citizenship of the bearer.
The Passport Card is being designed to benefit those citizens in border
communities who regularly cross the northern and southern borders every
day where such travel is an integral part of their daily lives. As
currently envisioned, it will be the size of a credit card and will be
less expensive than a traditional passport book. The application
process for the Passport Card will be the same as that for the passport
book in that each applicant will have to establish United States
citizenship, personal identity, and entitlement to obtain the document.
DOS intends to make the Passport Card available by summer 2007. For
more information see 71 FR 60928 (October 17, 2006). The Secretaries of
DHS and DOS have worked closely with the Canadian and Mexican
governments on numerous fronts, including the Security and Prosperity
Partnership (SPP) of North America, the Smart Border Declaration, and
the Shared Border Accord.
8. Tribal Documents
Comment
Three commenters to the NPRM stated that Native Americans should be
able to use their Tribal documents in the air environment because
treaty rights assure cross-border travel between the U.S. and Canada.
Response
Section 289 of the INA \17\ provides that Native Americans born in
Canada may ``pass the borders of the United States,'' provided they
possess at least 50 percentum of Native American blood. Historically,
the courts have addressed the right of Native Americans born in Canada
to ``pass the borders of the United States'' in the context of land
border crossings.\18\ Case law has not expressly addressed the
extension of the right to ``pass the borders of the United States'' by
air.\19\ Moreover, any right or privilege to ``pass the border'' does
not necessarily encompass a right to ``pass the border'' without
sufficient proof of identity and citizenship. Under the final rule,
Native Americans born in Canada will be required to present a valid
passport when departing from or entering the United States by air.
---------------------------------------------------------------------------
\17\ 8 U.S.C. 1359.
\18\ 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).
\19\ See Matter of Yellowquill, 16 I. & N. Dec. 576 (BIA 1978).
---------------------------------------------------------------------------
Regarding Native Americans born in the United States, Federal
statutes apply absent some clear indication that Congress did not
intend for them to apply.\20\ IRTPA expressly applies to United States
citizens and as a matter of law Native Americans born in the United
States are United States citizens.\21\ Moreover, Congress did not
indicate any intention to exclude Native Americans born in the United
States from the requirements of IRTPA. Under this final rule,
therefore, Native Americans born in the United States will be required
to present a valid passport when entering the United States by air.
---------------------------------------------------------------------------
\20\ 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).
\21\ 8 U.S.C. 1401(b).
---------------------------------------------------------------------------
E. Implementation and Effect on Specific Populations
Numerous commenters raised questions about how the new rule would
be implemented and how it would affect specific populations.
1. General
Comment
Two commenters to the NPRM noted that a U.S. citizen cannot be
denied entry to the United States. One commenter stated that the NPRM
did not address U.S. citizens that arrive at ports-of-entry without a
valid travel document.
Response
Section 215(b) of the INA requires U.S. citizens to bear passports
unless excepted by the President. By section 7209, Congress has limited
this exception authority to those individuals bearing other documents
acceptable to the Secretary of Homeland Security.
Comment
Three commenters asked if they would need passports if the
effective date of the rule falls between their departure and return
dates. One commenter asked that CBP refrain from penalizing air
carriers that transport travelers who, under the new passport
requirements, are improperly documented.
Response
Persons returning to the United States after the effective date of
implementation should plan to depart from the United States with
documents sufficient to meet requirements that will be in place when
they return. Current regulations do not contain penalty provisions for
carriers that transport U.S. citizens to the United States without
proper documentation. However, under the current law (8 U.S.C. 1323)
carriers that transport non-U.S. citizens into the United States who
are not properly documented are subject to penalties.
Comment
One commenter stated that the NPRM is contrary to U.S. obligations
under international human rights law, free trade agreements, and U.S.
statutes, including the International Covenant on Civil and Political
Rights, the Charter of the Organization of American States, the North
American Free Trade Agreement (NAFTA), and the NAFTA Implementation
Act, because the rules restrict free movement of people in the Western
Hemisphere.
Response
By requiring a valid passport as an entry document, DHS and DOS are
not denying U.S. or non-U.S. citizens the ability to travel to and from
the United
[[Page 68419]]
States. Requiring sufficient proof of identity and citizenship through
presentation of a passport or other acceptable document upon entry to
the United States is fully within DHS and DOS's authority pursuant to 8
U.S.C. 1182(d)(4)(B) and 1185(b).
Comment
One commenter to the NPRM stated that this rule violates the
Convention on International Civil Aviation (ICAO), claiming that, under
Annex 9, a contracting State shall allow airline crew possessing a
crewmember certificate to enter the country without a passport or visa.
Response
The commenter cited provision 3.74 in Annex 9 of the Convention on
ICAO. However, on March 25, 2004, provision 3.74 was amended and
replaced with a new provision 3.76 (Amendment 19). Under the new
provision, contracting states shall waive the visa requirement for
arriving crewmembers presenting crewmember certificates, when arriving
in a duty status on an international flight and seeking temporary entry
for the period allowed by the receiving state before joining their next
assigned flight in a duty status. Therefore, the exception cited by the
commenter only applies to visas and not to passports. Therefore,
requiring a valid passport does not violate the Convention on ICAO.
Comment
One commenter to the NPRM stated that because the passport is
machine readable, it would speed up the immigration process. Another
commenter stated that such timesavings are not benefits because the
cost has been ``shifted'' to citizens.
Response
As stated in the NPRM, by requiring the vast majority of air
passengers to possess a passport, CBP officers would reduce the time
and effort used to manually enter passenger information into the
computer system on arrival because the officer can quickly scan the
machine-readable zone of the passport to process the information using
standard passport readers used for all machine readable passports
worldwide. It is difficult to precisely determine the improved
efficiencies resulting from limiting the acceptable documents in the
air environment. Based on information from CBP field operations, CBP
estimates that presenting secure and machine-readable documentation may
typically save CBP officers from 5 to 30 seconds per air passenger
processed. This could result in an annual cost savings of $1.7 million
to $10.4 million.
2. Outer Continental Shelf
Comment
One commenter to the NPRM stated that the proposed regulations do
not clearly address the offshore community, creating ambiguity for CBP
officers to either not require a passport or to require them based on
the CBP officer's knowledge of offshore operations. This commenter also
suggested that the regulations be amended to include a definition of a
Mobile Offshore Drilling Units (MODU). Six commenters suggested that
the regulations expressly provide that U.S. citizens should be exempt
from bearing a valid passport when entering or departing the United
States when traveling as an employee of an offshore drilling company
directly between the United States and a MODU operating, attached, or
transiting between well sites on the United States Outer Continental
Shelf (OCS).
Response
DHS and DOS do not intend to create an exemption in the regulations
specifically for employees on the United States OCS. When these
employees have not departed the United States or have already been
cleared by CBP upon entry from a foreign port or place, they will not
be required to present a passport upon re-entry. As described in the
NPRM, offshore workers who work aboard a MODU attached to the United
States OCS and travel to and from such a MODU would not need to possess
a passport to re-enter the United States if they depart the United
States and do not enter a foreign port or place. DHS and DOS note that
offshore employees on MODUs underway, which are not considered
attached, would not need to present a passport for re-entry to the
United States mainland if they do not enter a foreign port or place
during transit. However, an individual who travels to a MODU from
outside the United States OCS and, therefore, has not been previously
inspected and admitted to the United States, would be required to
possess a passport and visa when arriving at the United States port-of-
entry by air. Likewise, an individual who travels by air to a foreign
flagged MODU, who has not been previously inspected or admitted to the
United States by CBP, must present a passport or alternative document
and, if required, a visa because they have traveled to a foreign port
or place.
As stated previously, arrivals by sea will not be finalized in this
rule but will be addressed in a future rulemaking for sea and land-
border ports-of-entry.
3. Emergencies
Comment
Three commenters expressed concern about the passport requirement
and emergencies (medical, natural disasters) that might require air
transport across a border.
Response
IRTPA provides for situations in which documentation requirements
may be waived on a case-by-case basis for unforeseen emergencies or
``humanitarian or national interest reasons.'' See section 7209(c)(2)
of IRTPA.
F. Outside the Scope of This Rulemaking
Comment
One commenter to the NPRM made numerous comments on the technical
specifications for DOS's Passport Card.
Response
Comments regarding the technical specifications for the DOS-issued
Passport Card are beyond the scope of this rule; however, please see
the recently published NPRM at 71 FR 60928 (Oct. 17, 2006).
Comment
One commenter stated that the NPRM correctly acknowledges that the
Lawful Permanent Resident (LPR) card is a sufficiently secure document
issued by the U.S. government.
Response
DHS and DOS are allowing the Permanent Resident Card to be
presented upon entry to the U.S. not because the Secretary has made a
determination that this is an acceptable alternative document, but
because LPRs are not covered by section 7209 of IRTPA. Section 211(b)
of the INA specifically establishes that an LPR can present a valid,
unexpired Form I-551 (Permanent Resident Card) alone when applying for
readmission to the U.S. after being absent from the U.S. for less than
one year. Form I-551 is a secure, fully adjudicated document that can
be verified and authenticated by CBP at ports-of-entry. DHS published a
notice of proposed rulemaking in the Federal Register on July 27, 2006,
that proposes to collect and verify the identity of LPRs arriving at
air and sea ports-of-entry, or requiring secondary inspection at land
ports of entry, through US-VISIT. \22\
---------------------------------------------------------------------------
\22\ See 71 FR 42605.
---------------------------------------------------------------------------
[[Page 68420]]
G. Public Relations
Comment
We received seven comments recommending that the U.S. Government
work multilaterally with Canada and Mexico to address WHTI issues.
Response
The Secretaries of DHS and DOS have worked closely with the
Canadian and Mexican governments on numerous fronts, including the
Security and Prosperity Partnership (SPP) of North America, the Smart
Border Declaration, and the Shared Border Accord. The objectives of the
initiatives are to establish a common approach to security to protect
North America from external threats, prevent and respond to threats
within North America, and further streamline the secure and efficient
movement of legitimate traffic across our shared borders. The
Secretaries are committed to working with our international partners to
establish a common security strategy.
Comment
We received fifty-seven comments to the ANPRM on public outreach
and the importance of educating the traveling public about the passport
requirements for the Western Hemisphere. Several commenters asked that
DHS and DOS work with the private sector on an aggressive outreach
campaign.
Response
DHS and DOS are committed to an effective and intensive
communications strategy during the implementation of WHTI. To that end,
the Departments will continue to issue detailed press releases, address
the public's frequently asked questions, supply travel information on
their Web sites, and hold public meetings in affected communities.
H. Regulatory Analyses
1. General
Comment
We received ten comments expressing concern that this rule will
adversely affect spontaneous travel to destinations in the Western
Hemisphere.
Response
This rule may have an impact on unplanned travel within the Western
Hemisphere. We found that most air travelers make their plans in
advance of their travel date and can obtain or already possess a
passport (see the Regulatory Assessment that accompanies this rule
which is available on the public docket). Additionally, travelers in
need of a passport quickly may request expedited processing at an
additional cost. We believe that the majority of travelers will be able
to obtain a passport in time to make their scheduled trips. Travelers
are strongly encouraged to obtain the necessary documentation in
advance of all international travel.
Comment
We received thirty-eight comments expressing concern that the rule
would negatively affect tourism by impeding travel within the Western
Hemisphere. Several commenters stated they would no longer take trips
to Canada, Mexico, and the Caribbean if these rules go into effect.
Response
This rule could have an impact on tourism. These impacts were
explored in detail in the Regulatory Assessment for this rule, which
was made available upon publication of the NPRM. \23\ An updated
Regulatory Assessment is published with this final rule and is
available on the docket.
---------------------------------------------------------------------------
\23\ See NPRM at 71 FR 46155.
---------------------------------------------------------------------------
2. Executive Order 12866
Comment
Nine commenters to the NPRM argued that the economic analysis does
not sufficiently address negative impacts to the economy.
Response
While these commenters were dissatisfied with the economic
analysis, none of them submitted specific information that would
enhance the current analysis, nor did they submit alternative analyses
that more robustly consider the impacts on the U.S. and foreign
economies. The direct costs to the traveling public, which were the
focus of the Regulatory Assessment, were extensively explored,
researched, and analyzed.
According to the Office of Management and Budget (OMB) Circular A-
4, an economic analysis should ``look beyond the direct benefits and
direct costs and consider any important ancillary benefits and
countervailing risks'' (page 26). This Circular notes, however, ``some
important benefits and costs * * * may be inherently too difficult to
quantify or monetize given current data and methods'' (pages 26-27).
Given the data available for this analysis and the limitations of using
this data to assess indirect costs of the rule, CBP's Regulatory
Assessment concentrated on the direct impacts to U.S. citizens who will
need to obtain a passport in order to continue traveling by air in the
Western Hemisphere, including the costs to the traveler of opting to
forgo travel. In that assessment, CBP anticipated that the vast
majority (96 percent) of U.S. travelers to Western Hemisphere
destinations already have or will obtain a passport and will continue
traveling in the Western Hemisphere. As stated in the assessment, we
cannot look at the number of travelers who choose to forgo travel as a
result of the rule and determine what the welfare losses to travelers
or gains and losses to different players in different economies will
be--we simply cannot determine adequately what each individual traveler
(or even bloc of travelers) will do to express his preferences for
goods and services given a change in price in one portion of his travel
cost. Thus, again per Circular A-4, we presented the relevant
quantitative information available, its strengths and weaknesses, and a
description of the non-quantified effects. Furthermore, CBP conducted a
formal probabilistic modeling in the form of a Monte Carlo analysis to
measure the uncertainty and variance of the estimates presented. We
discussed the industries we expect to be affected by this rule and
noted that any impacts will be spread over wide swaths of the domestic
and foreign economies.
It is extremely difficult to estimate the indirect costs with any
certainty. The analysis made many assumptions regarding direct costs
that may carry errors or over- or underestimate indirect costs.
Travelers are faced with complex decisions and myriad substitutes for
particular trips that could still maximize their utility. There is
evidence in the travel literature cited throughout the analysis that
price may not be a very big determinant of destination selection. CBP
chose to estimate direct costs using demand elasticities to avoid
misrepresenting direct costs (we would not want to assume that
travelers' decisions will be completely unaffected by the passport
requirement), knowing that we may then be overstating the simplicity of
the traveler's decision-making process. In doing this, we have likely
overstated indirect costs.
Because such a small percentage of the covered traveling population
is likely to forgo travel (even with our application of the binary
choice for the traveler), the macro-economic impacts of the proposed
rule are likely small as well. Unfortunately, given the dearth of
specific data, we have only rough estimates of how many people travel,
where they come from, and where they
[[Page 68421]]
go. We know even less about how they will alter their behavior if they
do, in fact, forgo obtaining a passport.
Comment
One commenter to the NPRM stated that the economic analysis cannot
be considered reliable because it examines a program that is not yet in
place.
Response
Per Executive Order 12866, an economic analysis is required for all
major rulemakings prior to final implementation. This analysis must
contain an identification of the regulatory ``baseline'' as well as the
anticipated costs and benefits of the rule on relevant stakeholders.
The analysis prepared for the NPRM was reviewed by OMB in accordance
with Executive Order 12866 and OMB Circular A-4.
Comment
One commenter stated that the only alternative to the proposed rule
considered was the current practice of accepting existing documents
(driver's licenses and birth certificates).
Response
Executive Order 12866 and OMB Circular A-4 require the full
analysis of regulatory alternatives as part of the rulemaking
development process. As presented in the Regulatory Assessment
published with the NPRM and finalized with this final rule, there were
five alternatives to the proposed rule considered and analyzed. The
first was the ``No Action'' alternative. The second was to require
United States travelers to present a state-issued photo ID and proof of
citizenship. The third was to designate TWIC as an acceptable document
for United States citizens. The fourth was to designate the Border
Crossing Card (BCC) as an acceptable document for Mexican citizens. The
fifth was to develop and designate a low-cost Passport Card as an
acceptable document for United States citizens. OMB reviewed the
analysis prepared for the NPRM in accordance with Executive Order
12866.
Comment
One commenter stated that the Regulatory Assessment's assertion
that primarily foreign businesses will be affected by the rule is false
because Canadians spend more money in the U.S. than Americans spend in
Canada.
Response
This commenter appears to have incorrectly focused exclusively on
travel between the U.S. and Canada. It is important to remember that
U.S. travelers to Mexico, the Caribbean, Central America, and South
America will also be affected by this rule. As estimated, almost twice
as many U.S. citizens will be covered by this rule as non-U.S. citizens
(14.2 million versus 7.7 million, of which 4.4 million are Canadian).
Thus, foreign businesses in these regions are most likely to experience
adverse impacts as a result of this rule because there are more U.S.
travelers covered by the rule than non-U.S. travelers, and U.S.
citizens and a very small percentage of these travelers (an estimated 4
percent) may choose to forgo travel by air to these regions given the
passport requirement.
Comment
One commenter argued that the cost to obtain a passport is
significantly underestimated because the time estimated to obtain a
passport is too low.
Response
We appreciate this comment and the detail that accompanied the
estimate provided in the comment. However, the commenter presented an
estimate that was overly pessimistic and represented an absolute
``worst-case'' scenario that would rarely, if ever, be realized. The
time estimate presented in the Regulatory Assessment is from DOS's
Supporting Statement for the Paperwork Reduction Act Submission for DS-
11--Application for a U.S. Passport (OMB Control 1405-0004).
The estimated number of minutes required per response is based on a
recent sampling of the time required to search existing data sources,
gather the necessary information, provide the information required,
review the final collection, and submit the collection to Passport
Services for processing. The sampling was completed through
consultation with a small group of actual respondents. Passport
Services found that the overall average for the estimated time required
for this information collection was 1 hour and 25 minutes per response.
This Collection of Information was reviewed and approved by OMB in
September 2005.
Comment
One commenter argued that many passports are never used, but are
needed: people obtain them in order to be able to travel whenever it
may be necessary. These costs were not included in the analysis.
Response
The commenter is correct that we did not include these costs in the
Regulatory Assessment. The purpose of an economic analysis is to
estimate the costs and benefits of a rulemaking based on an identified
baseline and the anticipated change from that baseline that is directly
attributable to the regulation under consideration. Individuals that
choose to obtain a passport ``just to have one'' should not be
considered in this regulatory analysis because they are not obtaining a
passport specifically for air travel in the Western Hemisphere, but
worldwide as circumstances arise.
Comment
One commenter argued that the assumption that gains in domestic
travel would be offset by losses from reduced travelers from Canada,
Mexico, and Bermuda trivialized the impact of Canadian visitors who
spent $10 billion in the United States in 2005.
Response
It is important to note that this analysis does not assert that
domestic gains will equal losses from reduced foreign travelers; it
simply states that while the U.S. economy may gain slightly if a small
percentage of U.S. citizens travel domestically rather than in the rest
of the Western Hemisphere, the U.S. economy will also likely lose
slightly if a small percentage of non-U.S. citizens forgo travel to the
United States. The net impacts are not known. Furthermore, it is
important to note that the majority of the $10 billion spent by
Canadians in this country in 2005 is through cross-border trade and
tourism conducted via land-border ports-of-entry. Economic impacts for
land-border entries will be addressed in a future rulemaking for land
and sea entries.
3. Regulatory Flexibility Act
Comment
Six commenters asserted the rule would have a disproportionate
effect on small entities and argued that DHS and DOS should conduct a
small business analysis for any proposed rule.
Response
When considering the impacts on small entities for the purpose of
complying with the Regulatory Flexibility Act (RFA), we consulted the
Small Business Administration's guidance document for conducting
regulatory flexibility analysis. Per this guidance, a regulatory
flexibility analysis is required when an agency determines that the
rule will have a significant economic impact on a substantial number of
small entities that are subject to the requirements of the rule. This
guidance document also includes a good discussion describing
[[Page 68422]]
how direct and indirect costs of a regulation are considered
differently for the purposes of the RFA. With the possible exception of
certain ``sole proprietors,'' we do not believe that small entities are
subject to the requirements of the proposed rule; individuals are
subject to the requirements, and individuals are not considered small
entities. As stated in the Small Business Administration's guidance
document, ``[t]he courts have held that the RFA requires an agency to
perform a regulatory flexibility analysis of small entity impacts only
when a rule directly regulates them.'' Consequently, CBP prepared an
extensive analysis of the direct economic impacts of this rule and
believes that it adequately considered the economic impacts of this
rule on small businesses for the purposes of the RFA. Additionally, our
analysis did not reveal any ``disproportionate effect'' of the rule on
small entities.
Comment
One commenter noted several examples of individuals who would be
considered small businesses, including a freelance graphic artist, a
self-employed provider of business training services, and a sole
proprietor soliciting bids for fabrication or assembly of a new
product, that would be directly impacted by the proposed rule.
Response
We agree that certain ``sole proprietors'' would be considered
small businesses and could be directly affected by the rule if their
occupation requires travel within the Western Hemisphere where a
passport was not previously required. The number of such sole
proprietors is not available from the Small Business Administration or
other available business databases. However, as estimated in the
Regulatory Assessment available in the public docket, the cost to such
businesses would be only $149 for a first-time passport applicant, or
$209 if expedited service were requested, and would only be incurred if
the individual needed a passport. We believe such an expense would not
rise to the level of being a ``significant economic impact.''
IV. Conclusion
Based on the analysis of comments, the recently issued DOS NPRM
proposing to create a Passport Card, and section 7209 of IRTPA, DHS and
DOS have determined that beginning January 23, 2007, United States
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico
entering the United States at air ports-of-entry from the Western
Hemisphere will be required to present a valid passport, a NEXUS Air
Card, or a Merchant Mariner Document.
An MMD is a document sufficient to denote identity and citizenship
for United States citizens. Accordingly, United States citizens who
present an MMD in conjunction with maritime business would continue to
be exempt from the requirement to present a passport when arriving in
the United States at air ports-of-entry. In addition, a NEXUS Air
membership card is a document sufficient to denote identity and
citizenship for United States citizens, Canadian citizens, and
permanent residents of Canada when arriving in the United States as a
NEXUS Air program participant and when using a NEXUS Air kiosk at
designated airports. Accordingly, United States and Canadian citizens
who present an NEXUS Air card when using a NEXUS Air kiosk, would
continue to be exempt from the requirement to present a passport when
arriving in the United States at air ports-of-entry.
In addition, all active duty members of the United States Armed
Forces regardless of citizenship will be exempt from the requirement to
present a valid passport when entering the United States. Therefore,
travel document requirements for United States citizens who are members
of the United States Armed Forces will not change from the current
requirements.
The new passport requirement does not apply to travelers arriving
at land or sea ports-of-entry. Additionally, U.S. citizens and
nationals who travel directly between parts of the United States,\24\
which includes Guam, Puerto Rico, the U.S. Virgin Islands, American
Samoa, Swains Island, and the Commonwealth of the Northern Mariana
Islands, without touching at a foreign port or place, are not required
to present a valid passport.
---------------------------------------------------------------------------
\24\ As defined in section 215(c) of the INA (8 U.S.C. 1185(c)),
the term ``United States'' includes all territory and waters,
continental or insular, subject to the jurisdiction of the United
States.
---------------------------------------------------------------------------
V. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
This rule is considered to be an economically significant
regulatory action under Executive Order 12866 because it may result in
the expenditure of over $100 million in any one year. Accordingly, the
Office of Management and Budget (OMB) has reviewed this rule. The
following summary presents the costs and benefits of the rule plus a
range of alternatives considered. The complete and detailed
``Regulatory Assessment'' can be found in the docket for this
rulemaking: http://www.regulations.gov; see also http://www.cbp.gov.
This rule will affect certain travelers to the Western Hemisphere
countries for whom there are no current requirements to present a
United States passport for entry. While United States citizens may not
need a passport to enter these countries, they would need to carry a
passport to leave the United States and for inspection upon re-entry to
the United States. This analysis considers air travelers on commercial
flights and travelers using general aviation.
Based on data from the Department of Commerce, approximately 14
million travelers will be covered by the rule. Based on additional
available data sources, DHS and DOS assume that a large portion of
these travelers already hold passports and thus will not be affected
(i.e., they will not need to obtain a passport as a result of this
rule). DHS and DOS estimate that approximately 4 million passports will
be required in the first year the rule is in effect, at a direct cost
to traveling individuals of $649 million. These estimates are presented
in Table 1.
Table 1.--First Year Direct Costs to Travelers of the Rule
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Travelers to WHTI countries, first year......................... 14,299,093 .............. ..............
-----------------------------------------------
1st quartile Median 3rd quartile
-----------------------------------------------
Passports demanded.............................................. 3,942,859 4,084,204 4,364,197
Total cost of passports demanded................................ $579,379,344 $600,142,162 $641,283,623
Expedited service fees (20% of passports):
Number of passports......................................... 788,572 816,841 872,839
[[Page 68423]]
Cost of expedited service................................... $47,314,302 $49,010,449 $52,370,370
-----------------------------------------------
Grand total cost........................................ $626,693,646 $649,152,611 $693,653,992
----------------------------------------------------------------------------------------------------------------
Following the first year, the costs will diminish as most United
States travelers in the air environment would then hold passports.
Because the number of travelers to the affected Western Hemisphere
countries has been growing and turnover in the traveling population is
not 100 percent on an annual basis, a small number of ``new'' travelers
who did not previously hold passports will now have to obtain them in
order to travel. The estimated costs for new passport acquisition in
the second year the rule is in effect are presented in Table 2.
Table 2.--Second Year Direct Costs to Travelers of the Rule
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
``New'' travelers to WHTI countries, second year................ 1,994,380 .............. ..............
-----------------------------------------------
1st quartile Median 3rd quartile
-----------------------------------------------
Passports demanded.............................................. 566,350 584,364 625,893
Total cost of passports demanded................................ $83,213,742 $85,866,599 $91,966,740
Expedited service fees (20% of passports):
Number of passports......................................... 113,270 116,873 125,179
Cost of expedited service................................... $6,796,196 $7,012,365 $7,510,711
-----------------------------------------------
Grand total cost........................................ $90,009,938 $92,878,964 $99,477,450
----------------------------------------------------------------------------------------------------------------
This rule could also impose indirect costs to those industries that
support the traveling public. If some travelers do not obtain passports
because of the cost or inconvenience and forgo travel to Western
Hemisphere destinations, certain industries would incur the indirect
consequences of the forgone foreign travel. These industries include
(but are not limited to):
Air carriers;
Airports and their support services;
Traveler accommodations; travel agents; dining services;
retail shopping;
Tour operators;
Scenic and sightseeing transportation;
Hired transportation (rental cars, taxis, buses);
Arts, entertainment, and recreation.
DHS and DOS expect that foreign businesses whose services are
consumed largely outside of the United States (with the exception of
United States air carriers, travel agents, and airport services) will
primarily be impacted. If domestic travel is substituted for
international travel, domestic industries in these areas would gain.
DHS and DOS expect, however, that United States travel and tourism
could also be indirectly affected by the rule if fewer Canadian,
Mexican BCC holders, and Bermudan travelers visit the United States
(these travelers do not currently need a passport for entry to the
United States but will require one under the rule). In this case,
United States businesses in these sectors would be affected. Thus,
gains in domestic consumption may be offset by losses in services
provided to the citizens and residents of the Western Hemisphere
countries affected. In both cases, we expect the gains and losses to be
marginal as the vast majority of travelers (based on our Regulatory
Assessment available in the public docket, an estimated 96 percent of
United States air travelers and 99 percent of Canadian, Mexican, and
Bermudan air travelers) are expected to obtain passports and continue
traveling internationally.
The benefits of the rule are virtually impossible to quantify in
monetary terms. The benefits of the rule are significant and real in
terms of increased security in the air environment provided by more
secure documents and facilitation of inspections provided by the
limited types of documents that would be accepted. In fact, this rule
addresses a vulnerability of the United States to entry by terrorists
or other persons by false documents or fraud under the current
documentary exemptions for travel within the Western Hemisphere, which
has been noted extensively by Congress and others:
During the debate on IRTPA, several members of Congress,
including the Chairman of the House Judiciary Committee commented on
the need for more secure documents for travelers.\25\
---------------------------------------------------------------------------
\25\ ``As the 9/11 staff report on terrorist travel declared,
`The challenge for national security in an age of terrorism is to
prevent the people who may pose overwhelming risk from entering the
United States undetected.' The Judiciary sections of title III
require Americans returning from most parts of the Western
Hemisphere to possess passports; require Canadians seeking entry
into the United States to present a passport or other secure
identification; authorize additional immigration agents and
investigators; reduce the risk of identity and document fraud;
provide for the expedited removal of illegal aliens; limit asylum
abuse by terrorists; and streamline the removal of terrorists and
other criminal aliens. These provisions reflect both commission
recommendations and legislation that was pending in the House.''
Congressional Record, October 7, 2004, H8685.
---------------------------------------------------------------------------
The 9/11 Commission recommendations, which provide much of
the foundation for IRTPA, specifically include a recommendation to
address travel documents in the Western Hemisphere.\26\
---------------------------------------------------------------------------
\26\ ``Americans should not be exempt from carrying biometric
passports or otherwise enabling their identities to be securely
verified when they enter the United States; nor should Canadians or
Mexicans. Currently U.S. persons are exempt from carrying passports
when returning from Canada, Mexico, and the Caribbean. The current
system enables non-U.S. citizens to gain entry by showing minimal
identification. The 9/11 experience shows that terrorists study and
exploit America's vulnerabilities.'' The 9/11 Commission Report, p.
388.
---------------------------------------------------------------------------
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 68424]]
improving their ability to detect fraudulent documents or false claims
to citizenship and deny entry to such persons. Further, such
standardized documents would enable more rapid processing of travelers
who enter the United States because an individual's identity would be
easier to confirm and he or she could be processed through CBP more
efficiently.
Alternatives to the Rule
CBP considered the following five alternatives to the rule:
1. The No Action alternative (status quo);
2. Require United States travelers to present a state-issued photo
ID and proof of citizenship (such as birth certificates) upon return to
the United States from countries in the Western Hemisphere;
3. Allow United States citizens who possess a Transportation Worker
Identification Card (TWIC) to use the card as a travel document in the
air environment;
4. Allow Mexican citizens to present their Border Crossing Cards
(BCCs) in the air in lieu of a passport; and
5. Develop and designate a low-cost Passport Card as an acceptable
document for United States citizens.
Calculations of costs (if any) for the alternatives can be found in
the Regulatory Assessment.
Alternative 1: The No Action Alternative
The No Action alternative would have zero costs (or benefits)
associated with it. This alternative was rejected because section 7209
of IRTPA specifically provides for the expeditious implementation of
the requirement that United States citizens and nonimmigrant aliens
must have passports or such alternative documents as the Secretary of
Homeland Security may designate as satisfactorily establishing identity
and citizenship to depart from or enter the United States. Current
documentation requirements leave major gaps in security at U.S.
airports and do not satisfy the requirements under the IRTPA that
travel documents for entry into the United States must denote identity
and citizenship.
Alternative 2: Require United States Travelers to Present a State-
Issued Photo ID and Proof of Citizenship
The second alternative would require United States citizens to
present 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. In addition, there is no current way to validate that the
person presenting the birth certificate for inspection is, in fact, the
same person to whom it was issued. The lack of security features and
the plethora of birth certificates issued in the United States (issued
by more than 8,000 entities) currently make it difficult to reliably
verify or authenticate a birth certificate. A state-issued photo
identification provides positive identification with name, address, and
photograph. However, a state-issued photo identification does not
provide proof of citizenship.
Alternative 2 was rejected for several reasons. Section 7209
requires that U.S. citizens have a passport, other documents or
combination of documents deemed sufficient by the Secretary of DHS to
denote citizenship and identity when departing or entering the United
States. Because birth certificates and driver's licenses are issued by
numerous government entities, there is no standard format for either
document, and, at present, it is not possible to authenticate quickly
and reliably either document. Some states only issue photocopies as
replacements of birth certificates, some states issue replacement birth
certificates by mail or through the Internet, and some states will not
issue photo identification to minors. Both documents lack security
features and are susceptible to counterfeiting or alteration. While
most states require that driver's licenses contain correct address
information, it is not uncommon for the address information to be
outdated. Neither the birth certificate nor the state-issued
identification was designed to be a travel document. Birth certificates
can easily deteriorate when used frequently as travel documents because
they are normally made from some sort of paper with a raised seal, so
they cannot be laminated or otherwise protected when under repeated
use.
Because these documents are not standardized, CBP officers require
additional time to locate the necessary information on the documents.
This may result in cumulative delays at airports of entry.
Because neither document has a machine-readable zone, CBP will not
be able to front-load information on the traveler to expedite the
initial inspection processing, including checks necessary to protect
the national security of the United States. Birth certificates are
issued by thousands of authorities, and are currently impossible to
validate or vet sufficiently. Both documents are readily available for
purchase to assume a false identity. Because the birth certificate and
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. DHS and DOS believe that the
risk of counterfeiting and fraud associated with these documents makes
them unacceptable documents for travel under IRTPA. For all of these
reasons, these documents are not sufficient to reliably establish
citizenship and identity.
The costs of this alternative include those for minors to obtain
photo identification for travel. Currently, all adult travelers in the
air environment must present photo identification (usually a driver's
license) along with proof of citizenship (usually a birth certificate)
when they check in for their flights (per the requirements of the air
carriers). Additionally, all countries in the Western Hemisphere
require a passport or other proof of citizenship (i.e., birth
certificate) and photo identification for entry into their countries
via air. The exception, however, is for minor travelers. Currently,
parents may orally vouch for their children upon exit and entry into
the United States to and from the Western Hemisphere, and some Western
Hemisphere countries allow children to present school identification as
sufficient proof of identity. To comply with a requirement that would
allow a photo ID in combination with a birth certificate for travel in
the Western Hemisphere, minors would most likely need to obtain state-
issued photo identification. There could also be
[[Page 68425]]
additional costs in the form of lost efficiency upon entry to United
States ports-of-entry. If CBP officers need to spend more time
examining a variety of documents to determine what they are and if they
are fraudulent, and if CBP officers need to enter data by hand rather
than routinely utilize machine-readable technology to obtain
information on arriving passengers, this would result in delays at
airports. CBP is unable to quantify this loss of efficiency and
presents only the cost to minors to obtain a photo ID.
Based on data from the Department of Commerce's Office of Travel &
Tourism Industries (OTTI), eleven states (California, New York, New
Jersey, Florida, Texas, Illinois, Virginia, Pennsylvania, Washington,
Massachusetts, and Ohio) account for almost three-quarters of
international air travelers.\27\ Most requirements for obtaining a
photo identification are similar across these states: Completion of a
department of motor vehicles (DMV) form, submission of a form or
declaration attesting that the applicant is the parent or legal
guardian of the minor receiving the identification, and presentation of
a birth certificate and social security card. If the applicant is a
minor, he or she must appear in person with a parent or guardian. Fees
for these states range from $3 (Florida) to $21 (California), and
identifications are valid for an average of five years.\28\ As stated
previously, some states will not issue photo ID to minors under a
certain age.\29\ For the purposes of this analysis only, we assume all
minors would be able to obtain state-issued photo identification.
---------------------------------------------------------------------------
\27\ Table 22, U.S. Travelers to Overseas Countries 2004, State
of Residence of Travelers, OTTI, 2005.
\28\ See the nationwide DMV guide at http://www.dmv.org.
\29\ Of the 11 states examined in the analysis of this
alternative, Florida, Massachusetts, New Jersey, and Pennsylvania
have a minimum age requirement for obtaining a photo ID. The minimum
age to obtain a photo ID in Florida is 12, in Massachusetts is 16,
in New Jersey is 17, and in Pennsylvania is 16.
---------------------------------------------------------------------------
CBP estimates that there are 496,597 minors that will be covered by
this rule, 416,858 of whom do not currently hold a passport. CBP has
used the average of the photo identification fees from the 11 states
above ($15) and added the cost of the time it takes to complete the
forms and submit them to the DMV ($41, the same time cost CBP estimated
to obtain the passport) for a total of approximately $55 per minor.
Thus, assuming that a birth certificate is readily available, the cost
of this alternative ID for minors would be $27.4 million.
Alternative 3: Designate TWIC as an Acceptable Document for United
States Citizens
The third alternative would allow U.S. transportation workers to
use their TWICs in lieu of a passport. Section 102 of the Maritime
Transportation Security Act of 2002 requires the Secretary of Homeland
Security to issue a biometric transportation security card to
individuals with unescorted access to secure areas of vessels and
facilities.\30\ In addition, these individuals must undergo a security
threat assessment to determine that they do not pose a security threat
prior to receiving the biometric card and access to secure areas. The
security threat assessment must include a review of criminal,
immigration, and pertinent intelligence records in determining whether
the individual poses a threat, and individuals must have the
opportunity to appeal an adverse determination or apply for a waiver of
the standards. The regulations to implement the TWIC in the maritime
environment have been proposed and were subject to public comment.\31\
For the sake of comparison, CBP assumes that TWICs are available to all
transportation workers covered by the rule. Additionally, analysis of
this alternative assumes that CBP would accept the TWIC for any travel.
---------------------------------------------------------------------------
\30\ Pub. L. 107-295, 116 Stat. 2064 (Nov. 25, 2002).
\31\ 71 FR 29396 and 29462 (May 22, 2006).
---------------------------------------------------------------------------
The Transportation Security Administration (TSA) and Coast Guard
estimate that the initial population of cards holders will be
approximately 750,000.\32\ This population includes such individuals as
United States MMD holders, port truck drivers, contractors,
longshoremen, and some rail workers. Again, for the purposes of this
economic analysis only, we estimate the cost savings to these
individuals of using TWICs in the air environment for non-work-related
travel. (These TWIC holders would not likely leave the country via air
for the purposes of work-related activities.)
---------------------------------------------------------------------------
\32\ Department of Homeland Security, Transportation Security
Administration, and U.S. Coast Guard, Regulatory Evaluation for the
Notice of Proposed Rulemaking Transportation Worker Identification
Credential (TWIC) Implementation in the Maritime Sector, 49 (2006).
Dockets TSA-2006-24191 or USCG-2006-24196.
---------------------------------------------------------------------------
CBP does not know how TWIC holders overlap with the United States
population traveling to the affected WHTI countries. As calculated
previously, CBP estimates there are approximately 14 million unique
travelers covered by the rule, and approximately 4 million (29 percent)
of them will require passports since they do not already have them. For
the purposes of this analysis of alternatives, CBP assumes that the
population requiring passports fully encompasses TWIC holders. This is
an extreme best-case assumption, as most of the TWIC holders will not
be traveling internationally in the air environment as part of their
work. Thus in the best-case, 29 percent of the 750,000 TWIC holders
(approximately 227,000 individuals) would not need passports. At a cost
of $149 per passport ($97 application fee for an adult, $11 for photos
and $41 for the time costs of completing the necessary paperwork), this
would result in a savings of, at best, $21.9 million. This is
approximately 3 percent of the total rule cost. The savings are likely
to be lower because the TWIC-holders are unlikely to be entirely
included in the United States air-traveling population covered by the
rule.
The TWIC cannot be read by current CBP technology installed in air
ports-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 airports to access other information and verify the validity of the
document. TSA estimates that this cost could be $7,200 per card reader.
Additionally, CBP believes that it would cost $500,000 to develop
databases, cross-reference information and coordinate with TSA and
Coast Guard, and test equipment installed in airports.
For this analysis CBP assumes that a card reader would need to be
installed in each CBP booth in airports. CBP estimates that there are
2,000 air ``lanes'' nationwide that would need a TWIC reader. The cost
for readers is thus $14.4 million and with the additional cost for
reprogramming and adapting existing systems, the total cost is $14.9
million in the first year. Following the first year, CBP would expect
to pay approximately 25 percent of the initial cost for operations and
maintenance. The net first-year savings would be, again, at best $15.3
million. This is a 2 percent difference from the costs of the chosen
alternative ($649 million).
This alternative was rejected because the TWIC does not denote
citizenship and it was not designed as a travel document but rather, to
positively identify the holder and hold the results of a security
threat assessment, and as a tool for use in access control systems.
Because the TWIC does not provide citizenship information, the holder
would need to present at least one other document that proves
citizenship. CBP would need to take additional time at
[[Page 68426]]
primary inspection to establish citizenship, or the traveler would have
to be referred to secondary inspections for further processing. The
overall result could be increased delays at ports of entry.
Alternative 4: Designate the BCC as an Acceptable Document for Mexican
Citizens
Alternative 4 would allow Mexican citizens to present their BCCs
upon entry to this country, without also presenting a passport. This
alternative would have no impact on the cost of the rule to United
States citizens. The BCC is a credit card-size document with many
security features and 10-year validity. Also called a ``laser visa,''
the card is both a BCC and a B1/B2 visitor's visa. This alternative
could be less expensive for a percentage of Mexican citizens. Mexican
citizens must have a passport to apply for and obtain a BCC. However,
there are some Mexican citizens that hold a BCC without a valid
passport because the passport has expired prior to the expiration of
the BCC.
This alternative was rejected because the BCC cannot be used with
CBP's Advance Passenger Information System (APIS), which collects data
from travelers prior to their arrival in and departure from the United
States.\33\ The passport requirement for Mexican citizens who hold BCC
in the air environment is consistent with the requirement for passports
for most United States citizens and foreign nationals.
---------------------------------------------------------------------------
\33\ Information for aircraft to be submitted includes: Full
name, date of birth, gender, citizenship, country of residence,
status on board the aircraft, travel document type, passport
information if passport is required (number, country of issuance,
expiration date), alien registration number where applicable,
address while in the United States (unless a U.S. citizen, lawful
permanent resident, or person in transit to a location outside the
United States), Passenger Name Record locator if available, foreign
code of foreign port/place where transportation to the United States
began, code of port/place of first arrival, code of final foreign
port/place of destination for in-transit passengers, airline carrier
code, flight number, and date of aircraft arrival.
---------------------------------------------------------------------------
Alternative 5: Develop and Designate a Low Cost Passport Card as an
Acceptable Document for United States Citizens
DOS, in consultation with DHS, has begun developing an alternative
travel document, a card-format passport. Like a traditional passport
book, the Passport Card will be a secure travel document that
establishes the identity and citizenship of the bearer. The Passport
Card is being designed to primarily benefit those citizens in border
communities who regularly cross the northern and southern borders every
day where such travel is an integral part of their daily lives. As
currently envisioned, it will be the size of a credit card and will
have a fee structure that is lower than for a traditional passport
book. The application process for the Passport Card will be identical
to that for the passport book in that each applicant will have to
establish United States citizenship, personal identity, and entitlement
to obtain the document.
The cost of the Passport Card has yet to be finalized. However, in
the NPRM published October 17, 2006, DOS proposed the application fees
for the Passport Card. For the purposes of this analysis of
alternatives, using the fees proposed in the NPRM, the fee for a first-
time adult Passport Card would be $45 and for a minor would be $35. The
cost for photos is $11. Because the application process would be
comparable to that for a traditional passport, the personal time cost
would continue to be $41, as estimated previously for the primary
analysis of the cost of the rule. Using the same methodology as used
for the primary analysis (most likely scenario) but assuming that all
travelers who do not currently hold a passport obtain a Passport Card
rather than the traditional passport book, we estimate that the first-
year cost would be $463 million. At this lower cost, approximately 4.3
million Passport Cards would be demanded, approximately 230,000 more
than under this rule, an increase of 5 percent.
Use of this alternative Passport Card was rejected for the air
environment for a number of reasons. DHS and DOS believe that accepting
the Passport Card in the air environment for air travel within the
Western Hemisphere could potentially lead to confusion for air
travelers who may attempt to use the Passport Card, rather than a
traditional passport book, to fly outside of the Western Hemisphere. As
developed by the Department of State, the Passport Card is intended to
be a limited-use passport designed to address the needs of border
communities, but not the operational needs of inspection at airports.
See 71 FR 60928, 60930 (Oct. 17, 2006). Because the Passport Card is
not designed to be a globally interoperable document as defined by the
International Civil Aviation Organization (ICAO), it does not meet all
the international standards for passports and other official travel
documents (for example, the size of the Passport Card does not comport
with ICAO 9303 travel document standards). The DOS Passport Card NPRM
explained that ``[d]esigning a card format passport for wide use,
including by air travelers, would inadvertently undercut the broad
based international effort to strengthen civil aviation security and
travel document specifications to address the post 9/11 threat
environment.'' Id. at 60928. Therefore, excluding the Passport Card for
air travel within the Western Hemisphere would reduce the possibility
that travelers would attempt to fly outside of the Western Hemisphere
to countries where the Passport Card may not be accepted. Finally, as
stated in the Regulatory Assessment, many air travelers already possess
a passport book for ease of use, because air carriers require it, or
because the countries they are visiting require it.
The following table presents a comparison of the costs of this rule
and the alternatives considered.
Comparison of Regulatory Alternatives in First Year
[Costs in millions]
----------------------------------------------------------------------------------------------------------------
Cost
Alternative First-year cost compared to Cost compared to Reason rejected
status quo final rule
----------------------------------------------------------------------------------------------------------------
Final rule (passports, Air $649............... +$649 n/a................ .......................
Nexus).
Status quo...................... 0.................. n/a -$649.............. Status quo does not
meet requirements of
IRTPA.
[[Page 68427]]
State-issued photo ID + birth 27................. +$27 -622............... 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.
TWICs in lieu of U.S. passport.. 642................ +642 -7................. TWIC is not designed as
a travel document;
citizenship not
included; CBP would
have to install card
readers and modify
their own systems to
accept TWICs.
BCCs in lieu of Mexican passport No direct costs for 0 May be slightly Cannot be used in
U.S. citizens. less expensive for conjunction with APIS
BCC holders. in the air
environment.
Passport card in lieu of 463................ +463 -186............... Passport cards cannot
traditional passport book. be used because they
do not yet exist.
----------------------------------------------------------------------------------------------------------------
Accounting Statement
As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars/index.html), CBP has prepared an
accounting statement showing the classification of the expenditures
associated with this rule. The table provides an estimate of the dollar
amount of these costs and benefits, expressed in 2005 dollars, at three
percent and seven percent discount rates. DHS and DOS estimate that the
cost of this rule will be approximately $206 million annualized (7
percent discount rate) and approximately $204 million annualized (3
percent discount rate). Non-quantified benefits are enhanced security
and efficiency.
Accounting Statement: Classification of Expenditures, 2006 Through 2016
[2005 Dollars]
------------------------------------------------------------------------
3% discount rate 7% discount rate
------------------------------------------------------------------------
Costs:
Annualized monetized costs.. $204 million...... $206 million.
Annualized quantified, but None.............. None.
un-monetized costs.
Qualitative (un-quantified) Indirect costs to Indirect costs to
costs. the travel and the travel and
tourism industry. tourism industry.
Benefits:
Annualized monetized None quantified... None quantified.
benefits.
Annualized quantified, but None quantified... None quantified.
un-monetized costs.
Qualitative (un-quantified) Enhanced security Enhanced security
costs. and efficiency. and efficiency.
------------------------------------------------------------------------
In accordance with the provisions of EO 12866, this regulation was
reviewed by OMB.
B. Regulatory Flexibility Act
We have prepared this section to examine the impacts of the rule on
small entities as required by the Regulatory Flexibility Act (RFA).\34\
A small entity may be a small business (defined as any independently
owned and operated business not dominant in its field that qualifies as
a small business per the Small Business Act); a small not-for-profit
organization; or a small governmental jurisdiction (locality with fewer
than 50,000 people).
---------------------------------------------------------------------------
\34\ 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.\35\ Per this guidance, a regulatory flexibility
analysis is required when an agency determines that the rule will have
a significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule.\36\ This guidance
document also includes a good discussion describing how direct and
indirect costs of a regulation are considered differently for the
purposes of the RFA. With the exception of certain sole proprietors, we
do not believe that small entities are subject to the requirements of
the rule; individuals are subject to the requirements, and individuals
are not considered small entities. As stated in the Small Business
Administration's guidance document, ``The courts have held that the RFA
requires an agency to perform a regulatory flexibility analysis of
small entity impacts only when a rule directly regulates them.'' \37\
---------------------------------------------------------------------------
\35\ Small Business Administration, Office of Advocacy, A Guide
for Government Agencies: How to Comply with the Regulatory
Flexibility Act, May 2003.
\36\ Id. at 69.
\37\ Id. at 20.
---------------------------------------------------------------------------
As described in the Regulatory Assessment for this rule, we could
not quantify the indirect impacts of the rule with any degree of
certainty; we instead focused our analysis on the direct costs to
individuals recognizing that some small entities will face indirect
impacts.
[[Page 68428]]
Many of the small entities indirectly affected will be foreign
owned and will be located outside the United States. Additionally,
reductions in international travel that result from the rule could lead
to gains for the domestic travel and tourism industry. Most air
travelers--an estimated 96 percent of United States travelers and 99
percent of Canadian, Mexican, and Bermudan travelers (based on the
Regulatory Assessment summarized above)--are expected to obtain
passports and continue traveling. Consequently, indirect effects are
expected to be spread over wide swaths of domestic and foreign
economies.
Small businesses may be indirectly affected by the rule if
international travelers forgo travel to affected Western Hemisphere
countries. Industries likely affected include (but may not be limited
to):
Air carriers;
Airports and their support services;
Traveler accommodations;
Travel agents;
Dining services;
Retail shopping;
Tour operators;
Scenic and sightseeing transportation;
Hired transportation (rental cars, taxis, buses);
Arts, entertainment, and recreation.
In the NPRM, we asked specifically for comments on direct impacts
to small entities. No comments were received that addressed direct
impacts to small entities with the exception of certain ``sole
proprietors.'' Notwithstanding this exception for certain ``sole
proprietors,'' this rule does not directly regulate small entities.
Based on our extensive analysis of the direct economic effects of this
rule (which is available in the public docket) and the consideration of
comments to the proposed rule, we certify that this rule will not have
a significant economic impact on a substantial number of small
entities.
The complete analysis of impacts to small entities for this rule is
available on the CBP Web site at: http://www.regulations.gov; see also
http://www.cbp.gov.
C. Executive Order 13132: Federalism
Executive Order 13132 requires DHS and DOS to develop a process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' Policies that have federalism implications are defined
in the Executive Order to include rules that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' DHS and DOS
have analyzed the rule in accordance with the principles and criteria
in the Executive Order and have determined that it does not have
federalism implications or a substantial direct effect on the States.
The rule requires United States citizens and nonimmigrant aliens from
Canada, Bermuda and Mexico departing from or entering the United States
by air from Western Hemisphere countries to bear a valid passport or
other document designated by the Secretary of Homeland Security. States
are not subject to this rule. For these reasons, this rule would not
have sufficient federalism implications warranting the preparation of a
federalism summary impact statement.
D. Executive Order 12988: Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988. Executive Order 12988 requires
agencies to conduct reviews on civil justice and litigation impact
issues before proposing legislation or issuing proposed regulations.
The order requires agencies to exert reasonable efforts to ensure that
the regulation identifies clearly preemptive effects, identifies
effects on existing federal laws or regulations, identifies any
retroactive effects of the regulation, and identifies other matters.
DHS and DOS have determined that this regulation meets the requirements
of Executive Order 12988 because it does not involve retroactive
effects, preemptive effects, or the other matters addressed in the
Executive Order.
E. Unfunded Mandates Reform Act Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the UMRA is any
provision in a Federal agency regulation that will impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section
204(a), provides that before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals.
This rule would not impose a significant cost or uniquely affect
small governments. The rule does have an effect on the private sector
of $100 million or more. This impact is discussed under the Executive
Order 12866 discussion.
F. Paperwork Reduction Act
The collection of information requirement for passports is
contained in 22 CFR 51.20 and 51.21. The required information is
necessary for DOS Passport Services to issue a United States passport
in the exercise of authorities granted to the Secretary of State in 22
U.S.C. section 211a et seq. and Executive Order 11295 (August 5, 1966)
for the issuance of passports to United States citizens and non-citizen
nationals. The issuance of U.S. passports requires the determination of
identity and nationality with reference to the provisions of Title III
of the Immigration and Nationality Act (8 U.S.C. 1401-1504), the 14th
Amendment to the Constitution of the United States, and other
applicable treaties and laws. The primary purpose for soliciting the
information is to establish nationality, identity, and entitlement to
the issuance of a United States passport or related service and to
properly administer and enforce the laws pertaining to issuance
thereof.
There are currently two 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 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
[[Page 68429]]
will amend the OMB form 83I (Paperwork Reduction Act Submission)
relating to the DS-11 to reflect these increases.
The collection of information encompassed within this rule has been
submitted to the OMB for review in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and
a person is not required to respond to, a collection of information
unless the collection of information displays a valid control number
assigned by OMB. The estimated average burden per respondent is 1 hour
and 25 minutes. The estimated frequency of responses is once every 10
years (adult passport application) and once every 5 years (minor
passport application).
Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden, should be directed to the Office
of Management and Budget, Attention: Desk Officer of the Department of
State, Office of Information and Regulatory Affairs, Washington, DC
20503.
G. Privacy Statement
A Privacy Impact Assessment (PIA) is being posted to the DHS Web
site (at http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0511.xml) in conjunction with the publication of this rule in the
Federal Register. The changes made by this rule involve the removal of
an exception for United States citizens from having to present a
passport in connection with Western Hemisphere air travel, such that
those individuals must now present a passport when traveling by air
from points of origin both within and without of the Western
Hemisphere. The rule expands the number of individuals submitting
passport information for travel within the Western Hemisphere, but does
not involve the collection of any new data elements. Presently, CBP
collects and stores passport information from all travelers, required
to provide such information pursuant to the Aviation and Transportation
Security Act of 2001 (ATSA) and the Enhanced Border Security and Visa
Reform Act of 2002 (EBSA), in the Treasury Enforcement Communications
System (TECS) (a System of Records Notice for which is published at 66
FR 53029). By removing the exception for submitting passport
information from United States citizens traveling by air within the
Western Hemisphere, DOS and CBP are requiring these individuals to
comply with the general requirement to submit passport information when
traveling to and from the United States.
List of Subjects
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
22 CFR Part 41
Aliens, Nonimmigrants, Passports and visas.
22 CFR Part 53
Passport requirement and exceptions; parameters for U.S. citizen
travel and definitions.
Amendment of the Regulations
0
For the reasons stated in the preamble, DHS and DOS amend 8 CFR parts
212 and 235 and 22 CFR parts 41 and 53 as set forth below.
8 CFR PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
1. The authority citation for part 212 is revised to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227; 8 U.S.C. 1185 note (section 7209
of Pub. L. 108-458).
0
2. Section 212.1 is amended by:
0
a. Revising paragraphs (a)(1) and (a)(2); and
0
b. Revising paragraph (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 or sea, or
as participants in the NEXUS Air program at a NEXUS Air kiosk pursuant
to 8 CFR 235.1(e). A passport is otherwise required for Canadian
citizens arriving in the United States by aircraft.
(2) Citizens of the British Overseas Territory of Bermuda. A visa
is not required. A passport is not required for Citizens of the British
Overseas Territory of Bermuda entering the United States from within
the Western Hemisphere by land or sea. A passport is required for
Citizens of the British Overseas Territory of Bermuda arriving in the
United States by aircraft.
* * * * *
(c) Mexican nationals. (1) A visa and a passport are not required
of a Mexican national who:
(i) Is in possession of a Form DSP-150, B-1/B-2 Visa and Border
Crossing Card, containing a machine-readable biometric identifier,
issued by the DOS and is applying for admission as a temporary visitor
for business or pleasure from a contiguous territory by land or sea.
* * * * *
8 CFR PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
3. The authority citation for part 235 is revised to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226,
1228, 1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of
Pub. L. 108-458).
0
4. Section 235.1 is amended by:
0
a. Redesignating current paragraphs (d), (e), and (f) as paragraphs
(f), (g), and (h); and
0
b. Adding a new paragraphs (d) and (e).
The additions read as follows:
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 unexpired MMD used in
conjunction with maritime business when entering the United States.
(e) NEXUS Air Program Participants. United States citizens,
Canadian citizens, and permanent residents of Canada who are traveling
as participants in the NEXUS Air program, may present, in lieu of a
passport, a valid NEXUS Air membership card when using a NEXUS Air
kiosk prior to entering the United States.
* * * * *
22 CFR PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY ACT, AS AMENDED
0
5. The authority citation for part 41 is revised to read as follows:
Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795
through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458).
[[Page 68430]]
0
6. Section 41.1 is amended by revising paragraph (b) to read as
follows:
Sec. 41.1 Exemption by law or treaty from passport and visa
requirements.
* * * * *
(b) American Indians born in Canada. An American Indian born in
Canada, having at least 50 per centum of blood of the American Indian
race, entering from contiguous territory by land or sea (sec. 289, 66
Stat. 234; 8 U.S.C. 1359).
* * * * *
0
7. Section 41.2 is amended by:
0
a. Revising paragraphs (a) and (b);
0
b. Revising paragraph (g)(1);
0
c. Removing paragraphs (g)(2) and (g)(4); and
0
d. Redesignating paragraphs (g)(3) as (g)(2), (g)(5) as (g)(3), and
(g)(6) as (g)(4).
Sec. 41.2 Waiver by Secretary of State and Secretary of Homeland
Security of passport and/or visa requirements for certain categories of
nonimmigrants.
* * * * *
(a) Canadian nationals. A visa is not required. A passport is not
required for Canadian citizens entering the United States from within
the Western Hemisphere by land or sea, or by air as participants in the
NEXUS Air program pursuant to 8 CFR 235.1(e). A passport is otherwise
required for Canadian citizens arriving in the United States by
aircraft.
(b) Citizens of the British Overseas Territory of Bermuda. A visa
is not required. A passport is not required for Citizens of the British
Overseas Territory of Bermuda entering the United States from within
the Western Hemisphere by land or sea. A passport is required for
Citizens of the British Overseas Territory of Bermuda arriving in the
United States by aircraft.
* * * * *
(g) Mexican nationals. (1) A visa and a passport are not required
of a Mexican national in possession of a Form DSP-150, B-1/B-2 Visa and
Border Crossing Card, containing a machine-readable biometric
identifier, applying for admission as a temporary visitor for business
or pleasure from a contiguous territory by land or sea.
* * * * *
0
8. Part 53 is revised to read as follows:
22 CFR PART 53--PASSPORT REQUIREMENT AND EXCEPTIONS
Sec.
53.1 Passport requirement; definitions.
53.2 Exceptions.
53.3 Attempt of a citizen to enter without a valid passport.
53.4 Optional use of a valid passport.
Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 note (section 7209 of
Pub. L. 108-458); E.O. 13323, 69 FR 241 (Dec. 30, 2003).
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 ``United States'' means ``United
States'' as defined in section 215(c) of the Immigration and
Nationality Act of 1952, as amended (8 U.S.C. 1185(c)).
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 from or departing to a foreign port or place
within the Western Hemisphere, excluding Cuba, by land or by sea; or
(c) When traveling as a member of the Armed Forces of the United
States on active duty; or
(d) When traveling as a U.S. citizen seaman, carrying a Merchant
Marine Document (MMD or Z-card) in conjunction with maritime business.
The MMD is not sufficient to establish citizenship for purposes of
issuance of a United States passport under 22 CFR part 51; or
(e) When traveling as a participant in the NEXUS Air program with a
valid NEXUS Air membership card. United States citizens who are
traveling as participants in the NEXUS Air program, may present, in
lieu of a passport, a valid NEXUS Air membership card when using a
NEXUS Air kiosk prior to entering the United States. The NEXUS Air card
is not sufficient to establish citizenship for purposes of issuance of
a U.S. passport under 22 CFR part 51; or
(f) When the U.S. citizen bears another document, or combination of
documents, that the Secretary of Homeland Security has determined under
Section 7209(b) of Pub. L. 108-458 (8 U.S.C. 1185 note) to be
sufficient to denote identity and citizenship; or
(g) When the U.S. citizen is employed directly or indirectly on the
construction, operation, or maintenance of works undertaken in
accordance with the treaty concluded on February 3, 1944, between the
United States and Mexico regarding the functions of the International
Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat.
1219, or other related agreements provided that the U.S. citizen bears
an official identification card issued by the IBWC; or
(h) When the Department of State waives, pursuant to EO 13323 of
December 30, 2003, Sec 2, the requirement with respect to the U.S.
citizen because there is an unforeseen emergency; or
(i) When the Department of State waives, pursuant to EO 13323 of
December 30, 2003, Sec 2, the requirement with respect to the U.S.
citizen for humanitarian or national interest reasons.
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(h) and Sec. 53.2(i) 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: November 17, 2006.
Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.
Dated: November 17, 2006.
Henrietta H. Fore,
Under Secretary for Management, Department of State.
[FR Doc. 06-9402 Filed 11-22-06; 8:45 am]
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