Federal Register, Volume 73 Issue 65 (Thursday, April 3, 2008)

[Federal Register Volume 73, Number 65 (Thursday, April 3, 2008)]
[Rules and Regulations]
[Pages 18384-18420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6725]

[[Page 18383]]

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Part III

Department of Homeland Security

Department of State

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8 CFR Parts 212 and 235

22 Parts 41 and 53

Documents Required for Travelers Departing From or Arriving in the
United States at Sea and Land Ports-of-Entry From Within the Western
Hemisphere; Designation of an Enhanced Driver's License and Identity
Document Issued by the State of Washington as a Travel Document Under
the Western Hemisphere Travel Institute; Final Rule and Notice

Federal Register / Vol. 73, No. 65 / Thursday, April 3, 2008 / Rules
and Regulations

[[Page 18384]]

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DEPARTMENT OF HOMELAND SECURITY

[USCBP 2007-0061]
RIN 1651-AA69

8 CFR Parts 212 and 235

DEPARTMENT OF STATE

22 CFR Parts 41 and 53

Documents Required for Travelers Departing From or Arriving in
the United States at Sea and Land Ports-of-Entry From Within the
Western Hemisphere

AGENCIES: U.S. 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 second 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 U.S. citizens and certain nonimmigrant aliens entering
the United States. This final rule details the documents U.S.
citizens\1\ and nonimmigrant citizens of Canada, Bermuda, and Mexico
will be required to present when entering the United States from within
the Western Hemisphere at sea and land ports-of-entry.
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\1\ ``U.S. citizens'' as used in this rule refers to both U.S.
citizens and U.S. non-citizen nationals.

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DATES: This final rule is effective on June 1, 2009.

FOR FURTHER INFORMATION CONTACT:
Department of Homeland Security: Colleen Manaher, WHTI, Office of Field
Operations, U.S. Customs and Border Protection, 1300 Pennsylvania
Avenue, NW., Room 5.4-D, Washington, DC 20229, telephone number (202)
344-1220.
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 for Arrivals at Sea and Land
Ports-of-Entry Prior to This Rule
1. U.S. Citizens
2. Nonimmigrant Aliens From Canada and the British Overseas
Territory of Bermuda
3. Mexican Nationals
B. Statutory and Regulatory History
1. Intelligence Reform and Terrorism Prevention Act
2. Advance Notice of Proposed Rulemaking
3. Rules for Air Travel From Within the Western Hemisphere
4. Amendments to Section 7209 of IRTPA
5. Other Relevant Legislation
6. Passport Cards
7. Certifications to Congress
II. Documentation at the Border
III. Summary of Document Requirements in the Proposed Rule
IV. Discussion of Comments
A. General
B. Implementation
1. General
2. Timeline
3. Security/Operational Considerations
4. Technology
5. Cruise Ships
6. MODUs/OCS
C. Passports
1. General
2. Cost of Passports
3. Obtaining Passports
4. DOS Issuance Capacity
5. Passport Cards
D. Alternative Documents
1. General
2. Driver's License and Birth Certificate
3. Trusted Traveler Documents
4. Children/Groups of Children/Alternative Approaches/Parental
Consent
5. State Enhanced Driver's License Projects
6. Mexican/Canadian/Bermudian Documents
7. REAL ID Driver's Licenses
E. Native Americans and Canadian Indians
F. Outside the Scope of This Rulemaking
1. General
2. Air Rule
3. IBWC
4. Lawful Permanent Residents
5. Dual Nationals
G. Public Relations
1. General
2. Outreach
H. Regulatory Analyses
1. Regulatory Assessment
2. Regulatory Flexibility Act
V. Final Document Requirements
A. U.S. Citizens Arriving by Sea or Land
B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or
Land
C. Mexican Nationals Arriving by Sea or Land
D. State Enhanced Driver's Licenses and Identification Documents
E. Future Documents
VI. Special Rules for Specific Populations
A. U.S. Citizen Cruise Ship Passengers
B. U.S. and Canadian Citizen Children
1. Children Under Age 16
2. Children Under Age 19 Traveling in Groups
C. American Indian Card Holders from Kickapoo Band of Texas and
Tribe of Oklahoma
D. Members of United States Native American Tribes
E. Canadian Indians
F. Individual Passport Waivers
G. Summary of Document Requirements
VII. 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
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--U.S. Customs and Border Protection
CBSA--Canada Border Services Agency
DHS--Department of Homeland Security
DOS--Department of State
FAST--Free and Secure Trade
FBI--Federal Bureau of Investigation
IBWC--International Boundary and Water Commission
INA--Immigration and Nationality Act
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
MMD--Merchant Mariner Document
MODU--Mobile Offshore Drilling Unit
MRZ--Machine Readable Zone
NATO--North Atlantic Treaty Organization
NEPA--National Environmental Policy Act of 1969
NPRM--Notice of Proposed Rulemaking
OARS--Outlying Area Reporting System
OCS--Outer Continental Shelf
PEA--Programmatic Environmental Assessment
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
TBKA--Texas Band of Kickapoo Act
UMRA--Unfunded Mandates Reform Act
USCIS--U.S. Citizenship and Immigration Services
US-VISIT--United States Visitor and Immigrant Status Indicator
Technology Program
WHTI--Western Hemisphere Travel Initiative

I. Background

For a detailed discussion of the document requirements for
travelers entering the United States from within the Western Hemisphere
before January 31, 2008, the statutory and regulatory histories through
June 26, 2007, and the applicability of the rule related to specific
groups, please see the NPRM published at 72 FR 35088. For the document
requirements which went into effect on January 31, 2008, please see the
Notice ``Oral Declarations No Longer Satisfactory as Evidence of
Citizenship and Identity'' which was published in the Federal Register
on December 21, 2007, at 72 FR 72744.

[[Page 18385]]

A. Documentation Requirements for Arrivals at Land and Sea Ports-of-
Entry Prior to the Effective Date of This Rule

The following is an overview of the documentation requirements for
citizens of the United States, Canada, British Overseas Territory of
Bermuda (Bermuda), and Mexico who enter the United States at sea and
land ports-of-entry prior to the effective date of this rule.
1. U.S. Citizens
Generally, U.S. citizens must possess a valid U.S. passport to
depart from or enter the United States.\2\ However, U.S. citizens who
depart from or enter the United States by land or sea from within the
Western Hemisphere other than from Cuba have historically been exempt
from this passport requirement.\3\ U.S. citizens have always been
required to satisfy the inspecting officers of their identity and
citizenship.\4\ Since January 31, 2008, U.S. citizens ages 19 and older
have been asked to present documents proving citizenship, such as a
birth certificate, and government-issued documents proving identity,
such as a driver's license, when entering the United States through
land and sea ports-of-entry. Children under the age of 19 have only
been asked to present proof of citizenship, such as a birth
certificate.\5\
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\2\ Section 215(b) of the Immigration and Nationality Act (INA),
8 U.S.C. 1185(b).
\3\ 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).
\4\ In lieu of a passport, travelers claiming U.S. citizenship
long have been permitted to enter on an oral declaration or to
present a variety of documents to establish their identity and
citizenship and right to enter the United States as requested by the
CBP officer. 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.
\5\ 72 FR 72744.
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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 nationality
and, if required, a valid unexpired visa issued by a U.S. embassy or
consulate abroad.\6\ Nonimmigrant aliens entering the United States
must also satisfy any other applicable admission requirements (e.g.,
United States Visitor and Immigrant Status Indicator Technology Program
(US-VISIT)). However, the passport requirement is currently waived for
most citizens of Canada and Bermuda when entering the United States as
nonimmigrant visitors from countries in the Western Hemisphere at land
or sea ports-of-entry.\7\ These travelers have been required to satisfy
the inspecting CBP officer of their identities and citizenship at the
time of their applications for admission. Since January 31, 2008, these
nonimmigrant aliens also have been asked to present document proving
citizenship, such as a birth certificate, and government-issued
documents proving identity, such as a driver's license, when entering
the United States through land and sea ports-of-entry.\8\
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\6\ Section 212(a)(7)(B)(i) of the INA, 8 U.S.C.
1182(a)(7)(B)(i).
\7\ 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR 212.1(a)(2)
(Citizens of Bermuda). See also 22 CFR 41.2.
\8\ 72 FR 72744.
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3. Mexican Nationals
Mexican nationals are generally required to present a valid
unexpired passport and visa when entering the United States. However,
Mexican nationals arriving in the United States at land and sea ports-
of-entry who possess a Form DSP-150, B-1/B-2 Visa and Border Crossing
Card (BCC) \9\ currently may be admitted without presenting a valid
passport if they are coming by land or sea from contiguous
territory.\10\
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\9\ A BCC is a machine-readable, biometric card, issued by the
Department of State, Bureau of Consular Affairs.
\10\ 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g).
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B. Statutory and Regulatory History

This final rule sets forth the second phase of a joint Department
of Homeland Security (DHS) and Department of State (DOS) plan, known as
the Western Hemisphere Travel Initiative (WHTI), to implement section
7209 of the Intelligence Reform and Terrorism Prevention Act of 2004,
as amended (IRTPA) on June 1, 2009.\11\ A brief discussion of IRTPA,
amendments to IRTPA, and related regulatory efforts follows. For a more
detailed description of these efforts through June 26, 2007, please
refer to the NPRM at 72 FR 35088.
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\11\ Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17,
2004).
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1. Intelligence Reform and Terrorism Prevention Act
On December 17, 2004, the President signed IRTPA into law.\12\
IRTPA mandates that the Secretary of Homeland Security, in consultation
with the Secretary of State, develop and implement a plan to require
travelers for whom the President had waived the passport requirement to
present a passport or other document, or combination of documents, that
are ``deemed by the Secretary of Homeland Security to be sufficient to
denote identity and citizenship'' when entering the United States. WHTI
thus requires U.S. citizens and nonimmigrant aliens from Canada,
Mexico, and Bermuda to comply with the new documentation requirements.
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\12\ Pub. L. 108-458, 118 Stat. 3638 (Dec. 17, 2004).
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2. Advance Notice of Proposed Rulemaking
On September 1, 2005, DHS and DOS published in the Federal Register
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. Comments to the ANPRM related to
arrivals at sea and land ports-of-entry are addressed in this final
rule.
3. Rules for Air Travel From Within the Western Hemisphere
On August 11, 2006, DHS and DOS published an NPRM for air and sea
arrivals. The NPRM proposed that, subject to certain narrow exceptions,
beginning January 2007, all U.S. citizens and nonimmigrant aliens,
including those from Canada, Bermuda, and Mexico, entering the United
States by air and sea would be required to present a valid passport or
NEXUS Air card; U.S. citizens would also be permitted to present a
Merchant Mariner Document (MMD). The NPRM provided that the
requirements would not apply to members of the United States Armed
Forces. For a detailed discussion of what was proposed for air and sea
arrivals, please see the NPRM at 71 FR 41655 (hereinafter, Air and Sea
NPRM).
The final rule for travelers entering or departing the United
States at air ports-of-entry (hereinafter, Air Final Rule) was
published in the Federal Register on November 24, 2006. Beginning
January 23, 2007,\13\ U.S. citizens and nonimmigrant aliens from
Canada, Bermuda, and Mexico entering and departing the United States at
air ports-of-entry, which now includes from within the Western
Hemisphere, are generally required to bear a valid passport. The main
exceptions to this requirement are for U.S. citizens who present a
valid, unexpired MMD

[[Page 18386]]

traveling in conjunction with maritime business and U.S. and Canadian
citizens who present a NEXUS Air card for use at a NEXUS Air kiosk.\14\
The Air Rule made no changes to the requirements for members of the
United States Armed Forces. Please see the Air Final Rule at 71 FR
68412 for a full discussion of documentation requirements in the air
environment.
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\13\ DHS and DOS determined that delaying the effective date of
the Air Rule to January 23, 2007, was appropriate for air travel
because of operational considerations and available resources. See
id.
\14\ The Air Rule did not change the requirements for lawful
permanent residents. Lawful Permanent Residents of the United States
continue to need to carry their I-551 cards and permanent residents
of Canada continue to be required to present a passport and a visa,
if necessary, as they did before the rule came into effect.
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In the Air Final Rule, DHS and DOS deferred a final decision on the
document requirements for arrivals by sea until the second phase.
Complete responses to the comments relating to sea travel that were
submitted in response to the Air and Sea NPRM are presented in this
final rule.
4. Amendments to Section 7209 of IRTPA
On October 4, 2006, the President signed into law the Department of
Homeland Security Appropriations Act of 2007 (DHS Appropriations Act of
2007).\15\ 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 WHTI requirements no later than 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 required ``expeditious[]'' action and stated that
requirements must be satisfied by the ``earlier'' of the dates
identified.\16\ Congress also expressed an interest in having the
requirements for sea and land implemented at the same time and having
alternative procedures for groups of children traveling under adult
supervision.\17\ However, on December 26, 2007, the President signed
into law the Department of Homeland Security Appropriations Act of 2008
(``Omnibus Bill'', Pub. L. 110-161) which amended section 7209(b)(1) of
IRTPA to require that WHTI ``may not be implemented earlier than the
date that is the later of 3 months after the Secretary of State and the
Secretary of Homeland Security make the certification required in
subparagraph (B) or June 1, 2009.'' (Section 545, Omnibus Bill).
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\15\ Pub. L. 109-295, 120 Stat. 1355 (Oct. 4, 2006).
\16\ Id. at 546. See Congressional Record, 109th Cong., 2nd
sess., September 29, 2006 at H7964.
\17\ Id.
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5. Other Relevant Legislation
On August 4, 2007, the President signed into law the Implementing
Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act
of 2007).\18\ Section 723 of the 9/11 Commission Act of 2007 called on
the Secretary of Homeland Security to begin to develop pilot programs
with states to develop state-issued secure documents that would denote
identity and citizenship. Section 724 of the 9/11 Commission Act of
2007 called on the Secretary of State to examine the feasibility of
lowering the execution fee for the proposed passport card.
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\18\ Pub. L. 110-53, 121 Stat. 266 (Aug. 4, 2007).
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6. Passport Cards
On October 17, 2006, to meet the documentation requirements of WHTI
and to facilitate the frequent travel of persons living in border
communities, DOS, in consultation with DHS, proposed to develop a card-
format passport for international travel by U.S. citizens through land
and sea ports-of-entry between the United States and Canada, Mexico, or
the Caribbean and Bermuda.\19\ The passport card will contain security
features similar to the traditional passport book. The passport card
will be particularly useful for citizens in border communities who
regularly cross the border and will be considerably less expensive than
a traditional passport. The validity period for the passport card will
be the same as for the traditional passport--ten years for adults and
five years for minors under age 16. The final rule on the passport card
was published on December 31, 2007 at 72 FR 74169.
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\19\ 71 FR 60928.
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7. Certifications to Congress
In Section 546 of the DHS Appropriations Act of 2007, Congress
called for DHS and DOS to make certain certifications before completing
the implementation of the WHTI plan. The Departments have been working
toward making these certifications since October 2006. In Section 723
of the 9/11 Commission Act, Congress required the submission of a
report to the appropriate congressional committees regarding the state
enhanced driver's license pilot program required by a separate
provision of the Act.
Congress has asked for the following certifications:
1. National Institute of Standards and Technology (NIST)
Certification. Acquire NIST certification for the passport card
concerning security standards and best practices for protection of
personal identification documents.
On May 1, 2007, NIST certified that the proposed card architecture
of the passport card meets or exceeds the relevant standard and best
practices, as specified in the statute.
2. Technology Sharing. Certify that passport card technology has
been shared with Canada and Mexico.
DHS and DOS continue to share information and meet regularly with
both Mexican and Canadian officials regarding the radio frequency
identification (RFID) technology for the passport card.
3. Postal Service Fee Agreement. Certify that an agreement has been
reached and reported to Congress on the fee collected by the U.S.
Postal Service for acceptance agent services.
DOS and the Postal Service have memorialized their agreement on the
fees for the passport card set by DOS, including the execution fee
which the Postal Service retains.
4. Groups of Children. Certify that an alternative procedure has
been developed for border crossings by groups of children.
The final rule contains an alternative procedure for groups of
children traveling across an international border under adult
supervision with parental consent as proposed in the land and sea NPRM.
5. Infrastructure. Certify that the necessary passport card
infrastructure has been installed and employees have been trained.
WHTI is a significant operational change in a series of changes
that are aimed at transforming the land border management system. DHS
will utilize the technology currently in place at all ports-of-entry to
read any travel document with a machine-readable zone, including
passports and the new passport card. CBP Officers have been trained in
use of this infrastructure. In addition, CBP will deploy an integrated
RFID technical infrastructure to support advanced identity verification
in incremental deployment phases. CBP Officers receive ongoing training
on WHTI policies and procedures and that will continue as we approach
full WHTI implementation, including technology deployment, technology
capability, and documentary requirements. CBP will develop training
requirements and plans, perform the required training, provide on-site
training support and monitor its effectiveness through assessment and
ongoing support. Initial training was completed in January 2008.

[[Page 18387]]

6. Passport Card Issuance. Certify that the passport card is
available to U.S. citizens.
DOS has developed an ambitious and aggressive schedule to develop
the passport card and is making progress toward that goal. DOS issued
the final rule on December 31, 2007. DOS has accepted applications for
the passport card since February 1, 2008, and expects to issue cards in
spring 2008.
7. Common Land and Sea Implementation. Certify to one
implementation date.
The final rule provides for one implementation date for land and
sea travel.
8. State Enhanced Driver's License Projects. Certify to agreement
for at least one voluntary program with a state to test a state-issued
enhanced driver's license and identification document.
On March 23, 2007, the Secretary of Homeland Security and the
Governor of Washington signed a Memorandum of Agreement to develop,
issue, test, and evaluate an enhanced driver's license and
identification card with facilitative technology to be used for border
crossing purposes. On September 26, 2007, the Secretary of Homeland
Security and the Governor of Vermont signed a similar Memorandum of
Agreement for an enhanced driver's license and identification card to
be used for border crossing purposes; on October 27, 2007, the
Secretary and the Governor of New York also signed a Memorandum of
Agreement. On December 6, 2007, the Secretary of Homeland Security and
the Governor of Arizona also signed a similar Memorandum of Agreement
to develop, issue, test, and evaluate an enhanced driver's license and
identification card.\20\
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\20\ For more information on these enhanced driver's license
projects, see http://www.dhs.gov.
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The Departments have worked very closely to update the appropriate
congressional committees on the status of these certifications and will
continue to do so until final certifications are made. DOS and DHS
believe that these certifications will be made well in advance of the
June 1, 2009, deadline for implementation. In the unlikely event that
the Departments are unable to complete all the necessary certifications
by June 1, 2009, the Departments will provide notice to the public and
amend the date(s) for compliance with the document requirements for
land and sea border crossings as necessary.

II. Documentation at the Border

In the Land and Sea NPRM, the Departments announced that, separate
from WHTI implementation, beginning January 31, 2008, CBP would begin
requesting documents that help establish identity and citizenship from
all U.S. and Canadian citizens entering the United States. This
announcement was made to reduce the well-known vulnerability posed by
those who might illegally purport to be U.S. or foreign citizens trying
to enter the U.S. by land or sea on a mere oral declaration. A person
claiming U.S. citizenship must establish that fact to the examining CBP
Officer's satisfaction, including by presenting documentation as
necessary. Historically, a U.S. citizen has had to present a U.S.
passport only if such passport is required under the provisions of 22
CFR part 53. Since January 31, 2008, DHS has expected the evidence of
U.S., Bermudian, or Canadian citizenship to include either of the
following documents or groups of documents: (1) Document specified in
CBP's regulations as WHTI-compliant for that individual's entry; or (2)
a government-issued photo identification document presented with proof
of citizenship, such as a birth certificate. CBP retains its
discretionary authority to request additional documentation when
warranted and to make individual exceptions in extraordinary
circumstances when oral declarations alone or with other alternative
documents may be accepted.
As of January 31, 2008, CBP has required proof of citizenship, such
as a birth certificate or other similar documentation as noted in the
final rule for U.S. and Canadian children under age 19.

III. Summary of Document Requirements in the Proposed Rule

In the June 26, 2007, NPRM, the Departments proposed new
documentation requirements for U.S. citizens and nonimmigrant aliens
from Canada, Bermuda, and Mexico entering the United States by land
from Canada and Mexico, or by sea \21\ from within the Western
Hemisphere. The proposed document requirements are summarized below;
for a full discussion of the proposed requirements, please refer to the
NPRM at 72 FR 35088 (hereinafter Land and Sea NPRM).
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\21\ In some circumstances under this rule, it is important to
distinguish between types of sea travel. Those circumstances are so
noted in the discussion of the final requirements.
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The Departments proposed that most U.S. citizens entering the
United States at all sea or land ports-of-entry would be required to
present either: (1) A U.S. passport book; (2) a U.S. passport card; (3)
a valid trusted traveler card (NEXUS, FAST, or SENTRI); (4) a valid MMD
when traveling in conjunction with official maritime business; or (5) a
valid U.S. Military identification card when traveling on official
orders or permit.
The Departments proposed that Canadian citizens entering the United
States at sea and land ports-of-entry would be required to present, in
addition to a visa, if required: \22\
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\22\ See 8 CFR 212.1(h), (l), and (m) and 22 CFR 41.2(k) and
(m).
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1. A passport issued by the Government of Canada; or
2. A valid trusted traveler program card issued by the Canada
Border Services Agency (CBSA) or DHS, e.g. FAST, NEXUS, or SENTRI.\23\
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\23\ Canadian citizens who demonstrate a need may enroll in the
SENTRI program and currently may use the SENTRI card in lieu of a
passport. To enroll in SENTRI, a Canadian participant must present a
valid passport and a valid visa, if required. Other foreign
participants in the SENTRI program must present a valid passport and
a valid visa, if required, when seeking admission to the United
States, in addition to the SENTRI Card. The proposed rule did not
alter the passport and visa requirements for other foreign enrollees
in SENTRI (i.e., other than Canadian foreign enrollees).
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In the Land and Sea NPRM, DHS and DOS also noted that they had
engaged with the Government of Canada in discussions of alternative
documents that could be considered for border crossing use at land and
sea ports-of-entry under the proposed rule. DHS and DOS pledged
continued engagement in discussions of alternatives and welcomed
comments suggesting alternative Canadian documents.
Under the proposed rule, all Bermudian citizens would be required
to present a passport issued by the Government of Bermuda or the United
Kingdom when seeking admission to the United States at all sea or land
ports-of-entry, including travel from within the Western Hemisphere.
In the Land and Sea NPRM, the Departments proposed that all Mexican
nationals would be required to present either: (1) A passport issued by
the Government of Mexico and a visa when seeking admission to the
United States or (2) a valid Form DSP-150, B-1/B-2 visa Border Crossing
Card (BCC) when seeking admission to the United States at land ports-
of-entry or arriving by pleasure vessel or by ferry from Mexico. The
Departments proposed that BCCs alone would no longer be acceptable by a
Mexican national to enter the United States from Canada; instead, a
Mexican national would need to present a passport and visa when
entering the United States from Canada.
The Departments proposed that Mexican nationals who hold BCCs would
be allowed to use their BCCs for

[[Page 18388]]

entry at the land border from Mexico and, when arriving by ferry or
pleasure vessel from Mexico. For travel outside of certain geographical
limits or for a stay over 30 days, Mexican nationals who entered the
United States from Mexico possessing a BCC would also be required to
obtain a Form I-94 from CBP as is currently the practice.\24\ The BCC
would not be permitted in lieu of a passport for commercial or other
sea arrivals in the United States.
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\24\ See 8 CFR 212.1(c)(1)(i); also 22 CFR 41.2(g). If Mexicans
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(h)(1).
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The Departments also proposed continuing the current practice that
Mexican nationals may not use the FAST or SENTRI card in lieu of a
passport or BCC. Mexican national FAST and SENTRI participants,
however, would continue to benefit from expedited border processing.
The Departments also proposed to eliminate the exception to the
passport requirement for Mexican nationals who enter the United States
from Mexico solely to apply for a Mexican passport or other ``official
Mexican document'' at a Mexican consulate in the United States located
directly adjacent to a land port-of-entry and who currently are not
required to present a valid passport. This type of entry generally
occurs at land borders.\25\
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\25\ See 8 CFR 212.1(c)(1)(ii).
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In the Land and Sea NPRM, DHS and DOS encouraged U.S. states to
consider participation in enhanced driver's license pilot programs and
the Government of Canada to propose acceptable WHTI-compliant documents
that it would issue to its citizens. DHS proposed to consider, as
appropriate, documents such as driver's licenses that satisfy WHTI
requirements by denoting identity and citizenship. These documents
could be from a state, tribe, band, province, territory, or foreign
government if developed in accordance with enhanced driver's license
project agreements between those entities and DHS. In addition to
denoting identity and citizenship, these documents will have compatible
technology, security criteria, and respond to CBP's operational
concerns.
On January 29, 2008, DHS published in the Federal Register a final
rule concerning minimum standards for state-issued driver's licenses
and identification cards that can be accepted for official purposes in
accordance with the REAL ID Act.\26\ In the January 29, 2008 rule, DHS
indicated its intent to work with states interested in developing
driver's licenses that will meet both the REAL ID and WHTI
requirements.
---------------------------------------------------------------------------

\26\ See REAL ID Final Rule at 73 FR 5272.
---------------------------------------------------------------------------

In the Land and Sea NPRM, the Departments also proposed special
circumstances for specific groups of travelers permitting other
documents:
U.S. citizens on cruise ship voyages that originate and
end in the United States may carry government-issued photo
identification (IDs) and birth certificates, consular reports of birth
abroad or certificates of naturalization;
U.S. and Canadian citizen children under age 16 and
children age 16 to 18 traveling in groups may carry originals or
certified copies of birth certificates; U.S. citizen children may also
carry consular reports of birth abroad or certificates of
naturalization;
Members of the Kickapoo Band of Texas and Tribe of
Oklahoma may carry the Form I-872, American Indian Card;
The Land and Sea NPRM indicated that document requirements for
Lawful Permanent Residents (LPRs) of the United States, employees of
the International Boundary and Water Commission (IBWC) between the
United States and Mexico, workers on the Outer Continental Shelf (OCS),
active duty alien members of the U.S. Armed Forces, and members of
NATO-Member Armed Forces would remain unchanged.
The Departments also outlined certain approaches with regard to
Native Americans and Canadian Indians, as well as alternative
approaches to children and requested comments on the proposed
alternatives for inclusion in this final rule. A discussion of those
approaches and the comments received follows in the comment response
section.

IV. Discussion of Comments

In the ANPRM, the Air and Sea NPRM, and Land and Sea 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 sea and
land ports-of-entry.
DHS and DOS received 2,062 written comments in response to the
ANPRM and over 1,350 written comments in response to the Land and Sea
NPRM. The Departments also received several comments to the August 11,
2006, Air and Sea NPRM that addressed sea or land travel or the WHTI
plan generally, which have been included and addressed in these comment
responses. 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 the Land and Sea 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.
The comments received in response to the ANPRM and the Land and Sea
NPRM regarding arrivals by land and sea are addressed in this
rulemaking. A summary of the comments from the ANPRM, the Air and Sea
NPRM, and the Land and Sea NPRM follows with complete responses to the
comments.

A. General

DHS and DOS received thirty-nine comments to the Land and Sea NPRM
expressing general agreement with the proposed requirements.
DHS and DOS received several comments to the August 11, 2006, Air
and Sea NPRM for implementation of WHTI in the air and sea environments
that opposed any requirements for land-border crossings. DHS and DOS
received thirty comments to the Land and Sea NPRM expressing general
disagreement with the proposed rule. One commenter requested more
stringent document requirements than proposed.

B. Implementation

1. General
Comment: One commenter to the Land and Sea NPRM noted that a U.S.
citizen cannot be denied entry to the United States.
Response: U.S. citizens cannot be denied entry to the United
States; however, the documents that this rule requires are designed to
establish citizenship and identity. Travelers without WHTI-compliant
documents who claim U.S. citizenship will undergo additional inspection
and processing until the inspecting officer is satisfied that the
traveler is a U.S. citizen, which could lead to lengthy delays.
Comment: Two commenters to the Land and Sea NPRM expressed concern
that the manner by which DHS is certifying itself as being ready to
implement WHTI does not allow

[[Page 18389]]

Congress to exercise the necessary oversight of the WHTI program.
Response: DOS and DHS disagree. The Departments are in the process
of taking the necessary steps to be able to make all certifications to
Congress as required by statute. WHTI is a significant operational
change in a series of changes that are aimed at transforming the land
border management system. DHS will utilize the technology currently in
place at all ports-of-entry to read any travel document with a machine-
readable zone, including passports and the new passport card. CBP
Officers have been trained in use of this infrastructure. In addition,
CBP will deploy an integrated RFID technical infrastructure to support
advanced identity verification in incremental deployment phases. CBP
Officers receive ongoing training on WHTI policies and procedures and
that will continue as we approach full WHTI implementation, including
technology deployment, technology capability, and documentary
requirements. CBP will develop training requirements and plans, perform
the required training, provide on-site training support and monitor its
effectiveness through assessment and ongoing support, with initial
training having been completed in January 2008.
The Departments have worked very closely to update the appropriate
congressional committees on the status of the certifications and will
continue to do so until final certifications are made. Moreover, the
National Institute of Standards and Technology (NIST) certified on May
1, 2007, that the architecture of the passport card meets or exceeds
the relevant standard and the best practices for protection of personal
identification documents as specified in the statute. DOS and DHS are
on track to make all certifications well in advance of the June 1, 2009
implementation date.
Comment: Approximately two hundred commenters to the Land and Sea
NPRM requested that the Departments commit sufficient resources to
fully implement WHTI, including technology, staffing, funding,
training, and marketing.
Response: DOS and DHS are fully committed to providing the
necessary resources to implement WHTI, including technology, staffing,
funding, training, and outreach to the traveling public.
Comment: Several commenters raised concerns about requiring
passports or other forms of documentation during emergency situations.
One commenter stated that the passport waiver for U.S. citizens during
unforeseen emergencies or for humanitarian or national interest reasons
should also extend to Canadian and Mexican citizens. One commenter to
the Land and Sea NPRM requested that DHS consult with local emergency
responders so that WHTI does not compromise their ability to protect
American and Canadian communities.
Response: Pursuant to IRTPA, this final rule provides for
situations in which documentation requirements may be waived for U.S.
citizens on a case-by-case basis for unforeseen emergencies or
``humanitarian or national interest reasons.'' Similarly, CBP has
authority to temporarily admit non-immigrant aliens into the United
States on a temporary basis in case of a medical or other emergency,
which is not changed by this final rule. Finally, local emergency
responders routinely consult with local CBP offices regarding entry
procedures into the United States during emergency situations.
Comment: One commenter stated that the Land and Sea NPRM would be
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: DHS and DOS are not denying U.S. or non-U.S. citizens the
ability to travel to and from the United States by requiring an
appropriate document for admission. Pursuant to 8 U.S.C. 1182(a)(7)(A)
and 1185, DHS and DOS have authority to require sufficient proof of
identity and citizenship via presentation of a passport or alternative
document when seeking entry to the United States. By requiring a valid
passport or other alternative document for entry to the United States
from within the Western Hemisphere, DHS and DOS are eliminating a
historical exemption of the requirement that all U.S. citizens and
other travelers must posses a passport to enter the country.
2. Timeline
Comment: DHS and DOS received one hundred and ten comments to the
ANPRM regarding the timeline for implementation of WHTI. Ten of the
ANPRM commenters believed that WHTI should be implemented sooner than
proposed. Nine of these commenters approved of the timelines proposed,
and ninety-four commenters believed that the timeline should be
extended.
Several comments to the Air and Sea NPRM and to the Land and Sea
NPRM asked for an extended implementation timeline. One commenter
stated that WHTI in the land and sea environments should be implemented
as soon as possible. A few commenters urged that the Departments give
the public ample opportunity to prepare for the final implementation.
Twenty-four commenters recommended delaying implementation until pilot
projects and field trials had been completed. Two hundred and six
commenters recommended that DHS should set a clear implementation date
of June 2009.
Six commenters requested a flexible and phased implementation
approach for WHTI. Thirty-six commenters recommended ensuring that
there is a critical mass of WHTI-compliant documentation (i.e.,
passports, NEXUS, FAST, and enhanced driver's licenses) in circulation
prior to WHTI implementation at land and sea ports-of-entry. One
commenter to the Land and Sea NPRM requested that key benchmarks
relating to document availability and installation of required
infrastructure be developed to determine the timeline for full
implementation.
Response: Since the publication of the NPRM, Congress has amended
section 7209 by the 200 Omnibus Bill, to prohibit WHTI from being
implemented before June 1, 2009, at the earliest. DHS and DOS will
transition toward WHTI secure document requirements over the next 16
months, with implementation on June 1, 2009. This allows ample time for
the public to prepare for the change.
Comment: Two commenters stated that ending oral declarations on
January 31, 2008, without a plan would cause substantial delays at
ports-of-entry and suggested a single implementation date of 2009
rather than a phased implementation. Three commenters were concerned
about how the elimination of the practice of accepting oral
declarations of citizenship and how processing of travelers without
documents in the transition phase will impact the flow of traffic at
busy border crossings.
Response: In the Land and Sea NPRM, the Departments announced that,
separate from WHTI implementation, beginning January 31, 2008, CBP
would begin requesting documents that evidence identity and citizenship
from all U.S. and Canadian citizens entering the United States at land
and sea ports-of-entry. This change was made to reduce the well-known
vulnerability posed by those who might illegally purport to be U.S. or
foreign citizens trying to enter the United States by land

[[Page 18390]]

or sea on a mere oral declaration. As of January 31, 2008, a person
claiming U.S. citizenship must establish that fact to the examining CBP
Officer's satisfaction, generally through the presentation of a birth
certificate and government-issued photo identification. CBP retains its
discretionary authority to request additional documentation when
warranted and to make individual exceptions in extraordinary
circumstances when oral declarations alone or with other alternative
documents may be accepted.
CBP has relied on its operational experience in processing
travelers entering the United States by land to ensure that the
elimination of oral declarations is implemented in a manner that will
minimize delays while achieving the security benefit underlying WHTI.
The changes that took place January 31, 2008, have gone smoothly.
Compliance rates are high and continue to increase. There have been no
increases in wait times attributable to the end of accepting oral
declarations alone at the border.
Comment: One commenter to the Land and Sea NPRM stated that WHTI
implementation should be delayed until a study underway at the
Government Accountability Office (GAO) is completed. Another commenter
called upon DHS to conduct a more comprehensive economic impact
analysis before the proposed rule is promulgated.
Response: The Departments welcome congressional oversight and have
cooperated with several GAO engagements that have directly or
indirectly touched on WHTI. The Departments intend to fully implement
WHTI on June 1, 2009, the earliest possible date, which the Departments
believe is in the best interests of national security. Additionally,
the Departments are providing ample time for robust communication
efforts to and preparation by the traveling public. While the
Departments will consider the findings of these GAO engagements with
regard to WHTI implementation, it is not necessary, nor would it be
appropriate, to delay implementation of WHTI until any particular GAO
report is completed. Moreover, CBP has also conducted a robust economic
analysis of the proposed rule, as detailed in the Land and Sea NPRM and
elsewhere in this document, in accordance with applicable laws,
regulations, and policies.
3. Security and Other Operational Considerations
Comment: DHS and DOS received approximately thirty-five comments to
the ANPRM stating that the implementation of WHTI at the land borders
would result in travel delays at the ports-of-entry. Ten commenters to
the Land and Sea NPRM recommended that the ``border crossing agencies''
implement a plan to anticipate and mitigate longer waits at key border
crossings.
Response: DHS has analyzed the potential for travel delays at the
ports-of-entry in the document ``Western Hemisphere Travel Initiative
in the Land and Sea Environments: Programmatic Environmental
Assessment.'' The public was invited to comment on this analysis. DHS
has concluded that implementation of WHTI in the land environment will
not have an adverse impact on wait times. By using documents that
contain an MRZ or employ RFID technology, the Departments anticipate
that wait times will decrease. The final Programmatic Environmental
Assessment is available at http://www.cbp.gov.
4. Technology
Comment: Eight commenters to the Land and Sea NPRM stated that WHTI
should not be implemented until RFID technology has been deployed.
These commenters also stated that RFID technology should be deployed at
all land-border crossings. Six hundred and thirty-eight commenters
stated that appropriate infrastructure and personnel should be in place
for a program of this magnitude.
Response: DHS is committed to ensuring that infrastructure and
fully trained personnel are in place to successfully implement WHTI in
the land environment. DHS believes that deploying new RFID technology
at certain land ports-of-entry, in combination with existing
technology, is the most cost-effective way to enhance security while
ensuring the efficient flow of trade and travelers. DHS believes that
RFID deployment to low-volume land-border ports-of-entry in the near
future is unnecessary given the current traffic volumes.
Comment: Two commenters to the Land and Sea NPRM stated that DHS
and DOS should reconsider the use of vicinity RFID technology in the
passport card because of the substantial privacy and security risks.
Four commenters stated that the implementation of WHTI should protect
the personal privacy of travelers.
Response: Based on experience to date with the use of RFID
technology, DHS is confident that existing and future vicinity RFID-
enabled documents can be used at the border in a manner that safeguards
personal privacy. RFID technology is currently used as part of existing
trusted traveler programs. The RFID chip contained in the passport card
issued by DOS will not contain any personal information. The vicinity
RFID technology to be deployed would act as a pointer to a secure CBP
database and does not transmit personal information. The information is
presented to CBP officers as the traveler pulls up to an inspection
booth, thus facilitating faster processing of the individual.
5. Cruise Ships
Comment: Four commenters to the Land and Sea NPRM stated their
appreciation that passports will not be required for those cruise
passengers departing and returning to the United States. One commenter
disagreed with the proposed alternative document requirement for
certain U.S. citizen cruise ship passengers.
Response: DHS and DOS appreciate these comments, and have decided
to adopt in the final rule the NPRM provision addressing U.S. citizens
on round-trip cruises. Thus, U.S. citizens traveling entirely within
the Western Hemisphere may present a government-issued photo ID along
with an original or a copy of a birth certificate instead of a document
designated in this final rule if they: (1) Board a cruise ship at a
port or place within the United States and (2) return to the same U.S.
port or place from where they originally departed. In addition, DHS and
DOS added a new provision that clarifies that U.S. citizens under the
age of 16 are required to present either an original or a copy of his
or her birth certificate without having to provide a photo ID.
Regarding the comment opposing alternative document requirements
for cruise ship passengers, because of the nature of round trip cruise
ship travel, DHS has determined that when U.S. citizens depart from and
reenter the United States on board the same cruise ship, they pose a
low security risk in contrast to cruise ship passengers who embark in
foreign ports. Therefore, under certain conditions, U.S. citizen cruise
ship passengers traveling within the Western Hemisphere will be
permitted to present alternative documentation as described in section
V.A. of this document.
6. MODUs/OCS
Comment: One commenter to the Land and Sea NPRM supported the
clarification on document requirements for workers returning to and
from Mobile Offshore Drilling Units (MODUs) within the United States
Outer Continental Shelf (OCS).

[[Page 18391]]

Response: DHS and DOS appreciate this comment. DHS and DOS
clarified in the Land and Sea NPRM that offshore workers who work
aboard Mobile Offshore Drilling Units (MODUs) attached to the United
States Outer Continental Shelf (OCS), and who travel to and from MODUs,
would not need to possess a passport or other designated document to
re-enter the United States if they do not enter a foreign port or
place. Upon return to the United States from a MODU, such an individual
would not be considered an applicant for admission for inspection
purposes under 8 CFR 235.1. Therefore, this individual would not need
to possess a passport or other designated document when returning to
the United States. DHS and DOS note that, for immigration purposes,
offshore employees on MODUs underway, which are not considered attached
to the OCS, would not need to present a passport or other designated
document for re-entry to the United States mainland or other territory
if they do not enter a foreign port or place during transit. However,
an individual who travels to a MODU directly from a foreign port or
place and, therefore, has not been previously inspected and admitted to
the United States, would be required to possess a passport or other
designated document when arriving at the United States port-of-entry by
sea.

C. Passports

1. General
Comment: Thirty-one commenters to the Land and Sea NPRM stated that
increasing the number of documents in circulation will increase the
number of documents that are lost, stolen or misplaced, and thus
individuals in these circumstances will need expedited replacement. One
commenter to the Land and Sea NPRM expressed concern about how to enter
the United States if his passport had been lost or stolen.
Response: U.S. citizens whose passports are lost or stolen can
apply for replacements and request expedited service if necessary.
Individuals who are abroad and have an urgent need to travel are
generally issued a one-year, limited validity passport that will enable
them to continue their trips. That passport will be replaced within the
year for no additional fee either domestically or abroad. Individuals
who are within the United States and have an urgent need to travel may
pay a fee for expedited processing as defined in 22 CFR 51.56.
Comment: One commenter to the Land and Sea NRPM raised concerns
about the security of U.S. and foreign passports, stating that
passports are easily falsified or altered. One commenter stated that
passports can be intercepted in the mail and falsified.
Response: A 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. As such, we recognize that false passports
are valuable assets for dangerous people. We take precautionary
measures to verify passports and share information with international
partners regarding lost and stolen passports.
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 authentication features include digitized
photographs, embossed seals, watermarks, ultraviolet and fluorescent
light verification features, security laminations, micro-printing, and
holograms.
An application for a U.S. passport is adjudicated by trained DOS
experts and issued to persons who have documented their identity and
United States 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.
U.S. passports are delivered by priority mail with delivery
confirmation providing proof of receipt at the addressee's zip code.
Mail carriers are instructed to scan the Priority Mail piece at the
time it is delivered to the address indicated on the envelope. Priority
Mail envelopes also help protect the passport from loss or theft. The
envelopes are sturdy and less likely to become damaged or unsealed
during mail processing.
Foreign passports accepted for admission to the United States must
meet the standards set out in the International Civil Aviation
Organization (ICAO) 9303, and a CBP inspecting officer verifies and
authenticates such passports presented for admission to the United
States.
2. Cost of Passports
Comment: In response to the Air and Sea NPRM and Land and Sea NPRM,
DHS and DOS received many comments stating that passports are too
expensive for routine cross-border visits and that the cost of the
passport book should be reduced or eliminated. Several commenters
requested that DOS offer lower rates for families, the elderly, and
children under 18. One commenter was concerned about the eventual cost
of the passport card. One commenter stated that the cost of the
passport card should be reasonable and it should remain less expensive
than a passport. One commenter to the Land and Sea NPRM requested a no-
cost passport card for travelers who cross international borders at
unique geographical locations. One commenter urged the State Department
to provide expedited passport service to truck drivers at no additional
charge. Five commenters to the Land and Sea NPRM suggested that U.S.
passport fees be waived for Indian tribal members. One commenter stated
that the cost of obtaining a passport would cause people not to travel,
negatively affecting commerce.
Response: Title 22 of the United States Code mandates that DOS
charge a fee for each passport application and a fee for executing each
application, where applicable. The law and implementing regulations
provide for certain exemptions from passport fees, but the law does not
provide DOS the discretion to create additional exemptions or a reduced
fee category based on the personal circumstances of the individual.
Children do benefit from a lower application fee but it reflects the
reduced validity period of the passport rather than a concession based
on age. Please see the passport card final rule () for more information
on the cost structure of the passport card. See 72 FR 74169.
3. Obtaining Passports
Comment: DHS and DOS received seven comments to the Land and Sea
NPRM asking why a birth certificate had to be submitted with the
passport application or an old passport had to be submitted along with
a renewal application, thus potentially leaving travelers without a
passport or a birth certificate to use for international travel.
Response: To prevent fraud, original birth certificates must be
examined by passport examiners who are trained in fraud detection
before they are returned to the applicant. For the same reason, a
person is not permitted to hold two valid passports of the same type
except on DOS authorization. DOS physically cancels current passports
when it issues new passports, therefore, current or old passports have
to be submitted during the renewal process. If a passport is

[[Page 18392]]

needed for urgent travel, the traveler can request expedited service.
4. DOS Issuance Capacity
Comment: DHS and DOS received one hundred eighty-four comments to
the Land and Sea NPRM that expressed concern that DOS would not be able
to timely process the increased numbers of passport applications that
will result from implementation of the rule. One commenter stated that
standard applications should be processed in six weeks and expedited
applications in one week. One commenter stated that with the increase
of passport applications, adjudicators within DOS are not given enough
time to thoroughly check them. One commenter stated that the wait time
in applying for the passport card should be less than thirty days.
Response: Prior to the implementation of the first phase of WHTI in
January 2007, DHS and DOS conducted a successful campaign to alert the
traveling public and stakeholders in the private sector to the new
document requirements implemented in the air phase, particularly in the
aviation and travel and tourism industries.
DOS has taken numerous measures in response to the increased demand
resulting from the implementation of WHTI. DOS has created hundreds of
new positions and is currently producing more than 1.6 million
passports per month. DOS anticipates increasing passport issuance to
500,000 documents a week. DOS is also planning to open additional
passport facilities around the country. Through these efforts, DOS
expects to be able to meet the increased demand resulting from the
implementation of WHTI in the land and sea environments.
5. Passport Cards
Comment: DHS and DOS received four comments to the Air and Sea NPRM
for implementation of WHTI in the air and sea environments requesting
that the passport card be designated as an acceptable document in the
air environment. Two commenters to the Land and Sea NPRM did not
support the issuance of passport cards because the cards cannot be used
for international travel beyond Canada, Mexico, the Caribbean, or
Bermuda.
Response: The passport card is intended as a lower cost means of
establishing identity and nationality for U.S. citizens in two limited
situations--for U.S. citizens crossing U.S. land borders and traveling
by sea between the United States, Canada, Mexico, the Caribbean, or
Bermuda. The passport card is not designed to be a globally
interoperable travel document as defined by the International Civil
Aviation Organization (ICAO). In fact, designating the card format
passport for wider 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 because it would not meet all the
international standards for passports and other official travel
documents. Moreover, in its consideration of the 2007 Appropriations
Act for the Department of Homeland Security, Congress, while allowing
for the use of the passport card by citizens traveling by sea between
the United States, Canada, Mexico, the Caribbean, or Bermuda, did not
make parallel changes regarding international air travel.
Comment: DHS and DOS received five comments to the Land and Sea
NPRM stating that the implementation of WHTI should not take place
until the passport card is available. One commenter suggested that the
passport card should be issued in conjunction with existing state
licensing agencies with federal support. Four commenters stated that
the passport card could not possibly be designed, tested, publicized,
and be readily obtainable by the summer of 2008. One commenter stated
that the issuance of a passport card would not facilitate spontaneous
travel.
Response: As stated in the Land and Sea NPRM, in which the
Departments jointly announced the next phase of WHTI addressing entry
into U.S. land and sea ports-of-entry, DHS and DOS have considered the
operational challenges posed by the new requirements. As a result, the
Departments are taking a flexible, practical approach to land
implementation that considers a variety of factors, including the
availability of passports, passport cards, and state-issued enhanced
driver's licenses pursuant to project agreements with DHS. During this
transition period, U.S. citizens will be able to obtain the documents
necessary to satisfy WHTI.
Comment: The Government of Canada commented on the Land and Sea
NPRM and encouraged the sharing of the technological and procurement
specifications of the U.S. passport card in order to assist in the
development of comparable passport card options in other countries.
Response: DHS and DOS have engaged with the Government of Canada in
discussions of alternative documents proposed by the Canadian federal
government and several provinces that could be considered for border
crossing use at land and sea ports-of-entry. DHS and DOS have shared
technology and procurement specifications with the Government of Canada
regarding alternative travel documents and welcome continued engagement
with Canadian counterparts to implement WHTI. Alternative identity and
citizenship documents issued by the Government of Canada will be
considered in the future.
Comment: One commenter to the NPRM recommended that the card should
expire not less than ten years from the date issued.
Response: Passport cards, like passport books, will be valid for
ten years for adults and five years for children less than 16 years of
age.

D. Alternative Documents

1. General
Comment: DHS and DOS received approximately 230 comments to the
ANPRM requesting alternative documentation to the traditional passport
book. Almost half of those commenters wanted a low-cost identification
card that could be used for crossing the border. Many commenters
requested that existing CBP Trusted Traveler cards be accepted. Several
commenters asked for a clear definition of the documents that would be
acceptable under WHTI for land travel. A few commenters stated that
only the passport should be acceptable. Two commenters asked that a
Transportation Worker Identification Card (TWIC) be designated as an
acceptable document.
DHS and DOS received three comments to the Land and Sea NPRM
requesting a low-cost identification card that could be used for
crossing the border. Eleven commenters to the Land and Sea NPRM
supported the opportunity for travelers to present a variety of
government-approved identifications. Three commenters requested DHS and
DOS to further study the possibility for alternative identification
that would be accepted in place of a passport.
Response: Other acceptable documents are designated in this rule by
the Secretary of Homeland Security as sufficient to establish identity
and citizenship at land and sea ports-of-entry. For U.S. citizens,
along with the passport and lower-cost passport card, CBP Trusted
Traveler cards under the NEXUS, SENTRI, and FAST programs will be
accepted under this rule. In addition, identification cards issued to
military members of the U.S. Armed Forces will be accepted when such

[[Page 18393]]

personnel are traveling on official travel orders. Merchant Mariner
Documents (MMDs) issued by the U.S. Coast Guard to U.S. citizens will
also be accepted when traveling for official maritime business.
Canadian citizens will be able to present CBP Trusted Traveler
Cards. The Border Crossing Card (BCC) issued by DOS to Mexican
nationals will be accepted when coming from Mexico.
Documents issued as part of a DHS-approved state enhanced driver's
license project will be acceptable according to the agreement between
the individual state and DHS, or the Government of Canada and DHS.
Details on state enhanced driver's license projects will be published
as notices in the Federal Register as they are finalized.
In addition to the documents described above, DHS and DOS are
providing alternatives to the passport requirement for children under
16, children under 18 traveling in groups, Native American U.S.
citizens, Canadian Indians, and certain U.S. cruise passengers on
``closed-loop'' voyages that originate in the United States. DHS and
DOS encourage U.S. states and Canadian provinces (through the
Government of Canada) to participate in enhanced driver's license
projects.
Comment: Four commenters to the Land and Sea NPRM asked for a
definition of ``availability'' concerning documents that will be
accepted under WHTI.
Response: In the Land and Sea NPRM, the Departments stated, in the
context of implementation and the effective date of the final rule:

At a date to be determined by the Secretary of Homeland
Security, in consultation with the Secretary of State, the
Departments will implement the full requirements of the land and sea
phase of WHTI. The implementation date will be determined based on a
number of factors, including the progress of actions undertaken by
the Department of Homeland Security to implement the WHTI
requirements and the availability of WHTI compliant documents on
both sides of the border. * * * \27\

\27\ 72 FR at 35096.

In this context, ``availability'' means that WHTI-designated documents
exist and the public can obtain them. The Departments are publishing
this final rule with ample notice to the traveling public. This will
also allow sufficient time for the traveling public to obtain documents
before June 1, 2009.
Comment: Thirteen commenters to the Land and Sea NPRM asked that
the Departments include a provision in the final rule for a non-photo
identification document (e.g., fingerprint verification) for persons
who object to being photographed based on their religious beliefs.
Response: While DHS and DOS remain sensitive to the concerns of
different religious groups, the Departments must balance those concerns
against the need to secure our borders through the implementation of
the document standards required by WHTI. In particular, photographs
serve a unique and essential function and significantly minimize the
opportunities for document fraud, unlike fingerprints, by allowing an
inspecting CBP officer or any law enforcement officer to immediately
compare the picture on the document against the traveler. In order to
be consistent with international travel standards, DHS is requiring all
adult travelers to carry a government-issued photographic
identification document. Failure to do so may result in delays at the
border as officers try to determine identity and citizenship.
2. Driver's License and Birth Certificate
Comment: DHS and DOS received almost 300 comments to the ANPRM
stating that the combination of a driver's license and birth
certificate should be acceptable to denote an individual's citizenship
and identity. DOS and DHS received several comments to the Land and Sea
NPRM stating that a driver's license and birth certificate should be
acceptable to denote an individual's citizenship and identity. One
commenter stated that because Native Americans can use their tribal
identification cards, northern-border citizens should be allowed to use
their state or province-issued birth certificates and driver's
licenses. Thirty-eight commenters stated that they should be exempt
from a passport requirement due to their unique geographic location.
Two commenters requested special provisions for waiving passport
requirements for North American Indians traveling through the U.S.
border. One commenter disagreed with the cruise ship exemption for U.S.
citizens.
Response: The Departments agree that U.S. citizens may use the
combination of a driver's license and birth certificate when traveling
on ``closed loop'' cruise ship voyages, where the U.S. citizen departs
from a U.S. port or place and returns to the same U.S. port upon
completion of the voyage. Accordingly, we disagree with the commenter
advocating that the Departments not adopt a special provision for
cruise travel. DHS and DOS have determined that exempting certain
cruise passengers from a passport requirement is the best approach to
balance security and travel efficiency considerations in the cruise
ship environment. In contrast, because of the myriad government
entities that issue birth certificates and because of the greater
potential for counterfeiting or adulteration associated with general
use in the land and sea environments, the Departments have determined
that it is not prudent to permit the combination of birth certificates
and driver's licenses generally for adults when single, secure
documents are available. CBP recognizes that residents of unique
geographic locations face special challenges in that some must travel
through Canada to get from their homes in the United States to their
schools, jobs, and hospitals in other areas of the United States. CBP
has worked with many of these communities over the years to facilitate
travel. Full implementation of WHTI will not diminish CBP's ability to
utilize existing protocols and other inspection processes to admit
travelers to and from unique geographic locations. The Departments have
elected not to adopt any of the remaining comments.
Comment: DHS and DOS received several comments to the Land and Sea
NPRM stating that because the combination of a driver's license and
birth certificate is acceptable aboard a cruise ship, it should also be
acceptable documentation for land-border entries. One commenter stated
that because the land-border tourist industry has a far larger impact
on the U.S. economy than the cruise-ship industry, the land border
deserves no less protection and consideration.
Response: DHS and DOS disagree. As mentioned previously, due to the
operational environment and the security risks assessed, the
Departments have determined that U.S. citizens may use the combination
of a driver's license and birth certificate when traveling on certain
cruise-ship voyages. As detailed in the Land and Sea NPRM, the security
risks associated with designating this document combination for U.S.
citizens on round-trip cruises are low. See 72 FR 35096. DHS and DOS
have carefully considered the issues surrounding protection of our land
borders and have determined that the documents designated in this rule
for entry at land ports-of-entry reflect the best approach to balance
security and travel efficiency considerations in the land environment.
Comment: Three commenters to the Land and Sea NPRM recommended that
senior citizens be permitted entry to the United States using
government-issued photo identification with proof of citizenship based
on their low security

[[Page 18394]]

risk, significant cross-border linkages, and limited financial
resources.
Response: DHS and DOS appreciate this comment. DHS and DOS are
sensitive to the needs of senior citizens and note that DOS will be
offering a lower cost passport card as an alternative to the passport
book. Senior citizens who live in participating states or provinces may
also be eligible to obtain an enhanced driver's license.
3. Trusted Traveler Documents
Comment: Three commenters to the Land and Sea NPRM expressed
concern that the existing NEXUS card is not considered an acceptable
form of ID at the border. One commenter sought early written assurances
that NEXUS cards will be recognized as entry documents in non-dedicated
commuter lanes. One commenter stated that DHS should make it a priority
to expand both NEXUS and FAST.
Response: Existing NEXUS cards are already acceptable documents for
entry at land and sea ports-of-entry. CBP is upgrading the card format/
features and is conducting a robust training program for its personnel
at these ports of entry to ensure that CBP Officers enforce both the
current documentation procedures recognizing trusted traveler cards and
the WHTI requirements uniformly.
Comment: Twenty-six commenters to the Land and Sea NPRM requested
the expansion of the NEXUS, SENTRI, and FAST programs. Four commenters
requested that the Trusted Traveler Programs be promoted more
aggressively. Two commenters requested that the government explore
opportunities and technologies to further develop frequent border
crossing programs. Two commenters requested the expansion of the NEXUS
program to include driver's licenses. Three commenters stated it is
imperative that the phrase ``as a participant in the program'' be
interpreted broadly enough to cover situations where truck drivers are
crossing the border in a regular commercial or traveler lane for both
NEXUS and FAST.
Response: CBP is expanding the NEXUS, SENTRI, and FAST Trusted
Traveler programs to accommodate an increase in applications expected
as a result of the implementation of WHTI.
4. Children/Groups of Children/Alternative Approaches/Parental Consent
Comment: Thirty-one commenters to the ANPRM asked to allow
travelers under the age of 16 to use a birth certificate as sufficient
proof of identity and citizenship. Ninety-three commenters to the Land
and Sea NPRM supported the proposed requirements for children. Four
commenters to the Land and Sea NPRM suggested the exemption from
presenting a passport be raised to age 16 and under. One commenter
stated that it would be appropriate to exempt children under the age of
18. Sixty-eight commenters supported the provisions being made for
children traveling with their families, in groups, or with chaperones.
One commenter stated that there was concern for the treatment of
children if they have lost their documentation and were detained at the
border. One commenter asked that U.S. and Canadian children traveling
in groups for short trips should not be required to carry an original
or certified copy of a birth certificate if accompanied by a chaperone.
One commenter stated that attendance by students who are not members of
athletic teams at high school events is jeopardized by this proposal.
Response: Under this final rule, all U.S. citizen children under
the age of 16 are permitted to present at all sea and land ports-of-
entry when arriving from contiguous territory either: (1) An original
or a copy of a birth certificate; (2) a Consular Report of Birth Abroad
issued by DOS; or (3) a Certificate of Naturalization issued by U.S.
Citizenship and Immigration Services. The Departments have decided to
expand the list of documents Canadian children may present. Under the
final rule, Canadian citizen children under the age of 16 are permitted
to present an original or a copy of a birth certificate, a Canadian
Citizenship Card, or Canadian Naturalization Certificate at all sea and
land ports-of-entry when arriving from contiguous territory. The final
rule relaxes the birth certificate requirement by allowing presentation
of either an original or copy of a birth certificate, rather than an
original or a certified copy as proposed in the NPRM.
DHS and DOS have determined that age 16 is the most appropriate age
to begin the requirement to present a passport book, passport card (for
U.S. citizens), or other approved document because at that age most
states begin issuing photo identification to children, such as a
driver's license, and at that point, the child would, consequently,
have a known and established identity that could be readily accessed by
border security and law enforcement personnel. Also, age 16 is the age
at which DOS begins to issue adult passports, valid for 10 years
instead of 5 years for children. DHS and DOS also recognize that it is
difficult for the majority of children under age 16 to obtain a form of
government-issued photo identification other than a passport.
Under this final rule, U.S. citizen children under age 19, who are
traveling with public or private school groups, religious groups,
social or cultural organizations, or teams associated with youth sport
organizations that arrive at U.S. sea or land ports-of-entry from
contiguous territory, are permitted to present either: (1) An original
or a copy of a birth certificate; (2) a Consular Report of Birth Abroad
issued by DOS; or (3) a Certificate of Naturalization issued by USCIS.
Under this provision, groups of children must be under the supervision
of an adult affiliated with the organization (including a parent of one
of the accompanied children who is only affiliated with the
organization for purposes of a particular trip) and all the children
have parental or legal guardian consent to travel. Canadian citizen
children under age 19 who are traveling in groups are permitted to
present an original or a copy of a birth certificate, a Canadian
Citizenship Card, or Canadian Naturalization Certificate under the same
circumstances. For purposes of this alternative procedure, an adult
would be considered to be a person age 19 or older, and a group would
consist of two or more people.
While DHS and DOS are sensitive to the needs of school groups,
carrying an original or copy of a birth certificate represents the
minimum travel requirement a person would possess to enable us to
secure our borders through the implementation of WHTI.
Comment: Six commenters to the Land and Sea NPRM requested that
children of Mexican citizenship be included in the special requirements
for children under the age of 16 or under the age of 19 when traveling
in groups. One of these commenters questioned why Mexican children
under the age of 16 were not included under the special requirements
for children as Canadian children were.
Response: IRTPA directs DHS and DOS to implement a plan to require
documents for citizens for whom the general passport requirements have
previously been waived, not to eliminate document requirements
currently in place. All Mexican citizens, including children, are
currently required to present either a passport and visa, or a BCC upon
arrival in the United States. DHS and DOS are not changing the current
document requirements for children of Mexican citizenship entering the
United States.

[[Page 18395]]

Question From the Proposed Rule: Alternative Approach for Children;
Parental Consent
In the Land and Sea NPRM, the Departments solicited comments on
whether a traditional passport or a passport card should be required
for any child under 16 entering the United States without his/her
parents and not in a group. DOS and DHS also solicited comments on what
would be the advantages and disadvantages to requiring a traditional
passport or a passport card, and not allowing child travelers in such
circumstances to rely upon a birth certificate, Consular Record of
Birth Abroad, or Certificate of Naturalization.
Comment: Two commenters to the Land and Sea NPRM requested that a
child under the age of 16 who is traveling with only one parent not be
required to have a letter of consent to travel from the other parent.
One commenter stated that there needs to be a solution concerning a
child traveling across the border with an extended family member who is
not the parent.
Response:: While the Departments take seriously the issue of child
abduction, the final rule does not require a passport or passport card
for children or evidence of parental consent for the child to cross the
international border. Parents are strongly encouraged to check the
requirements of the governments of Mexico and Canada for child
travelers as well as review the guidance on the DOS and DHS Web sites
when planning international travel for their children.
Under this final rule, a U.S. citizen who is under the age of 16 is
permitted to present either an original or a copy of his or her birth
certificate, a Consular Report of Birth Abroad issued by DOS, or a
Certificate of Naturalization issued by USCIS when entering the United
States from contiguous territory at sea or land ports-of-entry.
Based upon a review of the alternative approach for children and
the parental consent questions asked in the Land and Sea NPRM and the
comments received in response, DHS and DOS are not implementing any
additional requirements regarding children or evidence of parental
consent to travel other than those proposed in the Land Sea NPRM, which
are adopted in this final rule. The Departments note that obtaining a
passport book or card or other document with an MRZ or RFID technology
may result in faster processing at the border.
5. State Enhanced Driver's License Projects
Comment: DHS and DOS received two comments to the Air and Sea NPRM
stating that the best solution to increasing security at our borders is
one that incorporates improved technology in existing documentation,
such as a driver's license. Thirty commenters to the Land and Sea NPRM
stated that WHTI should not be implemented until all state or
provincial enhanced driver's license pilot programs are in place. Six
Canadian provinces urged DHS to explicitly recognize their proposed
enhanced driver's license in the final rule. Twelve commenters
supported proposed state pilot programs. One hundred-eight commenters
recommended that DHS recognize an enhanced driver's license denoting
identity and citizenship for entry by both Canadian and American
citizens. One commenter stated that programs for producing an enhanced
driver's license need more time for development and distribution prior
to the summer of 2008. Eleven commenters recommended completing an
enhanced driver's license pilot project prior to implementation of
WHTI. Fifty-six commenters to the Land and Sea NPRM requested financial
and technical assistance from the Federal government so that states
could produce enhanced driver's licenses.
Response: DHS encourages U.S. states and Canadian provinces acting
through the Canadian Government to undertake enhanced driver's license
projects. In a separate notice published concurrently in the Federal
Register with this final rule, DHS will designate the Washington State
enhanced driver's license as acceptable and notes that additional such
documents will be added by notice. DHS will consider documents such as
U.S. state and Canadian provincial enhanced driver's licenses that
satisfy the WHTI requirements by denoting identity and citizenship
undertaken pursuant to agreements with DHS. These documents also will
have compatible facilitative technology and must meet minimum standards
of issuance to meet CBP's operational needs. As noted above, the State
of Washington has begun a voluntary program to develop an enhanced
driver's license and identification card that would denote identity and
citizenship. On March 23, 2007, the Secretary of Homeland Security and
the Governor of Washington signed a Memorandum of Agreement to develop,
issue, test, and evaluate an enhanced driver's license and
identification card with facilitative technology to be used for border
crossing purposes. Under this final rule, U.S. citizens arriving from
contiguous territory and adjacent islands may present the enhanced
driver's license and identification card issued by the State of
Washington at land and sea ports-of-entry.
To establish an EDL program, each entity individually enters into
agreement with DHS based on specific factors such as the entity's level
of interest, funding, technology, and other development and
implementation factors. As each EDL program is specific to each entity,
DHS does not intend to delay the implementation of WHTI until all
potential state and provincial enhanced driver's license projects are
operational. However, DHS will continue to welcome states and provinces
interested in implementing EDL programs--even those that start after
WHTI implementation.
Comment: Two commenters recommended a meeting with all state
driver's license directors by January 2008 before the completion of the
Washington State pilot program.
Response: DHS appreciates this comment and remains committed to
working on a continuing basis with and coordinating efforts among
states interested in developing, testing, and implementing pilot
programs for enhanced driver's licenses. DHS encourages states
interested in developing enhanced driver's licenses to work closely
with DHS to that end.
6. Mexican/Canadian/Bermudian Documents
Comment: Two commenters to the Land and Sea NPRM mistakenly
believed that DHS had accepted Canadian provincial driver's licenses
under the proposed rule. Eleven commenters appreciated DHS's acceptance
of alternative Canadian citizenship and identity documents. Four
commenters urged DHS and DOS to work with border states and Canadian
provinces toward acceptable upgrades of existing documents. In its
comments to the Land and Sea NPRM, the Government of Canada noted that
DHS and DOS would accept the U.S. Merchant Mariner Document (MMD) as a
WHTI-compliant document for U.S. citizens traveling on official
maritime business and requested that the modernized Canadian Seafarer's
Identity Document (SID) issued by Canada also be recognized by DHS and
DOS as a WHTI-compliant document at sea and land ports-of-entry.
Response: While DHS appreciates these comments, DHS is not
designating the provincial driver's license or the Canadian Seafarer's
Identity Document

[[Page 18396]]

as acceptable documents in this final rule. As stated in the Land and
Sea NPRM, DHS and DOS have engaged with the Government of Canada and
various provinces in discussions of alternative documents that could be
considered for border crossing use at land and sea ports-of-entry under
this rule. DHS and DOS will continue working with the Canadian
government to explore potential alternative documents in the future.
The Departments clarify that the MMD is being phased out and is not a
document that will be accepted in the long term.
7. REAL ID Driver's Licenses
Comment: Four commenters to the Land and Sea NPRM asked for
clarification whether enhanced driver's licenses issued as part of a
state pilot program under WHTI would comply with the REAL ID
requirements as well. Two commenters cautioned against the action of
implementing WHTI using the requirements of REAL ID due to concerns
regarding privacy, costs, a complicated verification system, and the
issues of federalism. One commenter stated that DHS must definitively
declare that WHTI-compliant driver's licenses meet the improved
driver's license requirements of the REAL ID Act.
Response: DHS has worked to align REAL ID and EDL requirements.
EDLs are being developed consistent with the requirements of REAL ID
and, as such, can be used for official purposes such as accessing a
Federal facility, boarding Federally-regulated commercial aircraft, and
entering nuclear power plants. While the REAL ID requirements include
proof of legal status in the U.S., the EDL will require that the
cardholder be a U.S. citizen. In addition, the EDL will also include
technologies that facilitate electronic verification and travel at
ports-of-entry. DHS is extremely cognizant of the need to protect
privacy, and as such institutes best practices with regard to the
collection and use of personal data for all of its programs.
8. IBWC
Comment: DHS and DOS received one comment to the Air and Sea NPRM
for implementation of WHTI in the air and sea environments requesting
that International Boundary and Water Commission (IBWC) identification
be acceptable for land and sea travel. DHS and DOS received one comment
to the Land and Sea NPRM requesting that IBWC identification be
acceptable for land and sea travel. The comment also noted several
improvements in the security of IBWC identification documents.
Response: The Departments appreciate this comment. As stated in the
Land and Sea NPRM, U.S. citizens and Mexican national direct and
indirect employees of the IBWC crossing the United States-Mexico border
may continue to use their IBWC cards while on official business under
this final rule.

E. U.S. Native Americans and Canadian Indians

1. Proposed Rule
In the Land and Sea NPRM, the Departments sought comments on what
Native American tribal documents could be designated as acceptable in
the final rule. The Departments specified general criteria for
acceptable Native American documents to meet. To satisfy Section 7209
of IRTPA, the documents must establish the identity and citizenship of
each individual. In the Land and Sea NPRM, DHS and DOS proposed to
accept tribal enrollment documents only if members of the issuing tribe
continue to cross the land border of the United States for a historic,
religious or other cultural purpose. It was also proposed that the
tribal enrollment card must be satisfactory to CBP, may only be used at
that tribe's traditional border crossing points and will only be
accepted so long as that tribe cooperates with the verification and
validation of the document. Tribes were also obligated to cooperate
with CBP on the enhancement of their documents in the future as a
condition for the acceptance of the document.
DHS and DOS specifically invited comments from those United States
tribes with members who continue to cross the border for a traditional
purpose. The Departments sought comments from any tribe wishing to
propose its tribal enrollment card as an acceptable alternative
document. The Land and Sea NPRM asked that such comments include
detailed information about traditional border crossings and the
locations of those crossings. The Departments also requested
information about the enrollment qualifications employed by each such
U.S. tribe. A detailed description of the information sought by the
Departments is provided in the Land and Sea NPRM. See 72 FR at 35099-
35100.
DHS and DOS also stated that they were considering alternative
approaches and invited comments on these alternative approaches for
U.S. Native Americans:
Make no special provision for U.S. Native Americans
because they have an equal opportunity to obtain the same documents
that are available to all other U.S. citizens.
Consider broader issuance of the American Indian Card now
issued to members of the federally recognized Kickapoo Tribes or a
similar card.
Accept tribal enrollment cards from tribes whose members
continue traditional border crossings without any limitation on the
border crossing point or points where each such tribal enrollment card
is accepted.
Accept all tribal enrollment cards from all federally
recognized Native American tribes at some or all border crossing
points.
The Land and Sea NPRM proposed that, for Canadian Indians:

Canadian members of First Nations or ``bands'' would be
permitted to enter the United States at traditional border crossing
points with tribal membership documents subject to the same
conditions applicable to United States Native Americans. Canadian
First Nations or bands who seek to have their tribal enrollment
cards accepted for border crossing purposes should submit comments
for the record which contain the information requested * * *for
comparable federally recognized U.S. tribes.\28\
---------------------------------------------------------------------------

\28\ 72 FR at 35100.

The Land and Sea NPRM also proposed acceptance of the new document
to be issued by the Canadian Department of Indian Affairs and Northern
Development (hereinafter ``INAC Card'')
2. Summary of Comments
Many tribes and bands commented on the NPRM asking that the
Departments include their tribal enrollment cards or other tribal
documents as acceptable documents under WHTI. These commenters also
proposed that all tribal cards issued by U.S. tribes should be
accepted.
Several Canadian First Nations commented on the Land and Sea NPRM
to propose that their tribal enrollment cards or other tribal documents
be designated as acceptable documents. These commenters also proposed
that all such band cards for Canadian Indians be accepted. Commenters
suggested that, in the alternative, the Departments should accept the
proposed, revised INAC card as an acceptable alternative document.
3. Final Rule--U.S. Native Americans
As stated in the Land and Sea NPRM, the United States has a special
relationship, founded in the Constitution, with its Native American
tribes.\29\ This relationship allows the

[[Page 18397]]

federal government, where appropriate, to designate Native American
members of federally recognized U.S. tribes for special treatment.\30\
Comments throughout the rulemaking process and consultations with
U.S. Native American tribes have emphasized the particular impact which
a new document requirement may have on Native Americans belonging to
U.S. tribes who continue to cross the land borders for traditional
historic, religious, and other cultural purposes. Several of these
tribes are concerned that their members will be required to obtain a
passport, passport card, or alternative document to maintain contact
with ethnically related communities, including, for some tribes,
members who live on traditional land in Mexico or Canada.
---------------------------------------------------------------------------

\29\ See Constitution, I, Sec. section 8, cl.3; Cherokee Nation
v Georgia, 30 U.S. 1, 17 (1831); Worcester v Georgia, 31 U.S. 515,
561 (1832); U.S. v Sandoval, 231 U.S. 28, 46-47 (1913).
\30\ Morton v. Mancari, 417 U.S. 535, 551-55.
---------------------------------------------------------------------------

Based on the record of this rulemaking proceeding, the Departments
have adopted an alternative approach from the Land and Sea NPRM for
U.S. Native Americans. DHS will work with tribes recognized by the
United States government if each tribe (1) Continues to have strong
cultural, historic, and religious cross-border ties; and (2) is willing
to improve the security of the tribal enrollment documents in the
future. Accordingly, paragraph (e) in 8 CFR 235.1 has been revised to
capture this change.
As stated in the proposed rule, acceptance of a tribal enrollment
document would be contingent upon: (1) The tribe satisfactorily
establishing identity and citizenship in connection with the use of its
document; (2) the tribe providing CBP with access to appropriate parts
of its tribal enrollment records; and (3) the tribe agreeing to improve
the security of its tribal documents in cooperation with CBP.
4. Final Rule--Canadian Indians
As requested by Congress, DHS has consulted with the Government of
Canada regarding several alternative documents, including a proposed
more secure INAC Card. It is anticipated that this new INAC card will
be issued by the Canadian Department of Indian Affairs and Northern
Development, Director of Land and Trust Services (LTS). DHS proposes to
accept this document for Canadian Indians if and when it is available
in connection with features and procedures to satisfactorily evidence
identity and citizenship.
LTS is responsible for determining the status of all Canadian
Indians under Canada's Indian Act of 1876 for purposes of entitlements.
Since 1951, the Canadian Government has maintained Indian Registration
Lists, which confirm the heritage of each individual for entitlement
purposes. Through this long-standing registration process, Canada has
formally conferred ``registered'' Indian status on individuals. Only
registered Canadian Indians can apply for the LTS issued ``status''
card i.e., the INAC card.
LTS currently issues an INAC card with some security features such
as a photograph of the document holder. The Government of Canada
proposes to issue a new INAC card that would comply with international
document security standards agreed by the Governments of Canada and the
United States as part of the Security and Prosperity Partnership (SPP).
When the document is issued in accordance with the SPP 1.1.3 security
standard it is expected to include a machine-readable zone (MRZ).
It is anticipated that Canada will begin to issue the new INAC
cards beginning in 2008. DHS continues to have discussions with the
Government of Canada about how to ensure that DHS and CBP will have the
capability to electronically validate and verify the identity and
citizenship of INAC card holders. Permanent designation of the INAC as
an acceptable travel document by the Secretary of Homeland Security
will be conditioned on the satisfactory establishment of a process to
achieve this validation.
If designated by the Secretary of Homeland Security, the proposed
new INAC card will also be accepted as satisfactory evidence of the
citizenship and identity of registered Canadian Indians.
In light of the decision to accept an appropriate document issued
by the Government of Canada to those recognized by that government as
Canadian Indians, the Departments have decided not to accept the
multitude of documents issued by the many Canadian First Nations.
5. Specific Comments Objecting to any Document Requirement
Comments: CBP received approximately one hundred comments to the
ANPRM and several commenters to the Land and Sea NPRM opposing any
regulations that would require Native Americans or Canadian Indians
traveling to and from the United States to carry and produce a U.S. or
Canadian passport upon entry. These commenters asserted that such a
requirement would infringe upon an asserted ``right'' of indigenous
peoples living within the United States and Canada to travel freely
across the border. Twenty-two tribes and their representatives
commented to the Land and Sea NPRM that WHTI infringed upon an asserted
``right'' to unrestricted passage across the U.S.-Canadian border
granted under the Jay Treaty and other treaties. DHS and DOS received
one comment to the Air and Sea NPRM for implementation of WHTI in the
air and sea environments similarly stating that Native Americans should
not have any restrictions on travel across the borders of the United
States. Two commenters stated that assurance was needed that document
requirements would not obstruct or discourage them from obtaining those
documents or inhibiting the movement of their people. One commenter to
the Land and Sea NPRM observed that while Native Americans are eligible
to obtain passports as Canadian or U.S. citizens, many choose not to
because they perceive it as a threat to their sovereign status. One
commenter is concerned that such documents are required to denote
citizenship and identity and many believe that accepting citizenship
from the U.S. or Canada would undermine the federal government's treaty
obligations. Six individuals and one tribe commented that the rule
would have a negative impact on Native Americans' ability to maintain
familial ties and exercise religious and cultural practices across
international borders. One tribe commented that international crossings
were based on proximity to water. One tribe commented that the
Departments' attempts to fit border crossing needs into a box are
simply unrealistic.
Response: The INA requires the inspection of all applicants for
admission, with the purpose of verifying identity and citizenship. The
Jay Treaty of 1794 and other treaties do not prevent the Departments
from requiring documentary evidence of identity and citizenship from
Native Americans and Canadian Indians.
Congress, through the enactment of Section 7209 of IRTPA,
specifically mandated that the Departments develop a plan to require
documentary evidence of identity and citizenship at the borders.
Section 289 of the INA \31\ refers to the ``right'' of ``American
Indians'' born in Canada to ``pass the borders of the United States,''
provided they possess at least 50 percent of Native American blood.
Section 289, however, benefits individuals who establish their
identity, their Canadian citizenship, and that they are ``American
Indians.''
---------------------------------------------------------------------------

\31\ See 8 U.S.C. 1359.
---------------------------------------------------------------------------

DHS and DOS have proposed to accept certain tribal documents as an

[[Page 18398]]

appropriate accommodation to U.S. Native Americans.
6. Specific Native American and Canadian Indian Comments Directed to
the Rulemaking Process
Comment: Ten commenters to the Land and Sea NPRM requested that DHS
and DOS meet with their tribal governments. One tribe and one
individual commented that DHS and DOS have failed to adequately consult
with federally recognized Indian tribes on the implementation of this
rule in accordance with the law and consequently requested that the
entire Land and Sea NPRM be retracted until proper ``government-to-
government'' consultations can take place. One tribe expressed concerns
that the Land and Sea NPRM would be the ``only opportunity'' for tribal
governments to engage in dialogue regarding the proposed regulation.
One commenter encouraged DHS to continue the open dialogue with tribal
governments along the international borders and to view tribal
governments as an asset for protecting and providing security for the
international borders.
Response: Throughout the rulemaking process, DHS has met with
Native Americans to discuss the WHTI document requirements and tribal
concerns. Moreover, DHS specifically solicited comments from Native
Americans in an August 6, 2007, letter to all federally recognized
tribes. Comment procedures outlined in the Land and Sea NPRM provided
Native Americans with the opportunity to provide information about
their tribal enrollment documents. The Departments received comments
from numerous tribes, and these comments were fully considered in the
decision to issue this final rule.
Comment: Two tribes requested an extension of the comment period
for the Land and Sea NPRM to be able to study the options available to
them.
Response: We have carefully considered the comments and determined
that it is not advisable to reopen the comment period for the Land and
Sea NPRM. Section 7209 of IRTPA, as amended, calls on the Departments
to act expeditiously to implement WHTI. The Departments believe that
the expeditious issuance of this Final Rule best advances our national
security. Throughout the entire WHTI rulemaking process, DHS has met
with Native Americans and Canadian Indians to discuss the WHTI document
requirements and tribal concerns. DHS specifically solicited comments
from Native Americans in an August 6, 2007, letter to all federally
recognized tribes. As stated above, the Departments received comments
from numerous tribes, and these comments were fully considered and are
addressed in this final rule. Delaying issuance of the final rule would
delay notice to the public and consequently the time available for
travelers to obtain designated documentation. For these reasons, DHS
and DOS did not reopen the comment period for the Land and Sea NPRM.
7. Comments on the Acceptance of Tribal Documents
Comment: Twenty-six tribes, along with three individuals, commented
that members should be allowed to use their existing tribal cards at
any crossing point. One tribe commented that an independent pilot
project is underway for a secure identification document that can be
used by that tribe. Seven commenters welcomed the proposal to accept
tribal enrollment documents as long as those documents are approved by
DHS. Many commenters recommended using tribal documents as an
alternative to the passport. Several commenters encouraged DHS to
continue working with indigenous peoples to provide a mechanism for
border crossing that is as streamlined as possible. One tribe's comment
requested that Native Americans be granted the same privileges as U.S.
Merchant Mariners if the Departments decide that requiring passports is
the only option for entry documents. One commenter requested broader
issuance of the American Indian Card now issued to members of the
federally recognized Kickapoo Tribe or a similar card. Two commenters
requested that existing Canadian Certificates of Indian Status (CIS) be
accepted as a WHTI-compliant document for entry into the United States.
One commenter urges that secure indigenous, tribal or CIS Identity
Cards for the purposes of entry into and from the U.S. and Canada be
established within the provisions of WHTI. One tribe requested the
acceptance of Canadian First Nations' tribal IDs at all border
crossings. One tribe argued that their tribal enrollment records were
sufficient to prove citizenship and objected to any notion that state-
issued birth certificates were superior to their tribal records. One
tribe commented that they support the comments by other tribal
governments to develop a national tribal ID card for identification
purposes for crossing international borders. One tribe did not
understand the reluctance of DHS to accept tribal membership documents
as sufficient evidence of identity and citizenship to support the right
to enter the United States.
Response: DHS and DOS appreciate these comments. As indicated
above, based on the comments received and the information provided to
the Departments on the particular impact the document requirement would
have on Native American tribes, the Departments have determined that,
at the time of full implementation of this final rule, U.S. citizens
belonging to a federally-recognized tribe may present tribal enrollment
documents designated by the Secretary of Homeland Security as meeting
the WHTI standards at land ports-of-entry. If designated by the
Secretary of Homeland Security as satisfactory, Canadian citizens may
present the new proposed INAC card at land ports-of-entry when arriving
from contiguous territory.
Documents that will be designated by the Secretary must establish
the identity and citizenship of the Native American and Canadian Indian
document holders. Documents that will be designated by the Secretary
must be secure, and U.S. tribes must also cooperate with CBP on the
enhancement of their documents in the future as a condition for the
continued acceptance of the document.
8. Native American Privacy Issues
Comment: Twelve tribes commenting to the Land and Sea NPRM were
concerned with disclosure and privacy issues regarding religious and
cultural information. One tribe noted that information presumably
related to traditional border crossings, which they consider private,
was not requested from other state or government entities. These
commenters insisted that the request for this information was not
necessary.
Response: DHS and DOS remain sensitive to related privacy concerns.
In the Land and Sea NPRM, DHS and DOS invited any tribe that wished to
propose its tribal enrollment card as an acceptable alternative
document at one or more traditional border crossing points to submit
comments explaining fully why its card should be accepted for travel
while noting any privacy concerns. The privacy of tribes and their
members will be of the utmost importance to the Departments when
consulting with tribes to enhance their documents to be WHTI compliant.
9. Miscellaneous Comments
Comment: One commenter to the Land and Sea NPRM sought
clarification on what would be considered a ``qualifying tribal
entity'' under the proposed rule.
Response: A qualifying tribal entity is one that is federally
recognized by the government of the U.S. that agrees to

[[Page 18399]]

meet WHTI tribal document security standards, including agreeing to
provide CBP access to the appropriate entries in its enrollment
records. DHS will work with federally recognized tribes to develop,
test and produce WHTI-compliant documents. Documents could be produced
on behalf of a single tribe or a group of tribes who have agreed to
produce a WHTI-compliant tribal document.
Comment: One tribe commented to the Land and Sea NPRM that most
members are born at home or on reservations and have difficulty
producing a birth certificate, which is an important source document
used to obtain documents under the proposed rule.
Response: DHS and DOS have procedures in place to make
determinations of citizenship when birth certificates are unavailable.
10. Kickapoo Tribe American Indian Card
Comment: Two commenters to the Land and Sea NPRM asked that DHS and
DOS maintain the current practice of allowing members of the Kickapoo
Tribe to cross the border under the Texas Band of Kickapoo Act. One
commenter is concerned that USCIS has not issued new documents for
several years and asks that USCIS resume issuing such form I-872
American Indian Cards.
Response: DHS and DOS agree to continue the current practice of
allowing U.S. citizen and Mexican national Kickapoo Indians to enter
and exit the United States using their American Indian Cards, issued by
USCIS, as an alternative to the traditional passport or passport card
at all land and sea border ports-of-entry. There are currently no plans
to issue new form I-872 American Indian cards.

F. Outside the Scope of the NPRM and Final Rule

1. General
Comment: DHS and DOS received three comments to the Air and Sea
NPRM regarding implementation of WHTI in the air and sea environments
that proposed various 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,
the public had the opportunity to comment on DOS's proposed passport
card NPRM at 71 FR 60928 (October 17, 2006).
Comment: Two commenters to the Land and Sea NPRM stated that while
the economic analysis predicts job losses in border communities, the
federal government is not providing a remedy or addressing the impact
in any way.
Response: The Departments continue to strive to minimize the
potential impact of WHTI implementation, especially on border
communities. However, the WHTI plan was mandated by Congress in section
7209 of the IRTPA in response to an important national security
imperative identified by the 9/11 Commission. Further, the Departments
believe that implementation of WHTI will help facilitate legitimate
trade and travel over time. It should also be recognized that a number
of factors have a greater effect on the economies of border
communities, including overall economic conditions and the current
exchange rate. Providing financial support to those communities is
beyond the scope of this rule, however.
Comment: Two commenters stated that FAST enrollees are not
currently treated as trusted travelers, which defeats the purpose of
the FAST program.
Response: Comments regarding the administration of CBP Trusted
Traveler programs are beyond the scope of this rule; however, it should
be noted that commercial drivers enrolled in FAST are trusted
travelers.
Comment: Ten commenters recommended the creation of a NEXUS appeals
board. These commenters also recommended a streamlined renewal process
for NEXUS. One commenter suggested several changes to the NEXUS program
such as a one card/one fee per family program; extending the validity
period of the NEXUS card to ten years; streamlining the renewal
process; and recognizing NEXUS and FAST cards for entry in non-
dedicated commuter lanes. One commenter suggested a clear NEXUS renewal
process that ensures no down time for NEXUS members.
Response: Comments regarding the administration of CBP Trusted
Traveler programs are beyond the scope of this rule. DHS would note,
however, that under the final rule, all CBP Trusted Traveler documents
will be acceptable entry documents for United States and Canadian
citizens at all lanes and all land ports-of-entry. DHS further notes
that, if an individual feels that an application to a CBP Trusted
Traveler program was denied based upon inaccurate information, redress
may be sought through contacting the local trusted traveler Enrollment
Center to schedule an appointment to speak with a supervisor, writing
the CBP Trusted Traveler Ombudsman, or using the DHS Traveler Redress
Inquire Program (DHS TRIP). CBP has also been making incremental
improvements to its trusted traveler programs. See http://cbp.gov/xp/cgov/travel/trusted_traveler/.
Comment: Two commenters to the Land and Sea NPRM stated that the
cost for a Canadian passport is high and that the process for obtaining
a passport should be made easier. Another commenter stated that the
process for obtaining a Mexican passport and visa should be made less
onerous.
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 or Mexican government-issued
document is outside the scope of this rule and outside the Departments'
authorities.
Comment: One commenter requested that a ``full environmental
statement'' be prepared prior to implementation of passport or
documentation control.
Response: DHS and DOS documented their assessment of the potential
for impact on the quality of the human environment in the ``Western
Hemisphere Travel Initiative in the Land and Sea Environments:
Programmatic Environmental Assessment'' dated September 10, 2007. The
public was given an opportunity to comment on a draft of the
Programmatic Environmental Assessment (PEA) upon the publication of the
Notice of Availability on June 25, 2007. See 72 FR 34710. Comments
regarding the draft PEA were addressed in the Final PEA. Based on the
final PEA, a determination was made that the travel documents proposed
for WHTI and use of the travel documents for implementation of IRTPA
will not have a significant impact on the quality of the human
environment and that further analysis under the National Environmental
Policy Act of 1969 (NEPA) would not be necessary. A Finding of No
Significant Impact (FONSI) was issued on September 10, 2007, a copy of
which is contained in the final PEA.
Comment: One commenter to the Land and Sea NPRM disagreed with the
employee citizenship requirement for the enhanced driver's license
projects because it would result in the loss of valuable workforce for
state governments.
Response: While DHS appreciates this comment, policies regarding
state employee citizenship requirements are beyond the scope of this
rule. DHS remains committed to working with and coordinating efforts
among states

[[Page 18400]]

interested in developing, testing, and implementing enhanced driver's
license projects. DHS encourages states interested in developing
enhanced driver's licenses to work closely with DHS to that end.
Comment: Two comments to the Land and Sea NPRM requested that DHS
support the proposal to establish DOS offices in border communities to
provide flexibility for spontaneous trips. Two commenters recommended
an increase in the capacity of one of the regional passport offices
specifically for passport service companies.
Response: While DHS and DOS appreciate these comments, expansion of
DOS passport offices in specific border communities is beyond the scope
of this rule.
Comment: One commenter to the Land and Sea NPRM recommended that
the number of expedited applications for individual passports submitted
by service companies be increased.
Response: While DHS and DOS appreciate these comments, operational
policies between passport service providers and DOS are beyond the
scope of this rule.
Comment: One commenter to the Land and Sea NPRM recommended that
the Departments explore, as part of the proposed pilot project concept,
the development of an ``Indigenous lane'' for border crossing/passage
purposes.
Response: While DHS remains committed to working with tribal
groups, operational policies regarding ``dedicated lanes'' are beyond
the scope of this rule.
2. Air Rule
Comment: One commenter to the Land and Sea NPRM requested that the
alternative procedure for U.S. and Canadian children entering the
United States under age 19 traveling as part of school groups,
religious groups, social or cultural organizations, or teams associated
with youth support organizations be extended to the air environment in
addition to land and sea ports-of-entry.
Response: Comments regarding documentation requirements for U.S.
and Canadian children entering the U.S. at air ports-of-entry are
beyond the scope of this rule; however, the public had the opportunity
to comment on these requirements in the August 11, 2006, NPRM for the
air environment. Children under the age of 16 arriving from Western
Hemisphere countries are required to present a passport when entering
the United States by air. For a more detailed description of
documentation requirements for children entering the U.S. through air
ports-of-entry, see the Air Final Rule at 71 FR 68416 (November 24,
2006).
Comment: One commenter to the Land and Sea NPRM requested that an
alternative procedure for the transfer of medical patients be
established for all modes of travel.
Response: The air mode of travel is beyond the scope of this rule;
however, 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.'' Please
see the Air Final Rule, 71 FR at 68419, for more information.
3. Lawful Permanent Residents
Comment: Three commenters to the Land and Sea NPRM stated that a
Lawful Permanent Resident card should be sufficient to travel to and
from the United States without the presentation of a passport. One
commenter to the NPRM expressed concern about waiting to renew an
expired Lawful Permanent Resident card when applying for entry into the
United States.
Response: Lawful Permanent Residents (LPRs) of the United States
will continue to be able to enter the United States upon presenting a
Lawful Permanent Resident card (I-551) or other valid evidence of
permanent resident status. There are current regulations that already
address the entry of LPRs into the United States, which remain
unchanged by WHTI.
4. Dual Nationals
Comment: One commenter to the Land and Sea NPRM sought
clarification on what documents would be required for travelers who
have dual citizenship.
Response: The WHTI rule lists the new documentation requirements
for U.S., Canadian, Bermudan citizens, and Mexican nationals entering
the United States by land or sea from within the Western Hemisphere.
WHTI does not alter United States immigration law or regulations
regarding citizenship.

G. Public Relations

1. General
Comment: DHS and DOS received fifty comments to the ANPRM asking
for a partnership between the U.S. and Canada to address WHTI issues.
One hundred commenters to the Land and Sea NPRM expressed a strong
desire to see a more robust coordination between Canada and the United
States. Nineteen commenters recommended a joint public communications
campaign with Canada.
Response: The Secretaries of DHS and DOS have worked and continue
to work 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: One commenter stated that a new comment period should be
opened or else the Land and Sea NPRM should be withdrawn.
Response: The Departments have carefully considered the comment and
determined that it is not advisable to reopen the comment period for
the Land and Sea NPRM. Section 7209 of the IRTPA, as amended, calls on
the Departments to implement WHTI expeditiously, which the Departments
believe is in the best interests of national security. The procedures
for the 60-day comment period outlined in the Land and Sea NPRM
provided the public the opportunity to provide meaningful comments on
the proposed rule and questions asked. The Departments received over
1,350 comments, which were fully considered and are addressed in this
document. Moreover, delaying issuance of the final rule would delay
notice to the public and shorten the time available to the traveling
public to obtain designated documentation. For these reasons, DHS and
DOS did not open a new comment period and did not withdraw the Land and
Sea NPRM.
2. Outreach
Comment: DHS and DOS received thirteen comments to the ANPRM that
recommended the Departments work with the travel industry to launch an
effective communications campaign to inform and educate the traveling
public about any new documentation requirements. One hundred seventy
comments were received to the Land and Sea NPRM stating that all the
changes taking place during implementation of WHTI are confusing. Seven
hundred and seventeen commenters encouraged DHS to formulate,
implement, and fully fund a public awareness communications campaign
immediately, particularly as it could add clarity. Six commenters
recommended that a public relations/marketing firm be hired. One

[[Page 18401]]

commenter encouraged DHS and DOS to timely convey information
concerning the plan to end oral declarations on January 31, 2008. One
commenter requested that the DHS undertake a full review of the public
education plan for WHTI.
Response: DHS and DOS are committed to an effective and intensive
communications strategy during the implementation of WHTI. As was done
in preparation for the changes at the border that took place on January
31, 2008, 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. During the early phase of the implementation of
WHTI in the air environment, DHS and CBP worked closely with the travel
industry and other industries to disseminate timely, accurate
information, and aggressively publicize the new requirements. CBP found
that the overwhelming majority of affected air travelers, approximately
99 percent, presented acceptable documentation upon entry to the United
States from within the Western Hemisphere from the earliest stages of
implementation. This figure included not only U.S. citizens but also
the citizens of Canada, Mexico, and Bermuda. The Departments believe
that this coordinated public outreach effort will continue to serve as
a useful model for implementation in the land and sea phase of WHTI.

H. Regulatory Analyses

1. Regulatory Assessment
Comment: DHS and DOS received over 1,700 comments to the ANPRM that
expressed concern that WHTI would have a negative impact on trade and
tourism. Twenty-four comments to the Air and Sea NPRM for WHTI stated
that implementation would have a negative impact on cross-border
travel. Five commenters to the Land and Sea NPRM stated that
implementation would have a negative impact on day trips across the
border. Approximately nine hundred commenters stated that WHTI would
have a negative impact on trade and tourism resulting in revenue
losses. Twenty-two commenters to the Land and Sea NPRM recommended that
security be improved without damaging healthy cross-border trade and
commerce.
Response: Pursuant to Executive Order 12866, CBP conducted an
economic analysis to address the potential impacts of reduced travel
that could result from the implementation of WHTI in the land and sea
environments. This analysis was published concurrently with the Land
and Sea NPRM, and CBP requested comments on the documents. Based on the
Regulatory Assessment, CBP acknowledges that WHTI could have a negative
impact on travel in both environments; however, as demonstrated in
intensive case studies of eight representative U.S. communities along
both the Canadian and Mexican borders, reduced travel attributable to
WHTI is predicted to have a less-than-1 percent impact on local output
and employment levels in those communities. Additionally, CBP found
that the cruises covered by the rule would not likely be greatly
affected because obtaining a travel document represents a small portion
of overall cost for most cruise passengers. Finally, the analysis for
travel in the air environment was finalized with the Air Final Rule
(Documents Required for Travelers Departing From or Arriving in the
United States at Air Ports-of-Entry From Within the Western Hemisphere
published November 24, 2006 (71 FR 68412)).
Comment: CBP received three comments to the Regulatory Assessment
for the Land and Sea NPRM stating that the analysis understated the
economic losses that would result from implementation of the rule.
Eight commenters to the Regulatory Assessment for the Land and Sea NPRM
contended that the economic analysis was incomplete and insufficient.
Two commenters stated that the underlying assumptions in the analysis
were arbitrary and low. Several commenters stated that there must be a
meaningful, third-party economic impact assessment of any proposed
measures before proceeding.
Response: While these commenters were dissatisfied with the
economic analysis, they did not submit specific information that would
enhance the current analysis, nor did they submit alternative analyses
that more robustly considered the impacts on the U.S. and foreign
economies. The analysis prepared by CBP for the Land and Sea NPRM was
reviewed by the Office of Management and Budget (OMB) in accordance
with Executive Order 12866 and OMB Circular A-4. According to OMB
Circular A-4, a good regulatory analysis should include: (1) A
statement of the need for the proposed action, (2) an examination of
alternative approaches, and (3) an evaluation of the benefits and
costs--quantitative and qualitative--of the proposed action and the
main alternatives identified by the analysis. The two Regulatory
Assessments that were published in the public docket concurrently with
the Land and Sea NPRM (see USCBP-2007-0061-0002 and USCBP-2007-0061-
0004) fully met these criteria. A regulatory analysis conducted by a
``third party'' is not a requirement under either Executive Order 12866
or OMB Circular A-4.
Comment: CBP received one comment to the Regulatory Assessment of
the Land and Sea NPRM stating that it did not make sense for predicted
forgone cruise travel to have a higher percentage of reduced travel
than forgone land travel.
Response: CBP notes that estimated forgone travel was predicted
using elasticities of demand for cruise travel and derived demand
elasticities for land travel. CBP estimates that cruise travel is more
elastic than land-border travel because cruise passengers travel almost
exclusively for leisure purposes. Cruise passengers, thus, have many
potential substitutes for their cruise trips; in economic terms, cruise
passengers' demand for travel is very ``elastic.'' Conversely, land
travelers cross the border for a myriad of reasons, including work,
shopping, visiting family and friends, as well as vacation purposes.
Because land-border trips are less ``elastic'' than cruise trips, the
percent of forgone travelers is lower in the land environment than the
cruise environment.
Comment: Two commenters to the Land and Sea 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 Land and Sea NPRM was
reviewed by the Office of Management and Budget (OMB) in accordance
with Executive Order 12866 and OMB Circular A-4.
Comment: Two commenters to the Land and Sea NPRM stated that the
Regulatory Assessment erroneously analyzed expenditure flows from the
Mexican and Canadian border together, when they should actually be
analyzed separately.
Response: As described in the detailed Regulatory Assessment for
implementation of WHTI in the land environment (USCBP-2007-0061-0002)
published concurrently with the Land and Sea NPRM and this final rule,
the analysis did address economic impacts on the northern and southern
borders separately.

[[Page 18402]]

Comment: Two commenters to the Land and Sea NPRM asked about
calculated risk reduction that would occur as a result of
implementation of WHTI. One commenter stated that a third-party
assessment of improved border security should be conducted.
Response: Typically, reductions in the probability of a terrorist
attack resulting from a regulation are measured against the baseline
probability of occurrence (the current likelihood that a terrorist
attack involving an individual arriving in the United States in the sea
environment will be attempted and be successful) and combined with
information about the consequences of the attack. The difference
between the baseline probability of occurrence and the probability of
occurrence after the regulation is implemented would represent the
incremental probability reduction attributable to the rule.
Historical data on the frequency of terrorist attacks to estimate
the current baseline probability of attack within the United States
cannot be used for several reasons: existing data does not provide
information about whether documented attacks were attributable to the
lack of a passport requirement; the data on international events
occurring within the United States in the last decade are limited, and
little information is available to describe the consequences of most of
these events; and use of these data to project future probability of
attack requires an understanding of the socioeconomic and political
conditions motivating and facilitating these events historically and
foresight with regard to how these factors may change in the future. In
the absence of more detailed data, DHS and DOS are unable to
quantitatively estimate the incremental reduction in the probability of
terrorist attack that will result from this rule.
Instead, CBP conducted a ``breakeven analysis'' to determine what
the reduction in risk would have to be given the estimated costs of the
implementation of WHTI (land environment only). Using the Risk
Management Solutions U.S. Terrorism Risk Model (RMS model), CBP
estimated the critical risk reduction that would have to occur in order
for the costs of the rule to equal the benefits--or break even. As
calculated, critical risk reduction required for the rule to break even
ranges from 3 percent to 34 percent (for more detail see the section
below on Executive Order 12866).
This breakeven analysis prepared by CBP for the Land and Sea NPRM
was reviewed by OMB in accordance with Executive Order 12866 and OMB
Circular A-4. An analysis conducted by a ``third party'' is not a
requirement under either Executive Order 12866 or OMB Circular A-4.
Comment: Two commenters to the Land and Sea NPRM stated that the
costs to the State Department to ``catch up'' on the backlog of
passport applications were not considered.
Response: The commenter is correct. CBP did not consider the costs
to DOS in the Regulatory Assessment because the increased costs to DOS
as a result of increased demand for passports due to WHTI can be
recouped by a surcharge on the fee for the application of a passport.
See 22 U.S.C. 214(b). It would be inappropriate, therefore, to present
these as costs of the regulation.
Comment: One commenter to the Land and Sea NPRM stated that she was
``mystified'' by the assertion that an economic analysis was not
necessary.
Response: DHS and DOS did not make this assertion in the Land and
Sea NPRM. CBP conducted two extensive Regulatory Assessments for
implementation of WHTI in the land and sea environments that were
summarized in the preamble to the Land and Sea NPRM and were available
in full for public comment (see USCBP-2007-0061-0002 and USCBP-2007-
0061-0004).
Comment: Four commenters to the Land and Sea NPRM stated that the
estimated costs of lost trips by Canadian travelers were incorrectly
calculated in the Regulatory Assessment for the implementation of WHTI
in the land environment.
Response: DHS and DOS appreciate these comments. CBP has modified
the Regulatory Assessment for this final rule to more accurately
account for potential lost trips from Canadian visitors to the United
States. Please refer to the section below titled ``Executive Order
12866'' for a summary of the revised analysis and refer to the public
docket and http://www.cbp.gov for the complete Regulatory Assessments
for the final rule.
Comment: Three commenters to the Land and Sea NPRM stated that the
Regulatory Assessment erroneously assumed that lost spending in Canada
and Mexico resulting from forgone travel to those countries would
instead be spent in border communities. One commenter stated that the
Regulatory Assessment erroneously assumed that U.S. dollars that would
have been spent in Canada and Mexico would now remain in the United
States.
Response: These commenters appear to have misread the Regulatory
Assessments. As described in the detailed Regulatory Assessment for
Implementation of WHTI in the Land Environment (USCBP-2007-0061-0002)
published concurrently with the Land and Sea NPRM, the analysis did not
assume that all lost spending in Canada and Mexico would instead be
spent exclusively in border communities. CBP made several simplifying
assumptions in order to estimate increases in U.S. spending within the
regional areas designated for case study. The analysis assumed that
only a subset of the U.S. travelers who choose not to obtain
documentation and stay in the United States spend in the regional study
area what they would have spent in Mexico or Canada. In other words,
the analysis assumed U.S. travelers visiting Mexico and Canada for
tourist reasons will substitute their forgone trips abroad with trips
within the United States outside of the regional study area.
Additionally, as noted in the Regulatory Assessment, CBP made the
simplifying assumption that the money these travelers would have spent
on foreign travel remains in their home country. The analysis did not
attempt to determine the portion of forgone travel-related expenditures
that might be used instead for purchasing goods from foreign entities
via mail order or the Internet. This factor was acknowledged as a
source of uncertainty in the cost estimates for WHTI implementation in
the land environment.
Comment: One commenter stated that the analysis of tourism
expenditures did not consider the impact of the cost of acquiring
documentation on spend rates.
Response: CBP agrees that the impact of the cost of acquiring WHTI-
compliant documentation should be included in the estimate of lost
expenditures in U.S. border communities. Specifically, in the final
Regulatory Assessment, CBP considered whether the costs of obtaining
documentation would be offset by reduced spending on the trip itself,
or whether the traveler would reduce household spending locally by a
commensurate amount. A review of the travel economics literature was
inconclusive, but suggests that travelers often do not adhere to a
budget while on a trip, particularly vacations. Also, CBP was unable to
identify literature predicting whether travelers would amortize
documentation costs across all the trips taken in a given time period,
or whether they might reduce spending on the first trip taken after
obtaining acceptable documentation to offset documentation costs. For
these reasons, CBP believes it is most appropriate to assume that
individuals who continue traveling after the implementation of WHTI
will not spend less on cross-border trips. Rather, the costs of
obtaining acceptable documentation

[[Page 18403]]

will result in reduced household spending in the travelers' home
communities. Therefore, the analysis of the distributional impacts of
the final rule includes a reduction in household expenditures by U.S.
citizens to offset the cost of obtaining WHTI-compliant documents.
Similar changes in spending by Mexican and Canadian travelers are
assumed to occur in those travelers home communities, and as a result,
do not affect expenditures in the United States. Please refer to the
section below titled ``Executive Order 12866'' for a summary of the
revised analysis and refer to the public docket and http://www.cbp.gov
for the complete Regulatory Assessments for the final rule.
Comment: One commenter stated that some of the findings of the
Regulatory Assessments analysis is based on surveys of traveler
responses that may not be accurate.
Response: CBP disagrees with this comment. Estimation of lost
consumer surplus under each of the regulatory alternatives considered
requires information about travelers' willingness to pay for access to
Mexico or Canada. Willingness to pay is the maximum sum of money an
individual would be willing to pay rather than do without a good or
amenity. If the cost of access to Mexico or Canada is within the range
of costs below this maximum value, the traveler will pay for access and
continue to travel. Likewise, if the cost of access exceeds this
maximum, travelers will forgo future travel. Therefore, because it
represents a maximum value, willingness to pay for access to these
countries will not vary depending on the regulatory alternative
considered. It is calculated once, and then that value, or in this case
demand curve, can be used to evaluate decisions about future travel
based on a range of regulatory alternatives with varying access costs.
The Regulatory Assessment relies on the results of a survey
conducted for the Department of State. The surveyors informed
respondents that after the implementation of WHTI, they would be
required to have a valid passport for travel to Mexico and Canada.
While the survey did not specify the cost of obtaining the document, a
passport is a well-known, familiar form of identification with
published fees that has been available for decades. Therefore, CBP
believes it is acceptable to assume that the survey respondents had a
reasonable idea of the cost of the document when responding to this
question. The response to this question and information about the
number of travelers making trips is used to estimate travelers'
willingness to pay for access to these countries in the form of a
linear demand curve. For the reasons discussed previously, this demand
curve is relevant regardless of the regulatory option considered.
Therefore, CBP used it to predict responses to varying regulatory
alternatives not considered in the original survey that incorporate
ranges of compliance options and costs.
2. Regulatory Flexibility Act
Comment: One commenter noted several examples of individuals who
would be considered small businesses, including sole proprietors, self-
employed individuals, and freelancers.
Response: CBP agrees that these ``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, but we acknowledge that the number
could be considered ``substantial.'' However, as estimated in the
Regulatory Assessment for implementation of WHTI in the land
environment, the cost to such businesses would be only $125 for a
first-time passport applicant, $70 for a first-time passport card
applicant plus an additional $60 if expedited service were requested.

V. Final Document Requirements

Based on the analysis of the comments and section 7209 of IRTPA, as
amended, DHS and DOS have determined that U.S. citizens and
nonimmigrant aliens from Canada, Bermuda, and Mexico entering the
United States at land and sea ports-of-entry from the Western
Hemisphere will be required to present documents or combinations of
documents designated by this final rule. DHS and DOS expect the date of
full WHTI implementation to be June 1, 2009. As noted, the Congress has
mandated that WHTI shall be implemented no earlier than the date that
is the later of 3 months after the Secretary of State and the Secretary
of Homeland Security make the certification required in subparagraph
(B) or June 1, 2009. (Section 545, Omnibus Bill). The Departments will
implement on June 1, 2009.

A. U.S. Citizens Arriving by Sea or Land

Under the final rule, most U.S. citizens \32\ entering the United
States at all sea or land ports-of-entry are required to have either:
(1) A U.S. passport; (2) a U.S. passport card; (3) a valid trusted
traveler card (NEXUS, FAST, or SENTRI); (4) a valid MMD when traveling
in conjunction with official maritime business; or (5) a valid U.S.
Military identification card when traveling on official orders or
permit.
---------------------------------------------------------------------------

\32\ Unless the U.S. citizen falls into one of the special rule
categories listed below.
---------------------------------------------------------------------------

Under the final rule, cards issued for the DHS Trusted Traveler
Programs NEXUS, Free and Secure Trade (FAST), and Secure Electronic
Network for Travelers Rapid Inspection (SENTRI) are designated as entry
documents for U.S. citizens at all lanes at all land and sea ports-of-
entry when traveling from contiguous territory or adjacent islands.
Additionally, U.S. citizens who have been pre-screened as part of the
NEXUS or Canadian Border Boat Landing Program who arrive by pleasure
vessel from Canada are permitted to report their arrival by telephone
or by remote video inspection, respectively.
U.S. citizens who arrive by pleasure vessel from Canada are
permitted to show the NEXUS card in lieu of a passport or passport card
along the northern border under the auspices of the remote inspection
system for pleasure vessels, such as the Outlying Area Reporting System
(OARS). Currently, as NEXUS members, U.S. citizen recreational boaters
can report their arrival to CBP by telephone. Otherwise, these U.S.
citizen pleasure vessel travelers arriving from Canada are required to
report in person to a port-of-entry in order to enter the United
States.\33\
---------------------------------------------------------------------------

\33\ See 8 CFR 235.1(g). U.S. citizen holders of a Canadian
Border Boat Landing Permit (Form I-68) are required to possess a
passport, passport card, or trusted traveler program document when
arriving in the United States in combination with the Form I-68 and
are required to show this documentation when applying for or
renewing the Form I-68. Participants would continue to benefit from
entering the United States from time to time without having to wait
for a physical inspection, subject to the applicable regulations.
More information on the Canadian Border Boat Landing Program (I-68
Permit Program) is available on the CBP Web site at http://www.cbp.gov.
---------------------------------------------------------------------------

After full implementation of WHTI, dedicated lanes for trusted
traveler programs will still exist at certain land ports-of-entry,
which will provide program members with the opportunity for expedited
inspections.

B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or Land

1. Canadians
Under this final rule, Canadian citizens entering the United States
at sea and land ports-of-entry are required to

[[Page 18404]]

present, in addition to any visa required: \34\
---------------------------------------------------------------------------

\34\ See 8 CFR 212.1(h), (l), and (m) and 22 CFR 41.2(k) and
(m).
---------------------------------------------------------------------------

A valid passport issued by the Government of Canada;\35\
or
---------------------------------------------------------------------------

\35\ Foreign passports remain an acceptable travel document
under section 7209 of the IRTPA.
---------------------------------------------------------------------------

A valid trusted traveler program card issued by CBSA or
DHS, e.g., FAST, NEXUS, or SENTRI.\36\
---------------------------------------------------------------------------

\36\ Canadian citizens who demonstrate a need may enroll in the
SENTRI program and currently may use the SENTRI card in lieu of a
passport. To enroll in SENTRI, a Canadian participant must present a
valid passport and a valid visa, if required, when applying for
SENTRI membership. Other foreign participants in the SENTRI program
must present a valid passport and a valid visa, if required, when
seeking admission to the United States, in addition to the SENTRI
card. This final rule does not alter the passport and visa
requirements for other foreign enrollees in SENTRI (i.e., other than
Canadian foreign enrollees). Currently, Canadian citizens can show a
SENTRI, NEXUS, or FAST card for entry into the United States only at
designated lanes at designated land border ports-of-entry.
---------------------------------------------------------------------------

Additionally, Canadian citizens in the NEXUS program who arrive by
pleasure vessel from Canada are permitted to present a NEXUS membership
card in lieu of a passport along the northern border under the auspices
of the remote inspection system for pleasure vessels, such as the
Outlying Area Reporting System (OARS).\37\ Currently, as NEXUS members,
Canadian recreational boaters can report their arrival to CBP by
telephone.\38\ Otherwise, these Canadian pleasure vessel travelers
arriving from Canada are required to report in person to a port-of-
entry in order to enter the United States.\39\
---------------------------------------------------------------------------

\37\ Permanent residents of Canada must also carry a valid
passport and valid visa, if required.
\38\ Remote pleasure vessel inspection locations are only
located on the northern border.
\39\ See 8 CFR 235.1(g). Canadian holders of a Canadian Border
Boat Landing Permit (Form I-68) are required to possess a passport
or trusted traveler card when arriving in the United States in
combination with the Form I-68 and would be required to show this
documentation when applying for or renewing the Form I-68.
---------------------------------------------------------------------------

2. Bermudians
Under this final rule, all Bermudian citizens are required to
present a passport \40\ issued by the Government of Bermuda or the
United Kingdom when seeking admission to the United States at all sea
or land ports-of-entry, including travel from within the Western
Hemisphere.
---------------------------------------------------------------------------

\40\ Bermudian citizens must also satisfy any applicable visa
requirements. See 8 CFR 212.1(h), (l), and (m) and 22 CFR 41.2(k)
and (m).
---------------------------------------------------------------------------

C. Mexican Nationals Arriving by Sea or Land

Under this final rule, all Mexican nationals are required to
present either: (1) A passport issued by the Government of Mexico and a
visa when seeking admission to the United States, or (2) a valid BCC
when seeking admission to the United States at land ports-of-entry or
arriving by pleasure vessel or by ferry from Mexico.
For purposes of this rule, a pleasure vessel is defined as a vessel
that is used exclusively for recreational or personal purposes and not
to transport passengers or property for hire. A ferry is defined as any
vessel: (1) Operating on a pre-determined fixed schedule; (2) providing
transportation only between places that are no more than 300 miles
apart; and (3) transporting passengers, vehicles, and/or railroad cars.
We note that ferries are subject to land border-type processing on
arrival from, or departure to, a foreign port or place. Arrivals aboard
all vessels other than ferries and pleasure vessels would be treated as
sea arrivals.\41\
---------------------------------------------------------------------------

\41\ For example, commercial vessels are treated as arrivals at
sea ports-of-entry for purposes of this final rule. A commercial
vessel is any civilian vessel being used to transport persons or
property for compensation or hire to or from any port or place. A
charter vessel that is leased or contracted to transport persons or
property for compensation or hire to or from any port or place would
be considered an arrival by sea under this rule. Arrivals by
travelers on fishing vessels, research or seismic vessels, other
service-type vessels (such as salvage, cable layers, etc.), or
humanitarian service vessels (such as rescue vessels or hospital
ships) are considered as arrivals by sea.
---------------------------------------------------------------------------

Mexican nationals who hold BCCs will continue to be allowed to use
their BCCs in lieu of a passport for admission at the land border from
Mexico and when arriving by ferry or pleasure vessel from Mexico when
traveling within the border zone for a limited time period. For travel
beyond certain geographical limits or a stay over 30 days, Mexican
nationals who enter the United States from Mexico possessing BCCs are
required to obtain a Form I-94 from CBP.\42\ The BCC is not permitted
in lieu of a passport for commercial or other sea arrivals to the
United States.
---------------------------------------------------------------------------

\42\ See 8 CFR 212.1(c)(1)(i); also 22 CFR 41.2 (g). If Mexicans
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(h)(1).
---------------------------------------------------------------------------

Under current regulations, Mexican nationals may not use the FAST
or SENTRI card in lieu of a passport or BCC. This will continue under
the final rule, however, these participants would continue to benefit
from expedited border processing.
Currently, Mexican nationals who are admitted to the United States
from Mexico solely to apply for a Mexican passport or other ``official
Mexican document'' at a Mexican consulate in the United States located
directly adjacent to a land port-of-entry are not currently required to
present a valid passport.\43\ This final rule eliminates this exception
to the passport requirement for Mexican nationals. Under the final
rule, Mexican nationals will be required to have a BCC or a passport
with a visa to enter the United States for all purposes.
---------------------------------------------------------------------------

\43\ See 8 CFR 212.1(c)(1)(ii).
---------------------------------------------------------------------------

D. State Enhanced Driver's License Projects

DHS remains committed to considering travel documents developed by
the various U.S. states and the Governments of Canada and Mexico in the
future that would denote identity and citizenship and would also
satisfy section 7209 of IRTPA, as amended by section 723 of the 9/11
Commission Act of 2007.
Under this final rule, DHS will consider as appropriate documents
such as state driver's licenses and identification cards that satisfy
the WHTI requirements by denoting identity and citizenship. These
documents must also have compatible technology, security criteria, and
must respond to CBP's operational concerns.
Such acceptable documents will be announced and updated by
publishing a notice in the Federal Register. A list of such programs
and documents will also be maintained on the CBP Web site. It is still
anticipated that the Secretary of Homeland Security will designate
documents that satisfy section 7209 and the technology, security, and
operational concerns discussed above as documents acceptable for travel
under section 7209.
To date, DHS has entered into formal Memoranda of Agreement (MOAs)
with the States of Washington, Vermont, New York, and Arizona which
have begun voluntary programs to develop an ``enhanced driver's
license'' and identification card that would denote identity and
citizenship.\44\ Concurrent with this final rule, DHS is also
publishing a separate notice in today's Federal Register wherein the
Secretary of Homeland Security is designating that the State of
Washington enhanced

[[Page 18405]]

driver's license document is secure. Therefore, U.S. citizens may
present the enhanced driver's licenses and identification cards issued
by the State of Washington pursuant to the MOA at land and sea ports-
of-entry when arriving from contiguous territory and adjacent islands.
---------------------------------------------------------------------------

\44\ On September 26, 2007, the Secretary of Homeland Security
and the Governor of Vermont signed a similar Memorandum of Agreement
for an enhanced driver's license and identification card to be used
for border crossing purposes; on October 27, 2007, the Secretary and
the Governor of New York also signed a similar Memorandum of
Agreement. The state of Arizona has also announced its intention to
sign an MOA with DHS to begin an enhanced driver's license project.
For more information on these projects, see http://www.dhs.gov.
---------------------------------------------------------------------------

DHS is continuing discussions on the development of enhanced
driver's license projects with several other states and the Government
of Canada. CBSA and several Canadian provinces are planning and
developing EDL projects. DHS remains committed to working with and
coordinating efforts among states interested in developing, testing,
and implementing programs for enhanced driver's licenses on a
continuing basis. DHS encourages states interested in developing
enhanced driver's licenses to work closely with DHS to that end.
On January 28, 2008, DHS published a final rule in the Federal
Register concerning minimum standards for state-issued driver's
licenses and identification cards that can be accepted for official
purposes in accordance with the REAL ID Act of 2005.\45\ DHS has worked
to align REAL ID and EDL requirements. EDLs are being developed
consistent with the requirements of REAL ID and, as such, can be used
for official purposes such as accessing a Federal facility, boarding
Federally-regulated commercial aircraft, and entering nuclear power
plants. The enhanced driver's license will also include technologies
that facilitate electronic verification and travel at ports-of-entry.
While the proposed REAL ID requirements include proof of legal status
in the U.S., the enhanced driver's license will require that the card
holder be a U.S. citizen.
---------------------------------------------------------------------------

\45\ The REAL ID Act of 2005 prohibits Federal agencies,
effective May 11, 2008, from accepting a driver's license or
personal identification card for any official purpose unless the
license or card has been issued by a State that is meeting the
requirements set forth in the Act. See Pub. L. 109-13m 119 Stat.
231, 302 (May 11, 2005) (codified at 49 U.S.C. 30301 note). On March
9, 2007, DHS issued a rule proposing to establish minimum standards
for State-issued driver's licenses and identification cards that
Federal agencies would accept for official purposes after May 11,
2008. See 72 FR 10820.
---------------------------------------------------------------------------

E. Future Documents

Additionally, DHS and DOS remain committed to considering travel
documents developed by the various U.S. states, Native American tribes
and nations, and the Government of Canada in the future that would
satisfy section 7209 of IRTPA.
Both DHS and DOS continue to engage with the Government of Canada
and various provinces in discussions of alternative documents that
could be considered for border crossing use at land and sea ports of
entry. Other alternative identity and citizenship documents issued by
the Government of Canada will be considered, as appropriate. The
Departments welcome comments suggesting alternative Canadian documents.
Various Canadian provinces have indicated their interest or
intention in pursuing projects with enhanced driver's licenses similar
to the Washington State, Vermont and Arizona programs with DHS. Because
documents accepted for border crossing under WHTI must denote
citizenship, the participation of the Government of Canada in
determinations of citizenship on behalf of its citizens, and
recognition of this determination, is a strong consideration by the
United States in the acceptance of documents for Canadian citizens. We
will consider additional documents in the future, as appropriate.

VI. Special Rules for Specific Populations

A. U.S. Citizen Cruise Ship Passengers

Because of the nature of round trip cruise ship travel, DHS has
determined that when U.S. citizens depart from and reenter the United
States on board the same cruise ship, they pose a low security risk in
contrast to cruise ship passengers who embark in foreign ports.
DHS and DOS have adopted the following alternative document
requirement for U.S. cruise ship passengers. For purposes of the final
rule, a cruise ship is defined as a passenger vessel over 100 gross
tons, carrying more than twelve passengers for hire, making a voyage
lasting more than 24 hours any part of which is on the high seas, and
for which passengers are embarked or disembarked in the United States
or its territories.\46\
---------------------------------------------------------------------------

\46\ For this final rule, DHS adopts the definition of a cruise
ship used by the U.S. Coast Guard. See 33 CFR 101.105.
---------------------------------------------------------------------------

U.S. citizen cruise ship passengers traveling within the Western
Hemisphere are permitted to present a government-issued photo
identification document in combination with either: (1) An original or
a copy of a birth certificate, (2) a Consular Report of Birth Abroad
issued by DOS, or (3) a Certificate of Naturalization issued by U.S.
Citizenship and Immigration Services (USCIS), when returning to the
United States, under certain conditions:
The passengers must board the cruise ship at a port or
place within the United States; and
The passengers must return on the same ship to the same
U.S. port or place from where they originally departed.
On such cruises, U.S. Citizens under the age of 16 may present an
original or a copy of a birth certificate, a Consular Report of Birth
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship
and Immigration Services. All passengers arriving on a cruise ship that
originated at a foreign port or place are required to present travel
documents that comply with applicable document requirements otherwise
specified in this final rule when arriving in the United States. For
voyages where the cruise ship originated in the United States, if any
new passengers board the ship at a foreign port or place or another
location in the United States, the new passengers will have to present
travel documents that comply with applicable document requirements
otherwise specified in this final rule when arriving in the United
States. U.S. citizen cruise ship passengers that fall under this
alternative document requirement are reminded to carry appropriate
travel documentation to enter any foreign countries on the cruise. If
the ship returns to a U.S. port different from the point of
embarkation, all passengers must carry a passport or other WHTI
compliant documentation.

B. U.S. and Canadian Citizen Children

The U.S. government currently requires all children arriving from
countries outside the Western Hemisphere to present a passport when
entering the United States. Currently, children (like adults) from the
United States, Canada, and Bermuda are not required to present a
passport when entering the United States by land or sea from contiguous
territory or adjacent islands, other than Cuba. Mexican children are
currently required to present either a passport and visa, or a BCC upon
arrival in the United States, as discussed above. DHS, in consultation
with DOS, has adopted the procedures below in this final rule.
1. Children Under Age 16
Under the final rule, all U.S. citizen children under age 16 are
permitted to present either: (1) An original or a copy of a birth
certificate; (2) a Consular Report of Birth Abroad issued by DOS; or
(3) a Certificate of Naturalization issued by USCIS, at all sea and
land ports-of-entry when arriving from contiguous territory. Canadian
citizen children under age 16 are permitted to present an original or a
copy of a birth certificate, a Canadian Citizenship Card, or Canadian
Naturalization Certificate at all sea and land ports-of-entry when

[[Page 18406]]

arriving from contiguous territory. U.S. and Canadian children age 16
and over who arrive from contiguous territory are subject to the WHTI
document requirements otherwise specified in this final rule.
All Canadian birth certificates are issued from a centralized
location within the provinces and territories. Each province or
territory can issue two types of birth certificates: a long form, which
is a one-page paper document similar to U.S. birth certificates, or a
short form, which is a laminated card version of the long form. All
versions of the birth certificate throughout the provinces are similar
in format (paper form or laminated card).
All Canadian-issued birth certificates are considered by the
Government of Canada as certified and are accepted by CBSA. Both the
long and short forms of certified Canadian birth certificates issued by
the provinces and territories are permissible documents under the final
rule.
2. Children Under Age 19 Traveling in Groups
Under this final rule, U.S. citizen children under age 19 who are
traveling with public or private school groups, religious groups,
social or cultural organizations, or teams associated with youth sport
organizations that arrive at U.S. sea or land ports-of-entry from
contiguous territory, may present either: (1) An original or a copy of
a birth certificate; (2) a Consular Report of Birth Abroad issued by
DOS; or (3) a Certificate of Naturalization issued by USCIS, when the
groups are under the supervision of an adult affiliated with the
organization (including a parent of one of the accompanied children who
is only affiliated with the organization for purposes of a particular
trip) and when all the children have parental or legal guardian consent
to travel. Canadian citizen children under age 19 may present an
original or a copy of a birth certificate, a Canadian Citizenship Card,
or Canadian Naturalization Certificate at all sea and land ports-of-
entry when arriving from contiguous territory. For purposes of this
alternative procedure, an adult would be considered to be a person age
19 or older, and a group would consist of two or more people.
The group, organization, or team will be required to contact CBP
upon crossing the border at the port-of-entry and provide on
organizational letterhead: (1) The name of the group, organization or
team and the name of the supervising adult; (2) a list of the children
on the trip; (3) for each child, the primary address, primary phone
number, date of birth, place of birth, and name of at least one parent
or legal guardian; and (4) the written and signed statement of the
supervising adult certifying that he or she has obtained parental or
legal guardian consent for each participating child. The group,
organization, or team would be able to demonstrate parental or legal
guardian consent by having the adult leading the group sign and certify
in writing that he or she has obtained parental or legal guardian
consent for each participating child. For Canadian children, in
addition to the information indicated above, a trip itinerary,
including the stated purpose of the trip, the location of the
destination, and the length of stay would be required.
To avoid delays upon arrival at a port-of-entry, CBP would
recommend that the group, organization, or team provide this
information to that port-of-entry well in advance of arrival, and would
recommend that each participant traveling on the trip carry in addition
to the above mentioned documents a government or school issued photo
identification document, if available. Travelers with the group who are
age 19 and over are subject to the generally applicable travel document
requirements specified in 8 CFR parts 211, 212 or 235 and 22 CFR parts
41 or 53.
Based upon a review of the alternative approach for children and
the parental consent questions asked in the Land and Sea NPRM, DHS and
DOS are not implementing any additional requirements regarding children
such as parental consent to travel.

C. American Indian Card Holders From Kickapoo Band of Texas and Tribe
of Oklahoma

Under the final rule, U.S. citizen members of the Kickapoo Band of
Texas and Tribe of Oklahoma are permitted to present the Form I-872
American Indian Card in lieu of a passport or passport card at all sea
and land ports of entry when arriving from contiguous territory or
adjacent islands. Mexican national members of the Kickapoo Band of
Texas and Tribe of Oklahoma are permitted to present the I-872 in lieu
of either a passport and visa, or a BCC at sea and land ports-of-entry
when arriving from contiguous territory or adjacent islands.

D. Members of United States Native American Tribes

For the reasons discussed above, upon full implementation of this
final rule and if designated by the Secretary of Homeland Security as
acceptable under WHTI, Native American enrollment or identification
cards from a federally-recognized tribe or group of federally
recognized tribes will be permitted for use at entry at any land and
sea port-of-entry when arriving from contiguous territory or adjacent
islands.

E. Canadian Indians

For the reasons discussed above, upon full implementation of this
final rule and if designated by the Secretary of Homeland Security, the
proposed new Indian and Northern Affairs Canada (INAC) card to be
issued by LTS and to contain a photograph and an MRZ, may also be
presented as evidence of the citizenship and identity of Canadian
Indians when they seek to enter the United States from Canada at land
ports-of-entry.

F. Individual Cases of Passport Waivers

The passport requirement may be waived for U.S. citizens in certain
individual situations on a case-by-case basis, such as an unforeseen
emergency or cases of humanitarian or national interest.\47\ Existing
individual passport waivers for non-immigrant aliens are not changed by
the final rule.\48\
---------------------------------------------------------------------------

\47\See section 7209(c)(2) of IRTPA. See also 22 CFR 53.2.
\48\See 8 CFR Part 212.
---------------------------------------------------------------------------

G. Summary of Document Requirements

The following chart summarizes the acceptable documents for sea and
land arrivals from the Western Hemisphere under WHTI.
The Departments note that document requirements for Lawful
Permanent Residents (LPRs) of the United States, employees of the
International Boundary and Water Commission (IBWC) between the United
States and Mexico, OCS workers, active duty alien members of the U.S.
Armed Forces, and members of NATO-member Armed Forces, as discussed in
the Land and Sea NPRM, remain unchanged.

[[Page 18407]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
Group/population Acceptable document(s) Land Ferry Pleasure vessel Sea (all other vessels)
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Travelers (U.S., Can., Mex., Valid Passport book (and Yes................. Yes................. Yes................. Yes.
Berm.) at all sea and land POEs. valid visa, if necessary
for foreign travelers).
U.S. Citizens at all sea and land Valid Passport card...... Yes................. Yes................. Yes................. Yes.
POEs when arriving from Canada,
Mexico, the Caribbean, and
Bermuda.
U.S. and Canadian citizen Trusted Trusted Traveler Cards Yes*................ Yes*................ Yes*................ * Yes.
Traveler Members at all sea and (NEXUS, FAST, SENTRI).
land POEs when arriving from
contiguous territory or adjacent
islands.
U.S. Citizen Merchant Mariners on U.S. Merchant Mariner Yes................. Yes................. Yes................. Yes.
official mariner business at all Document (MMD).
sea and land POEs.
Mexican Nationals arriving from Border Crossing Card Yes**............... Yes**............... Yes**............... No.
Mexico. (BCC).
U.S. Citizen Cruise Ship Government-issued photo N/A................. N/A................. N/A................. Yes--for round trip
Passengers on round trip voyages ID and original or copy voyages that originate
that begin and end in the same of birth certificate; in U.S.
U.S. port. under age 16, birth
certificate.
U.S. and Canadian Citizen Original or copy of birth Yes................. Yes................. Yes................. Yes.
Children Under 16 at all sea and certificate***
land POEs when arriving from (government-issued photo
contiguous territory. ID recommended, but not
required).
U.S. and Canadian Citizen Original or copy of birth Yes................. Yes................. Yes................. Yes.
Children--Groups of Children certificate*** and
Under Age 19, under adult parental/guardian
supervision with parental/ consent (government -
guardian consent at all sea and issued photo ID
land POEs when arriving from recommended, but not
contiguous territory. required).
U.S. Citizen/Alien Members of Military ID and Official Yes................. Yes................. Yes................. Yes.
U.S. Armed Forces traveling Orders.
under official orders or permit
at all air, sea and land POEs.
U.S. and Mexican Kickapoo at land Form I-872 American Yes................. Yes................. Yes................. Yes.
and sea POEs when arriving from Indian Card.
contiguous territory and
adjacent islands.
U.S. citizen members of Native Tribal Enrollment Yes................. Yes................. Yes................. Yes.
American tribes recognized by Documents designated by
the U.S. Government when the Secretary of
arriving from contiguous Homeland Security as
territory at land and sea POEs. meeting WHTI tribal
document security.
Canadian citizen members of First If designated by the Yes................. Yes................. Nos................. No.
Nations or bands recognized by Secretary of Homeland
the Canadian Government when Security, the proposed
arriving from Canada at land new INAC card issued by
POEs. the Government of Canada
containing an MRZ.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Approved for Mexican national members traveling with BCC or a passport and visa.
** In conjunction with a valid I-94 for travel outside the 25- or 75-mile geographic limits of the BCC.
*** U.S. children would also be permitted to present a Certificate of Birth Abroad or Certificate of Naturalization; Canadian children would be
permitted to present a Canadian Citizenship Card or Canadian Naturalization Certificate.

VII. Regulatory Analyses

A. Executive Order 12866: Regulatory Planning and Review
This final rule implementing the second phase of WHTI for entries
by land and sea is considered to be an economically significant
regulatory action under Executive Order 12866 because it may result in
the expenditure of over $100 million in any one year. Accordingly, this
rule has been reviewed by the Office of Management and Budget (OMB).
The following summary presents the costs and benefits of requirements
for U.S. citizens entering the United States from other countries in
the Western Hemisphere by land and sea, plus the costs and benefits of
several alternatives considered during the rulemaking process.
The regulatory assessments summarized here consider U.S. travelers
entering the United States via land ports-of-entry on the northern and
southern borders (including arrivals by ferry and pleasure boat) as
well as certain cruise ship passengers. Costs to obtain the necessary
documentation for air travel were considered in a previous analysis
examining the implementation of WHTI in the air environment (the
Regulatory Assessment for the November 2006 Final Rule for
implementation of WHTI in the air environment can be found at
www.regulations.gov; document number USCBP-2006-0097-0108). If
travelers have already purchased a passport for travel in the air
environment, they would not need to purchase a passport for travel in
the land or sea environments. CBP does not attempt to estimate with any
precision the number of travelers who travel in more than one
environment, and, therefore, may have already obtained a passport due
to the air rule and will not incur any burden due to this rule. To the
extent that the three traveling populations overlap in the air, land,
and sea environments, we have potentially overestimated the direct
costs of the rule presented here.
The period of analysis is 2005-2018 (14 years). We calculate costs
beginning in 2005 because although the suite of WHTI rules was not yet
in place, DOS experienced a dramatic increase in passport applications
since the WHTI plan was announced in early 2005. We account for those
passports obtained prior to full implementation to more accurately
estimate the economic impacts of the rule as well as to incorporate the
fairly sizable percentage of travelers who currently hold passports in
anticipation of the new requirements.

[[Page 18408]]

The Secretary of Homeland Security is designating CBP trusted
traveler cards (NEXUS, SENTRI, FAST), the Merchant Mariner Document
(MMD), and specified documents from DHS-approved enhanced driver's
license programs as acceptable travel documents for U.S. citizens to
enter the United States at land and sea ports-of-entry. Because DHS and
DOS believe that children under the age of 16 pose a low security
threat in the land and sea environments, U.S. children may present a
birth certificate in lieu of other designated documents. Additionally,
DHS and DOS have determined that exempting certain cruise passengers
from a passport requirement is the best approach to balance security
and travel efficiency considerations in the cruise ship environment. To
meet the cruise exemption, a passenger must board the cruise ship at a
port or place within the United States and the passenger must return on
the same ship to the same U.S. port or place from where he or she
originally departed.
For the summary of the analysis presented here, CBP assumes that
only the passport, trusted traveler cards, and the MMD were available
in the first years of the analysis (recalling that the period of
analysis begins in 2005 when passport cards and enhanced driver's
licenses were not yet available). CBP also assumes that most children
under 16 will not obtain a passport or passport card but will instead
use alternative documentation (birth certificates). The estimates
reflect that CBP trusted traveler cards will be accepted at land and
sea ports-of-entry. Finally, CBP assumes that most of the U.S. cruise
passenger population will present alternative documentation
(government-issued photo ID and birth certificate) because they meet
the alternative documentation provision in the rule.
To estimate the costs of the rule, we follow this general
analytical framework:
--Determine the number of U.S. travelers that will be covered
--Determine how many already hold acceptable documents
--Determine how many will opt to obtain passports (and passport cards)
and estimate their lost ``consumer surplus''
--Determine how many will forgo travel instead of obtaining passports
or passport cards and estimate their lost ``consumer surplus''

We estimate covered land travelers using multiple sources,
including: crossing data from the Bureau of Transportation Statistics
(BTS, 2004 data), a study of passport demand conducted by DOS
(completed in 2005), and a host of regional studies conducted by state
and local governments and academic research centers.
Other than DOS's passport demand study, no source exists to our
knowledge that has estimated the total number of land entrants
nationwide. Researchers almost always count or estimate crossings, not
crossers and focus on a region or locality, not an entire border.
Building on the work conducted for DOS's passport study, we distilled
approximately 300 million annual crossings into the number of frequent
(defined as at least once a year), infrequent (once every three years),
and rare (once every ten years) ``unique U.S. adult travelers.'' We
then estimate the number of travelers without acceptable documentation
and estimate the cost to obtain a document. The fee for the passport
varies depending on the age of the applicant, whether or not the
applicant is renewing a passport, whether or not the applicant is
requesting expedited service, and whether or not the applicant obtains
a passport or a passport card. Additionally, we consider the amount of
time required to obtain the document and the value of that time. To
estimate the value of an applicant's time in the land environment, we
conducted new research that built on existing estimates from the
Department of Transportation. To estimate the value of an applicant's
time in the sea environment, we use estimates for air travelers' value
of time (air and sea travelers share very similar characteristics) from
the Federal Aviation Administration (FAA, 2005 data). We use the 2005
DOS passport demand study and CBP statistics on the trusted traveler
programs to estimate how many unique U.S. travelers already hold
acceptable documents.
We estimate covered cruise passengers using data from the Maritime
Administration (MARAD, 2006 data) and itineraries available on the
cruise line Web sites (for 2007). The overwhelming majority of Western
Hemisphere cruise passengers--92 percent--would fall under the cruise-
passenger alternative documentation provision. Passengers not covered
by the alternative documentation provision fall into four trade
markets--Alaska (72 percent), Trans-Panama Canal (16 percent), U.S.
Pacific Coast (8 percent), and Canada/New England (4 percent). We
estimate that these passengers will have to obtain a passport rather
than one of the other acceptable documents because these travelers will
likely have an international flight as part of their cruise vacation,
and only the passport is a globally accepted travel document. We use a
comment to the August 2006 NPRM for implementation of WHTI in the air
and sea environments (71 FR 46155) from the International Council of
Cruise Lines to estimate how many unique U.S. cruise travelers already
hold acceptable documentation.
Based on CBP's analysis, approximately 3.6 million U.S. travelers
are affected in the first year of implementation, 2009 (note that the
analysis anticipates a significant number of travelers will obtain
WHTI-compliant documents in 2005 through 2008, prior to the
implementation of the rule. In addition, travelers who only make trips
in the first half of 2009 will not be covered by the rule). Of these,
approximately 3.5 million enter through a land-border crossing (via
privately owned vehicle, commercial truck, bus, train, on foot) and
ferry and recreational boat landing sites. An estimated 0.1 million are
cruise passengers who do not meet the alternative documentation
provision in the final rule (note that over 90 percent of U.S. cruise
passengers are expected to meet the exemption criteria). CBP estimates
that the traveling public will acquire approximately 3.1 million
passports in 2009, at a direct cost to traveling individuals of $283
million. These estimates are summarized in Table A.

Table A.--First-Year Estimates for U.S. Adult Travelers
[All estimates in millions]
------------------------------------------------------------------------

------------------------------------------------------------------------
Affected travelers:
Land/ferry/pleasure boat crossers........................... 3.5
Cruise passengers........................................... 0.1
------
Total................................................... 3.6
Passports demanded:
Land/ferry/pleasure boat crossers............................ 3.1
Cruise passengers............................................ 0.1
------
Total.................................................... 3.2
Total cost of passports:
Land-border crossers......................................... $272
Cruise passengers............................................ 11
------
Total.................................................... $283
------------------------------------------------------------------------

To estimate potential forgone travel in the land environment, we
derive traveler demand curves for access to Mexico and Canada based on
survey responses collected in DOS's passport study. We estimate that
when the rule is implemented, the number of unique U.S. travelers to
Mexico who are frequent travelers decreases by 5.7 percent, the unique
U.S. travelers who are infrequent travelers decreases by 6.4 percent,
and the unique U.S. travelers who are rare travelers decreases by 15.7
percent. The number of U.S. travelers visiting Canada who are frequent

[[Page 18409]]

travelers decreases by 3.3 percent, the unique U.S. travelers who are
infrequent travelers decreases by 9.5 percent, and the unique U.S.
travelers who are rare travelers decreases by 9.6 percent. These
estimates account for the use of a passport card for those travelers
who choose to obtain one. For unique travelers deciding to forgo future
visits, their implied value for access to these countries is less than
the cost of obtaining a passport card.
To estimate potential forgone travel in the sea environment, we use
a study from Coleman, Meyer, and Scheffman (2003), which described the
Federal Trade Commission investigation into potential impacts of two
cruise-line mergers and estimated a demand elasticity for cruise
travel. We estimate that the number of travelers decreases by 24
percent, 13 percent, 7 percent, and 6 percent for travelers on short (1
to 5 nights), medium (6 to 8 nights), long (9 to 17 nights), and very
long cruises (over 17 nights) once the rule is implemented.
We then estimate total losses in consumer surplus. The first figure
below represents U.S. travelers' willingness to pay (D1) for access to
Mexico and Canada. At price P1, the number of U.S. travelers without
passports currently making trips to these countries is represented by
Q1. As seen in the second figure, if the government requires travelers
to obtain a passport or passport card in order to take trips to Mexico
and Canada, the price of access increases by the cost of obtaining the
new document, to P2. As a result, the number of travelers making trips
to these countries decreases to Q2.
BILLING CODE 9111-14-P
[GRAPHIC] [TIFF OMITTED] TR03AP08.007

BILLING CODE 9111-14-C
All travelers in this figure experience a loss in consumer surplus;
the size of the surplus loss depends on their willingness to pay for
access to these countries. The lost surplus experienced by travelers
whose willingness to pay exceeds P2 is shown in the dark
blue rectangle, and is calculated as (P2-P1) *
Q2. Travelers whose willingness to pay for access to these
countries is less than the price of the passport or passport card will
experience a loss equal to the area of the aqua triangle, calculated as
1/2 * (Q1-Q2) * (P2-P1).
Costs of the rule (expressed as losses in consumer surplus) are
summed by year of the analysis. We then add the government costs of
implementing WHTI over the period of analysis. Fourteen-year costs are
$3.3 billion at the 3 percent discount rate and $2.7 billion at 7
percent, as shown in Table B. Annualized costs are $296 million at 3
percent and $314 million at 7 percent.

Table B.--Total Costs for U.S. Travelers Over the Period of Analysis
[2005-2018, in $millions]
------------------------------------------------------------------------
3% 7%
Year Cost discount discount
rate rate
------------------------------------------------------------------------
2005..................................... $435 $435 $435
2006..................................... 153 148 143
2007..................................... 91 85 79
2008..................................... 493 451 406
2009..................................... 431 383 333
2010..................................... 352 304 255
2011..................................... 270 226 183
2012..................................... 235 191 149
2013..................................... 235 186 140
2014..................................... 290 222 159
2015..................................... 314 234 161
2016..................................... 250 181 120
2017..................................... 225 158 101
2018..................................... 201 137 84
------------------------------
Total................................ ....... $3,340 $2,748
------------------------------------------------------------------------

The primary analysis for land summarized here assumes a constant
number of border crossers over the period of analysis; in the complete
Regulatory Assessment we also consider scenarios where the number of
border crossers both increases and decreases over the period of
analysis. It is worth noting that border crossings have been mostly
decreasing at both the northern and southern borders since 1999. The
analysis for sea travel assumes a 6 percent annual increase in
passenger counts over the period of analysis as the Western Hemisphere
cruise industry continues to experience growth.
Finally, we conduct a formal uncertainty (Monte Carlo) analysis to
test our assumptions for the analysis in the land environment. We first
conducted a preliminary sensitivity analysis to identify the variables
that have the most significant effect on consumer welfare losses. We
found that the frequency of travel (frequent, infrequent, rare),
crossings at multiple ports-of-entry, future annual affected
individuals, and the amount of time spent applying for documentation
were the most sensitive variables in the analysis. The variables that
did not appear to have an impact on consumer losses were the estimated
number of crossings by Lawful Permanent Residents or Native Americans
and estimated future timing with which travelers will apply for
acceptable documentation. After we conducted our formal Monte Carlo
analysis we found that our most sensitive assumptions are: The
projected crossing growth rate, the frequency of travel, and the number
of new unique travelers that enter the population annually. The results
of the Monte Carlo analysis are presented in Table C. Note that these
estimates do not include the government costs of implementation,
estimated to be $0.8 billion over the time period of the analysis (3
percent discount rate) because we have no basis for assigning
uncertainty parameters for government costs.

[[Page 18410]]

Table C.--Summary of Key Characteristics of Probability Distributions of
Total Welfare Losses in the Land Environment (2005-2018, in $Billions),
3 Percent Discount Rate
------------------------------------------------------------------------
Statistic Value
------------------------------------------------------------------------
Trials...................................................... 10,000
Mean........................................................ $2.2
Median...................................................... $2.1
Std Dev..................................................... $0.5
Variance.................................................... 2.4E+08
5th Percentile.............................................. $1.5
95th Percentile............................................. $3.1

Point Estimate.............................................. $2.3
------------------------------------------------------------------------

We then consider the secondary impacts of forgone travel in the
land and sea environments. Forgone travel will result in gains and
losses in the United States, Canada, and Mexico. For this analysis, we
made the simplifying assumption that if U.S. citizens forgo travel to
Canada and Mexico, their expenditures that would have been spent
outside the country now remain here. In this case, industries receiving
the diverted expenditure in the United States experience a gain, while
the travel and related industries in Canada and Mexico suffer a loss.
Conversely, if Canadian and Mexican citizens forgo travel to the United
States, their potential expenditures remain abroad--a loss for the
travel and related industries in the United States, but a gain to
Canada and Mexico. Note that ``gains'' and ``losses'' in this analysis
cannot readily be compared to the costs and benefits of the rule, since
they represent primarily transfers in and out of the U.S. economy.
For cruise passengers, we have only rough estimates of where U.S.
passengers come from, how they travel to and from the ports where they
embark, where they go, and the activities they engage in while
cruising. We know even less about how they will alter their behavior if
they do, in fact, forgo obtaining a passport. Ideally, we could model
the indirect impacts of the rule with an input-output model (either
static or dynamic) that could give us a reasonable estimation of the
level the impact, the sectors affected, and regional impacts.
Unfortunately, given the dearth of data, the assumptions we had to
make, the very small numbers of travelers who are estimated to forgo
travel, and the fact that much of their travel experience occurs
outside the United States, using such a model would not likely produce
meaningful results. We recognize, however, that multiple industries
could be indirectly affected by forgone cruise travel, including (but
not limited to): Cruise lines; cruise terminals and their support
services; air carriers and their support services; travel agents;
traveler accommodations; dining services; retail shopping; tour
operators; scenic and sightseeing transportation; hired transportation
(taxis, buses); and arts, entertainment, and recreation.
According to the MARAD dataset used for the sea analysis, there are
17 cruise lines operating in the Western Hemisphere, 9 of which are
currently offering cruises that would be indirectly affected by a
passport requirement. While we expect that cruise lines will be
indirectly affected by the rule, how they will be affected depends on
their itineraries, the length of their cruises, their current capacity,
and future expansion, as well as by travelers' decisions. We expect
short cruises (1 to 5 nights) to be most notably affected because the
passport represents a greater percentage of the overall trip cost,
passengers on these cruises are less likely to already hold a passport,
and travel plans for these cruises are frequently made closer to voyage
time. Longer cruises are less likely to be affected because these trips
are planned well in advance, passengers on these voyages are more
likely to already possess a passport, and the passport cost is a
smaller fraction of the total trip cost.
Because border-crossing activity is predominantly a localized
phenomenon, and the activities engaged in while visiting the United
States are well documented in existing studies, we can explore the
potential impacts of forgone travel more quantitatively in the land
environment. Using various studies on average spending per trip in the
United States, Canada, and Mexico, we estimate the net results of
changes in expenditure flows in 2008 (the presumed first year the
requirements will be implemented) and subsequent years. Because Mexican
crossers already possess acceptable documentation to enter the United
States (passport or Border Crossing Card), we do not estimate that
Mexican travelers will forgo travel to the United States. The summary
of expenditure flows is presented in Table D.

Table D.--Net Expenditure Flows in North America, 2009, 2010, and
Subsequent Years
[In millions]
------------------------------------------------------------------------

------------------------------------------------------------------------
2009:
Spending by U.S. travelers who forgo travel to Mexico..... +$160
Spending by Mexican travelers who forgo travel to the 0
United States............................................
Spending by U.S. travelers who forgo travel to Canada..... +60
Spending by Canadian travelers who forgo travel to United -400
States...................................................
---------
Net................................................... -180
2010:
Spending by U.S. travelers who forgo travel to Mexico..... +280
Spending by Mexican travelers who forgo travel to the 0
United States............................................
Spending by U.S. travelers who forgo travel to Canada..... +110
Spending by Canadian travelers who forgo travel to United -440
States...................................................
---------
Net................................................... -50

Subsequent years (annual):
Spending by U.S. travelers who forgo travel to Mexico..... +280
Spending by Mexican travelers who forgo travel to United 0
States...................................................
Spending by U.S. travelers who forgo travel to Canada..... +110
Spending by Canadian travelers who forgo travel to United -330
States...................................................
---------
Net................................................... +60
------------------------------------------------------------------------

[[Page 18411]]

To examine these impacts more locally, we conduct eight case
studies using a commonly applied input-output model (IMPLAN), which
examines regional changes in economic activity given an external
stimulus affecting those activities. In all of our case studies but
one, forgone border crossings attributable to WHTI have a less-than-1-
percent impact on the regional economy both in terms of output and
employment. The results of these eight case studies are presented in
Table E.

Table E.--Modeled Distributional Effects in Eight Case Studies
----------------------------------------------------------------------------------------------------------------
Change as % of total* * *
Study area (counties) State ---------------------------
Output Employment
----------------------------------------------------------------------------------------------------------------
San Diego....................................... California........................ +0.02 +0.03
Pima, Santa Cruz................................ Arizona........................... +0.02 +0.02
Hidalgo, Cameron................................ Texas............................. +0.1 +0.1
Presidio........................................ Texas............................. +0.4 +0.4
Niagara, Erie................................... New York.......................... -0.2 -0.3
Washington...................................... Maine............................. -1.4 -3.2
Macomb, Wayne, Oakland.......................... Michigan.......................... -0.02 -0.04
Whatcom......................................... Washington........................ -0.5 -1.3
----------------------------------------------------------------------------------------------------------------

As shown, we anticipate very small net positive changes in the
southern-border case studies because Mexican travelers to the United
States use existing documentation, and their travel is not affected.
The net change in regional output and employment is negative (though
still very small) in the northern-border case studies because Canadian
travelers forgoing trips outnumber U.S. travelers staying in the United
States and because Canadian travelers to the United States generally
spend more per trip than U.S. travelers to Canada. On both borders,
those U.S. travelers that forgo travel do not necessarily spend the
money they would have spent outside the United States in the case-study
region; they may spend it outside the region, and thus outside the
model.
Finally, because the benefits of homeland security regulations
cannot readily be quantified using traditional analytical methods, we
conduct a ``breakeven analysis'' to determine what the reduction in
risk would have to be given the estimated costs of the implementation
of WHTI (land environment only). Using the Risk Management Solutions
U.S. Terrorism Risk Model (RMS model), we estimated the critical risk
reduction that would have to occur in order for the costs of the rule
to equal the benefits--or break even.
The RMS model has been developed for use by the insurance industry
and provides a comprehensive assessment of the overall terrorism risk
from both foreign and domestic terrorist organizations. The RMS model
generates a probabilistic estimate of the overall terrorism risk from
loss estimates for dozens of types of potential attacks against several
thousand potential targets of terrorism across the United States. For
each attack mode-target pair (constituting an individual scenario) the
model accounts for the probability that a successful attack will occur
and the consequences of the attack. RMS derives attack probabilities
from a semi-annual structured expert elicitation process focusing on
terrorists' intentions and capabilities. It bases scenario consequences
on physical modeling of attack phenomena and casts target
characteristics in terms of property damage and casualties of interest
to insurers. Specifically, property damages include costs of damaged
buildings, loss of building contents, and loss from business
interruption associated with property to which law enforcement
prohibits entry immediately following a terrorist attack. RMS
classifies casualties based on injury-severity categories used by the
worker compensation insurance industry.
The results in Table F are based on the annualized cost estimate
(assuming a seven percent discount rate) of the rule presented above.
These results show that a decrease in perceived risk (the ``low risk''
scenario generated by RAND to characterize the expected annual losses
in the United States from terrorist attacks) leads to a smaller
annualized loss and a greater required critical risk reduction for the
benefits of the rule to break even with costs. Conversely, an increase
in perceived risk (the ``high risk'' scenario) leads to a greater
annualized loss and a smaller required critical risk reduction. The
total range in critical risk reduction under the standard threat
outlook produced by the RMS model is a factor of three and ranges from
5.5 to 14 percent depending on the methodology used to value the
benefits of avoided terrorist attacks (the value of avoided injuries
and deaths).

Table F.--Critical Risk Reduction for the Rule
[7 percent discount rate]
------------------------------------------------------------------------
Critical risk
reduction (%)
Valuation methodology --------------------
Low Standard High
------------------------------------------------------------------------
Cost of injury (fatality = $1.1m).................. 27 14 6.8
Willingness to pay (VSL = $3m)..................... 21 10 5.2
Quality of life (VSL = $3m)........................ 18 8.8 4.4
Willingness to pay (VSL = $6m)..................... 14 7.0 3.5
Quality of life (VSL = $6m)........................ 11 5.5 2.8
------------------------------------------------------------------------

Several key factors affect estimates of the critical risk reduction
required for the benefits of the rule to equal or exceed the costs.
These factors include: the uncertainty in the risk estimate produced by
the RMS model; the potential for other types of baseline losses not
captured in the RMS model; and the size of other non-quantified direct
and ancillary benefits of the rule. The RMS model likely underestimates
total baseline terrorism loss because it only reflects the direct,
insurable costs of terrorism. It does not include any indirect losses
that would result from continued change in consumption patterns or
preferences or that would result from propagating consequences of
interdependent infrastructure systems. For example, the RMS model does
not capture the economic disruption of a terrorism event beyond the
immediate insured losses. Furthermore, the model also excludes non-
worker casualty losses and losses associated with government buildings
and employees. Finally, the model may not capture less-tangible
components of losses that the

[[Page 18412]]

public wishes to avoid, such as the fear and anxiety associated with
experiencing a terrorist attack. Omission of these losses will cause us
to overstate the necessary risk reductions.
Although the risk reduction associated with the final rule cannot
be quantified due to data limitations, a separate analysis of the
potential benefits resulting from reductions in wait time at the border
suggests that the net benefits of the rule (total benefits minus total
costs) have the potential to be positive. In a separate effort, CBP
estimated the costs and benefits of processing technology investments
at ports-of-entry. As part of this analysis, analysts evaluated the
wait time impact attributable to each technology alternative. The
results suggest that implementing standard documents and RFID
technology could result in reductions in wait time valued as highly as
$2.4 billion to $3.3 billion between 2009 and 2018 (discount rates of 7
and 3 percent, respectively). Subtracting total present value costs
suggests the potential for net benefits as high as $0.9 billion to $1.7
billion (discount rates of 7 and 3 percent, respectively).
Alternatives to the Rule
CBP considered the following alternatives to the final rule--
1. Require all U.S. travelers (including children) to present a
valid passport book upon return to the United States from countries in
the Western Hemisphere.
2. Require all U.S. travelers (including children) to present a
valid passport book, passport card, or CBP trusted traveler document
upon return to the United States from countries in the Western
Hemisphere.
3. Alternative 2, but without RFID-enabled passport cards.
Calculations of costs for the alternatives can be found in the two
Regulatory Assessments for the final rule.
Alternative 1: Require all U.S. travelers (including children) to
present a valid passport book.
The first alternative would require all U.S. citizens, including
minors under 16 and all cruise passengers, to present a valid passport
book only. This alternative was rejected as potentially too costly and
burdensome for low-risk populations of travelers. While the passport
book will always be an acceptable document for a U.S. citizen to
present upon entry to the United States, DHS and DOS believe that the
cost of a traditional passport book may be too expensive for some U.S.
citizens, particularly those living in border communities where land-
border crossings are an integral part of everyday life. As stated
previously, DHS and DOS, believe that children under the age of 16 pose
a low security threat in the land and sea environments and will be
permitted to present a birth certificate when arriving in the United
States at all land and sea ports-of-entry from contiguous territory.
DHS and DOS have also determined that designating alternative
documentation for certain cruise passengers from a passport requirement
is the best approach to balance security and travel efficiency
considerations in the cruise ship environment.
Alternative 2: Require all U.S. travelers (including children) to
present a valid passport book, passport card, or trusted traveler
document.
The second alternative is similar to the final rule, though it
includes children and does not provide a passport exception for cruise
passengers. While this alternative incorporates the low-cost passport
card and CBP trusted traveler cards as acceptable travel documents,
this alternative was ultimately rejected as potentially too costly and
burdensome for low-risk populations of travelers (certain cruise
passengers and minors under 16).
Alternative 3: Require all U.S. travelers (including children) to
present a valid passport book, passport card, or trusted traveler
document; no RFID-enabled passport card.
The third alternative is similar to the second; it just now assumes
that the passport card is not enabled with RFID technology. For this
analysis, we assume that this does not change the fee charged for the
passport card; we assume, however, that government costs to test and
deploy the appropriate technology at the land borders to read the
passport cards are eliminated. This alternative was rejected because
DHS and DOS strongly believe that facilitation of travel, particularly
at the land borders where wait times are a major concern, should be a
primary achievement of WHTI implementation.
Table G presents a comparison of the costs of the final rule and
the alternatives considered.

Table G.--Comparison of Regulatory Alternatives
[In $millions]
----------------------------------------------------------------------------------------------------------------
Compared
Alternative 13-year to final Reason rejected
cost (7%) rule
----------------------------------------------------------------------------------------------------------------
Final rule..................................... $2,748 n/a .......................................
Alternative 1: Passport book only for all U.S. $6,728 +$3,979 Cost of a passport considered too high
travelers. for citizens in border communities;
low-risk traveling populations
(certain cruise passengers, children
under 16) unduly burdened.
Alternative 2: Passport book, passport card, $5,751 +$3,003 Low-risk traveling populations (certain
and other designated documents for all U.S. cruise passengers, children under 16)
travelers. unduly burdened.
Alternative 3: Passport book, passport card, $5,340 +$2,591 Low-risk traveling populations (certain
and other designated documents for all U.S. cruise passengers, children under 16)
travelers; no RFID-enabled passport card. unduly burdened, unacceptable wait
times at land-border ports of entry.
----------------------------------------------------------------------------------------------------------------

It is important to note that for scenarios where the RFID-capable
passport card is acceptable (the final rule and Alternative 2), the
estimates include government implementation costs for CBP to install
the appropriate technology at land ports-of-entry to read RFID-enabled
passport cards and the next generation of CBP trusted traveler
documents. These technology deployment costs are estimated to be
substantial, particularly in the early phases of implementation. As a
result, the alternatives allowing more documents than just the passport
book result higher government costs over thirteen years than
alternatives allowing only the passport book or the passport card that
is not RFID-enabled, which can be processed with existing readers that
scan the passport's machine-readable zone. Allowing presentation of
alternative documentation for minors and most cruise passengers results
in

[[Page 18413]]

notable cost savings over thirteen years (about $2.5 billion to $4.0
billion depending on the documents considered).
Accounting statement
As required by OMB Circular A-4, CBP has prepared an accounting
statement showing the classification of the expenditures associated
with this rule. The table below provides an estimate of the dollar
amount of these costs and benefits, expressed in 2005 dollars, at 7
percent and 3 percent discount rates. We estimate that the cost of this
rule will be approximately $314 million annualized (7 percent discount
rate) and approximately $296 million annualized (3 percent discount
rate). Non-quantified benefits are enhanced security and efficiency.

Accounting Statement: Classification of Expenditures, 2005-2017
[2005 Dollars]
------------------------------------------------------------------------
3% discount rate 7% discount rate
------------------------------------------------------------------------
Costs:
Annualized monetized $296 million........ $314 million.
costs.
Annualized quantified, Indirect costs to Indirect costs to
but un-monetized costs. the travel and the travel and
tourism industry. tourism industry.
Qualitative (un- Indirect costs to Indirect costs to
quantified) costs. the travel and the travel and
tourism industry. tourism industry.
Benefits:
Annualized monetized None quantified..... None quantified.
benefits.
Annualized quantified, None quantified..... None quantified.
but un-monetized
benefits.
Qualitative (un- Enhanced security Enhanced security
quantified) benefits. and efficiency. and efficiency.
------------------------------------------------------------------------

B. Regulatory Flexibility Act

CBP has prepared this section to examine the impacts of the final
rule on small entities as required by the Regulatory Flexibility Act
(RFA).\49\ 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).
---------------------------------------------------------------------------

\49\ See 5 U.S.C. 601-612.
---------------------------------------------------------------------------

When considering the impacts on small entities for the purpose of
complying with the RFA, CBP consulted the Small Business
Administration's guidance document for conducting regulatory
flexibility analyses.\50\ 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.\51\ 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. CBP does 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. To
wit, ``The courts have held that the RFA requires an agency to perform
a regulatory flexibility analysis of small entity impacts only when a
rule directly regulates them.'' \52\
---------------------------------------------------------------------------

\50\ See Small Business Administration, Office of Advocacy, A
Guide for Government Agencies: How to Comply with the Regulatory
Flexibility Act, May 2003.
\51\ See id. at 69.
\52\ See id. at 20.
---------------------------------------------------------------------------

As described in the Regulatory Assessment for this rule, CBP could
not quantify the indirect impacts of the rule with any degree of
certainty; it instead focused the analysis on the direct costs to
individuals recognizing that some small entities will face indirect
impacts.
Some 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 domestic industries. Most travelers are expected to
eventually 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 forego travel to affected Western Hemisphere
countries. These industry sectors may include (but are not limited to):

--Manufacturing
--Wholesale trade
--Retail trade
--Transportation (including water, air, truck, bus, and rail)
--Real estate
--Arts, entertainment, and recreation
--Accommodation and food services

Because this rule does not directly regulate small entities, we do
not believe that this rule has a significant economic impact on a
substantial number of small entities. The exception could be certain
``sole proprietors'' who could be considered small businesses and could
be directly affected by the rule if their occupations required travel
within the Western Hemisphere where a passport was not previously
required. However, as estimated in the Regulatory Assessment for
implementation of WHTI in the land environment, the cost to such
businesses would be only $125 for a first-time passport applicant, $70
for a first-time passport card applicant, plus an additional $60 if
expedited service were requested. We believe such an expense would not
rise to the level of being a ``significant economic impact.''
CBP thus certifies that this regulatory action does 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

[[Page 18414]]

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 U.S.
citizens and nonimmigrant aliens from Canada, Bermuda and Mexico
entering the United States by land or by sea from Western Hemisphere
countries to present a valid passport or other identified alternative
document. States do not conduct activities subject to this rule. For
these reasons, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.

D. Unfunded Mandates Reform Act Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA),
enacted as Public Law 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the UMRA is any
provision in a Federal agency regulation that will impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section
204(a), provides that, before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals.
This 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 in the Executive
Order 12866 discussion.

E. National Environmental Policy Act of 1969

DHS, in consultation with DOS, the Environmental Protection Agency
and the General Services Administration have reviewed the potential
environmental and other impacts of this proposed rule in accordance
with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C.
4321 et seq.), the regulations of the Council on Environmental Quality
(40 CFR part 1500), and DHS Management Directive 5100.1, Environmental
Planning Program of April 19, 2006. A programmatic environmental
assessment (PEA) was prepared that examined, among other things,
potential alternatives regarding implementation of the proposed rule at
the various land and sea ports of entry and what, if any, environmental
impacts may result from the rule and its implementation.
The final PEA was published on September 10, 2007, and resulted in
a Finding of No Significant Impact (FONSI) for the WHTI sea and land
plan. A review of the relative impacts showed that none of the
alternatives analyzed would result in a significant impact on the human
environment.
A Notice of Availability for the final PEA and FONSI was published
on September 26, 2007, in the Federal Register, and the PEA and FONSI
are available for viewing on http://www.dhs.gov and http://www.cbp.gov.
In addition, copies may be obtained by writing to: U.S. Customs and
Border Protection, 1300 Pennsylvania Avenue, NW., Room 5.4D, Attn: WHTI
Environmental Assessment, Washington, DC 20229.

F. Paperwork Reduction Act

1. Passports/Passport Cards
The collection of information requirement for passports is
contained in 22 CFR 51.20 and 51.21. The required information is
necessary for DOS Passport Services to issue a United States passport
in the exercise of authorities granted to the Secretary of State in 22
U.S.C. Section 211a et seq. and Executive Order 11295 (August 5, 1966)
for the issuance of passports to United States citizens and non-citizen
nationals. The issuance of U.S. passports requires the determination of
identity and nationality with reference to the provisions of Title III
of the Immigration and Nationality Act (8 U.S.C. sections 1401-1504),
the Fourteenth Amendment to the Constitution of the United States, and
other applicable 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.
Applicants for the passport cards would use the same application forms
(DS-11 and DS-82). The forms have been modified to allow the applicant
to elect a card or book formal passport, or both. First time applicants
must use the DS-11. The rule would result in an increase in the number
of persons filing the DS-11 and could result in an increase in the
number of persons filing the DS-82, and a corresponding increase in the
annual reporting and/or record-keeping burden. In conjunction with
publication of the final rule, DOS will amend the OMB form 83-I
(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.
Estimated annual average reporting and/or recordkeeping burden:
14.7 million hours.
Estimated annual average number of respondents: 9 million.
Estimated average burden per respondent: 1 hour 25 minutes.
Estimated frequency of responses: Every 10 years (adult passport
and passport card applications); every 5 years (minor passport and
passport card applications) Comments on this collection of information
should be sent to the Office of Management and Budget, Attention: Desk
Officer of the Department of State, Office of Information and
Regulatory Affairs, Washington, DC 20503.
2. Groups of Children
The collection of information requirements for groups of children
would be contained in 8 CFR 212.1 and 235.1. The required information
is necessary to comply with section 7209 of IRTPA, as amended, to
develop an alternative procedure for groups of children traveling
across an international border under adult supervision with parental
consent. DHS, in consultation with DOS, has developed alternate
procedures

[[Page 18415]]

requiring that certain information be provided to CBP so that these
children would not be required to present a passport. Consequently,
U.S. and Canadian citizen children through age 18, who are traveling
with public or private school groups, religious groups, social or
cultural organizations, or teams associated with youth sport
organizations that arrive at U.S. sea or land ports-of-entry, would be
permitted to present an original or a copy of a birth certificate
(rather than a passport), when the groups are under the supervision of
an adult affiliated with the organization and when all the children
have parental or legal guardian consent to travel. U.S. citizen
children would also be permitted to present a Certificate of
Naturalization or a Consular Report of Birth Abroad. Canadian children
would also be permitted to present a Canadian Citizenship Card or
Canadian Naturalization Certificate.
When crossing the border at the port-of-entry, the U.S. group,
organization, or team would be required to provide to CBP on
organizational letterhead the following information: (1) The name of
the group; (2) the name of each child on the trip; (3) the primary
address, primary phone number, date of birth, place of birth, and name
of at least one parent or legal guardian for each child on the trip;
(4) the name of the chaperone or supervising adult; and (5) the signed
statement of the supervising adult certifying that he or she has
obtained parental or legal guardian consent for each child.
The primary purpose for soliciting the information is to allow
groups of children arriving at the U.S. border under adult supervision
with parental consent to present either an original or a copy of a
birth certificate, (either for U.S. children: a Consular Report of
Birth Abroad, or Certificate of Naturalization; or for Canadian
children: a Canadian Citizenship Card or Canadian Naturalization
Certificate), rather than a passport, when the requested information is
provided to CBP. This information is necessary for CBP to verify that
the group of children entering the United States is eligible for this
alternative procedure so that the children would not be required to
present a passport or other generally acceptable document.
The collection of information encompassed within this proposed rule
has been submitted to the OMB for review in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not
conduct, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number assigned by OMB.
Estimated annual reporting and/or recordkeeping burden: 1,625
hours.
Estimated average annual respondent or recordkeeping burden: 15
minutes.
Estimated number of respondents and/or recordkeepers: 6,500
respondents.
Estimated annual frequency of responses: 6,500 responses.
Comments on this collection of information should be sent to the
Office of Management and Budget, Attention: Desk Officer of the
Department of Homeland Security, Office of Information and Regulatory
Affairs, Washington, DC 20503.

G. Privacy Statement

A Privacy Impact Assessment (PIA) was posted to the DHS Web site
(at http://www.dhs.gov/xinfoshare/publications/editorial_0511.shtm)
regarding the proposed rule. The changes adopted in this final rule
involve the removal of an exception for U.S. citizens from having to
present a passport in connection with Western Hemisphere travel other
than Cuba, such that said individuals would now be required to present
a passport or other identified alternative document when traveling from
foreign 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) (for which a System of Records Notice is published at 66
FR 53029). By removing the passport exception for U.S. Citizens
traveling within the Western Hemisphere, DHS and DOS 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

Passports and visas, travel restrictions.

Amendments to the Regulations

0
For the reasons stated above, DHS and DOS amend 8 CFR parts 212 and 235
and 22 CFR parts 41 and 53 as set forth below.

Title 8--Aliens and Nationality

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, 1359; 8 U.S.C. 1185 note
(section 7209 of Pub. L. 108-458, as amended by section 546 of Pub.
L. 109-295 and by section 723 of Pub. L. 110-53).

0
2. A new Sec. 212.0 is added to read as follows:

Sec. 212.0 Definitions.

For purposes of Sec. 212.1 and Sec. 235.1 of this chapter:
Adjacent islands means Bermuda and the islands located in the
Caribbean Sea, except Cuba.
Cruise ship means a passenger vessel over 100 gross tons, carrying
more than 12 passengers for hire, making a voyage lasting more than 24
hours any part of which is on the high seas, and for which passengers
are embarked or disembarked in the United States or its territories.
Ferry means any vessel operating on a pre-determined fixed schedule
and route, which is being used solely to provide transportation between
places that are no more than 300 miles apart and which is being used to
transport passengers, vehicles, and/or railroad cars.
Pleasure vessel means a vessel that is used exclusively for
recreational or personal purposes and not to transport passengers or
property for hire.
United States means ``United States'' as defined in section 215(c)
of the

[[Page 18416]]

Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1185(c)).
U.S. citizen means a United States citizen or a U.S. non-citizen
national.
United States qualifying tribal entity means a tribe, band, or
other group of Native Americans formally recognized by the United
States Government which agrees to meet WHTI document standards.
* * * * *

0
3. Section 212.1 is amended by:
0
a. Revising paragraphs (a)(1) and (a)(2); and
0
b. Revising paragraph (c)(1).
The revisions read 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
generally not required for Canadian citizens, except those Canadians
that fall under nonimmigrant visa categories E, K, S, or V as provided
in paragraphs (h), (l), and (m) of this section and 22 CFR 41.2. A
valid unexpired passport is required for Canadian citizens arriving in
the United States, except when meeting one of the following
requirements:
(i) NEXUS Program. A Canadian citizen who is traveling as a
participant in the NEXUS program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (h), (l), and (m)
of this section and 22 CFR 41.2, may present a valid unexpired NEXUS
program card when using a NEXUS Air kiosk or when entering the United
States from contiguous territory or adjacent islands at a land or sea
port-of-entry. A Canadian citizen who enters the United States by
pleasure vessel from Canada under the remote inspection system may
present a valid unexpired NEXUS program card.
(ii) FAST Program. A Canadian citizen who is traveling as a
participant in the FAST program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (h), (l), and (m)
of this section and 22 CFR 41.2, may present a valid unexpired FAST
card at a land or sea port-of-entry prior to entering the United States
from contiguous territory or adjacent islands.
(iii) SENTRI Program. A Canadian citizen who is traveling as a
participant in the SENTRI program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (h), (l), and (m)
of this section and 22 CFR 41.2, may present a valid unexpired SENTRI
card at a land or sea port-of-entry prior to entering the United States
from contiguous territory or adjacent islands.
(iv) Canadian Indians. If designated by the Secretary of Homeland
Security, a Canadian citizen holder of a Indian and Northern Affairs
Canada (``INAC'') card issued by the Canadian Department of Indian
Affairs and North Development, Director of Land and Trust Services
(``LTS'') in conformance with security standards agreed upon by the
Governments of Canada and the United States, and containing a machine
readable zone and who is arriving from Canada may present the card
prior to entering the United States at a land port-of-entry.
(v) Children. A child who is a Canadian citizen arriving from
contiguous territory may present for admission to the United States at
sea or land ports-of-entry certain other documents if the arrival meets
the requirements described below.
(A) Children Under Age 16. A Canadian citizen who is under the age
of 16 is permitted to present an original or a copy of his or her birth
certificate, a Canadian Citizenship Card, or a Canadian Naturalization
Certificate when arriving in the United States from contiguous
territory at land or sea ports-of-entry.
(B) Groups of Children Under Age 19. A Canadian citizen, under age
19 who is traveling with a public or private school group, religious
group, social or cultural organization, or team associated with a youth
sport organization is permitted to present an original or a copy of his
or her birth certificate, a Canadian Citizenship Card, or a Canadian
Naturalization Certificate when arriving in the United States from
contiguous territory at land or sea ports-of-entry, when the group,
organization or team is under the supervision of an adult affiliated
with the organization and when the child has parental or legal guardian
consent to travel. For purposes of this paragraph, an adult is
considered to be a person who is age 19 or older.
The following requirements will apply:
(1) The group, organization, or team must provide to CBP upon
crossing the border, on organizational letterhead:
(i) The name of the group, organization or team, and the name of
the supervising adult;
(ii) A trip itinerary, including the stated purpose of the trip,
the location of the destination, and the length of stay;
(iii) A list of the children on the trip;
(iv) For each child, the primary address, primary phone number,
date of birth, place of birth, and name of a parent or legal guardian.
(2) The adult leading the group, organization, or team must
demonstrate parental or legal guardian consent by certifying in the
writing submitted in paragraph (a)(1)(v)(B)(1) of this section that he
or she has obtained for each child the consent of at least one parent
or legal guardian.
(3) The inspection procedure described in this paragraph is limited
to members of the group, organization, or team who are under age 19.
Other members of the group, organization, or team must comply with
other applicable document and/or inspection requirements found in this
part or parts 211 or 235 of this subchapter.
(2) Citizens of the British Overseas Territory of Bermuda. A visa
is generally not required for Citizens of the British Overseas
Territory of Bermuda, except those Bermudians that fall under
nonimmigrant visa categories E, K, S, or V as provided in paragraphs
(h), (l), and (m) of this section and 22 CFR 41.2. A passport is
required for Citizens of the British Overseas Territory of Bermuda
arriving in the United States.
* * * * *
(c) Mexican nationals. (1) A visa and a passport are not required
of a Mexican national who:
(i) Is applying for admission as a temporary visitor for business
or pleasure from Mexico at a land port-of-entry, or arriving by
pleasure vessel or ferry, if the national is in possession of a Form
DSP-150, B-1/B-2 Visa and Border Crossing Card issued by the Department
of State, containing a machine-readable biometric identifier; or.
(ii) Is applying for admission from contiguous territory or
adjacent islands at a land or sea port-of-entry, if the national is a
member of the Texas Band of Kickapoo Indians or Kickapoo Tribe of
Oklahoma who is in possession of a Form I-872 American Indian Card.
* * * * *

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
4. 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, as amended by section 546 of Pub. L. 109-295 and by
section 723 of Pub. L. 110-53).

0
5. Section 235.1 is amended by:
0
a. Revising paragraph (b);
0
b. Revising paragraph (d); and
0
c. Revise paragraph (e).

[[Page 18417]]

The revised text reads as follows:

Sec. 235.1 Scope of examination.

* * * * *
(b) U.S. Citizens. A person claiming U.S. citizenship must
establish that fact to the examining officer's satisfaction and must
present a U.S. passport or alternative documentation as required by 22
CFR part 53. If such applicant for admission fails to satisfy the
examining immigration officer that he or she is a U.S. citizen, he or
she shall thereafter be inspected as an alien. A U.S. citizen must
present a valid unexpired U.S. passport book upon entering the United
States, unless he or she presents one of the following documents:
(1) Passport Card. A U.S. citizen who possesses a valid unexpired
United States passport card, as defined in 22 CFR 53.1, may present the
passport card when entering the United States from contiguous territory
or adjacent islands at land or sea ports-of-entry.
(2) Merchant Mariner Document. A U.S. citizen who holds a valid
Merchant Mariner Document (MMD) issued by the U.S. Coast Guard may
present an unexpired MMD used in conjunction with official maritime
business when entering the United States.
(3) Military Identification. Any U.S. citizen member of the U.S.
Armed Forces who is in the uniform of, or bears documents identifying
him or her as a member of, such Armed Forces, and who is coming to or
departing from the United States under official orders or permit of
such Armed Forces, may present a military identification card and the
official orders when entering the United States.
(4) Trusted Traveler Programs. A U.S. citizen who travels as a
participant in the NEXUS, FAST, or SENTRI programs may present a valid
NEXUS program card when using a NEXUS Air kiosk or a valid NEXUS, FAST,
or SENTRI card at a land or sea port-of-entry prior to entering the
United States from contiguous territory or adjacent islands. A U.S.
citizen who enters the United States by pleasure vessel from Canada
using the remote inspection system may present a NEXUS program card.
(5) Certain Cruise Ship Passengers. A U.S. citizen traveling
entirely within the Western Hemisphere is permitted to present a
government-issued photo identification document in combination with
either an original or a copy of his or her birth certificate, a
Consular Report of Birth Abroad issued by the Department of State, or a
Certificate of Naturalization issued by U.S. Citizenship and
Immigration Services for entering the United States when the United
States citizen:
(i) Boards a cruise ship at a port or place within the United
States; and,
(ii) Returns on the return voyage of the same cruise ship to the
same United States port or place from where he or she originally
departed.

On such cruises, U.S. Citizens under the age of 16 may present an
original or a copy of a birth certificate, a Consular Report of Birth
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship
and Immigration Services.

(6) Native American Holders of an American Indian Card. A Native
American holder of a Form I-872 American Indian Card arriving from
contiguous territory or adjacent islands may present the Form I-872
card prior to entering the United States at a land or sea port-of-
entry.
(7) Native American Holders of Tribal Documents. A U.S. citizen
holder of a tribal document issued by a United States qualifying tribal
entity or group of United States qualifying tribal entities, as
provided in paragraph (e) of this section, who is arriving from
contiguous territory or adjacent islands may present the tribal
document prior to entering the United States at a land or sea port-of-
entry.
(8) Children. A child who is a United States citizen entering the
United States from contiguous territory at a sea or land ports-of-entry
may present certain other documents, if the arrival falls under
subsection (i) or (ii).
(i) Children Under Age 16. A U.S. citizen who is under the age of
16 is permitted to present either an original or a copy of his or her
birth certificate, a Consular Report of Birth Abroad issued by the
Department of State, or a Certificate of Naturalization issued by U.S.
Citizenship and Immigration Services when entering the United States
from contiguous territory at land or sea ports-of-entry.
(ii) Groups of Children Under Age 19. A U.S. citizen, who is under
age 19 and is traveling with a public or private school group,
religious group, social or cultural organization, or team associated
with a youth sport organization is permitted to present either an
original or a copy of his or her birth certificate, a Consular Report
of Birth Abroad issued by the Department of State, or a Certificate of
Naturalization issued by U.S. Citizenship and Immigration Services when
arriving from contiguous territory at land or sea ports-of-entry, when
the group, organization, or team is under the supervision of an adult
affiliated with the group, organization, or team and when the child has
parental or legal guardian consent to travel. For purposes of this
paragraph, an adult is considered to be a person age 19 or older. The
following requirements will apply:
(A) The group or organization must provide to CBP upon crossing the
border, on organizational letterhead:
(1) The name of the group, organization or team, and the name of
the supervising adult;
(2) A list of the children on the trip;
(3) For each child, the primary address, primary phone number, date
of birth, place of birth, and name of a parent or legal guardian.
(B) The adult leading the group, organization, or team must
demonstrate parental or legal guardian consent by certifying in the
writing submitted in paragraph (b)(8)(ii)(A) of this section that he or
she has obtained for each child the consent of at least one parent or
legal guardian.
(C) The inspection procedure described in this paragraph is limited
to members of the group, organization, or team who are under age 19.
Other members of the group, organization, or team must comply with
other applicable document and/or inspection requirements found in this
part.
* * * * *
(d) Enhanced Driver's License Projects; alternative requirements.
Upon the designation by the Secretary of Homeland Security of an
enhanced driver's license as an acceptable document to denote identity
and citizenship for purposes of entering the United States, U.S. and
Canadian citizens may be permitted to present these documents in lieu
of a passport upon entering or seeking admission to the United States
according to the terms of the agreements entered between the Secretary
of Homeland Security and the entity. The Secretary of Homeland Security
will announce, by publication of a notice in the Federal Register,
documents designated under this paragraph. A list of the documents
designated under this paragraph will also be made available to the
public.
(e) Native American Tribal Cards; alternative requirements. Upon
the designation by the Secretary of Homeland Security of a United
States qualifying tribal entity document as an acceptable document to
denote identity and citizenship for purposes of entering the United
States, Native Americans may be permitted to present tribal cards upon
entering or seeking admission to the United States according to the
terms of the voluntary agreement entered between the Secretary of
Homeland Security and the tribe. The Secretary of Homeland Security
will announce, by publication of a notice in the Federal

[[Page 18418]]

Register, documents designated under this paragraph. A list of the
documents designated under this paragraph will also be made available
to the public.
* * * * *

Title 22--Foreign Relations

PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY ACT

Subpart A--Passport and Visas Not Required for Certain
Nonimmigrants

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1. 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, as amended by section 546 of Pub. L. 109-295).

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2. A new Sec. 41.0 is added to read as follows:

Sec. 41.0 Definitions.

For purposes of this part and part 53:
Adjacent islands means Bermuda and the islands located in the
Caribbean Sea, except Cuba.
Cruise ship means a passenger vessel over 100 gross tons, carrying
more than 12 passengers for hire, making a voyage lasting more than 24
hours any part of which is on the high seas, and for which passengers
are embarked or disembarked in the United States or its territories.
Ferry means any vessel operating on a pre-determined fixed schedule
and route, which is being used solely to provide transportation between
places that are no more than 300 miles apart and which is being used to
transport passengers, vehicles, and/or railroad cars.
Pleasure vessel means a vessel that is used exclusively for
recreational or personal purposes and not to transport passengers or
property for hire.
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)).
U.S. citizen means a United States citizen or a U.S. non-citizen
national.
United States qualifying tribal entity means a tribe, band, or
other group of Native Americans formally recognized by the United
States Government which agrees to meet WHTI document standards.

Sec. 41.1 [Amended]

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3. Section 41.1 is amended by removing and reserving paragraph (b).

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4. Section 41.2 is amended by revising the heading, the introductory
text, and paragraphs (a), (b), (g)(1) and (g)(2) to read as follows:

Sec. 41.2 Exemption or Waiver by Secretary of State and Secretary of
Homeland Security of passport and/or visa requirements for certain
categories of nonimmigrants.

Pursuant to the authority of the Secretary of State and the
Secretary of Homeland Security under the INA, as amended, a passport
and/or visa is not required for the following categories of
nonimmigrants:
(a) Canadian citizens. A visa is not required for an American
Indian born in Canada having at least 50 percentum of blood of the
American Indian race. A visa is not required for other Canadian
citizens except for those who apply for admission in E, K, V, or S
nonimmigrant classifications as provided in paragraphs (k) and (m) of
this section and 8 CFR 212.1. A passport is required for Canadian
citizens applying for admission to the United States, except when one
of the following exceptions applies:
(1) NEXUS Program. A Canadian citizen who is traveling as a
participant in the NEXUS program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (k) and (m) of
this section and 8 CFR 212.1, may present a valid NEXUS program card
when using a NEXUS Air kiosk or when entering the United States from
contiguous territory or adjacent islands at a land or sea port-of-
entry. A Canadian citizen who enters the United States by pleasure
vessel from Canada under the remote inspection system may present a
NEXUS program card.
(2) FAST Program. A Canadian citizen who is traveling as a
participant in the FAST program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (k) and (m) of
this section and 8 CFR 212.1, may present a valid FAST card at a land
or sea port-of-entry prior to entering the United States from
contiguous territory or adjacent islands.
(3) SENTRI Program. A Canadian citizen who is traveling as a
participant in the SENTRI program, and who is not otherwise required to
present a passport and visa as provided in paragraphs (k) and (m) of
this section and 8 CFR 212.1, may present a valid SENTRI card at a land
or sea port-of-entry prior to entering the United States from
contiguous territory or adjacent islands.
(4) Canadian Indians. If designated by the Secretary of Homeland
Security, a Canadian citizen holder of an Indian and Northern Affairs
Canada (``INAC'') card issued by the Canadian Department of Indian
Affairs and North Development, Director of Land and Trust Services
(LTS) in conformance with security standards agreed upon by the
Governments of Canada and the United States, and containing a machine
readable zone, and who is arriving from Canada, may present the card
prior to entering the United States at a land port-of-entry.
(5) Children. A child who is a Canadian citizen who is seeking
admission to the United States when arriving from contiguous territory
at a sea or land port-of-entry, may present certain other documents if
the arrival meets the requirements described in either paragraph (i) or
(ii) of this section.
(i) Children Under Age 16. A Canadian citizen who is under the age
of 16 is permitted to present an original or a copy of his or her birth
certificate, a Canadian Citizenship Card, or a Canadian Naturalization
Certificate when arriving in the United States from contiguous
territory at land or sea ports-of-entry.
(ii) Groups of Children Under Age 19. A Canadian citizen who is
under age 19 and who is traveling with a public or private school
group, religious group, social or cultural organization, or team
associated with a youth sport organization may present an original or a
copy of his or her birth certificate, a Canadian Citizenship Card, or a
Canadian Naturalization Certificate when applying for admission to the
United States from contiguous territory at all land and sea ports-of-
entry, when the group, organization or team is under the supervision of
an adult affiliated with the organization and when the child has
parental or legal guardian consent to travel. For purposes of this
paragraph, an adult is considered to be a person who is age 19 or
older. The following requirements will apply:
(A) The group, organization, or team must provide to CBP upon
crossing the border, on organizational letterhead:
(1) The name of the group, organization or team, and the name of
the supervising adult;
(2) A trip itinerary, including the stated purpose of the trip, the
location of the destination, and the length of stay;
(3) A list of the children on the trip;
(4) For each child, the primary address, primary phone number, date
of birth, place of birth, and the name of at least one parent or legal
guardian.
(B) The adult leading the group, organization, or team must
demonstrate parental or legal guardian consent by certifying in the
writing submitted in paragraph (a)(5)(ii)(A) of this section

[[Page 18419]]

that he or she has obtained for each child the consent of at least one
parent or legal guardian.
(C) The procedure described in this paragraph is limited to members
of the group, organization, or team that are under age 19. Other
members of the group, organization, or team must comply with other
applicable document and/or inspection requirements found in this part
and 8 CFR parts 212 and 235.
(6) Enhanced Driver's License Programs. Upon the designation by the
Secretary of Homeland Security of an enhanced driver's license as an
acceptable document to denote identity and citizenship for purposes of
entering the United States, Canadian citizens may be permitted to
present these documents in lieu of a passport when seeking admission to
the United States according to the terms of the agreements entered
between the Secretary of Homeland Security and the entity. The
Secretary of Homeland Security will announce, by publication of a
notice in the Federal Register, documents designated under this
paragraph. A list of the documents designated under this paragraph will
also be made available to the public.
(b) Citizens of the British Overseas Territory of Bermuda. A visa
is not required, except for Citizens of the British Overseas Territory
of Bermuda who apply for admission in E, K, V, or S nonimmigrant visa
classification as provided in paragraphs (k) and (m) of this section
and 8 CFR 212.1. A passport is required for Citizens of the British
Overseas Territory of Bermuda applying for admission to the United
States.
* * * * *
(g) Mexican nationals. (1) A visa and a passport are not required
of a Mexican national who is applying for admission from Mexico as a
temporary visitor for business or pleasure at a land port-of-entry, or
arriving by pleasure vessel or ferry, if the national 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 Department of
State.
(2) A visa and a passport are not required of a Mexican national
who is applying for admission from contiguous territory or adjacent
islands at a land or sea port-of-entry, if the national is a member of
the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is
in possession of a Form I-872 American Indian Card issued by U.S.
Citizenship and Immigration Services (USCIS).
* * * * *

PART 53--PASSPORT REQUIREMENT AND EXCEPTIONS

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5. The authority citation for part 53 continues to read as follows:

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. 23, 2003).

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6. Section 53.2 is revised to read as follows:

Sec. 53.2 Exceptions.

(a) U.S. citizens, as defined in Sec. 41.0 of this chapter, are
not required to bear U.S. passports when traveling directly between
parts of the United States as defined in Sec. 51.1 of this chapter.
(b) A U.S. citizen is not required to bear a valid U.S. passport to
enter or depart the United States:
(1) When traveling as a member of the Armed Forces of the United
States on active duty and when he or she is in the uniform of, or bears
documents identifying him or her as a member of, such Armed Forces,
when under official orders or permit of such Armed Forces, and when
carrying a military identification card; or
(2) When traveling entirely within the Western Hemisphere on a
cruise ship, and when the U.S. citizen boards the cruise ship at a port
or place within the United States and returns on the return voyage of
the same cruise ship to the same United States port or place from where
he or she originally departed. That U.S. citizen may present a
government-issued photo identification document in combination with
either an original or a copy of his or her birth certificate, a
Consular Report of Birth Abroad issued by the Department, or a
Certificate of Naturalization issued by U.S. Citizenship and
Immigration Services before entering the United States; if the U.S.
citizen is under the age of 16, he or she may present either an
original or a copy of his or her birth certificate, a Consular Report
of Birth Abroad issued by the Department, or a Certificate of
Naturalization issued by U.S. Citizenship and Immigration Services; or
(3) When traveling as a U.S. citizen seaman, carrying an unexpired
Merchant Marine Document (MMD) in conjunction with maritime business.
The MMD is not sufficient to establish citizenship for purposes of
issuance of a United States passport under part 51 of this chapter; or
(4) Trusted Traveler Programs. (i) NEXUS Program. When traveling as
a participant in the NEXUS program, he or she may present a valid NEXUS
program card when using a NEXUS Air kiosk or when entering the United
States from contiguous territory or adjacent islands at a land or sea
port-of-entry. A U.S. citizen who enters the United States by pleasure
vessel from Canada under the remote inspection system may also present
a NEXUS program card;
(ii) FAST Program. A U.S. citizen who is traveling as a participant
in the FAST program may present a valid FAST card when entering the
United States from contiguous territory or adjacent islands at a land
or sea port-of-entry;
(iii) SENTRI Program. A U.S. citizen who is traveling as a
participant in the SENTRI program may present a valid SENTRI card when
entering the United States from contiguous territory or adjacent
islands at a land or sea port-of-entry; The NEXUS, FAST, and SENTRI
cards are not sufficient to establish citizenship for purposes of
issuance of a U.S. passport under part 51 of this chapter; or
(5) When arriving at land ports of entry and sea ports of entry
from contiguous territory or adjacent islands, Native American holders
of American Indian Cards (Form I-872) issued by U.S. Citizenship and
Immigration Services (USCIS) may present those cards; or
(6) When arriving at land or sea ports of entry from contiguous
territory or adjacent islands, U.S. citizen holders of a tribal
document issued by a United States qualifying tribal entity or group of
United States qualifying tribal entities as provided in 8 CFR 235.1(e)
may present that document. Tribal documents are not sufficient to
establish citizenship for purposes of issuance of a United States
passport under part 51 of this chapter; or
(7) When bearing documents or combinations of documents the
Secretary of Homeland Security has determined under Section 7209(b) of
Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote
identity and citizenship. Such documents are not sufficient to
establish citizenship for purposes of issuance of a U.S. passport under
part 51 of this chapter; or
(8) 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 and is traveling in
connection with such employment; or

[[Page 18420]]

(9) When the Department of State waives, pursuant to EO 13323 of
December 30, 2003, Section 2, the requirement with respect to the U.S.
citizen because there is an unforeseen emergency; or
(10) 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; or
(11) When the U.S. citizen is a child under the age of 19 arriving
from contiguous territory in the following circumstances:
(i) Children Under Age 16. A United States citizen who is under the
age of 16 is permitted to present either an original or a copy of his
or her birth certificate, a Consular Report of Birth Abroad, or a
Certificate of Naturalization issued by U.S. Citizenship and
Immigration Services when entering the United States from contiguous
territory at land or sea ports-of-entry; or
(ii) Groups of Children Under Age 19. A U.S. citizen who is under
age 19 and who is traveling with a public or private school group,
religious group, social or cultural organization, or team associated
with a youth sport organization may present either an original or a
copy of his or her birth certificate, a Consular Report of Birth
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship
and Immigration Services when arriving in the United States from
contiguous territory at all land or sea ports of entry, when the group,
organization or team is under the supervision of an adult affiliated
with the organization and when the child has parental or legal guardian
consent to travel. For purposes of this paragraph, an adult is
considered to be a person who is age 19 or older.
The following requirements will apply:
(A) The group, organization, or team must provide to CBP upon
crossing the border on organizational letterhead:
(1) The name of the group, organization or team, and the name of
the supervising adult;
(2) A list of the children on the trip; and
(3) For each child, the primary address, primary phone number, date
of birth, place of birth, and the name of at least one parent or legal
guardian.
(B) The adult leading the group, organization, or team must
demonstrate parental or legal guardian consent by certifying in the
writing submitted in paragraph (b)(11)(ii)(A) of this section that he
or she has obtained for each child the consent of at least one parent
or legal guardian.
(C) The procedure described in this paragraph is limited to members
of the group, organization, or team who are under age 19. Other members
of the group, organization, or team must comply with other applicable
document and/or inspection requirements found in 8 CFR parts 211, 212,
or 235.

Dated: March 26, 2008.
Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.

Patrick Kennedy,
Under Secretary of State for Management, Department of State.
[FR Doc. E8-6725 Filed 4-2-08; 8:45 am]
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