[Federal Register Volume 71, Number 226 (Friday, November 24, 2006)]
[Rules and Regulations]
[Pages 68412-68430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9402]



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Part V





Department of Homeland Security





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Bureau of Customs and Border Protection



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Department of State





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8 CFR Parts 212 and 235

22 CFR Parts 41 and 53



Documents Required for Travelers Departing From or Arriving in the 
United States at Air Ports-of-Entry From Within the Western Hemisphere; 
Final Rule

  Federal Register / Vol. 71, No. 226 / Friday, November 24, 2006 / 
Rules and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

8 CFR Parts 212 and 235

[USCBP 2006-0097]
RIN 1651-AA66

DEPARTMENT OF STATE

22 CFR Parts 41 and 53

RIN 1400-AC10


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

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

ACTION: Final rule.

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SUMMARY: This rule finalizes the first phase of a joint Department of 
Homeland Security and Department of State plan, known as the Western 
Hemisphere Travel Initiative, to implement new documentation 
requirements for certain United States citizens and nonimmigrant aliens 
entering the United States. As a result of this final rule, with 
limited exceptions discussed below, beginning January 23, 2007, all 
United States citizens and nonimmigrant aliens from Canada, Bermuda, 
and Mexico departing from or entering the United States from within the 
Western Hemisphere at air ports-of-entry will be required to present a 
valid passport. This final rule differs from the Notice of Proposed 
Rulemaking (NPRM) published in the Federal Register on August 11, 2006, 
by finalizing new documentation requirements for only travelers 
arriving in the United States by air. The portion of the NPRM that 
proposed changes in documentation requirements for travelers arriving 
by sea will not be finalized under this rule. Requirements for United 
States citizens and nonimmigrant aliens from Canada, Bermuda, and 
Mexico departing from or entering the United States at land and sea 
ports-of-entry will be addressed in a separate, future rulemaking.

DATES: This final rule is effective on January 23, 2007.

FOR FURTHER INFORMATION CONTACT: 

Department of Homeland Security: Robert Rawls, Office of Field 
Operations, Bureau of Customs and Border Protection, 1300 Pennsylvania 
Avenue, NW., Room 5.4-D, Washington, DC 20229, telephone number (202) 
344-2847.
Department of State: Consuelo Pachon, Office of Passport Policy, 
Planning and Advisory Services, Bureau of Consular Affairs, telephone 
number (202) 663-2662.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. Documentation Requirements Prior to the Effective Date of 
this Rule
    1. U.S. Citizens
    2. Nonimmigrant Aliens from Canada Citizens and the British 
Overseas Territory of Bermuda
    3. Mexican Citizens
    B. Statutory and Regulatory History
II. Summary of Changes from NPRM and New Document Requirements
III. Discussion of Comments
    A. General
    B. Timeline
    C. Passports
    1. General
    2. Cost of Passports
    3. Obtaining Passports
    4. Children
    5. DOS Issuance Capacity
    D. Alternative Documents
    1. General
    2. Driver's License and Birth Certificate
    3. Real ID Act Compliant Driver's Licenses
    4. Border Crossing Cards
    5. Merchant Mariner Cards
    6. NEXUS Air Cards
    7. Passport Cards
    8. Tribal Documents
    E. Implementation and Effect on Specific Populations
    1. General
    2. Outer Continental Shelf
    3. Emergencies
    F. Outside the Scope of this Rulemaking
    G. Public Relations
    H. Regulatory Analyses
    1. General
    2. Executive Order 12866
    3. Regulatory Flexibility Act
IV. Conclusion
V. Regulatory Analyses
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act
    C. Executive Order 13132: Federalism
    D. Executive Order 12988: Civil Justice Reform
    E. Unfunded Mandates Reform Act Assessment
    F. Paperwork Reduction Act
    G. Privacy Statement
List of Subjects
Amendments to the Regulations

Abbreviations and Terms Used in This Document

ANPRM--Advance Notice of Proposed Rulemaking
APIS--Advance Passenger Information System
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--Bureau of Customs and Border Protection
DHS--Department of Homeland Security
DMV--Department of Motor Vehicles
DOS--Department of State
FAST--Free and Secure Trade
IBWC--International Boundary and Water Commission
ICAO--International Civil Aviation Organization
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
MMD--Merchant Mariner Document
MODU--Mobile Offshore Drilling Unit
NATO--North Atlantic Treaty Organization
NPRM--Notice of Proposed Rulemaking
OCS--Outer Continental Shelf
OTTI--Office of Travel & Tourism Industries
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
TSA--Transportation Security Administration
TWIC--Transportation Worker Identification Card
US-VISIT--United States Visitor and Immigrant Status Indicator 
Technology Program
WHTI--Western Hemisphere Travel Initiative

I. Background

    For a detailed discussion of the current documentation requirements 
for travelers entering the United States from within the Western 
Hemisphere, the statutory and regulatory histories, and the 
applicability of the rule related to specific groups, please see the 
NPRM published on August 11, 2006, at 71 FR 46155.

A. Documentation Requirements Prior to the Effective Date of This Rule

    The documentation requirements for travelers entering the United 
States by air generally depend on the nationality of the traveler and 
whether or not the traveler is entering the United States from a 
country within the Western Hemisphere. The following is an overview of 
the documentation requirements for citizens of the United States, 
Canada, British Overseas Territory of Bermuda, and Mexico who enter the 
United States at air ports-of-entry prior to the effective date of this 
rule.
1. U.S. Citizens
    U.S. citizens must possess a valid U.S. passport to depart from or 
enter the

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United States.\1\ However, this passport requirement has not applied to 
U.S. citizens who depart from or enter the United States from within 
the Western Hemisphere other than from Cuba.\2\ United States citizens 
have been required to satisfy the inspecting officers of their 
identities and citizenship. Accordingly, U.S. citizens have not been 
required to present a valid passport when entering the United States by 
air from within the Western Hemisphere other than Cuba.\3\
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    \1\ Section 215(b) of the Immigration and Nationality Act (INA), 
8 U.S.C. 1185(b).
    \2\ See 22 CFR 53.2(b), which waived the passport requirement 
pursuant to section 215(b) of the INA, 8 U.S.C. 1185(b).
    \3\ In lieu of a passport, U.S. citizens have been permitted to 
present a variety of documents to establish their identity and 
citizenship and right to enter the United States. A driver's license 
issued by a state motor vehicle administration or other competent 
state government authority is a common form of identity document. 
Citizenship documents generally include birth certificates issued by 
a United States jurisdiction, Consular Reports of Birth Abroad, 
Certificates of Naturalization, and Certificates of Citizenship.
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2. Nonimmigrant Aliens From Canada and the British Overseas Territory 
of Bermuda
    Each nonimmigrant alien arriving in the United States must present 
a valid unexpired passport issued by his or her country of citizenship 
and, if required, a valid unexpired visa issued by a United States 
embassy or consulate abroad.\4\ Nonimmigrant aliens entering the United 
States must also satisfy any other applicable entry requirements (e.g., 
United States Visitor and Immigrant Status Indicator Technology Program 
(US-VISIT)). In most cases, Canadian citizens and citizens of the 
British Overseas Territory of Bermuda (Bermuda) have not been required 
to present a valid passport and visa when entering the United States as 
nonimmigrant visitors from countries in the Western Hemisphere.\5\ 
These travelers have been required to satisfy the inspecting CBP 
officer of their identities and citizenship at the time of their 
application for admission.\6\
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    \4\ Section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 
1182(a)(7)(B)(i).
    \5\ 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR 212.1(a)(2) 
(Citizens of Bermuda). See also 22 CFR 41.2.
    \6\ Entering aliens may present any evidence of identity and 
citizenship in their possession. Individuals who initially fail to 
satisfy the examining CBP officer may then be required to provide 
further identification and evidence of citizenship such as a birth 
certificate, passport, or citizenship card.
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3. Mexican Citizens
    Mexican citizens are generally required to present a valid 
unexpired passport and visa when entering the United States. However, 
Mexican citizens arriving in the United States at ports-of-entry who 
possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) \7\ 
currently may be admitted without presenting a valid passport if they 
are coming from contiguous territory.\8\ While the use of a BCC without 
a passport is atypical in the air environment, it has been permitted.
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    \7\ A BCC is a machine-readable, biometric card, issued by the 
Department of State, Bureau of Consular Affairs.
    \8\ 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g). If they are 
only traveling within a certain geographic area along the United 
States' border with Mexico: usually up to 25 miles from the border 
but within 75 miles under the exception for Tucson, Arizona, they do 
not need to obtain a form I-94. If they travel outside of that 
geographic area, they must obtain an I-94 from CBP at the port-of-
entry. 8 CFR 235.1(f)(1).
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B. Statutory and Regulatory History

    On December 17, 2004, the President signed into law the 
Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).\9\ 
Section 7209 of IRTPA, as amended by the Department of Homeland 
Security Appropriations Act of 2007, provides that the Secretary of 
Homeland Security, in consultation with the Secretary of State, develop 
and implement a plan to require travelers entering the United States to 
present a passport, other document, or combination of documents, that 
are ``deemed by the Secretary of Homeland Security to be sufficient to 
denote identity and citizenship.'' As a result, United States citizens 
and nonimmigrant aliens from Canada, Mexico, and Bermuda will be 
required to comply with the new documentation requirements.
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    \9\ Pub. L. 108-458, 118 Stat. 3638 (Dec. 17, 2004).
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    On September 1, 2005, the Department of Homeland Security (DHS) and 
the Department of State (DOS) published in the Federal Register at 70 
FR 52037, an advance notice of proposed rulemaking (ANPRM) that 
announced that DHS and DOS were planning to amend their respective 
regulations to implement section 7209 of IRTPA. For further 
information, please see the ANPRM document that was published in the 
Federal Register on September 1, 2005, at 70 FR 52037.
    On August 11, 2006, DHS and DOS published in the Federal Register 
at 71 FR 46155, an NPRM that announced that DHS and DOS were planning 
to amend their respective regulations to implement section 7209 of 
IRTPA. The NPRM proposed that, with some exceptions, United States 
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico 
traveling into the United States by air and sea from Western Hemisphere 
countries, be required to show a passport. The NPRM did not propose 
changes to the documentation requirements at land border ports-of-
entry.
    The NPRM proposed that the passport requirement would apply to all 
air and most sea travel, including commercial air travel and commercial 
sea travel. According to the NPRM, there were two categories of travel 
and one category of traveler that would not be subject to the passport 
requirement proposed for air and sea travel, but would be addressed in 
the second phase rulemaking for land border travel. First, the NPRM 
provided that the passport requirement would not apply to pleasure 
vessels used exclusively for pleasure and which are not for the 
transportation of persons or property for compensation or hire. Second, 
the NPRM stated that the passport requirement would not apply to travel 
by ferry. Finally, the NPRM provided that the passport requirement 
would not apply to United States citizen members of the Armed Forces on 
active duty.
    The NPRM also proposed to designate two documents, in addition to 
the passport, as sufficient to denote identity and citizenship under 
section 7209, and acceptable for air and sea travel. The first document 
was the Merchant Mariner Document (MMD) or ``z-card'' issued by the 
United States Coast Guard (Coast Guard) to Merchant Mariners. The 
second document was the NEXUS Air card when used with a NEXUS Air 
kiosk.\10\
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    \10\ Air Nexus is an airport border clearance pilot project.
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    On October 4, 2006, the President signed into law the Department of 
Homeland Security Appropriations Act of 2007 (DHS Appropriations Act of 
2007).\11\ Section 546 of the DHS Appropriations Act of 2007 amended 
section 7209 of IRTPA by stressing the need for DHS and DOS to 
expeditiously implement the requirements by the earlier of two dates, 
June 1, 2009, or three months after the Secretaries of Homeland 
Security and State certify that certain criteria have been met. The 
section requires ``expeditious[ ]'' action and states that requirements 
must be satisfied by the ``earlier'' of dates identified. By using this 
language, the drafters expressed an intention for rapid action.\12\ 
Congress also expressed an interest in having the requirements for land 
and sea implemented at the same

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time as part of the DHS Appropriations Act of 2007.\13\
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    \11\ Pub. L. 109-295, 120 Stat. 1355 (Oct. 4, 2006).
    \12\ Id. at Sec.  546. See Congressional Record, 109th cong. 2nd 
sess., September 29, 2006 at H7964.
    \13\ Id.
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    On October 17, 2006, to meet the documentary requirements of the 
Western Hemisphere Travel Initiative and to facilitate the frequent 
travel of persons living in border communities, the Department of 
State, in consultation with the Department of Homeland Security, 
proposed to develop a card-format passport, called the Passport Card, 
for international travel by United States citizens through land and sea 
ports of entry between the United States, Canada, Mexico, or the 
Caribbean and Bermuda.\14\
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    \14\ 71 FR 60928.
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II. Summary of Changes From NPRM and New Document Requirements

    Under this final rule, beginning January 23, 2007, United States 
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico 
entering the United States at air ports-of-entry will generally be 
required to present a valid passport. Accordingly, all aviation 
passengers and crew, including commercial flights and general aviation 
flights (i.e., private planes), who arrive at air ports-of-entry in the 
United States from countries within the Western Hemisphere will be 
required to possess a valid passport beginning January 23, 2007. The 
only exceptions to this requirement would be for United States citizens 
who are members of the United States Armed Forces traveling on active 
duty; travelers who present a Merchant Mariner Document traveling in 
conjunction with maritime business; and travelers who present a NEXUS 
Air card used at a NEXUS Air kiosk.
    This final rule does not change the documentation requirements for 
United States citizens and nonimmigrant aliens from Canada, Bermuda, 
and Mexico who arrive at sea ports-of-entry. Based on DOS' recent 
proposal to allow the use of the Passport Card in the sea environment, 
Congress' intent with respect to the land and sea environments, and the 
public comments, DHS and DOS have decided to defer decisions on the 
proposed changes to documentation requirements for arrivals by sea. 
Arrivals by sea and land will be addressed in a separate, future 
rulemaking.

III. Discussion of Comments

    In both the ANPRM and NPRM, DHS and DOS sought public comment to 
assist the Secretary of Homeland Security to make a final determination 
concerning which document, or combination of documents, other than 
valid passports, would be accepted at ports-of-entry.
    DHS and DOS received 2,062 written comments in response to the 
ANPRM and 104 written comments in response to the NPRM. The majority of 
the comments (1,910 from the ANPRM) addressed only potential changes to 
the documentation requirements at land border ports-of-entry. One 
hundred and fifty-two comments from the ANPRM addressed changes to the 
documentation requirements for persons arriving at air or sea ports-of-
entry. Comments in response to both the ANPRM and NPRM were received 
from a wide range of sources including: private citizens; businesses 
and associations; local, state, federal, and tribal governments; 
members of the United States Congress; and foreign government 
officials.
    Since this final rule addresses solely the changes to the 
documentation requirements for travelers arriving at air ports-of-
entry, the comments received in response to the ANPRM and NPRM 
regarding arrivals by land and sea will not be addressed in this 
rulemaking. A summary of the comments from both the ANPRM and the NPRM 
primarily regarding air travel follows with complete responses to the 
comments.

A. General

    Forty-nine commenters agreed with a passport requirement.
    In contrast, eleven commenters expressed general disagreement with 
a passport requirement for travel within the Western Hemisphere where 
such documentation was previously not required.

B. Timeline

Comment
    We received many comments regarding the implementation timeline for 
new documentation requirements. Nine commenters stated that the 
requirements for all air, sea, and land-border crossings should be 
implemented without delay. Two commenters agreed with the timelines for 
a phased-in approach. One commenter stated that the January 1, 2007, 
timeline announced in the ANPRM should be maintained.
    Forty-five commenters asked for a single implementation date for 
land, air, and sea. Fifty-seven commenters requested that the 
implementation date be delayed to December 31, 2007, or later. Several 
commenters asserted that the implementation date for cruise passengers 
not occur earlier than the statutory deadline. Among the reasons to 
support a single and delayed implementation date, commenters asserted 
that one timeline would be more fair, provide adequate time for 
travelers to comply with the new regulations, and allow time to 
communicate the requirements to the public. One commenter reasoned that 
one timeline would ensure that infrastructure and technology is in 
place to support the initiative. Another commenter requested that 
changes to the requirements for commercial fishermen transiting between 
Alaska and Washington be delayed and addressed with persons arriving by 
pleasure boats and ferries, not with commercial vessels as proposed. 
One commenter requested that general aviation have the same 
implementation date as pleasure boats and land-border crossings.
Response
    DHS and DOS agree with the commenters that the implementation date 
for new documentation requirements for travelers arriving by sea should 
be delayed. In the NPRM, DHS and DOS proposed to implement new 
documentation requirements for travelers arriving at air ports-of-entry 
and most sea ports-of-entry. However, based on DOS' recent Passport 
Card proposal which would allow the Passport Card for sea travel, the 
Departments have decided to delay new requirements for arrivals by sea 
until the Passport Card is available for use in the sea environment. 
Delaying the implementation date for the sea environment will allow the 
Departments to develop the Passport Card and enhance the infrastructure 
and technology to support the Passport Card for arrivals by sea. This 
is also consistent with Congress' intent to implement the land and sea 
environments at the same time as expressed in section 546 of the DHS 
Appropriations Act of 2007. Additionally, this delay will address the 
concerns for commercial fishermen transiting between Alaska and the 
United States by not implementing new requirements until the Passport 
Card is operational. It will also be less confusing to the public to 
implement sea and land requirements, both of which would accept the 
Passport Card, at the same time. Therefore, the documentation 
requirements for travelers arriving by sea, whether aboard commercial 
vessels, pleasure vessels, or ferries, will not change under this final 
rule.
    DHS and DOS have determined that the proposed implementation date 
of January 23, 2007, is appropriate for air travel because of 
operational considerations and available resources. This phased 
approach is essential

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because a staggered implementation in advance of the statutory deadline 
will enhance security requirements using existing infrastructure while 
allowing the Departments time to acquire and develop resources to meet 
the increased demand for sea and land-border entries.

C. Passports

1. General
Comment
    One commenter raised concerns about the security of U.S. and 
foreign passports, stating that passports may be easily falsified or 
altered. Another commenter stated that terrorists could misuse 
passports. One commenter stated that Radio Frequency Identification 
(RFID), as related to electronic passports, poses a safety concern 
because it can be read from a distance.
Response
    Passports are acceptable at the border as a matter of law.
    The primary purpose of the passport has always been to establish 
citizenship and identity. It has been used to facilitate travel to 
foreign countries by displaying any appropriate visas or entry/exit 
stamps. Passports are globally interoperable, consistent with worldwide 
standards, and usable regardless of the international destination of 
the traveler.
    U.S. passports incorporate a host of security features. These 
security features include, but are not limited to, rigorous 
adjudication standards and document security features. The adjudication 
standards establish the individual's citizenship and identity and 
ensure that the individual meets the qualifications for a U.S. 
passport. The document security features include digitized photographs, 
embossed seals, watermarks, ultraviolet and fluorescent light 
verification features, security laminations, micro-printing, and 
holograms to authenticate passports. A U.S. passport is a document that 
is adjudicated by trained DOS experts and issued to persons who have 
documented their United States identity and citizenship by birth, 
naturalization or derivation. Applications are subject to additional 
Federal government checks to ensure the applicants are eligible to 
receive a U.S. passport under applicable standards (for example, those 
subject to outstanding federal warrants for arrest are not eligible for 
a U.S. passport).
    Foreign passports accepted for admission to the United States must 
meet the standards set out in International Civil Aviation Organization 
(ICAO) 9303. Passports issued by Canada, Mexico, and Bermuda meet these 
international standards and are, therefore, acceptable. Finally, the 
Customs and Border Protection (CBP) Officer verifies and authenticates 
the passport presented for entry.
    Privacy and security concerns related to RFID technology were 
addressed in extensive detail in the final rule for electronic 
passports published by DOS on October 25, 2005, at 70 FR 61553.
Comment
    Two commenters asked if non-U.S. citizens would be allowed to 
depart the United States without a passport, regardless of their intent 
to return to the United States.
Response
    Currently, if an individual is not required to present a passport 
upon entry to the United States, that individual does not need to 
present a passport upon exit. Under this final rule, however, if an 
individual must present a passport upon entry, then that individual 
will also need to bear one upon exit. In the event that non-U.S. 
citizens' passports are lost or stolen, those individuals would need to 
contact their nearest consular office to have the documents replaced 
prior to departing the United States.
2. Cost of Passports
Comment
    Nineteen commenters stated that the cost for a U.S. passport is 
high and that the process for obtaining a passport should be made 
easier. One commenter stated that while the passport cost is ``high'' 
it should not outweigh safety and security. Twenty-one commenters 
stated that the cost for a U.S. passport is high. Several commenters 
requested that DOS offer discounted or free passports to certain groups 
such as students, senior citizens, families with children, welfare 
recipients, group purchases, and early purchasers. Two commenters 
stated that the cost of a passport should be significantly lessened for 
citizens below the poverty level. Six commenters stated that the 
passport cost should be greatly reduced.
Response
    At this time, DOS does not intend to offer discounts or no-fee 
passports for any of the specific groups mentioned. The passport fee 
reflects the actual costs of adjudicating a passport application and 
producing a passport. Because the requirements for adjudication and 
production remain the same for all applicants, DOS does not intend to 
offer discounts.
Comment
    One commenter to the NPRM stated that the cost for a Canadian 
passport is high and that the process for obtaining a passport should 
be made easier.
Response
    While the U.S. Government is working closely with passport agencies 
throughout the Western Hemisphere on WHTI and other travel document 
security matters, each nation's government ultimately controls the 
process and cost for obtaining a passport. The application process for 
and cost of a Canadian Government issued document is outside the scope 
of this rulemaking.
3. Obtaining Passports
Comment
    One commenter stated that the process for obtaining a passport 
should be made easier. One commenter stated that the passport 
application process is very burdensome for travelers in remote areas.
Response
    While some applicants may find the current process burdensome, the 
application process is standard across the U.S. and is intended to 
establish nationality, identity, and entitlement to the issuance of a 
U.S. passport. Due to statutory requirements and established 
regulations, a complete end-to-end electronic submission for the DS-11 
form (Application for a U.S. Passport) is currently not possible. 
However, in an effort to provide customers with an electronic 
alternative to the paper-based form, the DS-11 form is posted on the 
DOS Web site, where it can be filled out online and printed for 
submission. There are over 7,500 acceptance facilities nationwide 
including many Federal, state and probate courts, post offices, some 
public libraries and a number of county and municipal offices. 
Additionally, there are 14 regional passport agencies and 1 Gateway 
City Agency that serve customers who are traveling within 2 weeks or 
who need foreign visas for travel. Complete information on how to 
obtain, replace, or change a passport can be found at the DOS Web site: 
http://travel.state.gov/passport/passport_1738.html.
4. Children
Comment
    Thirty-nine commenters asked to allow travelers under the age of 16 
to be exempt from a passport requirement and able to use a birth 
certificate as sufficient proof of identity and

[[Page 68416]]

citizenship. One commenter suggested simplifying passport procedures 
for children under 16.
    One commenter stated that children under 16 should not be exempt 
from a passport requirement in the Western Hemisphere.
Response
    The United States Government currently requires all U.S. citizens, 
including children, arriving from countries outside the Western 
Hemisphere to provide a passport when entering the United States. 
IRTPA, as amended, does not contain a general exemption from providing 
a passport or other document designated by DHS for children under the 
age of 16 when entering the United States from Western Hemisphere 
countries. Consequently, children under the age of 16 arriving from 
Western Hemisphere countries will be required to present a passport 
when entering the United States by air. Requiring passports for 
children departing from or entering the United States will also assist 
the U.S. Government, as well as foreign governments within the Western 
Hemisphere, to prevent child abductions. Of the nearly 600 
international parental child abductions brought to the attention of the 
State Department each year, outgoing parental abductions of American 
children from the U.S. to Canada and Mexico represent about one-
quarter.
5. DOS Issuance Capacity
Comment
    Seven commenters expressed concern that DOS may not be able to 
issue several million new passports in the timeframe required and 
without significant delay.
    Two commenters to the NPRM expressed concern about whether DHS and 
DOS would be able to successfully implement the new passport 
requirements by January 8, 2007.
Response
    DOS appreciates the commenters' concerns and is already expanding 
passport production capacity to meet the additional demand for 
passports. DOS will be able to meet a significant increase in demand 
from the more than 10 million passports produced in fiscal year 2005. 
DOS estimates a 25 percent increase in passport applications so far in 
fiscal year 2006. DOS has increased passport production capacity with 
an aim towards processing 16 million passports in fiscal year 2007 and 
19 million passports in fiscal year 2008. The Departments have taken 
the appropriate measures to ensure the implementation of the new 
requirements by the implementation date.

D. Alternative Documents

1. General
Comment
    Twenty-four commenters asked for a clear definition of other secure 
documents that will be accepted in addition to a passport. Eight 
commenters asked that NEXUS, SENTRI, and FAST cards be accepted in lieu 
of a passport. Three commenters stated that other travel documents 
should be used in lieu of a passport where practicable.
    One commenter asked that WHTI should be linked to the evolution of 
the Registered Traveler program.
Response
    Other acceptable documents are designated in this rule by the 
Secretary of DHS to sufficiently establish identity and citizenship at 
airports. The documents designated in this rule are sufficiently secure 
to impede counterfeiting and alterations for fraudulent purposes. Along 
with the passport, the Secretary of Homeland Security is designating 
the MMD and the NEXUS Air card when used at a NEXUS Air kiosk as 
sufficient to denote identity and citizenship under section 7209 and 
acceptable for air travel. Currently, the rest of the NEXUS program 
cards, as well as SENTRI and FAST cards, are accepted only at 
designated lanes at land-border ports-of-entry and not in the air 
environment. Currently, the Transportation Security Administration's 
(TSA) Registered Traveler program is for domestic travel only.
Comment
    One commenter asked that a Transportation Worker Identification 
Card (TWIC) be designated as an acceptable document to denote 
citizenship and identity.
Response
    A TWIC card will not be suitable as an alternative document because 
it does not denote citizenship and is not intended as a travel 
document. Although a TWIC card would positively identify the bearer of 
the card, citizenship would have to be established through a paper-
based document because a TWIC card does not provide citizenship 
information. Because, as proposed, TWIC cards may be issued to non-U.S. 
citizens and they do not denote citizenship, they could not be used in 
place of passports. In addition, the TWIC could not be read by current 
CBP technology installed in air ports-of-entry. While there will be 
information embedded in the chip on the TWIC, only the name of the 
individual and a photo ID are apparent to a CBP officer upon 
presentation. CBP could not validate this document at primary 
inspection for the reasons outlined in the next section addressing the 
use of birth certificates.
Comment
    One commenter asked that an International Boundary Water Commission 
(IBWC) identification be acceptable for land, air, and sea travel.
Response
    In the NPRM, DHS and DOS clarified that documentation requirements 
for direct and indirect employees of the IBWC (Article 20 of the 1944 
Treaty Between the United States and Mexico regarding division of 
boundary water and the functions of (IBWC), TS 922, Bevan 1166, 59 
Stat. 1219; 8 CFR 212.1(c)(5)) crossing the United States-Mexico border 
while on official business would not change under this final rule.
2. Driver's License and Birth Certificate
Comment
    We received many comments stating that driver's licenses and birth 
certificates should be acceptable to denote an individual's citizenship 
and identity. Many commenters stated that these documents are 
affordable and easily obtainable and their acceptance would not 
dissuade travel. Several commenters stated that because a driver's 
license and birth certificate are most commonly used to obtain a 
passport, these documents should also be sufficient to establish 
citizenship and identity at ports-of-entry.
Response
    DHS and DOS disagree with the commenters. Because birth 
certificates and driver's licenses are issued by numerous government 
entities, there is no standard format for either document, and, at 
present, it is not possible to authenticate either document quickly or 
reliably. Some states only issue photocopies as replacements of birth 
certificates, some states issue replacement birth certificates by mail 
or through the Internet, and some states will not issue photo 
identification to minors. Both documents lack security features and are 
susceptible to counterfeiting or alteration. Neither the birth 
certificate nor the state-issued identification is designed to be a 
travel document. Birth certificates can easily

[[Page 68417]]

deteriorate when used frequently as travel documents because they are 
normally made from paper with a raised seal, and they cannot be 
laminated or otherwise protected from repeated use.
    The U.S. birth certificate can be used as evidence of birth in the 
United States; however, it does not provide definitive proof of 
citizenship (e.g., children born in the U.S. to foreign diplomats do 
not acquire U.S. citizenship at birth). Highly trained passport 
specialists and consular officers abroad adjudicate passport 
applications, utilizing identity and citizenship documents (U.S. birth 
certificates, naturalization certificates, consular reports of birth 
abroad, etc.). These specialists have resources available, including 
fraud and document experts, to assist when reviewing documents and are 
not faced with the same time constraints as CBP officers at ports-of-
entry. These factors explain why a birth certificate and driver's 
license may be sufficient documentary evidence of citizenship and 
identity for an application for a passport, but are not sufficient 
under WHTI for entry to the United States. In addition, there is no 
current way to validate that the person presenting the birth 
certificate for inspection is, in fact, the same person to whom it was 
issued. The lack of security features and the plethora of birth 
certificate issuers in the United States (more than 8,000 entities) 
currently make it difficult to reliably verify or authenticate a birth 
certificate. A state-issued photo identification provides positive 
identification with name, address, and photograph. However, a state-
issued photo identification does not provide proof of citizenship.
3. Real ID Act Compliant Driver's Licenses
Comment
    In response to the ANPRM, twenty commenters asked DHS and DOS to 
work with state governments on possible use of driver's licenses to 
verify U.S. citizenship. In response to the NPRM, eleven commenters 
asked DHS and DOS to accept driver's licenses that are in compliance 
with the REAL ID Act of 2005.\15\
---------------------------------------------------------------------------

    \15\ Pub. L. 109-13, codified at 49 U.S.C. 30301 note.
---------------------------------------------------------------------------

Response
    As previously stated, driver's licenses currently do not denote 
citizenship. The REAL ID specifications are still under consideration, 
therefore the Secretary of Homeland Security cannot designate these 
documents for travel in the Western Hemisphere. Once documents are 
available that comply with the requirements of the REAL ID Act, the 
Secretary may consider these documents for WHTI purposes. DHS will be 
issuing a proposed rule implementing REAL ID driver's license 
standards. At that time, DHS would encourage States interested in 
developing driver's licenses that will meet both the REAL ID and WHIT 
requirements to work closely with us to that end.
4. Border Crossing Cards
Comment
    In response to the ANPRM, two commenters recommended that Border 
Crossing Cards (BCCs) be acceptable documentation for citizens of 
Mexico entering the United States through airports. One commenter to 
the NPRM stated that the proposed rule would eliminate the BCC as an 
acceptable entry document.
Response
    At this time, DHS and DOS do not support allowing the BCC without 
any additional documents in the air environment. The BCC is not 
compatible with CBP's Advance Passenger Information System (APIS), 
which collects data from travelers prior to their arrival in and 
departure from the United States, and thus the BCC does not meet the 
security objectives of WHTI. Accordingly, DHS has not designated the 
BCC as a document sufficient to denote identity and citizenship for the 
purposes of air travel into the United States when used by itself. 
However, this final rule does not change the status of the BCC as a 
valid entry document at sea and land-border ports-of-entry.
5. Merchant Mariner Cards
Comment
    We received two comments to the NPRM that endorse the proposal that 
a Merchant Mariners' Document (MMD) be accepted as proof of citizenship 
and identity. These commenters also asserted that the MMD should also 
be accepted for legal aliens because a U.S. Coast Guard-issued MMD will 
provide the required proof of citizenship and identity for these 
individuals.
Response
    The U.S. Coast Guard primarily issues MMDs to U.S. citizen Merchant 
Mariners.\16\ The Secretary of Homeland Security has determined that an 
MMD, when used in conjunction with maritime business, would be 
sufficient to denote identity and citizenship when presented upon 
arrival at an air port-of-entry. Accordingly, under this rule, United 
States citizens who possess an MMD would continue to be exempt from the 
requirement to present a passport when arriving in the United States at 
air ports-of-entry. However, the Coast Guard has proposed to phase-out 
the MMD over the next five years and streamline all existing Merchant 
Mariner credentials. DHS will accept the MMD as long as it is an 
unexpired document. We also note that United States citizen Merchant 
Mariners serving on U.S. flag vessels are eligible for no-fee U.S. 
passports upon presentation of a letter from the employer and an MMD, 
in addition to the standard evidence of citizenship and identity.
---------------------------------------------------------------------------

    \16\ In very limited circumstances, foreign nationals who are 
enrolled as students at the U.S. Merchant Marine Academy may obtain 
an MMD. However, the number of international students who may attend 
the Academy at any one time is 30 (46 CFR 310.66); therefore, the 
number of MMDs issued to foreign nationals at any one time is 
limited to 30. These MMDs denote citizenship on their face and are 
valid only while a cadet in the U.S. Merchant Marine Academy (46 CFR 
12.25-25). These foreign nationals will not be permitted to use the 
MMD for entry purposes.
---------------------------------------------------------------------------

6. NEXUS Air Cards
Comment
    Eleven commenters recommended that the NEXUS Air program be 
accelerated and expanded. One commenter also added that the U.S. 
government should attempt to reduce the costs of programs such as NEXUS 
Air.
Response
    NEXUS Air is an airport border clearance pilot project implemented 
at one airport in Vancouver, Canada, by CBP and the Canada Border 
Services Agency pursuant to the Shared Border Accord and Smart Border 
Declaration between the United States and Canada. The NEXUS Air 
alternative inspection program allows pre-screened, low-risk travelers 
to be processed more efficiently by United States and Canadian border 
officials. CBP is planning to expand the program beyond the Vancouver 
international airport to other Canadian airports, but does not intend 
to lower the costs of the program at this time. Travelers interested in 
joining the NEXUS Air or any other CBP-sponsored trusted traveler 
program should consult the CBP Web site (http://www.cbp.gov) for future 
expansion plans, current availability, acceptance, and instructions on 
how to enroll in the program.

[[Page 68418]]

7. Passport Cards
Comment
    We received many comments asking DHS and DOS to develop low-cost 
alternative travel documents. Eight commenters stated that an 
alternative, secure travel document must be cost-effective and 
available in a timely fashion for the average traveler. Fifteen 
commenters asked that a low-cost travel card be developed. One 
commenter asked that a card replace the traditional passport book, 
stating that paper documentation is outdated. One commenter stated that 
the document should fit in a wallet and be more durable than the 
traditional passport book.
    Two commenters stated that any technology contained in a secure 
travel document should be determined before an implementation date is 
finalized. Nine commenters stated that the Passport Card's scope should 
be expanded to all modes of travel between the U.S., Mexico, and 
Canada. One commenter stressed that the U.S. should work with Canada to 
develop a similar low-cost travel document in Canada. One commenter 
asked that a Passport Card be available for infrequent, as well as 
frequent, travelers.
Response
    DOS, in consultation with DHS, has begun developing an alternative 
format passport: a card-format, limited-use Passport Card. Like a 
traditional passport book, the Passport Card will be a secure travel 
document that establishes the identity and citizenship of the bearer. 
The Passport Card is being designed to benefit those citizens in border 
communities who regularly cross the northern and southern borders every 
day where such travel is an integral part of their daily lives. As 
currently envisioned, it will be the size of a credit card and will be 
less expensive than a traditional passport book. The application 
process for the Passport Card will be the same as that for the passport 
book in that each applicant will have to establish United States 
citizenship, personal identity, and entitlement to obtain the document. 
DOS intends to make the Passport Card available by summer 2007. For 
more information see 71 FR 60928 (October 17, 2006). The Secretaries of 
DHS and DOS have worked closely with the Canadian and Mexican 
governments on numerous fronts, including the Security and Prosperity 
Partnership (SPP) of North America, the Smart Border Declaration, and 
the Shared Border Accord.
8. Tribal Documents
Comment
    Three commenters to the NPRM stated that Native Americans should be 
able to use their Tribal documents in the air environment because 
treaty rights assure cross-border travel between the U.S. and Canada.
Response
    Section 289 of the INA \17\ provides that Native Americans born in 
Canada may ``pass the borders of the United States,'' provided they 
possess at least 50 percentum of Native American blood. Historically, 
the courts have addressed the right of Native Americans born in Canada 
to ``pass the borders of the United States'' in the context of land 
border crossings.\18\ Case law has not expressly addressed the 
extension of the right to ``pass the borders of the United States'' by 
air.\19\ Moreover, any right or privilege to ``pass the border'' does 
not necessarily encompass a right to ``pass the border'' without 
sufficient proof of identity and citizenship. Under the final rule, 
Native Americans born in Canada will be required to present a valid 
passport when departing from or entering the United States by air.
---------------------------------------------------------------------------

    \17\ 8 U.S.C. 1359.
    \18\ See Akins v. Saxbe, 380 F. Supp. 1210, 1221 (D. Maine 1974) 
(``[I]t is reasonable to assume that Congress'' purpose in using the 
Jay Treaty language in the 1928 Act was to recognize and secure the 
right of free passage as it had been guaranteed by that Treaty.'') 
See also United States ex rel. Diabo v. McCandless, 18 F.2d 282 
(E.D. Pa. 1927), aff'd, 25 F.2d 71 (3rd Cir. 1928).
    \19\ See Matter of Yellowquill, 16 I. & N. Dec. 576 (BIA 1978).
---------------------------------------------------------------------------

    Regarding Native Americans born in the United States, Federal 
statutes apply absent some clear indication that Congress did not 
intend for them to apply.\20\ IRTPA expressly applies to United States 
citizens and as a matter of law Native Americans born in the United 
States are United States citizens.\21\ Moreover, Congress did not 
indicate any intention to exclude Native Americans born in the United 
States from the requirements of IRTPA. Under this final rule, 
therefore, Native Americans born in the United States will be required 
to present a valid passport when entering the United States by air.
---------------------------------------------------------------------------

    \20\ See Federal Power Commission v. Tuscarora Indian Nation, 
362 U.S. 99, 120 (1960); Taylor v. Ala. Intertribal Council Title IV 
J.T.P.A., 261 F.3d 1032, 1034-1035 (11th Cir. 2001).
    \21\ 8 U.S.C. 1401(b).
---------------------------------------------------------------------------

E. Implementation and Effect on Specific Populations

    Numerous commenters raised questions about how the new rule would 
be implemented and how it would affect specific populations.
1. General
Comment
    Two commenters to the NPRM noted that a U.S. citizen cannot be 
denied entry to the United States. One commenter stated that the NPRM 
did not address U.S. citizens that arrive at ports-of-entry without a 
valid travel document.
Response
    Section 215(b) of the INA requires U.S. citizens to bear passports 
unless excepted by the President. By section 7209, Congress has limited 
this exception authority to those individuals bearing other documents 
acceptable to the Secretary of Homeland Security.
Comment
    Three commenters asked if they would need passports if the 
effective date of the rule falls between their departure and return 
dates. One commenter asked that CBP refrain from penalizing air 
carriers that transport travelers who, under the new passport 
requirements, are improperly documented.
Response
    Persons returning to the United States after the effective date of 
implementation should plan to depart from the United States with 
documents sufficient to meet requirements that will be in place when 
they return. Current regulations do not contain penalty provisions for 
carriers that transport U.S. citizens to the United States without 
proper documentation. However, under the current law (8 U.S.C. 1323) 
carriers that transport non-U.S. citizens into the United States who 
are not properly documented are subject to penalties.
Comment
    One commenter stated that the NPRM is contrary to U.S. obligations 
under international human rights law, free trade agreements, and U.S. 
statutes, including the International Covenant on Civil and Political 
Rights, the Charter of the Organization of American States, the North 
American Free Trade Agreement (NAFTA), and the NAFTA Implementation 
Act, because the rules restrict free movement of people in the Western 
Hemisphere.
Response
    By requiring a valid passport as an entry document, DHS and DOS are 
not denying U.S. or non-U.S. citizens the ability to travel to and from 
the United

[[Page 68419]]

States. Requiring sufficient proof of identity and citizenship through 
presentation of a passport or other acceptable document upon entry to 
the United States is fully within DHS and DOS's authority pursuant to 8 
U.S.C. 1182(d)(4)(B) and 1185(b).
Comment
    One commenter to the NPRM stated that this rule violates the 
Convention on International Civil Aviation (ICAO), claiming that, under 
Annex 9, a contracting State shall allow airline crew possessing a 
crewmember certificate to enter the country without a passport or visa.
Response
    The commenter cited provision 3.74 in Annex 9 of the Convention on 
ICAO. However, on March 25, 2004, provision 3.74 was amended and 
replaced with a new provision 3.76 (Amendment 19). Under the new 
provision, contracting states shall waive the visa requirement for 
arriving crewmembers presenting crewmember certificates, when arriving 
in a duty status on an international flight and seeking temporary entry 
for the period allowed by the receiving state before joining their next 
assigned flight in a duty status. Therefore, the exception cited by the 
commenter only applies to visas and not to passports. Therefore, 
requiring a valid passport does not violate the Convention on ICAO.
Comment
    One commenter to the NPRM stated that because the passport is 
machine readable, it would speed up the immigration process. Another 
commenter stated that such timesavings are not benefits because the 
cost has been ``shifted'' to citizens.
Response
    As stated in the NPRM, by requiring the vast majority of air 
passengers to possess a passport, CBP officers would reduce the time 
and effort used to manually enter passenger information into the 
computer system on arrival because the officer can quickly scan the 
machine-readable zone of the passport to process the information using 
standard passport readers used for all machine readable passports 
worldwide. It is difficult to precisely determine the improved 
efficiencies resulting from limiting the acceptable documents in the 
air environment. Based on information from CBP field operations, CBP 
estimates that presenting secure and machine-readable documentation may 
typically save CBP officers from 5 to 30 seconds per air passenger 
processed. This could result in an annual cost savings of $1.7 million 
to $10.4 million.
2. Outer Continental Shelf
Comment
    One commenter to the NPRM stated that the proposed regulations do 
not clearly address the offshore community, creating ambiguity for CBP 
officers to either not require a passport or to require them based on 
the CBP officer's knowledge of offshore operations. This commenter also 
suggested that the regulations be amended to include a definition of a 
Mobile Offshore Drilling Units (MODU). Six commenters suggested that 
the regulations expressly provide that U.S. citizens should be exempt 
from bearing a valid passport when entering or departing the United 
States when traveling as an employee of an offshore drilling company 
directly between the United States and a MODU operating, attached, or 
transiting between well sites on the United States Outer Continental 
Shelf (OCS).
Response
    DHS and DOS do not intend to create an exemption in the regulations 
specifically for employees on the United States OCS. When these 
employees have not departed the United States or have already been 
cleared by CBP upon entry from a foreign port or place, they will not 
be required to present a passport upon re-entry. As described in the 
NPRM, offshore workers who work aboard a MODU attached to the United 
States OCS and travel to and from such a MODU would not need to possess 
a passport to re-enter the United States if they depart the United 
States and do not enter a foreign port or place. DHS and DOS note that 
offshore employees on MODUs underway, which are not considered 
attached, would not need to present a passport for re-entry to the 
United States mainland if they do not enter a foreign port or place 
during transit. However, an individual who travels to a MODU from 
outside the United States OCS and, therefore, has not been previously 
inspected and admitted to the United States, would be required to 
possess a passport and visa when arriving at the United States port-of-
entry by air. Likewise, an individual who travels by air to a foreign 
flagged MODU, who has not been previously inspected or admitted to the 
United States by CBP, must present a passport or alternative document 
and, if required, a visa because they have traveled to a foreign port 
or place.
    As stated previously, arrivals by sea will not be finalized in this 
rule but will be addressed in a future rulemaking for sea and land-
border ports-of-entry.
3. Emergencies
Comment
    Three commenters expressed concern about the passport requirement 
and emergencies (medical, natural disasters) that might require air 
transport across a border.
Response
    IRTPA provides for situations in which documentation requirements 
may be waived on a case-by-case basis for unforeseen emergencies or 
``humanitarian or national interest reasons.'' See section 7209(c)(2) 
of IRTPA.

F. Outside the Scope of This Rulemaking

Comment
    One commenter to the NPRM made numerous comments on the technical 
specifications for DOS's Passport Card.
Response
    Comments regarding the technical specifications for the DOS-issued 
Passport Card are beyond the scope of this rule; however, please see 
the recently published NPRM at 71 FR 60928 (Oct. 17, 2006).
Comment
    One commenter stated that the NPRM correctly acknowledges that the 
Lawful Permanent Resident (LPR) card is a sufficiently secure document 
issued by the U.S. government.
Response
    DHS and DOS are allowing the Permanent Resident Card to be 
presented upon entry to the U.S. not because the Secretary has made a 
determination that this is an acceptable alternative document, but 
because LPRs are not covered by section 7209 of IRTPA. Section 211(b) 
of the INA specifically establishes that an LPR can present a valid, 
unexpired Form I-551 (Permanent Resident Card) alone when applying for 
readmission to the U.S. after being absent from the U.S. for less than 
one year. Form I-551 is a secure, fully adjudicated document that can 
be verified and authenticated by CBP at ports-of-entry. DHS published a 
notice of proposed rulemaking in the Federal Register on July 27, 2006, 
that proposes to collect and verify the identity of LPRs arriving at 
air and sea ports-of-entry, or requiring secondary inspection at land 
ports of entry, through US-VISIT. \22\
---------------------------------------------------------------------------

    \22\ See 71 FR 42605.

---------------------------------------------------------------------------

[[Page 68420]]

G. Public Relations

Comment
    We received seven comments recommending that the U.S. Government 
work multilaterally with Canada and Mexico to address WHTI issues.
Response
    The Secretaries of DHS and DOS have worked closely with the 
Canadian and Mexican governments on numerous fronts, including the 
Security and Prosperity Partnership (SPP) of North America, the Smart 
Border Declaration, and the Shared Border Accord. The objectives of the 
initiatives are to establish a common approach to security to protect 
North America from external threats, prevent and respond to threats 
within North America, and further streamline the secure and efficient 
movement of legitimate traffic across our shared borders. The 
Secretaries are committed to working with our international partners to 
establish a common security strategy.
Comment
    We received fifty-seven comments to the ANPRM on public outreach 
and the importance of educating the traveling public about the passport 
requirements for the Western Hemisphere. Several commenters asked that 
DHS and DOS work with the private sector on an aggressive outreach 
campaign.
Response
    DHS and DOS are committed to an effective and intensive 
communications strategy during the implementation of WHTI. To that end, 
the Departments will continue to issue detailed press releases, address 
the public's frequently asked questions, supply travel information on 
their Web sites, and hold public meetings in affected communities.

H. Regulatory Analyses

1. General
Comment
    We received ten comments expressing concern that this rule will 
adversely affect spontaneous travel to destinations in the Western 
Hemisphere.
Response
    This rule may have an impact on unplanned travel within the Western 
Hemisphere. We found that most air travelers make their plans in 
advance of their travel date and can obtain or already possess a 
passport (see the Regulatory Assessment that accompanies this rule 
which is available on the public docket). Additionally, travelers in 
need of a passport quickly may request expedited processing at an 
additional cost. We believe that the majority of travelers will be able 
to obtain a passport in time to make their scheduled trips. Travelers 
are strongly encouraged to obtain the necessary documentation in 
advance of all international travel.
Comment
    We received thirty-eight comments expressing concern that the rule 
would negatively affect tourism by impeding travel within the Western 
Hemisphere. Several commenters stated they would no longer take trips 
to Canada, Mexico, and the Caribbean if these rules go into effect.
Response
    This rule could have an impact on tourism. These impacts were 
explored in detail in the Regulatory Assessment for this rule, which 
was made available upon publication of the NPRM. \23\ An updated 
Regulatory Assessment is published with this final rule and is 
available on the docket.
---------------------------------------------------------------------------

    \23\ See NPRM at 71 FR 46155.
---------------------------------------------------------------------------

2. Executive Order 12866
Comment
    Nine commenters to the NPRM argued that the economic analysis does 
not sufficiently address negative impacts to the economy.
Response
    While these commenters were dissatisfied with the economic 
analysis, none of them submitted specific information that would 
enhance the current analysis, nor did they submit alternative analyses 
that more robustly consider the impacts on the U.S. and foreign 
economies. The direct costs to the traveling public, which were the 
focus of the Regulatory Assessment, were extensively explored, 
researched, and analyzed.
    According to the Office of Management and Budget (OMB) Circular A-
4, an economic analysis should ``look beyond the direct benefits and 
direct costs and consider any important ancillary benefits and 
countervailing risks'' (page 26). This Circular notes, however, ``some 
important benefits and costs * * * may be inherently too difficult to 
quantify or monetize given current data and methods'' (pages 26-27). 
Given the data available for this analysis and the limitations of using 
this data to assess indirect costs of the rule, CBP's Regulatory 
Assessment concentrated on the direct impacts to U.S. citizens who will 
need to obtain a passport in order to continue traveling by air in the 
Western Hemisphere, including the costs to the traveler of opting to 
forgo travel. In that assessment, CBP anticipated that the vast 
majority (96 percent) of U.S. travelers to Western Hemisphere 
destinations already have or will obtain a passport and will continue 
traveling in the Western Hemisphere. As stated in the assessment, we 
cannot look at the number of travelers who choose to forgo travel as a 
result of the rule and determine what the welfare losses to travelers 
or gains and losses to different players in different economies will 
be--we simply cannot determine adequately what each individual traveler 
(or even bloc of travelers) will do to express his preferences for 
goods and services given a change in price in one portion of his travel 
cost. Thus, again per Circular A-4, we presented the relevant 
quantitative information available, its strengths and weaknesses, and a 
description of the non-quantified effects. Furthermore, CBP conducted a 
formal probabilistic modeling in the form of a Monte Carlo analysis to 
measure the uncertainty and variance of the estimates presented. We 
discussed the industries we expect to be affected by this rule and 
noted that any impacts will be spread over wide swaths of the domestic 
and foreign economies.
    It is extremely difficult to estimate the indirect costs with any 
certainty. The analysis made many assumptions regarding direct costs 
that may carry errors or over- or underestimate indirect costs. 
Travelers are faced with complex decisions and myriad substitutes for 
particular trips that could still maximize their utility. There is 
evidence in the travel literature cited throughout the analysis that 
price may not be a very big determinant of destination selection. CBP 
chose to estimate direct costs using demand elasticities to avoid 
misrepresenting direct costs (we would not want to assume that 
travelers' decisions will be completely unaffected by the passport 
requirement), knowing that we may then be overstating the simplicity of 
the traveler's decision-making process. In doing this, we have likely 
overstated indirect costs.
    Because such a small percentage of the covered traveling population 
is likely to forgo travel (even with our application of the binary 
choice for the traveler), the macro-economic impacts of the proposed 
rule are likely small as well. Unfortunately, given the dearth of 
specific data, we have only rough estimates of how many people travel, 
where they come from, and where they

[[Page 68421]]

go. We know even less about how they will alter their behavior if they 
do, in fact, forgo obtaining a passport.
Comment
    One commenter to the NPRM stated that the economic analysis cannot 
be considered reliable because it examines a program that is not yet in 
place.
Response
    Per Executive Order 12866, an economic analysis is required for all 
major rulemakings prior to final implementation. This analysis must 
contain an identification of the regulatory ``baseline'' as well as the 
anticipated costs and benefits of the rule on relevant stakeholders. 
The analysis prepared for the NPRM was reviewed by OMB in accordance 
with Executive Order 12866 and OMB Circular A-4.
Comment
    One commenter stated that the only alternative to the proposed rule 
considered was the current practice of accepting existing documents 
(driver's licenses and birth certificates).
Response
    Executive Order 12866 and OMB Circular A-4 require the full 
analysis of regulatory alternatives as part of the rulemaking 
development process. As presented in the Regulatory Assessment 
published with the NPRM and finalized with this final rule, there were 
five alternatives to the proposed rule considered and analyzed. The 
first was the ``No Action'' alternative. The second was to require 
United States travelers to present a state-issued photo ID and proof of 
citizenship. The third was to designate TWIC as an acceptable document 
for United States citizens. The fourth was to designate the Border 
Crossing Card (BCC) as an acceptable document for Mexican citizens. The 
fifth was to develop and designate a low-cost Passport Card as an 
acceptable document for United States citizens. OMB reviewed the 
analysis prepared for the NPRM in accordance with Executive Order 
12866.
Comment
    One commenter stated that the Regulatory Assessment's assertion 
that primarily foreign businesses will be affected by the rule is false 
because Canadians spend more money in the U.S. than Americans spend in 
Canada.
Response
    This commenter appears to have incorrectly focused exclusively on 
travel between the U.S. and Canada. It is important to remember that 
U.S. travelers to Mexico, the Caribbean, Central America, and South 
America will also be affected by this rule. As estimated, almost twice 
as many U.S. citizens will be covered by this rule as non-U.S. citizens 
(14.2 million versus 7.7 million, of which 4.4 million are Canadian). 
Thus, foreign businesses in these regions are most likely to experience 
adverse impacts as a result of this rule because there are more U.S. 
travelers covered by the rule than non-U.S. travelers, and U.S. 
citizens and a very small percentage of these travelers (an estimated 4 
percent) may choose to forgo travel by air to these regions given the 
passport requirement.
Comment
    One commenter argued that the cost to obtain a passport is 
significantly underestimated because the time estimated to obtain a 
passport is too low.
Response
    We appreciate this comment and the detail that accompanied the 
estimate provided in the comment. However, the commenter presented an 
estimate that was overly pessimistic and represented an absolute 
``worst-case'' scenario that would rarely, if ever, be realized. The 
time estimate presented in the Regulatory Assessment is from DOS's 
Supporting Statement for the Paperwork Reduction Act Submission for DS-
11--Application for a U.S. Passport (OMB Control 1405-0004). 
The estimated number of minutes required per response is based on a 
recent sampling of the time required to search existing data sources, 
gather the necessary information, provide the information required, 
review the final collection, and submit the collection to Passport 
Services for processing. The sampling was completed through 
consultation with a small group of actual respondents. Passport 
Services found that the overall average for the estimated time required 
for this information collection was 1 hour and 25 minutes per response. 
This Collection of Information was reviewed and approved by OMB in 
September 2005.
Comment
    One commenter argued that many passports are never used, but are 
needed: people obtain them in order to be able to travel whenever it 
may be necessary. These costs were not included in the analysis.
Response
    The commenter is correct that we did not include these costs in the 
Regulatory Assessment. The purpose of an economic analysis is to 
estimate the costs and benefits of a rulemaking based on an identified 
baseline and the anticipated change from that baseline that is directly 
attributable to the regulation under consideration. Individuals that 
choose to obtain a passport ``just to have one'' should not be 
considered in this regulatory analysis because they are not obtaining a 
passport specifically for air travel in the Western Hemisphere, but 
worldwide as circumstances arise.
Comment
    One commenter argued that the assumption that gains in domestic 
travel would be offset by losses from reduced travelers from Canada, 
Mexico, and Bermuda trivialized the impact of Canadian visitors who 
spent $10 billion in the United States in 2005.
Response
    It is important to note that this analysis does not assert that 
domestic gains will equal losses from reduced foreign travelers; it 
simply states that while the U.S. economy may gain slightly if a small 
percentage of U.S. citizens travel domestically rather than in the rest 
of the Western Hemisphere, the U.S. economy will also likely lose 
slightly if a small percentage of non-U.S. citizens forgo travel to the 
United States. The net impacts are not known. Furthermore, it is 
important to note that the majority of the $10 billion spent by 
Canadians in this country in 2005 is through cross-border trade and 
tourism conducted via land-border ports-of-entry. Economic impacts for 
land-border entries will be addressed in a future rulemaking for land 
and sea entries.
3. Regulatory Flexibility Act
Comment
    Six commenters asserted the rule would have a disproportionate 
effect on small entities and argued that DHS and DOS should conduct a 
small business analysis for any proposed rule.
Response
    When considering the impacts on small entities for the purpose of 
complying with the Regulatory Flexibility Act (RFA), we consulted the 
Small Business Administration's guidance document for conducting 
regulatory flexibility analysis. Per this guidance, a regulatory 
flexibility analysis is required when an agency determines that the 
rule will have a significant economic impact on a substantial number of 
small entities that are subject to the requirements of the rule. This 
guidance document also includes a good discussion describing

[[Page 68422]]

how direct and indirect costs of a regulation are considered 
differently for the purposes of the RFA. With the possible exception of 
certain ``sole proprietors,'' we do not believe that small entities are 
subject to the requirements of the proposed rule; individuals are 
subject to the requirements, and individuals are not considered small 
entities. As stated in the Small Business Administration's guidance 
document, ``[t]he courts have held that the RFA requires an agency to 
perform a regulatory flexibility analysis of small entity impacts only 
when a rule directly regulates them.'' Consequently, CBP prepared an 
extensive analysis of the direct economic impacts of this rule and 
believes that it adequately considered the economic impacts of this 
rule on small businesses for the purposes of the RFA. Additionally, our 
analysis did not reveal any ``disproportionate effect'' of the rule on 
small entities.
Comment
    One commenter noted several examples of individuals who would be 
considered small businesses, including a freelance graphic artist, a 
self-employed provider of business training services, and a sole 
proprietor soliciting bids for fabrication or assembly of a new 
product, that would be directly impacted by the proposed rule.
Response
    We agree that certain ``sole proprietors'' would be considered 
small businesses and could be directly affected by the rule if their 
occupation requires travel within the Western Hemisphere where a 
passport was not previously required. The number of such sole 
proprietors is not available from the Small Business Administration or 
other available business databases. However, as estimated in the 
Regulatory Assessment available in the public docket, the cost to such 
businesses would be only $149 for a first-time passport applicant, or 
$209 if expedited service were requested, and would only be incurred if 
the individual needed a passport. We believe such an expense would not 
rise to the level of being a ``significant economic impact.''

IV. Conclusion

    Based on the analysis of comments, the recently issued DOS NPRM 
proposing to create a Passport Card, and section 7209 of IRTPA, DHS and 
DOS have determined that beginning January 23, 2007, United States 
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico 
entering the United States at air ports-of-entry from the Western 
Hemisphere will be required to present a valid passport, a NEXUS Air 
Card, or a Merchant Mariner Document.
    An MMD is a document sufficient to denote identity and citizenship 
for United States citizens. Accordingly, United States citizens who 
present an MMD in conjunction with maritime business would continue to 
be exempt from the requirement to present a passport when arriving in 
the United States at air ports-of-entry. In addition, a NEXUS Air 
membership card is a document sufficient to denote identity and 
citizenship for United States citizens, Canadian citizens, and 
permanent residents of Canada when arriving in the United States as a 
NEXUS Air program participant and when using a NEXUS Air kiosk at 
designated airports. Accordingly, United States and Canadian citizens 
who present an NEXUS Air card when using a NEXUS Air kiosk, would 
continue to be exempt from the requirement to present a passport when 
arriving in the United States at air ports-of-entry.
    In addition, all active duty members of the United States Armed 
Forces regardless of citizenship will be exempt from the requirement to 
present a valid passport when entering the United States. Therefore, 
travel document requirements for United States citizens who are members 
of the United States Armed Forces will not change from the current 
requirements.
    The new passport requirement does not apply to travelers arriving 
at land or sea ports-of-entry. Additionally, U.S. citizens and 
nationals who travel directly between parts of the United States,\24\ 
which includes Guam, Puerto Rico, the U.S. Virgin Islands, American 
Samoa, Swains Island, and the Commonwealth of the Northern Mariana 
Islands, without touching at a foreign port or place, are not required 
to present a valid passport.
---------------------------------------------------------------------------

    \24\ As defined in section 215(c) of the INA (8 U.S.C. 1185(c)), 
the term ``United States'' includes all territory and waters, 
continental or insular, subject to the jurisdiction of the United 
States.
---------------------------------------------------------------------------

V. Regulatory Analyses

A. Executive Order 12866: Regulatory Planning and Review

    This rule is considered to be an economically significant 
regulatory action under Executive Order 12866 because it may result in 
the expenditure of over $100 million in any one year. Accordingly, the 
Office of Management and Budget (OMB) has reviewed this rule. The 
following summary presents the costs and benefits of the rule plus a 
range of alternatives considered. The complete and detailed 
``Regulatory Assessment'' can be found in the docket for this 
rulemaking: http://www.regulations.gov; see also http://www.cbp.gov.
    This rule will affect certain travelers to the Western Hemisphere 
countries for whom there are no current requirements to present a 
United States passport for entry. While United States citizens may not 
need a passport to enter these countries, they would need to carry a 
passport to leave the United States and for inspection upon re-entry to 
the United States. This analysis considers air travelers on commercial 
flights and travelers using general aviation.
    Based on data from the Department of Commerce, approximately 14 
million travelers will be covered by the rule. Based on additional 
available data sources, DHS and DOS assume that a large portion of 
these travelers already hold passports and thus will not be affected 
(i.e., they will not need to obtain a passport as a result of this 
rule). DHS and DOS estimate that approximately 4 million passports will 
be required in the first year the rule is in effect, at a direct cost 
to traveling individuals of $649 million. These estimates are presented 
in Table 1.

                           Table 1.--First Year Direct Costs to Travelers of the Rule
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Travelers to WHTI countries, first year.........................      14,299,093  ..............  ..............
                                                                 -----------------------------------------------
                                                                   1st quartile       Median       3rd quartile
                                                                 -----------------------------------------------
Passports demanded..............................................       3,942,859       4,084,204       4,364,197
Total cost of passports demanded................................    $579,379,344    $600,142,162    $641,283,623
Expedited service fees (20% of passports):
    Number of passports.........................................         788,572         816,841         872,839

[[Page 68423]]

 
    Cost of expedited service...................................     $47,314,302     $49,010,449     $52,370,370
                                                                 -----------------------------------------------
        Grand total cost........................................    $626,693,646    $649,152,611    $693,653,992
----------------------------------------------------------------------------------------------------------------

    Following the first year, the costs will diminish as most United 
States travelers in the air environment would then hold passports. 
Because the number of travelers to the affected Western Hemisphere 
countries has been growing and turnover in the traveling population is 
not 100 percent on an annual basis, a small number of ``new'' travelers 
who did not previously hold passports will now have to obtain them in 
order to travel. The estimated costs for new passport acquisition in 
the second year the rule is in effect are presented in Table 2.

                           Table 2.--Second Year Direct Costs to Travelers of the Rule
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
``New'' travelers to WHTI countries, second year................       1,994,380  ..............  ..............
                                                                 -----------------------------------------------
                                                                   1st quartile       Median       3rd quartile
                                                                 -----------------------------------------------
Passports demanded..............................................         566,350         584,364         625,893
Total cost of passports demanded................................     $83,213,742     $85,866,599     $91,966,740
Expedited service fees (20% of passports):
    Number of passports.........................................         113,270         116,873         125,179
    Cost of expedited service...................................      $6,796,196      $7,012,365      $7,510,711
                                                                 -----------------------------------------------
        Grand total cost........................................     $90,009,938     $92,878,964     $99,477,450
----------------------------------------------------------------------------------------------------------------

    This rule could also impose indirect costs to those industries that 
support the traveling public. If some travelers do not obtain passports 
because of the cost or inconvenience and forgo travel to Western 
Hemisphere destinations, certain industries would incur the indirect 
consequences of the forgone foreign travel. These industries include 
(but are not limited to):
     Air carriers;
     Airports and their support services;
     Traveler accommodations; travel agents; dining services; 
retail shopping;
     Tour operators;
     Scenic and sightseeing transportation;
     Hired transportation (rental cars, taxis, buses);
     Arts, entertainment, and recreation.
    DHS and DOS expect that foreign businesses whose services are 
consumed largely outside of the United States (with the exception of 
United States air carriers, travel agents, and airport services) will 
primarily be impacted. If domestic travel is substituted for 
international travel, domestic industries in these areas would gain. 
DHS and DOS expect, however, that United States travel and tourism 
could also be indirectly affected by the rule if fewer Canadian, 
Mexican BCC holders, and Bermudan travelers visit the United States 
(these travelers do not currently need a passport for entry to the 
United States but will require one under the rule). In this case, 
United States businesses in these sectors would be affected. Thus, 
gains in domestic consumption may be offset by losses in services 
provided to the citizens and residents of the Western Hemisphere 
countries affected. In both cases, we expect the gains and losses to be 
marginal as the vast majority of travelers (based on our Regulatory 
Assessment available in the public docket, an estimated 96 percent of 
United States air travelers and 99 percent of Canadian, Mexican, and 
Bermudan air travelers) are expected to obtain passports and continue 
traveling internationally.
    The benefits of the rule are virtually impossible to quantify in 
monetary terms. The benefits of the rule are significant and real in 
terms of increased security in the air environment provided by more 
secure documents and facilitation of inspections provided by the 
limited types of documents that would be accepted. In fact, this rule 
addresses a vulnerability of the United States to entry by terrorists 
or other persons by false documents or fraud under the current 
documentary exemptions for travel within the Western Hemisphere, which 
has been noted extensively by Congress and others:
     During the debate on IRTPA, several members of Congress, 
including the Chairman of the House Judiciary Committee commented on 
the need for more secure documents for travelers.\25\
---------------------------------------------------------------------------

    \25\ ``As the 9/11 staff report on terrorist travel declared, 
`The challenge for national security in an age of terrorism is to 
prevent the people who may pose overwhelming risk from entering the 
United States undetected.' The Judiciary sections of title III 
require Americans returning from most parts of the Western 
Hemisphere to possess passports; require Canadians seeking entry 
into the United States to present a passport or other secure 
identification; authorize additional immigration agents and 
investigators; reduce the risk of identity and document fraud; 
provide for the expedited removal of illegal aliens; limit asylum 
abuse by terrorists; and streamline the removal of terrorists and 
other criminal aliens. These provisions reflect both commission 
recommendations and legislation that was pending in the House.'' 
Congressional Record, October 7, 2004, H8685.
---------------------------------------------------------------------------

     The 9/11 Commission recommendations, which provide much of 
the foundation for IRTPA, specifically include a recommendation to 
address travel documents in the Western Hemisphere.\26\
---------------------------------------------------------------------------

    \26\ ``Americans should not be exempt from carrying biometric 
passports or otherwise enabling their identities to be securely 
verified when they enter the United States; nor should Canadians or 
Mexicans. Currently U.S. persons are exempt from carrying passports 
when returning from Canada, Mexico, and the Caribbean. The current 
system enables non-U.S. citizens to gain entry by showing minimal 
identification. The 9/11 experience shows that terrorists study and 
exploit America's vulnerabilities.'' The 9/11 Commission Report, p. 
388.
---------------------------------------------------------------------------

     Finally, in May 2003, a subcommittee of the House 
Judiciary Committee held a hearing focused on a fraudulent U.S. 
document ring in the Caribbean, the exploitation of which allowed the 
notorious Washington D.C. ``sniper,'' John Allen Muhammad to support 
himself while living in Antigua. A Government Accountability Office 
(GAO) investigator at that hearing testified as to the ease of entering 
the United States with fraudulent birth certificates and drivers' 
licenses.
    A uniform document requirement would assist CBP officers in 
verifying the identity and citizenship of travelers who enter the 
United States, and

[[Page 68424]]

improving their ability to detect fraudulent documents or false claims 
to citizenship and deny entry to such persons. Further, such 
standardized documents would enable more rapid processing of travelers 
who enter the United States because an individual's identity would be 
easier to confirm and he or she could be processed through CBP more 
efficiently.
Alternatives to the Rule
    CBP considered the following five alternatives to the rule:
    1. The No Action alternative (status quo);
    2. Require United States travelers to present a state-issued photo 
ID and proof of citizenship (such as birth certificates) upon return to 
the United States from countries in the Western Hemisphere;
    3. Allow United States citizens who possess a Transportation Worker 
Identification Card (TWIC) to use the card as a travel document in the 
air environment;
    4. Allow Mexican citizens to present their Border Crossing Cards 
(BCCs) in the air in lieu of a passport; and
    5. Develop and designate a low-cost Passport Card as an acceptable 
document for United States citizens.
    Calculations of costs (if any) for the alternatives can be found in 
the Regulatory Assessment.
Alternative 1: The No Action Alternative
    The No Action alternative would have zero costs (or benefits) 
associated with it. This alternative was rejected because section 7209 
of IRTPA specifically provides for the expeditious implementation of 
the requirement that United States citizens and nonimmigrant aliens 
must have passports or such alternative documents as the Secretary of 
Homeland Security may designate as satisfactorily establishing identity 
and citizenship to depart from or enter the United States. Current 
documentation requirements leave major gaps in security at U.S. 
airports and do not satisfy the requirements under the IRTPA that 
travel documents for entry into the United States must denote identity 
and citizenship.
Alternative 2: Require United States Travelers to Present a State-
Issued Photo ID and Proof of Citizenship
    The second alternative would require United States citizens to 
present state-issued photo identification in combination with a birth 
certificate to establish citizenship and identity. This alternative is 
similar to the status quo. The U.S. birth certificate can be used as 
evidence of birth in the United States; however, it does not provide 
definitive proof of citizenship (e.g., children born in the U.S. to 
foreign diplomats do not acquire U.S. citizenship at birth). Highly 
trained passport specialists and consular officers abroad adjudicate 
passport applications, utilizing identity and citizenship documents 
(like U.S. birth certificates, naturalization certificates, consular 
reports of birth abroad, etc.). These specialists have resources 
available, including fraud and document experts, to assist when 
reviewing documents and are not faced with the same time constraints as 
officers at ports-of-entry. These factors are critical in determining 
that a birth certificate and driver's license may be presented as 
documentary evidence of citizenship and identity for an application for 
a passport but are not sufficient under WHTI for entry to the United 
States. In addition, there is no current way to validate that the 
person presenting the birth certificate for inspection is, in fact, the 
same person to whom it was issued. The lack of security features and 
the plethora of birth certificates issued in the United States (issued 
by more than 8,000 entities) currently make it difficult to reliably 
verify or authenticate a birth certificate. A state-issued photo 
identification provides positive identification with name, address, and 
photograph. However, a state-issued photo identification does not 
provide proof of citizenship.
    Alternative 2 was rejected for several reasons. Section 7209 
requires that U.S. citizens have a passport, other documents or 
combination of documents deemed sufficient by the Secretary of DHS to 
denote citizenship and identity when departing or entering the United 
States. Because birth certificates and driver's licenses are issued by 
numerous government entities, there is no standard format for either 
document, and, at present, it is not possible to authenticate quickly 
and reliably either document. Some states only issue photocopies as 
replacements of birth certificates, some states issue replacement birth 
certificates by mail or through the Internet, and some states will not 
issue photo identification to minors. Both documents lack security 
features and are susceptible to counterfeiting or alteration. While 
most states require that driver's licenses contain correct address 
information, it is not uncommon for the address information to be 
outdated. Neither the birth certificate nor the state-issued 
identification was designed to be a travel document. Birth certificates 
can easily deteriorate when used frequently as travel documents because 
they are normally made from some sort of paper with a raised seal, so 
they cannot be laminated or otherwise protected when under repeated 
use.
    Because these documents are not standardized, CBP officers require 
additional time to locate the necessary information on the documents. 
This may result in cumulative delays at airports of entry.
    Because neither document has a machine-readable zone, CBP will not 
be able to front-load information on the traveler to expedite the 
initial inspection processing, including checks necessary to protect 
the national security of the United States. Birth certificates are 
issued by thousands of authorities, and are currently impossible to 
validate or vet sufficiently. Both documents are readily available for 
purchase to assume a false identity. Because the birth certificate and 
state-issued photo ID have limited or non-existent security features, 
they are more susceptible to alteration. Therefore, the actual, rather 
than claimed, identity and citizenship of the traveler using these 
documents cannot always be determined. DHS and DOS believe that the 
risk of counterfeiting and fraud associated with these documents makes 
them unacceptable documents for travel under IRTPA. For all of these 
reasons, these documents are not sufficient to reliably establish 
citizenship and identity.
    The costs of this alternative include those for minors to obtain 
photo identification for travel. Currently, all adult travelers in the 
air environment must present photo identification (usually a driver's 
license) along with proof of citizenship (usually a birth certificate) 
when they check in for their flights (per the requirements of the air 
carriers). Additionally, all countries in the Western Hemisphere 
require a passport or other proof of citizenship (i.e., birth 
certificate) and photo identification for entry into their countries 
via air. The exception, however, is for minor travelers. Currently, 
parents may orally vouch for their children upon exit and entry into 
the United States to and from the Western Hemisphere, and some Western 
Hemisphere countries allow children to present school identification as 
sufficient proof of identity. To comply with a requirement that would 
allow a photo ID in combination with a birth certificate for travel in 
the Western Hemisphere, minors would most likely need to obtain state-
issued photo identification. There could also be

[[Page 68425]]

additional costs in the form of lost efficiency upon entry to United 
States ports-of-entry. If CBP officers need to spend more time 
examining a variety of documents to determine what they are and if they 
are fraudulent, and if CBP officers need to enter data by hand rather 
than routinely utilize machine-readable technology to obtain 
information on arriving passengers, this would result in delays at 
airports. CBP is unable to quantify this loss of efficiency and 
presents only the cost to minors to obtain a photo ID.
    Based on data from the Department of Commerce's Office of Travel & 
Tourism Industries (OTTI), eleven states (California, New York, New 
Jersey, Florida, Texas, Illinois, Virginia, Pennsylvania, Washington, 
Massachusetts, and Ohio) account for almost three-quarters of 
international air travelers.\27\ Most requirements for obtaining a 
photo identification are similar across these states: Completion of a 
department of motor vehicles (DMV) form, submission of a form or 
declaration attesting that the applicant is the parent or legal 
guardian of the minor receiving the identification, and presentation of 
a birth certificate and social security card. If the applicant is a 
minor, he or she must appear in person with a parent or guardian. Fees 
for these states range from $3 (Florida) to $21 (California), and 
identifications are valid for an average of five years.\28\ As stated 
previously, some states will not issue photo ID to minors under a 
certain age.\29\ For the purposes of this analysis only, we assume all 
minors would be able to obtain state-issued photo identification.
---------------------------------------------------------------------------

    \27\ Table 22, U.S. Travelers to Overseas Countries 2004, State 
of Residence of Travelers, OTTI, 2005.
    \28\ See the nationwide DMV guide at http://www.dmv.org.
    \29\ Of the 11 states examined in the analysis of this 
alternative, Florida, Massachusetts, New Jersey, and Pennsylvania 
have a minimum age requirement for obtaining a photo ID. The minimum 
age to obtain a photo ID in Florida is 12, in Massachusetts is 16, 
in New Jersey is 17, and in Pennsylvania is 16.
---------------------------------------------------------------------------

    CBP estimates that there are 496,597 minors that will be covered by 
this rule, 416,858 of whom do not currently hold a passport. CBP has 
used the average of the photo identification fees from the 11 states 
above ($15) and added the cost of the time it takes to complete the 
forms and submit them to the DMV ($41, the same time cost CBP estimated 
to obtain the passport) for a total of approximately $55 per minor. 
Thus, assuming that a birth certificate is readily available, the cost 
of this alternative ID for minors would be $27.4 million.
Alternative 3: Designate TWIC as an Acceptable Document for United 
States Citizens
    The third alternative would allow U.S. transportation workers to 
use their TWICs in lieu of a passport. Section 102 of the Maritime 
Transportation Security Act of 2002 requires the Secretary of Homeland 
Security to issue a biometric transportation security card to 
individuals with unescorted access to secure areas of vessels and 
facilities.\30\ In addition, these individuals must undergo a security 
threat assessment to determine that they do not pose a security threat 
prior to receiving the biometric card and access to secure areas. The 
security threat assessment must include a review of criminal, 
immigration, and pertinent intelligence records in determining whether 
the individual poses a threat, and individuals must have the 
opportunity to appeal an adverse determination or apply for a waiver of 
the standards. The regulations to implement the TWIC in the maritime 
environment have been proposed and were subject to public comment.\31\ 
For the sake of comparison, CBP assumes that TWICs are available to all 
transportation workers covered by the rule. Additionally, analysis of 
this alternative assumes that CBP would accept the TWIC for any travel.
---------------------------------------------------------------------------

    \30\ Pub. L. 107-295, 116 Stat. 2064 (Nov. 25, 2002).
    \31\ 71 FR 29396 and 29462 (May 22, 2006).
---------------------------------------------------------------------------

    The Transportation Security Administration (TSA) and Coast Guard 
estimate that the initial population of cards holders will be 
approximately 750,000.\32\ This population includes such individuals as 
United States MMD holders, port truck drivers, contractors, 
longshoremen, and some rail workers. Again, for the purposes of this 
economic analysis only, we estimate the cost savings to these 
individuals of using TWICs in the air environment for non-work-related 
travel. (These TWIC holders would not likely leave the country via air 
for the purposes of work-related activities.)
---------------------------------------------------------------------------

    \32\ Department of Homeland Security, Transportation Security 
Administration, and U.S. Coast Guard, Regulatory Evaluation for the 
Notice of Proposed Rulemaking Transportation Worker Identification 
Credential (TWIC) Implementation in the Maritime Sector, 49 (2006). 
Dockets TSA-2006-24191 or USCG-2006-24196.
---------------------------------------------------------------------------

    CBP does not know how TWIC holders overlap with the United States 
population traveling to the affected WHTI countries. As calculated 
previously, CBP estimates there are approximately 14 million unique 
travelers covered by the rule, and approximately 4 million (29 percent) 
of them will require passports since they do not already have them. For 
the purposes of this analysis of alternatives, CBP assumes that the 
population requiring passports fully encompasses TWIC holders. This is 
an extreme best-case assumption, as most of the TWIC holders will not 
be traveling internationally in the air environment as part of their 
work. Thus in the best-case, 29 percent of the 750,000 TWIC holders 
(approximately 227,000 individuals) would not need passports. At a cost 
of $149 per passport ($97 application fee for an adult, $11 for photos 
and $41 for the time costs of completing the necessary paperwork), this 
would result in a savings of, at best, $21.9 million. This is 
approximately 3 percent of the total rule cost. The savings are likely 
to be lower because the TWIC-holders are unlikely to be entirely 
included in the United States air-traveling population covered by the 
rule.
    The TWIC cannot be read by current CBP technology installed in air 
ports-of-entry. While there is information embedded in the chip on the 
TWIC, only the name of the individual and a photo ID are apparent to a 
CBP officer upon presentation. DHS would have to install chip readers 
in airports to access other information and verify the validity of the 
document. TSA estimates that this cost could be $7,200 per card reader. 
Additionally, CBP believes that it would cost $500,000 to develop 
databases, cross-reference information and coordinate with TSA and 
Coast Guard, and test equipment installed in airports.
    For this analysis CBP assumes that a card reader would need to be 
installed in each CBP booth in airports. CBP estimates that there are 
2,000 air ``lanes'' nationwide that would need a TWIC reader. The cost 
for readers is thus $14.4 million and with the additional cost for 
reprogramming and adapting existing systems, the total cost is $14.9 
million in the first year. Following the first year, CBP would expect 
to pay approximately 25 percent of the initial cost for operations and 
maintenance. The net first-year savings would be, again, at best $15.3 
million. This is a 2 percent difference from the costs of the chosen 
alternative ($649 million).
    This alternative was rejected because the TWIC does not denote 
citizenship and it was not designed as a travel document but rather, to 
positively identify the holder and hold the results of a security 
threat assessment, and as a tool for use in access control systems. 
Because the TWIC does not provide citizenship information, the holder 
would need to present at least one other document that proves 
citizenship. CBP would need to take additional time at

[[Page 68426]]

primary inspection to establish citizenship, or the traveler would have 
to be referred to secondary inspections for further processing. The 
overall result could be increased delays at ports of entry.
Alternative 4: Designate the BCC as an Acceptable Document for Mexican 
Citizens
    Alternative 4 would allow Mexican citizens to present their BCCs 
upon entry to this country, without also presenting a passport. This 
alternative would have no impact on the cost of the rule to United 
States citizens. The BCC is a credit card-size document with many 
security features and 10-year validity. Also called a ``laser visa,'' 
the card is both a BCC and a B1/B2 visitor's visa. This alternative 
could be less expensive for a percentage of Mexican citizens. Mexican 
citizens must have a passport to apply for and obtain a BCC. However, 
there are some Mexican citizens that hold a BCC without a valid 
passport because the passport has expired prior to the expiration of 
the BCC.
    This alternative was rejected because the BCC cannot be used with 
CBP's Advance Passenger Information System (APIS), which collects data 
from travelers prior to their arrival in and departure from the United 
States.\33\ The passport requirement for Mexican citizens who hold BCC 
in the air environment is consistent with the requirement for passports 
for most United States citizens and foreign nationals.
---------------------------------------------------------------------------

    \33\ Information for aircraft to be submitted includes: Full 
name, date of birth, gender, citizenship, country of residence, 
status on board the aircraft, travel document type, passport 
information if passport is required (number, country of issuance, 
expiration date), alien registration number where applicable, 
address while in the United States (unless a U.S. citizen, lawful 
permanent resident, or person in transit to a location outside the 
United States), Passenger Name Record locator if available, foreign 
code of foreign port/place where transportation to the United States 
began, code of port/place of first arrival, code of final foreign 
port/place of destination for in-transit passengers, airline carrier 
code, flight number, and date of aircraft arrival.
---------------------------------------------------------------------------

Alternative 5: Develop and Designate a Low Cost Passport Card as an 
Acceptable Document for United States Citizens
    DOS, in consultation with DHS, has begun developing an alternative 
travel document, a card-format passport. Like a traditional passport 
book, the Passport Card will be a secure travel document that 
establishes the identity and citizenship of the bearer. The Passport 
Card is being designed to primarily benefit those citizens in border 
communities who regularly cross the northern and southern borders every 
day where such travel is an integral part of their daily lives. As 
currently envisioned, it will be the size of a credit card and will 
have a fee structure that is lower than for a traditional passport 
book. The application process for the Passport Card will be identical 
to that for the passport book in that each applicant will have to 
establish United States citizenship, personal identity, and entitlement 
to obtain the document.
    The cost of the Passport Card has yet to be finalized. However, in 
the NPRM published October 17, 2006, DOS proposed the application fees 
for the Passport Card. For the purposes of this analysis of 
alternatives, using the fees proposed in the NPRM, the fee for a first-
time adult Passport Card would be $45 and for a minor would be $35. The 
cost for photos is $11. Because the application process would be 
comparable to that for a traditional passport, the personal time cost 
would continue to be $41, as estimated previously for the primary 
analysis of the cost of the rule. Using the same methodology as used 
for the primary analysis (most likely scenario) but assuming that all 
travelers who do not currently hold a passport obtain a Passport Card 
rather than the traditional passport book, we estimate that the first-
year cost would be $463 million. At this lower cost, approximately 4.3 
million Passport Cards would be demanded, approximately 230,000 more 
than under this rule, an increase of 5 percent.
    Use of this alternative Passport Card was rejected for the air 
environment for a number of reasons. DHS and DOS believe that accepting 
the Passport Card in the air environment for air travel within the 
Western Hemisphere could potentially lead to confusion for air 
travelers who may attempt to use the Passport Card, rather than a 
traditional passport book, to fly outside of the Western Hemisphere. As 
developed by the Department of State, the Passport Card is intended to 
be a limited-use passport designed to address the needs of border 
communities, but not the operational needs of inspection at airports. 
See 71 FR 60928, 60930 (Oct. 17, 2006). Because the Passport Card is 
not designed to be a globally interoperable document as defined by the 
International Civil Aviation Organization (ICAO), it does not meet all 
the international standards for passports and other official travel 
documents (for example, the size of the Passport Card does not comport 
with ICAO 9303 travel document standards). The DOS Passport Card NPRM 
explained that ``[d]esigning a card format passport for wide use, 
including by air travelers, would inadvertently undercut the broad 
based international effort to strengthen civil aviation security and 
travel document specifications to address the post 9/11 threat 
environment.'' Id. at 60928. Therefore, excluding the Passport Card for 
air travel within the Western Hemisphere would reduce the possibility 
that travelers would attempt to fly outside of the Western Hemisphere 
to countries where the Passport Card may not be accepted. Finally, as 
stated in the Regulatory Assessment, many air travelers already possess 
a passport book for ease of use, because air carriers require it, or 
because the countries they are visiting require it.
    The following table presents a comparison of the costs of this rule 
and the alternatives considered.

                               Comparison of Regulatory Alternatives in First Year
                                               [Costs in millions]
----------------------------------------------------------------------------------------------------------------
                                                           Cost
           Alternative              First-year cost    compared to    Cost compared to       Reason rejected
                                                        status quo       final rule
----------------------------------------------------------------------------------------------------------------
Final rule (passports, Air        $649...............        +$649  n/a................  .......................
 Nexus).
Status quo......................  0..................          n/a  -$649..............  Status quo does not
                                                                                          meet requirements of
                                                                                          IRTPA.

[[Page 68427]]

 
State-issued photo ID + birth     27.................         +$27  -622...............  Identity and
 certificate in lieu of U.S.                                                              citizenship of the
 passport.                                                                                traveler cannot always
                                                                                          be reasonably assumed
                                                                                          or ascertained using
                                                                                          these documents;
                                                                                          minors may not be able
                                                                                          to obtain IDs in all
                                                                                          states; delays in
                                                                                          processing entries
                                                                                          because neither
                                                                                          document is
                                                                                          standardized.
TWICs in lieu of U.S. passport..  642................         +642  -7.................  TWIC is not designed as
                                                                                          a travel document;
                                                                                          citizenship not
                                                                                          included; CBP would
                                                                                          have to install card
                                                                                          readers and modify
                                                                                          their own systems to
                                                                                          accept TWICs.
BCCs in lieu of Mexican passport  No direct costs for            0  May be slightly      Cannot be used in
                                   U.S. citizens.                    less expensive for   conjunction with APIS
                                                                     BCC holders.         in the air
                                                                                          environment.
Passport card in lieu of          463................         +463  -186...............  Passport cards cannot
 traditional passport book.                                                               be used because they
                                                                                          do not yet exist.
----------------------------------------------------------------------------------------------------------------

Accounting Statement
    As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars/index.html), CBP has prepared an 
accounting statement showing the classification of the expenditures 
associated with this rule. The table provides an estimate of the dollar 
amount of these costs and benefits, expressed in 2005 dollars, at three 
percent and seven percent discount rates. DHS and DOS estimate that the 
cost of this rule will be approximately $206 million annualized (7 
percent discount rate) and approximately $204 million annualized (3 
percent discount rate). Non-quantified benefits are enhanced security 
and efficiency.

 Accounting Statement: Classification of Expenditures, 2006 Through 2016
                             [2005 Dollars]
------------------------------------------------------------------------
                                   3% discount rate    7% discount rate
------------------------------------------------------------------------
Costs:
    Annualized monetized costs..  $204 million......  $206 million.
    Annualized quantified, but    None..............  None.
     un-monetized costs.
    Qualitative (un-quantified)   Indirect costs to   Indirect costs to
     costs.                        the travel and      the travel and
                                   tourism industry.   tourism industry.
Benefits:
    Annualized monetized          None quantified...  None quantified.
     benefits.
    Annualized quantified, but    None quantified...  None quantified.
     un-monetized costs.
    Qualitative (un-quantified)   Enhanced security   Enhanced security
     costs.                        and efficiency.     and efficiency.
------------------------------------------------------------------------

    In accordance with the provisions of EO 12866, this regulation was 
reviewed by OMB.

B. Regulatory Flexibility Act

    We have prepared this section to examine the impacts of the rule on 
small entities as required by the Regulatory Flexibility Act (RFA).\34\ 
A small entity may be a small business (defined as any independently 
owned and operated business not dominant in its field that qualifies as 
a small business per the Small Business Act); a small not-for-profit 
organization; or a small governmental jurisdiction (locality with fewer 
than 50,000 people).
---------------------------------------------------------------------------

    \34\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

    When considering the impacts on small entities for the purpose of 
complying with the RFA, we consulted the Small Business 
Administration's guidance document for conducting regulatory 
flexibility analysis.\35\ Per this guidance, a regulatory flexibility 
analysis is required when an agency determines that the rule will have 
a significant economic impact on a substantial number of small entities 
that are subject to the requirements of the rule.\36\ This guidance 
document also includes a good discussion describing how direct and 
indirect costs of a regulation are considered differently for the 
purposes of the RFA. With the exception of certain sole proprietors, we 
do not believe that small entities are subject to the requirements of 
the rule; individuals are subject to the requirements, and individuals 
are not considered small entities. As stated in the Small Business 
Administration's guidance document, ``The courts have held that the RFA 
requires an agency to perform a regulatory flexibility analysis of 
small entity impacts only when a rule directly regulates them.'' \37\
---------------------------------------------------------------------------

    \35\ Small Business Administration, Office of Advocacy, A Guide 
for Government Agencies: How to Comply with the Regulatory 
Flexibility Act, May 2003.
    \36\ Id. at 69.
    \37\ Id. at 20.
---------------------------------------------------------------------------

    As described in the Regulatory Assessment for this rule, we could 
not quantify the indirect impacts of the rule with any degree of 
certainty; we instead focused our analysis on the direct costs to 
individuals recognizing that some small entities will face indirect 
impacts.

[[Page 68428]]

    Many of the small entities indirectly affected will be foreign 
owned and will be located outside the United States. Additionally, 
reductions in international travel that result from the rule could lead 
to gains for the domestic travel and tourism industry. Most air 
travelers--an estimated 96 percent of United States travelers and 99 
percent of Canadian, Mexican, and Bermudan travelers (based on the 
Regulatory Assessment summarized above)--are expected to obtain 
passports and continue traveling. Consequently, indirect effects are 
expected to be spread over wide swaths of domestic and foreign 
economies.
    Small businesses may be indirectly affected by the rule if 
international travelers forgo travel to affected Western Hemisphere 
countries. Industries likely affected include (but may not be limited 
to):
     Air carriers;
     Airports and their support services;
     Traveler accommodations;
     Travel agents;
     Dining services;
     Retail shopping;
     Tour operators;
     Scenic and sightseeing transportation;
     Hired transportation (rental cars, taxis, buses);
     Arts, entertainment, and recreation.
    In the NPRM, we asked specifically for comments on direct impacts 
to small entities. No comments were received that addressed direct 
impacts to small entities with the exception of certain ``sole 
proprietors.'' Notwithstanding this exception for certain ``sole 
proprietors,'' this rule does not directly regulate small entities. 
Based on our extensive analysis of the direct economic effects of this 
rule (which is available in the public docket) and the consideration of 
comments to the proposed rule, we certify that this rule will not have 
a significant economic impact on a substantial number of small 
entities.
    The complete analysis of impacts to small entities for this rule is 
available on the CBP Web site at: http://www.regulations.gov; see also 
http://www.cbp.gov.

C. Executive Order 13132: Federalism

    Executive Order 13132 requires DHS and DOS to develop a process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' Policies that have federalism implications are defined 
in the Executive Order to include rules that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' DHS and DOS 
have analyzed the rule in accordance with the principles and criteria 
in the Executive Order and have determined that it does not have 
federalism implications or a substantial direct effect on the States. 
The rule requires United States citizens and nonimmigrant aliens from 
Canada, Bermuda and Mexico departing from or entering the United States 
by air from Western Hemisphere countries to bear a valid passport or 
other document designated by the Secretary of Homeland Security. States 
are not subject to this rule. For these reasons, this rule would not 
have sufficient federalism implications warranting the preparation of a 
federalism summary impact statement.

D. Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988. Executive Order 12988 requires 
agencies to conduct reviews on civil justice and litigation impact 
issues before proposing legislation or issuing proposed regulations. 
The order requires agencies to exert reasonable efforts to ensure that 
the regulation identifies clearly preemptive effects, identifies 
effects on existing federal laws or regulations, identifies any 
retroactive effects of the regulation, and identifies other matters. 
DHS and DOS have determined that this regulation meets the requirements 
of Executive Order 12988 because it does not involve retroactive 
effects, preemptive effects, or the other matters addressed in the 
Executive Order.

E. Unfunded Mandates Reform Act Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the UMRA is any 
provision in a Federal agency regulation that will impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section 
204(a), provides that before establishing any regulatory requirements 
that might significantly or uniquely affect small governments, the 
agency shall have developed a plan that, among other things, provides 
for notice to potentially affected small governments, if any, and for a 
meaningful and timely opportunity to provide input in the development 
of regulatory proposals.
    This rule would not impose a significant cost or uniquely affect 
small governments. The rule does have an effect on the private sector 
of $100 million or more. This impact is discussed under the Executive 
Order 12866 discussion.

F. Paperwork Reduction Act

    The collection of information requirement for passports is 
contained in 22 CFR 51.20 and 51.21. The required information is 
necessary for DOS Passport Services to issue a United States passport 
in the exercise of authorities granted to the Secretary of State in 22 
U.S.C. section 211a et seq. and Executive Order 11295 (August 5, 1966) 
for the issuance of passports to United States citizens and non-citizen 
nationals. The issuance of U.S. passports requires the determination of 
identity and nationality with reference to the provisions of Title III 
of the Immigration and Nationality Act (8 U.S.C. 1401-1504), the 14th 
Amendment to the Constitution of the United States, and other 
applicable treaties and laws. The primary purpose for soliciting the 
information is to establish nationality, identity, and entitlement to 
the issuance of a United States passport or related service and to 
properly administer and enforce the laws pertaining to issuance 
thereof.
    There are currently two OMB-approved application forms for 
passports, the DS-11 Application for a U.S. Passport (OMB Approval No. 
1405-0004) and the DS-82 Application for a U.S. Passport by Mail. First 
time applicants must use the DS-11. The rule would not create any new 
collection of information requiring OMB approval under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507). It would result in an increase 
in the number of persons filing the DS-11, and a corresponding increase 
in the annual reporting and/or record-keeping burden. In conjunction 
with publication of the final rule, DOS

[[Page 68429]]

will amend the OMB form 83I (Paperwork Reduction Act Submission) 
relating to the DS-11 to reflect these increases.
    The collection of information encompassed within this rule has been 
submitted to the OMB for review in accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and 
a person is not required to respond to, a collection of information 
unless the collection of information displays a valid control number 
assigned by OMB. The estimated average burden per respondent is 1 hour 
and 25 minutes. The estimated frequency of responses is once every 10 
years (adult passport application) and once every 5 years (minor 
passport application).
    Comments concerning the accuracy of this burden estimate and 
suggestions for reducing this burden, should be directed to the Office 
of Management and Budget, Attention: Desk Officer of the Department of 
State, Office of Information and Regulatory Affairs, Washington, DC 
20503.

G. Privacy Statement

    A Privacy Impact Assessment (PIA) is being posted to the DHS Web 
site (at http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0511.xml) in conjunction with the publication of this rule in the 
Federal Register. The changes made by this rule involve the removal of 
an exception for United States citizens from having to present a 
passport in connection with Western Hemisphere air travel, such that 
those individuals must now present a passport when traveling by air 
from points of origin both within and without of the Western 
Hemisphere. The rule expands the number of individuals submitting 
passport information for travel within the Western Hemisphere, but does 
not involve the collection of any new data elements. Presently, CBP 
collects and stores passport information from all travelers, required 
to provide such information pursuant to the Aviation and Transportation 
Security Act of 2001 (ATSA) and the Enhanced Border Security and Visa 
Reform Act of 2002 (EBSA), in the Treasury Enforcement Communications 
System (TECS) (a System of Records Notice for which is published at 66 
FR 53029). By removing the exception for submitting passport 
information from United States citizens traveling by air within the 
Western Hemisphere, DOS and CBP are requiring these individuals to 
comply with the general requirement to submit passport information when 
traveling to and from the United States.

List of Subjects

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 235

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

22 CFR Part 41

    Aliens, Nonimmigrants, Passports and visas.

22 CFR Part 53

    Passport requirement and exceptions; parameters for U.S. citizen 
travel and definitions.

Amendment of the Regulations

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

8 CFR PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
1. The authority citation for part 212 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227; 8 U.S.C. 1185 note (section 7209 
of Pub. L. 108-458).


0
2. Section 212.1 is amended by:
0
a. Revising paragraphs (a)(1) and (a)(2); and
0
b. Revising paragraph (c)(1)(i), as follows:


Sec.  212.1  Documentary requirements for nonimmigrants.

* * * * *
    (a) Citizens of Canada or Bermuda, Bahamian nationals or British 
subjects resident in certain islands--(1) Canadian citizens. A visa is 
not required. A passport is not required for Canadian citizens entering 
the United States from within the Western Hemisphere by land or sea, or 
as participants in the NEXUS Air program at a NEXUS Air kiosk pursuant 
to 8 CFR 235.1(e). A passport is otherwise required for Canadian 
citizens arriving in the United States by aircraft.
    (2) Citizens of the British Overseas Territory of Bermuda. A visa 
is not required. A passport is not required for Citizens of the British 
Overseas Territory of Bermuda entering the United States from within 
the Western Hemisphere by land or sea. A passport is required for 
Citizens of the British Overseas Territory of Bermuda arriving in the 
United States by aircraft.
* * * * *
    (c) Mexican nationals. (1) A visa and a passport are not required 
of a Mexican national who:
    (i) Is in possession of a Form DSP-150, B-1/B-2 Visa and Border 
Crossing Card, containing a machine-readable biometric identifier, 
issued by the DOS and is applying for admission as a temporary visitor 
for business or pleasure from a contiguous territory by land or sea.
* * * * *

8 CFR PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
3. The authority citation for part 235 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 
1228, 1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of 
Pub. L. 108-458).

0
4. Section 235.1 is amended by:
0
a. Redesignating current paragraphs (d), (e), and (f) as paragraphs 
(f), (g), and (h); and
0
b. Adding a new paragraphs (d) and (e).
    The additions read as follows:


Sec.  235.1  Scope of examination.

* * * * *
    (d) U.S. Merchant Mariners. United States citizens who are holders 
of a Merchant Mariner Document (MMD or Z-card) issued by the U.S. Coast 
Guard may present, in lieu of a passport, an unexpired MMD used in 
conjunction with maritime business when entering the United States.
    (e) NEXUS Air Program Participants. United States citizens, 
Canadian citizens, and permanent residents of Canada who are traveling 
as participants in the NEXUS Air program, may present, in lieu of a 
passport, a valid NEXUS Air membership card when using a NEXUS Air 
kiosk prior to entering the United States.
* * * * *

22 CFR PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE 
IMMIGRATION AND NATIONALITY ACT, AS AMENDED

0
5. The authority citation for part 41 is revised to read as follows:

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 
through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458).


[[Page 68430]]



0
6. Section 41.1 is amended by revising paragraph (b) to read as 
follows:


Sec.  41.1  Exemption by law or treaty from passport and visa 
requirements.

* * * * *
    (b) American Indians born in Canada. An American Indian born in 
Canada, having at least 50 per centum of blood of the American Indian 
race, entering from contiguous territory by land or sea (sec. 289, 66 
Stat. 234; 8 U.S.C. 1359).
* * * * *

0
7. Section 41.2 is amended by:
0
a. Revising paragraphs (a) and (b);
0
b. Revising paragraph (g)(1);
0
c. Removing paragraphs (g)(2) and (g)(4); and
0
d. Redesignating paragraphs (g)(3) as (g)(2), (g)(5) as (g)(3), and 
(g)(6) as (g)(4).


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

* * * * *
    (a) Canadian nationals. A visa is not required. A passport is not 
required for Canadian citizens entering the United States from within 
the Western Hemisphere by land or sea, or by air as participants in the 
NEXUS Air program pursuant to 8 CFR 235.1(e). A passport is otherwise 
required for Canadian citizens arriving in the United States by 
aircraft.
    (b) Citizens of the British Overseas Territory of Bermuda. A visa 
is not required. A passport is not required for Citizens of the British 
Overseas Territory of Bermuda entering the United States from within 
the Western Hemisphere by land or sea. A passport is required for 
Citizens of the British Overseas Territory of Bermuda arriving in the 
United States by aircraft.
* * * * *
    (g) Mexican nationals. (1) A visa and a passport are not required 
of a Mexican national in possession of a Form DSP-150, B-1/B-2 Visa and 
Border Crossing Card, containing a machine-readable biometric 
identifier, applying for admission as a temporary visitor for business 
or pleasure from a contiguous territory by land or sea.
* * * * *

0
8. Part 53 is revised to read as follows:

22 CFR PART 53--PASSPORT REQUIREMENT AND EXCEPTIONS

Sec.
53.1 Passport requirement; definitions.
53.2 Exceptions.
53.3 Attempt of a citizen to enter without a valid passport.
53.4 Optional use of a valid passport.

    Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 note (section 7209 of 
Pub. L. 108-458); E.O. 13323, 69 FR 241 (Dec. 30, 2003).


Sec.  53.1  Passport requirement; definitions.

    (a) It is unlawful for a citizen of the United States, unless 
excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or 
depart, the United States, without a valid U.S. passport.
    (b) For purposes of this part ``United States'' means ``United 
States'' as defined in section 215(c) of the Immigration and 
Nationality Act of 1952, as amended (8 U.S.C. 1185(c)).


Sec.  53.2  Exceptions.

    A U.S. citizen is not required to bear a valid U.S. passport to 
enter or depart the United States:
    (a) When traveling directly between parts of the United States as 
defined in Sec.  50.1 of this chapter; or
    (b) When entering from or departing to a foreign port or place 
within the Western Hemisphere, excluding Cuba, by land or by sea; or
    (c) When traveling as a member of the Armed Forces of the United 
States on active duty; or
    (d) When traveling as a U.S. citizen seaman, carrying a Merchant 
Marine Document (MMD or Z-card) in conjunction with maritime business. 
The MMD is not sufficient to establish citizenship for purposes of 
issuance of a United States passport under 22 CFR part 51; or
    (e) When traveling as a participant in the NEXUS Air program with a 
valid NEXUS Air membership card. United States citizens who are 
traveling as participants in the NEXUS Air program, may present, in 
lieu of a passport, a valid NEXUS Air membership card when using a 
NEXUS Air kiosk prior to entering the United States. The NEXUS Air card 
is not sufficient to establish citizenship for purposes of issuance of 
a U.S. passport under 22 CFR part 51; or
    (f) When the U.S. citizen bears another document, or combination of 
documents, that the Secretary of Homeland Security has determined under 
Section 7209(b) of Pub. L. 108-458 (8 U.S.C. 1185 note) to be 
sufficient to denote identity and citizenship; or
    (g) When the U.S. citizen is employed directly or indirectly on the 
construction, operation, or maintenance of works undertaken in 
accordance with the treaty concluded on February 3, 1944, between the 
United States and Mexico regarding the functions of the International 
Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 
1219, or other related agreements provided that the U.S. citizen bears 
an official identification card issued by the IBWC; or
    (h) When the Department of State waives, pursuant to EO 13323 of 
December 30, 2003, Sec 2, the requirement with respect to the U.S. 
citizen because there is an unforeseen emergency; or
    (i) When the Department of State waives, pursuant to EO 13323 of 
December 30, 2003, Sec 2, the requirement with respect to the U.S. 
citizen for humanitarian or national interest reasons.


Sec.  53.3  Attempt of a citizen to enter without a valid passport.

    The appropriate officer at the port of entry shall report to the 
Department of State any citizen of the United States who attempts to 
enter the United States contrary to the provisions of this part, so 
that the Department of State may apply the waiver provisions of Sec.  
53.2(h) and Sec.  53.2(i) to such citizen, if appropriate.


Sec.  53.4  Optional use of a valid passport.

    Nothing in this part shall be construed to prevent a citizen from 
using a valid U.S. passport in a case in which that passport is not 
required by this part 53, provided such travel is not otherwise 
prohibited.

    Dated: November 17, 2006.
Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.
    Dated: November 17, 2006.
Henrietta H. Fore,
Under Secretary for Management, Department of State.
[FR Doc. 06-9402 Filed 11-22-06; 8:45 am]
BILLING CODE 9111-14-P