[Federal Register Volume 70, Number 169 (Thursday, September 1, 2005)]
[Proposed Rules]
[Pages 52037-52039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17533]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

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

[[Page 52037]]



DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

8 CFR Chapter I

[DHS 2005-0023]
RIN 1651-AA66

DEPARTMENT OF STATE

22 CFR Chapter I

RIN 1400-AC10


Documents Required for Travel Within the Western Hemisphere

AGENCY: Bureau of Customs and Border Protection, Department of Homeland 
Security, Bureau of Consular Affairs, Department of State.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: Under the Immigration and Nationality Act (INA), nonimmigrant 
aliens and United States citizens are generally required to present 
passports to enter the United States. The Secretary of Homeland 
Security and the Secretary of State have the joint authority to waive 
this requirement for nonimmigrant aliens under certain circumstances 
and the Secretary of State has the authority to make exceptions to the 
requirement for United States citizens. In accordance with those 
authorities, current regulations permit United States citizens and 
nonimmigrant aliens from Canada, Bermuda and Mexico to enter the United 
States from certain Western Hemisphere countries without presenting a 
passport.
    On December 17, 2004, the President signed the Intelligence Reform 
and Terrorism Prevention Act of 2004 (IRTPA). Section 7209 of this 
statute limits the Secretaries' discretion to waive or to make 
exceptions to the passport requirements under the INA and expressly 
provides that, by January 1, 2008, United States citizens and 
nonimmigrant aliens may enter the United States only with passports or 
such alternatives as the Secretary of Homeland Security may designate 
as satisfactorily establishing identity and citizenship. In the future, 
as a result of the implementation of the new statute, travel to the 
United States by United States citizens and others from the Western 
Hemisphere will require a passport or acceptable alternative documents 
in circumstances where travel was previously permitted without such 
documents.
    Section 7209 directs that the Secretary of Homeland Security, in 
consultation with the Secretary of State, develop and implement a plan 
relating to the new requirements ``as expeditiously as possible.'' The 
statute provides that this plan shall be implemented no later than 
January 1, 2008. The Secretary of Homeland Security, in consultation 
with the Secretary of State, will be deciding how to implement the new 
law. This Advance Notice of Proposed Rulemaking announces the 
rulemakings that are expected to implement the new law, invites 
comments on the possible means of implementation and specifically 
invites comments on the documents other than passports that should be 
accepted under section 7209 as sufficient to establish citizenship and 
identity.

DATES: Written comments must be submitted on or before October 31, 
2005.

ADDRESSES: Comments, identified by docket number or RIN number, may be 
submitted by one of the following methods:
     EPA Federal Partner EDOCKET Web Site: http://www.epa.gov/feddocket. Follow instructions for submitting comments on the Web site.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Comments by mail are to be addressed to the Bureau 
of Customs and Border Protection, Office of Regulations and Rulings, 
Regulations Branch, 1300 Pennsylvania Avenue, NW., Washington, DC 
20229. Submitted comments by mail may be inspected at the Bureau of 
Customs and Border Protection at 799 9th Street, NW., Washington, DC. 
To inspect comments, please call (202) 572-8768 to arrange for an 
appointment.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments will be posted without change to http://www.epa.gov/feddocket, including any personal information sent with 
each comment. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Participation in Rulemaking Process'' heading of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
submitted comments, go to http://www.epa.gov/feddocket. You may also 
access the Federal eRulemaking Portal at http://www.regulations.gov. 
Submitted comments may also be inspected at the Bureau of Customs and 
Border Protection at 799 9th Street, NW., Washington, DC. To inspect 
comments, please call (202) 572-8768 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Department of Homeland Security: 
Theresa Brown, Office of Policy and Planning, Bureau of Customs and 
Border Protection, 1300 Pennsylvania Avenue, NW., Room 4.4-D, 
Washington, DC 20229, telephone number (202) 344-3022.
    Department of State: Sharon Palmer-Royston, Office of Passport 
Policy, Planning and Advisory Services, Bureau of Consular Affairs, 
telephone number (202) 663-2662.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

ANPRM--Advance Notice of Proposed Rulemaking
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--Bureau of Customs and Border Protection
DHS--Department of Homeland Security
DOS--Department of State
FAST--Free and Secure Trade
INA--Immigration and Nationality Act
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
SENTRI--Secure Electronic Network for Travelers Rapid Inspection

Background

Enactment of Intelligence Reform and Terrorism Prevention Act of 2004

    The President signed the Intelligence Reform and Terrorism 
Prevention Act of 2004 (IRTPA), Pub. L. 108-458, 118 Stat. 3638, on 
December 17, 2004. The

[[Page 52038]]

statute obligates the Secretary of Homeland Security to develop and 
implement a plan to require United States citizens and nationals of 
certain Western Hemisphere countries to present a passport or other 
identity and citizenship documents when entering the United States from 
countries in the Western Hemisphere.\1\ As a result of the enactment of 
section 7209 of IRTPA, the Secretary of Homeland Security, in 
consultation with the Secretary of State, must develop and implement 
the plan by January 1, 2008.
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    \1\ Section 7209 does not apply to Lawful Permanent Residents 
(LPR), who will continue to be able to enter the United States upon 
presentation of a valid Form I-551, Alien Registration Card, or 
other valid evidence of permanent resident status. Section 211(b) of 
the INA, 8 U.S.C. 1181(b). It also does not apply to military 
personnel traveling under orders. Section 284 of INA, 8 U.S.C. 1354.
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Current Entry Requirements for United States Citizens

    In general, under federal law it is ``unlawful for any citizen of 
the United States to depart from or enter * * * the United States 
unless he bears a valid United States passport.'' \2\ However, United 
States citizens now are exempt from the statutory passport requirement 
when coming from the Western Hemisphere other than from Cuba.\3\ 
Currently, a United States citizen entering the United States from the 
Western Hemisphere, other than from Cuba, is inspected at the border by 
a Bureau of Customs and Border Protection (CBP) officer. To lawfully 
enter the United States, the arriving individual need only satisfy the 
CBP officer of his or her United States citizenship. In addition to 
examining whatever documentation the individual submits, the CBP 
officer may ask for additional identification and proof of citizenship 
until such time as the CBP officer is satisfied that the entering 
individual is a United States citizen.
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    \2\ See section 215(b) of the 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).
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    As a result of this procedure, United States citizens arriving from 
within the Western Hemisphere now may provide other documents in lieu 
of a passport to satisfy a CBP officer. A driver's license issued by a 
state motor vehicle administration or other competent state government 
authority is the most common form of identity document now accepted at 
the border. The citizenship documents now accepted at the border 
include birth certificates issued by a United States jurisdiction, 
Certificates of Naturalization, and Certificates of Citizenship.

Current Entry Requirements for Nonimmigrant Aliens

    Currently, each nonimmigrant alien arriving in the United States 
must present to the CBP officer at the border a valid unexpired 
passport issued by his or her country of citizenship and a valid 
unexpired visa issued by a United States embassy or consulate 
abroad.\4\ The only current general exception to the passport 
requirement applies to the admission of (1) nationals of Canada and 
Bermuda arriving from anywhere in the Western Hemisphere other than 
Cuba and (2) Mexican nationals with a Border Crossing Card (BCC) 
arriving from contiguous territory.
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    \4\ See INA Sec.  212(a)(7)(B)(i), 8 U.S.C. 1182(a)(7)(B)(i).
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Canadian Citizens and Citizens of the British Overseas Territory of 
Bermuda
    When entering the United States as nonimmigrant visitors from 
countries in the Western Hemisphere other than Cuba, Canadian citizens 
and citizens of the British Overseas Territory of Bermuda need not 
present a valid passport and visa.\5\ They currently are required, 
however, to satisfy the inspecting CBP officer of their identity and 
citizenship at the time of application for admission. The entering 
alien may present any proof of citizenship in his or her possession. An 
individual who initially fails to satisfy the examining CBP officer 
that he or she is a Canadian citizen or citizen of the British Overseas 
Territory of Bermuda may then be required by CBP to provide further 
identification and proof of citizenship such as a birth certificate, 
passport, or citizenship card.
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    \5\ See 8 CFR 212.1(a)(1)(Canadian citizens) and 
212.1(a)(2)(Citizens of Bermuda).
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Mexican Citizens
    Mexican citizens traveling to the United States for pleasure or for 
business who are in possession of a Form DSP-150, B-1/B-2 Visa and 
Border Crossing Card (BCC) are not required to present a valid passport 
when coming from contiguous territory.\6\ A BCC is a machine-readable, 
biometric card, issued by the U.S. Department of State, Bureau of 
Consular Affairs. DHS anticipates that BCCs will continue to be 
acceptable under IRTPA.
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    \6\ See 8 CFR 212.1(c)(1)(i). There are other very narrow 
exceptions for Mexican citizens such as a Mexican citizen who is 
entering the United States from Mexico solely to apply for a Mexican 
passport or other ``official Mexican document'' at a Mexican 
consulate in the United States. See 8 CFR 212.1(c)(1)(ii).
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Travel Document Requirements Under the Intelligence Reform and 
Terrorism Prevention Act of 2004

    Under section 7209 of IRTPA, both United States citizens and 
nonimmigrant aliens who currently do not require passports to enter the 
United States, will require a valid passport or other identity and 
citizenship document to enter the United States.\7\ At that time, 
United States citizens and nonimmigrant aliens will need to present 
documents when traveling from countries within the Western Hemisphere 
to the United States that have not been required in the past. The 
principal groups affected are United States citizens, Canadian 
citizens, citizens of the British Overseas Territory of Bermuda, and 
Mexican citizens. These are the groups currently exempt from the 
general passport requirement when entering the United States from 
within the Western Hemisphere. Section 7209 sets January 1, 2008 as the 
deadline for the development and implementation of the plan relating to 
the new requirements.
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    \7\ Section 7209 requires this change by limiting the authority 
previously used by the Secretaries to waive the generally applicable 
document requirements. This authority is set out in Section 
212(d)(4)(B) of the INA, 8 U.S.C. 1182(d)(4)(B), and section 215(b) 
of the INA, 8 U.S.C. 1185(d)(4)(B) (delegated to the Secretary of 
State under Executive Order 13323, 69 FR 241 (Dec. 30, 2003).
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    Section 7209 of IRTPA also requires that the Secretaries of 
Homeland Security and State expedite the travel of frequent travelers, 
including those who reside in border communities. Section 7209 
specifically requires that the Secretaries make readily available a 
registered traveler program as one means to expedite travel for 
frequent travelers. DHS currently operates registered traveler programs 
that benefit United States citizens and foreign nationals entering the 
United States from Canada and Mexico, such as the Secure Electronic 
Network for Travelers Rapid Inspection (SENTRI) program and the joint 
United States-Canadian NEXUS program. In addition, the Free and Secure 
Trade (FAST) program allows expedited clearance of registered 
commercial vehicle drivers. DHS will continue to improve and expand 
travel facilitation programs consistent with the requirements of IRTPA.
    According to IRTPA, following the complete implementation of this 
plan, neither the Secretary of State nor the Secretary of Homeland 
Security may waive these document requirements for classes of 
nonimmigrant aliens traveling to the United States.\8\ For United 
States

[[Page 52039]]

citizens, the new document requirements may be waived but only in three 
circumstances specifically spelled out in section 7209: (1) When the 
Secretary of Homeland Security determines that ``alternative 
documentation'' different from that then being required under section 
7209 is sufficient; (2) in an individual case of an unforeseen 
emergency; or (3) in an individual case based on ``humanitarian or 
national interest reasons.''
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    \8\ Other statutory waiver authority is not affected so that 
waivers may still be granted in individual cases of unforeseen 
emergency pursuant to section 212(d)(4)(A) of the INA, 8 U.S.C. 
1182(d)(4)(A), and pursuant to section 212(d)(4)(C) of the INA, 8 
U.S.C. 1182(d)(4)(C), for persons transiting the United States.
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    To comply with IRTPA, DHS and DOS plan to amend to their respective 
regulations. Prior to promulgating such regulations, DHS and DOS, 
through this advance notice of proposed rulemaking (ANPRM), are 
soliciting comments from the public on the implementation of section 
7209. Comments received by DHS and DOS on the ANPRM will be addressed 
in the future rulemaking actions that promulgate any regulations 
necessary to implement the requirements of IRTPA.
    The Secretary of Homeland Security, in consultation with the 
Secretary of State, must determine what documents, other than a valid 
passport, are acceptable under section 7209 because they are 
``sufficient to denote identity and citizenship.'' At the conclusion of 
this public rulemaking process, a notice setting forth the acceptable 
documents will be published in the Federal Register.

Plan for Two Stage Implementation of IRTPA Requirements

    DHS and DOS envision implementing the new requirements in the 
following two stages to ensure that the transition is orderly, to 
provide affected persons with adequate notice to obtain necessary 
documents, to designate the alternate documents that will satisfy the 
requirements, and to ensure that adequate resources are available to 
issue additional passports or other authorized documents.
    a. Air and Sea Crossings: Beginning December 31, 2006, all 
individuals traveling to the United States by air or sea will be asked 
to present a valid passport or other document, or combination of 
documents that have been deemed by the Secretary of Homeland Security 
to be sufficient to establish identity and citizenship. A valid 
passport will satisfy this requirement and other documents will be 
considered as possible alternatives to passports in advance of this 
implementation date. DHS and DOS anticipate soliciting comments through 
a notice of proposed rulemaking in order to fully consider possible 
alternatives to passports. This rulemaking process will take place 
sufficiently in advance of the implementation date for this phase of 
the program.
    b. Land Crossings: Beginning December 31, 2007, all individuals 
arriving at United States land border crossings will have to present 
either a valid passport or another document, or combination of 
documents, deemed by the Secretary of Homeland Security to be 
sufficient to establish identity and citizenship. We expect that BCCs 
and registered traveler programs such as SENTRI, NEXUS, and FAST will 
be accepted. DHS and DOS also anticipate soliciting comments on the 
implementation of this phase of the program well prior to December 31, 
2007 through a notice of proposed rulemaking.
    Persons traveling during the implementation of IRTPA should plan to 
depart from the United States with documents sufficient to meet any new 
requirements that will be in place when they return.

Rulemaking To Establish Document Requirements Under IRTPA

    While a valid passport will always satisfy IRTPA, DHS is currently 
considering what other documents may be deemed by the Secretary of 
Homeland Security to be sufficient to denote identity and citizenship. 
Based on the section 7209 requirement that the Secretaries of Homeland 
Security and State shall seek to expedite the travel of frequent 
travelers and make readily available a registered traveler program, DHS 
and DOS expect that NEXUS cards, SENTRI cards, BCCs, and FAST driver 
identification cards may be accepted in lieu of a passport.

Public Participation in Rulemaking Process

    The new requirements set forth by IRTPA will result in changes to 
the types of documents that United States citizens and certain Western 
Hemisphere nonimmigrant aliens must have when traveling from countries 
in the Western Hemisphere to the United States. The public is invited 
to comment specifically on this aspect of the implementation plan in 
order to assist the Secretary of Homeland Security, in consultation 
with the Secretary of State, in making a final determination on what 
documents will be accepted to satisfy section 7209 of IRTPA.
    Interested persons are invited to participate generally in this 
rulemaking process by submitting written data, views, or arguments on 
all aspects of this advance notice of proposed rulemaking. See 
ADDRESSES above for information on how to submit comments. In addition, 
public hearings may be held at strategic locations to provide an open 
forum pertaining to the proposed changes.
    Comments that will provide the most assistance to DHS in this 
rulemaking include, but are not limited to:
    a. The types of documents denoting identity and citizenship that 
should be acceptable as alternatives to a passport under section 7209 
of IRTPA;
    b. The economic impact (both long-term and short-term, quantifiable 
and qualitative) of the implementation of section 7209 of IRTPA, 
including potential impacts on State, local, and tribal governments of 
the United States; potential impacts on cross-border trade along United 
States-Canada and United States-Mexico borders; potential impacts on 
travel, travelers and the travel industry; and potential impacts on 
small businesses;
    c. The monetary and other costs anticipated to be incurred by 
United States citizens and others as a result of the new document 
requirements such as the costs in time and money that an individual may 
incur to obtain a passport or other document(s) determined to be 
sufficient. These costs may or may not be quantifiable and may include 
actual monetary outlays, transitional costs incurred to obtain 
alternative documents, and the costs that will be incurred in 
connection with delays at the border;
    d. The benefits of this rulemaking;
    e. Any alternative methods of complying with the legislation; and
    f. The proposed stages for implementation of the requirements of 
section 7209 of IRTPA.

    Dated: August 26, 2005.
Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.

Condoleezza Rice,
Secretary of State, Department of State.
[FR Doc. 05-17533 Filed 8-31-05; 8:45 am]
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