[Federal Register Volume 72, Number 122 (Tuesday, June 26, 2007)]
[Proposed Rules]
[Pages 35088-35116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3104]



[[Page 35087]]

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Part II





Department of Homeland Security





8 CFR Parts 212 and 235





Department of State

22 CFR Parts 41 and 53



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

  Federal Register / Vol. 72, No. 122 / Tuesday, June 26, 2007 / 
Proposed Rules  

[[Page 35088]]


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DEPARTMENT OF HOMELAND SECURITY

[USCBP-2007-0061]
RIN 1651-AA69

8 CFR Parts 212 and 235

DEPARTMENT OF STATE

22 CFR Parts 41 and 53


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

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Intelligence Reform and Terrorism Prevention Act of 2004 
(IRTPA), as amended, provides that upon full implementation, U.S. 
citizens and certain classes of nonimmigrant aliens may enter the 
United States only with passports or such alternative documents as the 
Secretary of Homeland Security designates as satisfactorily 
establishing identity and citizenship. This notice of proposed 
rulemaking (NPRM) is the second phase of a joint Department of Homeland 
Security (DHS) and Department of State (DOS) plan, known as the Western 
Hemisphere Travel Initiative, to implement these new requirements. This 
NPRM proposes the specific documents that, as early as January 2008, 
and no sooner than 60 days from publication of the final rule, U.S. 
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico will 
be required to present when entering the United States at sea and land 
ports-of-entry from Western Hemisphere countries.

DATES: Written comments must be submitted on or before August 27, 2007.

ADDRESSES: Comments, identified by docket number USCBP-2007-0061, may 
be submitted by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Comments by mail are to be addressed to U.S. Customs 
and Border Protection, Office of International Trade, Office of 
Regulations and Rulings, Border Security Regulations Branch, 1300 
Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. Submitted 
comments by mail may be inspected at the U.S. Customs and Border 
Protection at 799 9th Street, NW., Washington, DC. To inspect comments, 
please call (202) 572-8768 to arrange for an appointment.
    Instructions: All submissions regarding the proposed rule and 
regulatory assessment must include the agency name and docket number 
USCBP-2007-0061. All comments will be posted without change to http://www.regulations.gov, including any personal information sent with each 
comment. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: For access to the docket to read background documents or 
submitted comments, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: 
Department of Homeland Security: Colleen Manaher, WHTI, Office of Field 
Operations, U.S. Customs and Border Protection, 1300 Pennsylvania 
Avenue, NW., Washington, DC 20229, telephone number (202) 344-3003.
Department of State: Consuelo Pachon, Office of Passport Policy, 
Planning and Advisory Services, Bureau of Consular Affairs, telephone 
number (202) 663-2662.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background
    A. Current Document Requirements for U.S. Citizens Arriving by 
Sea or Land
    B. Current Document Requirements for Nonimmigrant Aliens 
Arriving by Sea or Land
    1. Canadian Citizens and Citizens of the British Overseas 
Territory of Bermuda
    2. Mexican Nationals
    C. Statutory and Regulatory History
    1. Intelligence Reform and Terrorism Prevention Act of 2004
    2. Advance Notice of Proposed Rulemaking
    3. Rules for Air Travel from within the Western Hemisphere
    4. Amendment to Section 7209 of IRTPA
    5. Passport Card NPRM
    6. Certifications to Congress
III. Security and Operational Considerations at the U.S. Border
IV. Proposed WHTI Document Requirements for U.S. Citizens and 
Nonimmigrant Aliens
    A. U.S. Citizens Arriving by Sea or Land
    1. Passport Book
    2. Passport Card
    3. Trusted Traveler Program Documents
    a. NEXUS Program
    b. FAST Program
    c. SENTRI Program
    4. Merchant Mariner Document (MMD)
    5. United States Military Identification
    B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or 
Land
    1. Canadians
    2. Bermudians
    C. Mexican Nationals Arriving by Sea or Land
    1. Border Crossing Card (BCC)
    2. Trusted Traveler Program Use
    3. Elimination of Passport Waiver to Obtain Documents at Mexican 
Consulate in United States
    D. Other Approved Documents
    E. Timing of Changes and Effective Date for Final Rule
    1. Satisfactory Evidence of Citizenship
    2. Implementation and Effective Date of Final Rule
V. Special Rules for Specific Groups of Travelers Permitted to 
Present Other Documents
    A. U.S. Citizen Cruise Ship Passengers
    B. U.S. and Canadian Citizen Children
    1. Children Under Age 16
    2. Children in Groups Under Age 19
    3. Alternative Approach for Children; Parental Consent
    C. Lawful Permanent Residents
    D. Alien Members of the U.S. Armed Forces
    E. Members of NATO Armed Forces
    F. American Indian Card Holders From Kickapoo Band of Texas and 
Tribe of Oklahoma
    G. Members of United States Native American Tribes
    1. Proposed Acceptance of Satisfactory Tribal Enrollment 
Documents at Traditional Border Crossing Points for Tribes Who 
Continue Traditional Land Border Crossings
    2. Possible Alternative Treatment of United States Native 
Americans
    H. Canadian Indians
    I. Sea Travel From Territories Subject to the Jurisdiction of 
the United States
    J. Outer Continental Shelf Employees
    K. International Boundary and Water Commission Employees
    L. Individual Cases of Passport Waivers
    M. Summary of Document Requirements
VI. Section-By-Section Discussion of Proposed Amendments
VII. Regulatory Analyses
    A. Executive Order 12866: Regulatory Planning and Review
    B. Regulatory Flexibility Act
    C. Executive Order 13132: Federalism
    D. Unfunded Mandates Reform Act Assessment
    E. National Environmental Policy Act of 1969
    F. Paperwork Reduction Act
    G. Privacy Statement
List of Subjects

Abbreviations and Terms Used in This Document

ANPRM--Advance Notice of Proposed Rulemaking
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--U.S. Customs and Border Protection
CBSA--Canadian Border Services Agency
DHS--Department of Homeland Security
DOS--Department of State
FAST--Free and Secure Trade

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FBI--Federal Bureau of Investigation
IBWC--International Boundary and Water Commission
INA--Immigration and Nationality Act
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
MMD--Merchant Mariner Document
MODU--Mobile Offshore Drilling Unit
MRZ--Machine Readable Zone
NATO--North Atlantic Treaty Organization
NEPA--National Environmental Policy Act of 1969
NPRM--Notice of Proposed Rulemaking
OARS--Outlying Area Reporting System
OCS--Outer Continental Shelf
PEA--Programmatic Environmental Assessment
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
TBKA--Texas Band of Kickapoo Act
UMRA--Unfunded Mandates Reform Act
USCIS--U.S. Citizenship and Immigration Services
US--VISIT-United States Visitor and Immigrant Status Indicator 
Technology Program
WHTI--Western Hemisphere Travel Initiative

I. Public Partication

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. DHS and DOS also invite comments that relate to the 
economic effects or the federalism implications that might result from 
this proposed rule. Comments that will provide the most assistance to 
DHS and DOS in developing these procedures will reference a specific 
portion of the proposed rule, explain the reason for any recommended 
change, and include data, information, or authority that support such 
recommended change.
    This notice includes proposed regulatory text that represents the 
initial preference of DHS and DOS unless otherwise identified, but the 
Departments also seek comment on proposals and ideas discussed in the 
preamble, but not contained in the regulatory text because the 
Departments are interested in comments on these alternative approaches 
and may include these alternatives in the final rule. See ADDRESSES 
above for information on how to submit comments.

II. Background

    The current document requirements for travelers entering the United 
States by sea or land 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.\1\ The following is an 
overview of the current document requirements for citizens of the 
United States, Canada, British Overseas Territory of Bermuda, and 
Mexico who enter the United States at sea or land ports-of-entry. The 
requirements discussed in this section are the subject of proposed 
changes under this NPRM.
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    \1\ For purposes of this proposed rule, the Western Hemisphere 
is understood to be North, South or Central America, and associated 
islands and waters. Adjacent islands are understood to mean Bermuda 
and the islands located in the Caribbean Sea, except Cuba.
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A. Current Document Requirements for U.S. Citizens Arriving by Sea or 
Land

    In general, under Federal law it is ``unlawful for any citizen of 
the United States to depart from or enter * * * the United States 
unless he bears a valid United States passport.'' \2\ However, the 
statutory passport requirement has been waived in the past for U.S. 
citizens traveling between the United States and locations within the 
Western Hemisphere by land or sea, other than from Cuba.\3\ Currently, 
a U.S. citizen entering the United States by land or sea from within 
the Western Hemisphere is inspected by a Customs and Border Protection 
(CBP) Officer. To enter the United States in conformance with the 
Immigration and Nationality Act (INA), these U.S. citizens must satisfy 
the CBP Officer of their citizenship.\4\ In addition to assessing the 
verbal declaration and examining whatever documentation a traveler may 
present initially, the CBP Officer may ask for additional 
identification and proof of citizenship until such time as the CBP 
Officer is satisfied that the traveler seeking entry into the United 
States is a U.S. citizen.
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    \2\ See section 215(b) of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1185(b).
    \3\ See 22 CFR 53.2(b), which waives the passport requirement 
pursuant to section 215(b) of the INA, 8 U.S.C. 1185(b).
    \4\ See 8 CFR 235.1(b).
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    U.S. citizens arriving at sea or land ports-of-entry from within 
the Western Hemisphere, other than Cuba, can currently present to CBP 
Officers a wide variety of documents to establish their right to enter 
the United States. A driver's license issued by a state motor vehicle 
administration or other competent state government authority is the 
most common form of identity document now provided to CBP at the border 
even though such documents do not denote citizenship. Documents 
currently used at these ports-of-entry also include birth certificates 
issued by a U.S. jurisdiction, Consular Reports of Birth Abroad, 
Certificates of Naturalization, and Certificates of Citizenship.

B. Current Document Requirements for Nonimmigrant Aliens Arriving by 
Sea or Land

    Currently, each nonimmigrant alien arriving in the United States 
must present to the CBP Officer at the port-of-entry a valid passport 
issued by his or her country of citizenship and a valid visa issued by 
a U.S. embassy or consulate abroad, unless one or both requirements 
have been waived.\5\ Nonimmigrant aliens applying for entry to the 
United States must also satisfy any other applicable entry requirements 
(e.g., U.S. Visitor and Immigrant Status Indicator Technology Program 
(US-VISIT)) and overcome all grounds of inadmissibility before being 
admitted to the United States. For nonimmigrant aliens arriving in the 
United States at sea or land ports-of-entry, the only current waiver to 
the passport requirement applies to (1) Citizens of Canada and Bermuda 
arriving from within the Western Hemisphere, and (2) Mexican nationals 
with a Border Crossing Card (BCC) arriving from a contiguous 
territory.\6\
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    \5\ See section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 
1182(a)(7)(B)(i).
    \6\ Mexican nationals arriving in the United States who possess 
a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) may be 
admitted without presenting a valid passport when coming from 
contiguous territory. See 8 CFR 212.1(c)(1).
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1. Canadian Citizens and Citizens of the British Overseas Territory of 
Bermuda
    In most cases, Canadian citizens and citizens of the British 
Overseas Territory of Bermuda (Bermuda) are not currently required to 
present a passport and visa \7\ when entering the United States by sea 
or land as nonimmigrant visitors from countries in the Western 
Hemisphere. These travelers must nevertheless satisfy the inspecting 
CBP Officer of their identity, citizenship, and admissibility at the 
time of their application for admission. The applicant may present any 
proof of citizenship in his or her possession. An individual who 
initially fails to satisfy the inspecting CBP Officer that he or she is 
a Canadian or Bermudian citizen may then be required by CBP to provide 
further identification and proof of citizenship such as a birth 
certificate, passport, or citizenship card.
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    \7\ See 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR 
212.1(a)(2) (Citizens of Bermuda). See also 22 CFR 41.2.
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2. Mexican Nationals
    Mexican nationals arriving in the United States are generally 
required to present a passport and visa when applying for entry to the 
United States. However, Mexican nationals who

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possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) 
currently may be admitted at sea and land ports-of-entry without 
presenting a passport when arriving in the United States from 
contiguous territory.\8\ A BCC is a machine-readable, biometric card, 
issued by the U.S. Department of State, Bureau of Consular Affairs.
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    \8\ See 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g). Mexican 
BCC holders traveling for less than 72 hours 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, do not need to obtain a form I-94. If 
they travel outside of that geographic area and/or period of time, 
they must obtain an I-94 from CBP at the port-of-entry. 8 CFR 
235.1(h)(1).
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C. Statutory and Regulatory History

    This NPRM is the second phase of a joint DHS and DOS plan, known as 
the Western Hemisphere Travel Initiative (WHTI), to implement section 
7209 of the Intelligence Reform and Terrorism Prevention Act of 2004, 
as amended (hereinafter IRTPA).\9\ A brief discussion of IRTPA and 
related regulatory efforts follows.
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    \9\ Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17, 2004).
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1. Intelligence Reform and Terrorism Prevention Act of 2004
    Section 7209 of IRTPA requires that the Secretary of Homeland 
Security, in consultation with the Secretary of State, develop and 
implement a plan to require travelers entering the United States to 
present a passport, other document, or combination of documents, that 
are ``deemed by the Secretary of Homeland Security to be sufficient to 
denote identity and citizenship.'' Section 7209 expressly provides that 
U.S. citizens and nationals for whom documentation requirements have 
previously been waived on the basis of reciprocity under section 
212(d)(4)(B) of the INA (8 U.S.C 1182(d)(4)(B)) (i.e., citizens of 
Canada, Mexico, and Bermuda) will be required to comply.\10\
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    \10\ Section 7209 does not apply to Lawful Permanent Residents, 
who will continue to be able to enter the United States upon 
presentation of a valid Form I-551, Permanent Resident Card, or 
other valid evidence of permanent resident status. See section 
211(b) of the INA, 8 U.S.C. 1181(b). It also does not apply to alien 
members of the United States Armed Forces traveling under official 
orders who present military identification. See section 284 of the 
INA, 8 U.S.C. 1354. Additionally, section 7209 does not apply to 
nonimmigrant aliens from anywhere other than Canada, Mexico, or 
Bermuda. See section 212(d)(4)(B) of the INA, 8 U.S.C 1182(d)(4)(B). 
Such nonimmigrant aliens are currently required to show a passport 
for admission into the United States.
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    Section 7209 limits the President's authority \11\ to waive 
generally applicable documentation requirements after the complete 
implementation of the plan required by IRTPA. With respect to non-
immigrant aliens currently granted a passport waiver under section 
212(d)(4)(B) of the INA (i.e., nationals of contiguous territory or 
adjacent islands), the President may not waive the document requirement 
imposed by IRTPA. With respect to U.S. citizens, once WHTI is 
completely implemented, the President may waive the new documentation 
requirements for departing or entering the United States only in three 
specific circumstances: (1) When the Secretary of Homeland Security 
determines that ``alternative documentation'' that is the basis of the 
waiver is sufficient to denote identity and citizenship; (2) in an 
individual case of an unforeseen emergency; or (3) in an individual 
case based on ``humanitarian or national interest reasons.'' \12\
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    \11\ See section 212(d)(4)(B) of the INA, 8 U.S.C. 
1182(d)(4)(B), and section 215(b) of the INA, 8 U.S.C. 1185(b) 
(delegated to the Secretaries of State and Homeland Security under 
Executive Order 13323, 69 FR 241 (Dec. 30, 2003)).
    \12\ See section 7209(c)(2) of IRTPA.
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    Accordingly, U.S. citizens and those nonimmigrant aliens who 
currently are not required to present passports, pursuant to sections 
215(b) and 212(d)(4)(B) of the INA respectively, will be required to 
present a passport or other acceptable document that establishes 
identity and citizenship deemed sufficient by the Secretary of Homeland 
Security when entering the United States from any location, including 
from countries within the Western Hemisphere. The principal groups 
affected by this provision of IRPTA are citizens of the United States, 
Canada, and Bermuda entering the United States from within the Western 
Hemisphere and Mexican nationals in possession of a BCC entering the 
United States from contiguous territory.\13\
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    \13\ These groups of individuals are currently exempt from the 
general passport requirement when entering the United States. See 8 
CFR 212.1(a)(1) (Canadian citizens), 8 CFR 212.1(c)(1)(i) (Mexican 
citizens), and 8 CFR 212.1(a)(2) (Bermudian citizens).
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2. Advance Notice of Proposed Rulemaking
    On September 1, 2005, DHS and DOS published in the Federal Register 
an advance notice of proposed rulemaking (ANPRM), at 70 FR 52037, 
announcing a joint DHS and DOS plan to amend their respective 
regulations to implement section 7209 of IRTPA. The ANPRM announced 
that DHS and DOS anticipated implementing the documentation 
requirements of section 7209 in two stages. The first stage would have 
affected those travelers entering the United States by air and sea from 
within the Western Hemisphere and the second stage would have addressed 
travelers arriving by land. The two-stage approach was intended to 
ensure an orderly transition, provide affected persons with adequate 
notice to obtain necessary documents, and ensure that adequate 
resources were available to issue additional passports or other 
authorized documents.
    In the ANPRM, DHS and DOS sought public comment to assist the 
Secretary of Homeland Security to make a final determination of which 
documents or combination of documents other than passports would be 
accepted at ports-of-entry to satisfy section 7209. DHS and DOS also 
solicited public comments regarding the economic impact of implementing 
section 7209, the costs anticipated to be incurred by U.S. citizens and 
others as a result of new document requirements, potential benefits of 
the rulemaking, alternative methods of complying with the legislation, 
and the proposed stages for implementation. In addition to receiving 
written comments, DHS and DOS representatives attended listening 
sessions and town hall meetings across the country and met with 
community leaders and stakeholders to discuss the initiative.
    DHS and DOS received 2,062 written comments in response to the 
ANPRM. Comments were received from a wide range of U.S. and Canadian 
sources including: Private citizens; businesses and associations; 
local, State, Federal, and tribal governments; and members of the U.S. 
Congress and Canadian Parliament. The majority of the comments (1,910) 
addressed potential changes to the documentation requirements at land 
border ports-of-entry. One hundred and fifty-two (152) comments 
addressed changes to the documentation requirements for persons 
arriving at air or sea ports-of-entry. The comments related to air 
travel were addressed separately in the air final rule, which is 
discussed below.\14\ Complete responses to the comments from the ANPRM 
related to sea and land arrivals will be presented in the final WHTI 
sea and land rule.
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    \14\ See 71 FR 68412 (Nov. 24, 2006).
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3. Rules for Air Travel From Within the Western Hemisphere
    On August 11, 2006, DHS and DOS published an NPRM for air and sea 
arrivals. The NPRM proposed that, subject to certain narrow exceptions, 
beginning January 2007, all U.S. citizens and nonimmigrant aliens, 
including those from Canada, Bermuda, and

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Mexico, entering the United States by air and sea would be required to 
present a valid passport, NEXUS Air card, or Merchant Mariner Document 
(MMD). The NPRM provided that the requirements would not apply to 
members of the United States Armed Forces. For a detailed discussion of 
what was proposed for air and sea arrivals, please see the NPRM at 71 
FR 41655.
    Based on the DOS proposal to allow use of a passport card in the 
sea environment discussed below, Congressional intent with respect to 
land and sea travel also discussed below, and the public comments, DHS 
and DOS deferred until this rulemaking decision on the document 
requirements for arrivals by sea. Complete responses to the comments 
relating to sea travel that were submitted in response to the air and 
sea NPRM will be presented in the final sea and land rule.
    The final rule for travelers entering or departing the United 
States at air ports-of-entry (Air Rule) was published in the Federal 
Register on November 24, 2006. Beginning January 23, 2007,\15\ U.S. 
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico 
entering and departing the United States at air ports-of-entry from 
within the Western Hemisphere are generally required to present a valid 
passport. The main exceptions to this requirement are for U.S. citizens 
who present a valid, unexpired Merchant Mariner Document traveling in 
conjunction with maritime business and U.S. and Canadian citizens who 
present a NEXUS Air card for use at a NEXUS Air kiosk.\16\ The Air Rule 
made no changes to the requirements for members of the United States 
Armed Forces. Please see the Air Rule at 71 FR 68412 for a full 
discussion of the air requirements.
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    \15\ DHS and DOS determined that delaying the effective date of 
the Air Rule to January 23, 2007, was appropriate for air travel 
because of operational considerations and available resources. See 
id.
    \16\ Under the Air Rule, Lawful Permanent Residents of the 
United States continue to need to carry their I-551 cards, and 
permanent residents of Canada continue to be required to present a 
passport and a visa, if necessary, as they did before the rule came 
into effect.
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4. Amendment to Section 7209 of IRTPA
    On October 4, 2006, the President signed into law the Department of 
Homeland Security Appropriations Act of 2007 (DHS Appropriations Act of 
2007).\17\ Section 546 of the DHS Appropriations Act of 2007 amended 
section 7209 of IRTPA by stressing the need for DHS and DOS to 
expeditiously implement the WHTI requirements no later than the earlier 
of two dates, June 1, 2009, or three months after the Secretaries of 
Homeland Security and State certify that certain criteria have been 
met. The section requires ``expeditious[]'' action and states that 
requirements must be satisfied by the ``earlier'' of the dates 
identified. By using this language, the drafters expressed an intention 
for rapid action.\18\ Congress also expressed an interest in having the 
requirements for sea and land implemented at the same time and having 
alternative procedures for groups of children traveling under adult 
supervision.\19\
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    \17\ Pub. L. 109-295, 120 Stat. 1355 (Oct. 4, 2006).
    \18\ Id. at 546. See Congressional Record, 109th Cong., 2nd 
Sess., September 29, 2006 at H7964.
    \19\ Id.
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5. Passport Card NPRM
    On October 17, 2006, to meet the documentary requirements of WHTI 
and to facilitate the frequent travel of persons living in border 
communities, DOS, in consultation with DHS, proposed to develop a card-
format passport for international travel by United States citizens 
through land and sea ports of entry between the United States, Canada, 
Mexico, or the Caribbean and Bermuda.\20\
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    \20\ 71 FR 60928.
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    The passport card would contain security features similar to the 
traditional passport book. The passport card would be particularly 
useful for citizens in border communities who regularly cross the 
border and would be considerably less expensive than a traditional 
passport. DOS anticipates the validity period for the passport card to 
be the same as for the traditional passport--ten years for adults and 
five years for minors under age 16. Please see the Passport Card NPRM 
at 71 FR 60298, for a full discussion of the background and details of 
the proposed passport card. DOS will issue a final rule prior to making 
passport cards available to the public.
6. Certifications to Congress
    In Section 546 of the DHS Appropriations Act of 2007, Congress 
called for DHS and DOS to make certain certifications before completing 
the implementation of the WHTI plan. The Departments have been working 
toward making these certifications since October 2006 and have made 
great progress in meeting them. The Departments are instructed to 
certify to:
    1. NIST Certification. National Institute of Standards and 
Technology (``NIST'') certification concerning security standards and 
best practices for protection of personal identification documents.
    On May 1, 2007, NIST certified that the proposed card architecture 
of the passport card meets or exceeds the relevant standard and best 
practices, as specified in the statute.
    2. Technology Sharing. Certify that passport card technology has 
been shared with Canada and Mexico.
    DHS and DOS have been sharing information and meeting regularly 
with both Mexican and Canadian officials, including the decision to 
select RFID technology for the passport card.
    3. Postal Service Fee Agreement. Certify that an agreement has been 
reached and reported to Congress on the fee collected by the U.S. 
Postal Service for acceptance agent services.
    DOS is working with the Postal Service to memorialize their 
agreement including the proposed new fees to be set by DOS so that the 
appropriate certification can be made and the detailed justification 
submitted.
    4. Groups of Children. Certify that an alternative procedure has 
been developed for border crossings by groups of children.
    This NPRM contains an alternative procedure for groups of children 
traveling across an international border under adult supervision with 
parental consent.
    5. Infrastructure. Certify that the necessary passport card 
infrastructure has been installed and employees have been trained.
    DHS anticipates using existing equipment along with the deployment 
of new technology. CBP has technology currently in place at all ports-
of-entry to read any travel document with a machine-readable zone, 
including passports and the new passport card. All CBP Officers at 
ports-of-entry are currently trained in the use of this technology. 
Depending upon the results of our environmental analysis, CBP will 
deploy an integrated RFID technical infrastructure to support advanced 
identity verification in incremental deployment phases. RFID technology 
training plans and requirements are currently being developed with 
initial training to be completed by November 2007.
    6. Passport Card Issuance. Certify that the passport card is 
available to U.S. citizens.
    DOS has developed an ambitious and aggressive schedule to develop 
the passport card and is making progress toward that goal. The Request 
for Procurement (RFP) to potential contractors was issued on May 25, 
2007. DOS expects to begin testing product samples in the summer. In 
accordance

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with testing requirements established in the certification by NIST, DOS 
will conduct the full range of security, durability and privacy tests 
on the passport card and protective sleeve to ensure that a high-
quality, secure card is issued to the American public. DOS is planning 
to issue a final rule in the near future.
    7. Common Land and Sea Implementation. Certify to one 
implementation date.
    This NPRM sets forth one implementation date for land and sea 
travel.
    The Departments have worked very closely to update the appropriate 
congressional committees on the status of these certifications and will 
continue to do so until final certifications are made. DOS and DHS 
believe that these certifications will be made well in advance of the 
June 1, 2009 deadline for implementation.
    DOS and DHS are planning to conduct a robust public outreach 
program to the traveling public, which will include a more targeted 
effort in border communities.
    We anticipate that RFID infrastructure will be rolled out to cover 
the top 39 ports-of-entry (in terms of number of travelers) through 
which 95 percent of the land traffic enters the United States. The 
remaining land and all sea ports-of-entry would utilize existing 
machine-readable zone technology to read the travel documents. Machine-
readable zone technology is currently in place in all air, sea, and 
land ports-of-entry.

III. Security and Operational Considerations at the U.S. Border

    WHTI will reduce vulnerabilities identified in the final report of 
the National Commission on Terrorist Attacks Upon the United States, 
also known as the 9/11 Commission. WHTI is intended not only to enhance 
security efforts at the borders, but is also intended to expedite the 
movement of legitimate travel within the Western Hemisphere.
    The land border, in particular, presents complex operational 
challenges, in that a tremendous amount of traffic must be processed in 
a short amount of time. For example, there are often several passengers 
in a vehicle, and multiple vehicles arriving at one time at each land 
border port-of-entry. Many of the people encountered crossing at the 
land border ports-of-entry are repeat crossers, who travel back and 
forth across the border numerous times a day.
    The historical absence of standard travel document requirements for 
the travel of Canadian and U.S. citizens across our northern and 
southern borders has resulted in the current situation, where a 
multiplicity of documents can be presented at ports-of-entry by 
Canadian and U.S. travelers. As a result, those individuals who seek to 
enter the United States or Canada illegally or who pose a potential 
threat could falsely declare themselves as U.S. or Canadian citizens. 
They can do this through several methods: presenting fraudulent 
documents that cannot be validated; presenting facially valid 
documentation that cannot be validated against the identity of the 
holder \21\; assuming the identity of the legitimate authentic document 
holder; or undocumented false claims. These same vulnerabilities exist 
for individuals purporting to be U.S. citizens crossing back and forth 
across the southern border with Mexico.
---------------------------------------------------------------------------

    \21\ This refers to individuals who obtain valid documents 
through malfeasance. In such cases, the individual uses fraudulently 
obtained source/feeder documents to impersonate the U.S. or Canadian 
citizen in order to obtain the new document (i.e., identity theft).
---------------------------------------------------------------------------

    U.S. travel document requirements for Mexican nationals already 
addressed most of these vulnerabilities prior to the passage of the 
IRTPA. Generally, Mexican nationals are required to present either a 
Mexican passport with a visa or a biometric BCC \22\ when entering the 
United States. Mexican nationals can also apply for membership in DHS 
Trusted Traveler Programs such as FAST and SENTRI.\23\
---------------------------------------------------------------------------

    \22\ Development of the biometric BCC was a joint effort of DOS 
and U.S. Citizenship and Immigration Services (USCIS) to comply with 
Section 104 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRIA) Pub. L. 104-208, Div. C, 110 
Stat. 3009-546.
    \23\ Additionally, Mexican nationals who temporarily reside 
lawfully in Canada or the United States during the term of the NEXUS 
membership and pass an Interpol criminal history check may also be 
eligible to participate in NEXUS.
---------------------------------------------------------------------------

    The current documents presented by U.S., Canadian, and Bermudian 
citizens arriving from within the Western Hemisphere vary widely in 
terms of the security and reliability as evidence of identity, status, 
and nationality. This variety poses challenges for accurate identity 
and admissibility determinations by border officials and has been 
identified as a security vulnerability for cross-border travel between 
these countries. It is recognized that national passports of Canada, 
Mexico, Bermuda (whether Bermudian or British passports) and the United 
States do currently, and will continue to, provide reliable evidence of 
identity and nationality for the purposes of cross-border travel.
    Standardizing documentation requirements for travelers entering the 
United States in the land border environment would enhance our national 
security and secure and facilitate the entry process into the United 
States. Limiting the number of acceptable, secure documents would allow 
border security officials to quickly, efficiently, accurately, and 
reliably review documentation, identify persons of concern to national 
security, and determine eligibility for entry of legitimate travelers 
without disrupting the critically important movement of people and 
goods across our land borders. Standardizing travel documents for 
citizens of the United States, Canada, Bermuda, and Mexico entering the 
United States in the land border environment would also reduce 
confusion for the travel industry and make the entry process more 
efficient for CBP officers and the public alike.
    Originally, DHS and DOS proposed to implement new documentation 
requirements for those travelers by air and most sea travel in the 
first phase of the WHTI plan. However, for the reasons described above, 
the Departments decided to delay new requirements for sea travel until 
the passport card would be available for use in the sea environment. 
The Departments also believed it would be less confusing to the public 
if sea and land requirements, both of which would accept the passport 
card, were implemented at the same time. Thus, documentation 
requirements for sea travelers were deferred to this rulemaking.\24\
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    \24\ Please see the Air Rule for a full discussion of the 
reasons that the sea regulations were deferred, at 71 FR 68412.
---------------------------------------------------------------------------

IV. Proposed WHTI Document Requirements for U.S. Citizens and 
Nonimmigrant Aliens

    This NPRM proposes new documentation requirements for U.S. citizens 
and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the 
United States by land from Canada and Mexico, or by sea \25\ from 
within the Western Hemisphere. A discussion of the proposed 
requirements for most U.S. citizens, Canadians, Bermudians, and Mexican 
nationals follows in Section IV. In Section V., we explain the special 
circumstances under which specific groups or persons may present other 
documents for entry into the United States by sea or land, such as U.S. 
and Canadian citizen children and U.S. citizens traveling on cruise 
ships.
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    \25\ In some circumstances under this rule, it is important to 
distinguish between types of sea travel. Those circumstances are so 
noted in the discussion of the proposed requirements.

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[[Page 35093]]

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

    Under this proposed rule, most U.S. citizens entering the United 
States at all sea or land ports-of-entry would be required to have 
either (1) A U.S. passport; (2) a U.S. passport card; (3) a trusted 
traveler card (NEXUS, FAST, or SENTRI); \26\ (4) a valid MMD when 
traveling in conjunction with official maritime business; or (5) a 
valid U.S. Military identification card when traveling on official 
orders or permit.
---------------------------------------------------------------------------

    \26\ Currently, U.S. citizens can show a NEXUS, SENTRI, or FAST 
card for entry into the United States only at dedicated lanes at 
designated land border ports-of-entry.
---------------------------------------------------------------------------

1. Passport Book
    U.S. passports are internationally recognized, secure documents 
that demonstrate the individual's identity and citizenship and continue 
to be specifically authorized for all border-crossing purposes. 
Traditional U.S. passport books contain security features including 
digitized photographs, embossed seals, watermarks, ultraviolet and 
fluorescent light verification features, security laminations, micro-
printing, holograms, and pages for visas and stamps.
    U.S. electronic passports or e-passports, which DOS has issued to 
the public since August 2006, are the same as traditional passports 
with the addition of a small contactless integrated circuit (computer 
chip) embedded in the back cover. The chip securely stores the same 
data visually displayed on the photo page of the passport, and will 
additionally include a digital photograph. The inclusion of the digital 
photograph will enable biometric comparison, through the use of facial 
recognition technology at international borders. The U.S. ``e-
passport'' incorporates additional anti-fraud and security 
features.\27\
---------------------------------------------------------------------------

    \27\ More information about e-passports is available at http://www.state.gov. See also, 70 FR 61553 (Oct. 25, 2005)(final rule for 
e-passports).
---------------------------------------------------------------------------

2. Passport Card
    DOS published an NPRM announcing the development and issuance of a 
card-format passport on October 17, 2006 (71 FR 60928), which would be 
a secure citizenship and identity document that carries most of the 
rights and privileges of a traditional U.S. passport, but with validity 
limited to international travel by land and sea between the United 
States and Canada, Mexico, the Caribbean or Bermuda.
    The passport card would contain security features similar to the 
passport book, would be issued by DOS, would contain biographical 
information about the holder, and would be readily authenticated and 
validated at the border. The passport card will contain a radio 
frequency identification (RFID) chip, which will link the card, via a 
manufacturer-generated reference number, to a stored record in secure 
government databases. Unlike the e-passport, which contains personal 
data on the RFID chip, there will be no personal information stored on 
the passport card's RFID chip. The passport card would be particularly 
useful for citizens in border communities who cross the land border 
every day. The passport card would satisfy the definition of a 
passport, and, therefore, it would be specifically authorized in 
section 7209 of IRTPA.
3. Trusted Traveler Program Documents
    Under the proposed rule, U.S. citizens would be permitted to 
present cards issued for certain DHS Trusted Traveler Programs, such as 
NEXUS, Free and Secure Trade (FAST), and Secure Electronic Network for 
Travelers Rapid Inspection (SENTRI), at all lanes at all land and sea 
ports-of-entry when traveling from contiguous territory or adjacent 
islands.
    These trusted traveler cards contain numerous security features, 
are issued by either U.S. or Canadian border security agencies, contain 
biographical information about the holder, and are readily 
authenticated and validated at the border. These programs are 
implemented in partnership with the Governments of Canada and Mexico, 
and many citizens of these countries participate in the programs.
    Under the proposed rule, U.S. citizens who arrive by pleasure 
vessel \28\ from contiguous territory would be permitted to show the 
trusted traveler cards, among other documents, at all ports of entry. 
Additionally, U.S. citizens who have been pre-screened as part of the 
NEXUS or Canadian Border Boat Landing Program who arrive by pleasure 
vessel from Canada would be permitted to report their arrival by 
telephone or by remote video inspection, respectively.
---------------------------------------------------------------------------

    \28\ For purposes of this rule, a pleasure vessel is a vessel 
that is used exclusively for recreational or personal purposes and 
not to transport passengers or property for hire.
---------------------------------------------------------------------------

    U.S. citizens who arrive by pleasure vessel from Canada would be 
permitted to show the NEXUS card in lieu of a passport or passport card 
along the northern border under the auspices of the remote inspection 
system for pleasure vessels, such as the Outlying Area Reporting System 
(OARS). Currently, as NEXUS members, U.S. citizen recreational boaters 
can report their arrival to CBP by telephone. Otherwise, these pleasure 
vessel travelers would be required to report in person to a port-of-
entry in order to enter the United States.\29\
---------------------------------------------------------------------------

    \29\ See 8 CFR 235.1(g). U.S. citizen holders of a Canadian 
Border Boat Landing Permit (Form I-68) would be required to possess 
a passport, passport card, or other document specified in this NPRM 
when arriving in the United States in combination with the Form I-68 
and would be required to show this documentation when applying for 
or renewing the Form I-68. Participants would continue to benefit 
from entering the United States from time to time without having to 
wait for a physical inspection, subject to the applicable 
regulations. More information on the Canadian Border Boat Landing 
Program (I-68 Permit Program) is available on the CBP Web site at 
http://www.cbp.gov.
---------------------------------------------------------------------------

a. NEXUS Program
    The NEXUS program is implemented by CBP and the Canadian Border 
Services Agency (CBSA), pursuant to the Shared Border Accord and Smart 
Border Declaration between the United States and Canada.\30\ NEXUS 
streamlines border inspection for pre-screened, low-risk travelers by 
utilizing one application form, a joint enrollment process, bi-national 
security screening, and one card for expedited entry to both Canada and 
the United States for air, land and sea travel.\31\
---------------------------------------------------------------------------

    \30\ On December 14, 2006, CBP announced that the NEXUS air, 
highway, and marine modes had been integrated into one program. This 
integration means that there will be one application form and fee to 
participate in all three modes of the NEXUS program. CBP also 
announced that NEXUS would expand the number of processing locations 
at Canadian airports in 2007. More information on the NEXUS program 
is available on the CBP Web site at http://www.cbp.gov.
    \31\ Lawful Permanent Residents of the United States would 
continue to be required to carry I-551 Permanent Resident cards 
while they are traveling under the NEXUS program.
---------------------------------------------------------------------------

    Applicants for NEXUS complete a joint U.S./Canada NEXUS 
Application. The application is then reviewed by both CBP and the CBSA. 
Once approved by both countries, the applicant reports to a joint CBP/
CBSA enrollment center where the applicant is interviewed and 
fingerprinted by CBP and CBSA. Applicants who are deemed low-risk and 
are approved for the program are then issued a NEXUS Identification 
Card.
b. FAST Program
    The Free and Secure Trade (FAST) program is designed to enhance the 
security and safety along both the northern and southern land borders 
of the United States, while also enhancing the economic prosperity of 
the United States, Canada, and Mexico, by coordinating, to the maximum 
extent possible, their customs commercial programs. The program 
accomplishes this by allowing member commercial

[[Page 35094]]

drivers to cross the border with expedited customs and immigration 
processing and to transport eligible goods for FAST approved carriers 
along the northern and southern borders.
    Commercial drivers applying for the FAST program on the northern 
border complete a U.S./Canada FAST Commercial Driver Application and 
send it to the FAST Application Processing Center in Canada. The 
application is then reviewed by both CBP and CBSA. Once approved by 
both countries, the applicant reports to a joint CBP/CBSA enrollment 
center where he or she is interviewed by CBP and CBSA.
    During the application process, a U.S. applicant's ten fingerprints 
are taken and submitted to the FBI for a records check; \32\ 
identification and immigration documents are checked for validity; and 
a digital photograph is taken. Applicants who are deemed low-risk and 
are approved for the program are then issued a FAST Commercial Driver 
Identification Card (FAST Card). Drivers applying for the FAST program 
on the southern border enroll in a similar process where the card 
applications are reviewed and cards are issued by CBP.
---------------------------------------------------------------------------

    \32\ For Canadian applicants, fingerprints are submitted to 
Canadian authorities for a records check.
---------------------------------------------------------------------------

c. SENTRI Program
    SENTRI currently streamlines border inspection for pre-approved 
low-risk travelers for expedited entry into the United States for land 
travel along the southern border, similar to NEXUS and FAST.\33\ To 
enroll in SENTRI a participant must provide acceptable proof of 
citizenship or permanent resident status in the United States. U.S. 
citizens and Lawful Permanent Residents must provide an original birth 
certificate with government-issued photo identification, a valid 
passport, or a certificate of naturalization.
---------------------------------------------------------------------------

    \33\ Enrollment in the program is available to Mexican 
nationals, United States citizens or lawful permanent residents, and 
a national of any other country who demonstrates a need to use the 
program.
---------------------------------------------------------------------------

4. Merchant Mariner Document (MMD)
    Currently, a Merchant Mariner Document (MMD) is accepted for U.S. 
citizen Merchant Mariners in lieu of a passport.\34\ U.S. citizen 
Merchant Mariners must provide proof of their U.S. citizenship and 
undergo an application process that includes a fingerprint background 
check submitted to the FBI, a National Driver Register check, and a 
drug test from an authorized official that administers a drug testing 
program in order to obtain an MMD.
---------------------------------------------------------------------------

    \34\ See 22 CFR 53.2(c).
---------------------------------------------------------------------------

    The Air Rule provides that an MMD used by U.S. citizens in 
conjunction with maritime business is sufficient to denote identity and 
citizenship when presented upon arrival at an air port-of-entry.
    Under this proposed rule, DHS and DOS propose that U.S. citizen 
Merchant Mariners may present a valid MMD when arriving in the United 
States at sea or land ports-of-entry when traveling in conjunction with 
official maritime business. It should be noted that the U.S. Coast 
Guard has proposed to phase-out the MMD over the next five years and 
streamline all existing Merchant Mariner credentials.\35\ DHS and DOS 
propose to accept the MMD as long as it is an unexpired document.\36\
    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.
---------------------------------------------------------------------------

    \35\ See 71 FR 29462 (May 22, 2006) and 72 FR 3605 (Jan. 25, 
2007).
    \36\ On April 24, 2007, the U.S. Coast Guard published an 
interim final rule amending Coast Guard regulations to allow for the 
issuance of MMDs to certain non-resident aliens for service in the 
stewards departments of U.S.-flag large passenger vessels endorsed 
for coastwise trade. See 72 FR 20278. However, only U.S. citizens 
may use the MMD in lieu of a passport under this proposed rule.
---------------------------------------------------------------------------

5. U.S. Military Identification Card
    Citizens of the United States currently are not required to possess 
a valid passport to enter or depart the United States when traveling as 
a member of the Armed Forces of the United States on active duty under 
22 CFR 53.2(d). Because the military identification card is issued to 
U.S. citizens of the Armed Forces and because U.S. citizen members of 
the U.S. military traveling under military orders are, without 
exception, entitled to be admitted to the United States, the Secretary 
of Homeland Security proposes to determine that a military 
identification card when traveling under official orders or permit of 
the U.S. Armed Forces would be an acceptable form of alternative 
documentation when presented upon arrival at air, sea, and land ports-
of-entry.
    Allowing members of the U.S. Armed Forces to cross the U.S. borders 
without the need to present a passport is necessary to meet the 
operational requirements of the Armed Forces. In fact, pursuant to 
Section 284 of the INA,\37\ alien members of the U.S. Armed Forces 
entering under official orders and presenting military identification 
specifically are not required to present a passport and visa.\38\ 
Imposing a passport requirement on U.S. citizens who are members of the 
U.S. Armed Forces when there is no such requirement for alien members, 
would not be a desired result of the WHTI rulemaking.
---------------------------------------------------------------------------

    \37\ See 8 U.S.C. 1354.
    \38\ See 8 CFR 235.1(c).
---------------------------------------------------------------------------

    Travel document requirements for spouses and dependents of U.S. 
citizen members of the U.S. Armed Forces, as well as Department of 
Defense contractors and civilian employees, will be subject to the same 
document requirements applicable to other arrivals at sea and land 
ports-of-entry otherwise specified in this NPRM.

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

1. Canadians
    Canadian citizens entering the United States at sea and land ports-
of-entry would be required to present, in addition to any applicable 
visa requirements: \39\
---------------------------------------------------------------------------

    \39\ See 8 CFR 212.1(h), (l), and (m) and 22 CFR 41.2(k) and 
(m).
---------------------------------------------------------------------------

    1. A passport issued by the Government of Canada; \40\
---------------------------------------------------------------------------

    \40\ Foreign passports remain an acceptable border crossing 
document under section 7209 of the IRTPA.
---------------------------------------------------------------------------

    2. A valid trusted traveler program card issued by CBSA or DHS as 
discussed above in Section III.C.1.c, e.g., FAST, NEXUS, or SENTRI 
\41\; or
---------------------------------------------------------------------------

    \41\ Canadian citizens who demonstrate a need may enroll in the 
SENTRI program and currently may use the SENTRI card in lieu of a 
passport. To enroll in SENTRI, a Canadian participant must present a 
valid passport and a valid visa, if required, when applying for 
SENTRI membership. Other foreign participants in the SENTRI program 
must present a valid passport and a valid visa, if required, when 
seeking admission to the United States, in addition to the SENTRI 
card. This proposed rule does not alter the passport and visa 
requirements for other foreign enrollees in SENTRI (i.e., other than 
Canadian foreign enrollees). Currently, Canadian citizens can show a 
SENTRI, NEXUS, or FAST card for entry into the United States only at 
designated lanes at designated land border ports-of-entry.
---------------------------------------------------------------------------

    3. Alternative Canadian citizenship and identity documents 
hereafter proposed by Canada and accepted by DHS and DOS.
    Additionally, Canadian citizens in the NEXUS program who arrive by 
pleasure vessel from Canada would be permitted to present a NEXUS 
membership card in lieu of a passport along the northern border under 
the auspices of the remote inspection system for pleasure vessels, such 
as the Outlying Area Reporting System (OARS).\42\ Currently, as NEXUS 
members, Canadian recreational boaters

[[Page 35095]]

can report their arrival to CBP by telephone.\43\ Otherwise, these 
pleasure vessel travelers would be required to report in person to a 
port-of-entry in order to enter the United States.\44\
---------------------------------------------------------------------------

    \42\ Permanent residents of Canada must also carry a valid 
passport and valid visa, if required.
    \43\ Remote pleasure vessel inspection locations are only 
located on the northern border.
    \44\ See 8 CFR 235.1(g). Canadian holders of a Canadian Border 
Boat Landing Permit (Form I-68) would be required to possess a 
passport, passport card, or other document specified in this NPRM 
when arriving in the United States in combination with the Form I-68 
and would be required to show this documentation when applying for 
or renewing the Form I-68.
---------------------------------------------------------------------------

    Both DHS and DOS have engaged with the Government of Canada and 
various provinces in discussions of alternative documents that could be 
considered for border crossing use at land and sea ports of entry under 
this rule. For instance, one Canadian office, Indians and Northern 
Affairs Canada, is in the process of issuing a card to registered 
Indians. This alternative document and any other alternative identity 
and citizenship document issued by the Government of Canada will be 
considered, as appropriate, in the course of this rulemaking. While we 
are not in a position to propose a complete list of alternative 
Canadian documents we will continue to engage in discussions of 
alternatives and welcome comments suggesting alternative Canadian 
documents.
    In fact, various Canadian provinces have indicated their interest 
or intention in pursuing pilots of enhanced driver's licenses similar 
to the Washington State and DHS pilot (described below). Because 
documents accepted for border crossing under WHTI must denote 
citizenship, the participation of the Government of Canada in 
determinations of citizenship on behalf of its citizens, and 
recognition of this determination, is a strong consideration by the 
United States in the acceptance of documents by Canadian citizens. 
Therefore, at this time, DHS and DOS are not proposing to accept 
documents from Canadian citizens other than those described above. We 
will, however, consider other documents, as described above and in 
Section IV.D., as appropriate.
2. Bermudians
    Under this proposed rule, all Bermudian citizens would be required 
to present a passport issued by the Government of Bermuda or the United 
Kingdom when seeking admission to the United States at all sea or land 
ports-of-entry, including travel from within the Western Hemisphere.

C. Mexican Nationals Arriving by Sea or Land

    Under this proposed rule, all Mexican nationals would be required 
to present either (1) A passport issued by the Government of Mexico and 
a visa when seeking admission to the United States, or (2) a valid Form 
DSP-150, B-1/B-2 laser visa Border Crossing Card (BCC) when seeking 
admission to the United States at land ports-of-entry or arriving by 
pleasure vessel or by ferry from Mexico.
    For purposes of this rule, a pleasure vessel is defined as a vessel 
that is used exclusively for recreational or personal purposes and not 
to transport passengers or property for hire. A ferry is defined as any 
vessel: (1) Operating on a pre-determined fixed schedule; (2) providing 
transportation only between places that are no more than 300 miles 
apart; and (3) transporting passengers, vehicles, and/or railroad cars. 
We note that ferries are subject to land border-type entry processing 
on arrival from, or departure to, a foreign port or place. Arrivals 
aboard all vessels other than ferries and pleasure vessels would be 
treated as sea arrivals.\45\
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    \45\ For example, commercial vessels would be treated as 
arrivals at sea ports-of-entry. A commercial vessel is any civilian 
vessel being used to transport persons or property for compensation 
or hire to or from any port or place. A charter vessel that is 
leased or contracted to transport persons or property for 
compensation or hire to or from any port or place would be 
considered an arrival by sea under this rule. Arrivals by travelers 
on fishing vessels, research or seismic vessels, other service-type 
vessels (such as salvage, cable layers, etc.), or humanitarian 
service vessels (such as rescue vessels or hospital ships) would all 
be considered as arrivals by sea.
---------------------------------------------------------------------------

1. Border Crossing Card (BCC)
    DOS issues BCCs to Mexican nationals who come to the United States 
on a regular basis. Since 1998, every new BCC contains a biometric 
identifier, such as a fingerprint, and a machine-readable zone (MRZ). 
In order to obtain a new BCC, a Mexican traveler must have a passport. 
Because the BCC is a B-1/B-2 visa, the State Department issuance 
process is nearly identical to that of other visas, with the attendant 
background checks and interviews necessary for security purposes.
    Mexican nationals who hold a BCC will be allowed to use their BCC 
for entry at the land border and when arriving by ferry or pleasure 
vessel in lieu of a passport for travel within 25 miles of the border 
with Mexico (75 miles for the Tucson, Arizona region) and no longer 
than a 30-day stay in the United States. For travel outside of these 
geographical limits or a stay over 30 days, under the proposed rule, 
Mexican nationals possessing a BCC would also be required to obtain a 
Form I-94 from CBP at the POE, as is currently the practice.\46\ The 
BCC would not be permitted in lieu of a passport for commercial or 
other sea arrivals in the United States.
---------------------------------------------------------------------------

    \46\ See 8 CFR 212.1(c)(1)(i); also 22 CFR 41.2 (g). If Mexicans 
are only traveling within a certain geographic area along the United 
States' border with Mexico: usually up to 25 miles from the border 
but within 75 miles under the exception for Tucson, Arizona, they do 
not need to obtain a form I-94. If they travel outside of that 
geographic area, they must obtain an I-94 from CBP at the port-of-
entry. 8 CFR 235.1(h)(1).
---------------------------------------------------------------------------

2. Trusted Traveler Program Use
    We propose continuing the current practice that Mexican nationals 
may not use the FAST or SENTRI card in lieu of a passport or BCC. These 
participants, however, would continue to benefit from expedited border 
processing.
    Mexican nationals applying for the FAST program on the southern 
border and applying for the SENTRI program must present a valid 
passport and valid visa or valid laser visa/BCC when applying to CBP 
for membership. CBP then reviews the applications and issues the cards.
3. Elimination of Passport Waiver to Obtain Documents at Mexican 
Consulate in United States
    Mexican nationals who enter the United States from Mexico solely to 
apply for a Mexican passport or other ``official Mexican document'' at 
a Mexican consulate in the United States located directly adjacent to a 
land port-of-entry currently are not required to present a valid 
passport. This type of entry generally occurs at land borders.\47\ 
There is no basis under section 7209, as amended, to exempt Mexican 
nationals coming to the United States to apply for a passport from the 
general requirements of WHTI. This proposed rule would eliminate this 
exception to the passport requirement for Mexican nationals. Under the 
proposed rule, all Mexican nationals will be required to have a 
passport with a visa or a BCC to enter the United States.
---------------------------------------------------------------------------

    \47\ See 8 CFR 212.1(c)(1)(ii).
---------------------------------------------------------------------------

D. Other Approved Documents

    DHS and DOS remain committed to considering travel documents 
developed by the various U.S. States and the Governments of Canada and 
Mexico in the future that would denote identity and citizenship and 
would also satisfy section 7209 of IRTPA.
    Under this proposed rule, DHS proposes to consider as appropriate, 
documents such as State driver's licenses that satisfy the WHTI

[[Page 35096]]

requirements by denoting identity and citizenship. These documents 
could be from a State, tribe, band, province, territory, or foreign 
government if developed in accordance with pilot program agreements 
between those entities and DHS. In addition to denoting identity and 
citizenship, these documents will have compatible technology, security 
criteria, and respond to CBP's operational concerns.
    These documents would be announced and updated by publishing a 
notice in the Federal Register. A list of such programs and documents 
would also be maintained on the CBP Web site. It is anticipated that 
the Secretary of Homeland Security would designate successful pilot 
program documents that satisfy section 7209 and the technology, 
security, and operational concerns discussed above as documents 
acceptable for travel under section 7209. At the completion of a 
successful pilot, the Department would designate a document by 
rulemaking.
    For example, the State of Washington (Washington) has begun a 
voluntary program to develop an ``enhanced driver's license'' and 
identification card that would denote identity and citizenship. On 
March 23, 2007, the Secretary of Homeland Security and the Governor of 
Washington signed a Memorandum of Agreement to develop, issue, test and 
evaluate an enhanced driver's license and identification card with 
facilitative technology to be used for border crossing purposes.\48\
---------------------------------------------------------------------------

    \48\ For more information on this pilot program, see http://www.dhs.gov.
---------------------------------------------------------------------------

    On March 9, 2007, DHS published in the Federal Register an NPRM 
concerning minimum standards for State-issued driver's licenses and 
identification cards that can be accepted for official purposes in 
accordance with the REAL ID Act.\49\ DHS encourages States interested 
in developing driver's licenses that will meet both the REAL ID and 
WHTI requirements to work closely with DHS to that end.
---------------------------------------------------------------------------

    \49\ See REAL ID NPRM at 72 FR 10819.
---------------------------------------------------------------------------

E. Timing of Changes and Effective Date for Final Rule

1. Satisfactory Evidence of Citizenship
    Reducing the well-known vulnerability posed by those who might 
illegally purport to be U.S. or foreign citizens trying to enter the 
U.S. by land or sea on a mere oral declaration is imperative. As we 
move towards WHTI implementation, it is the intention of DHS to end the 
routine practice of accepting oral declarations alone starting January 
31, 2008. CBP will retain its discretionary authority to request 
additional documentation when warranted and to make individual 
exceptions in extraordinary circumstances when oral declarations alone 
or with other alternative documents may be accepted. Beginning January 
31, 2008, DHS will expect the satisfactory evidence of U.S. or Canadian 
citizenship to include either of the following documents or groups of 
documents: (1) A document specified in this NPRM as WHTI-compliant for 
that individual's entry; or (2) a government-issued photo 
identification document presented with a birth certificate.\50\ CBP 
will also act according to the procedures for children outlined in 
Sections V.B.1. and V.B.2 beginning January 31, 2008.
---------------------------------------------------------------------------

    \50\ For U.S. citizens, a government-issued photo identification 
combined with a Consular Report of Birth Abroad or a Certificate of 
Naturalization could also be presented.
---------------------------------------------------------------------------

2. Implementation and Effective Date of Final Rule
    At a date to be determined by the Secretary of Homeland Security, 
in consultation with the Secretary of State, the Departments will 
implement the full requirements of the land and sea phase of WHTI. The 
implementation date will be determined based on a number of factors, 
including the progress of actions undertaken by the Department of 
Homeland Security to implement the WHTI requirements and the 
availability of WHTI compliant documents on both sides of the border.
    DHS and DOS expect the date of full WHTI implementation to be in 
the summer of 2008. The precise implementation date will be published 
in the Final Rule or will separately be published, with at least 60 
days notice, in the Federal Register.

V. Special Rules for Specific Groups of Travelers Permitted To Use 
Other Alternative Documents

    Even though DHS and DOS have presented generally applicable 
document requirements above, in reviewing the security and travel 
considerations for the sea and land environments, the Departments 
believe there are certain special circumstances for specific groups of 
travelers that warrant permitting use of other documents. For these 
specific groups of travelers, within these limited circumstances, the 
Secretary of Homeland Security proposes that the delineated documents 
be accepted for travel as discussed.
    There are other groups of travelers that fall outside the scope of 
section 7209 and are therefore not subject to these requirements. The 
documents permitted for these populations under the foregoing special 
circumstances are also explained below.

A. U.S. Citizen Cruise Ship Passengers

    Because of the nature of round trip cruise ship travel, DHS has 
determined that when U.S. citizens depart from and reenter the United 
States on board the same cruise ship, they pose a low security risk in 
contrast to cruise ship passengers who embark in foreign ports.
    Although round trip cruises may stop in foreign ports (e.g., some 
east coast cruises stop in the Caribbean and some cruises in the 
Pacific Northwest may include land excursions in Canada), there are 
reasons why U.S. citizens aboard these cruises pose a low security 
risk. First, on round trip cruises, passengers who depart from the 
United States would have their documents checked both when they depart 
from the United States and when they return to the United States. Under 
current Advanced Passenger Information System (APIS) requirements,\51\ 
the cruise lines are required to check the accuracy of the travel 
documents for all departing passengers. The passenger information is 
transmitted to CBP well before the return of the cruise ship.
---------------------------------------------------------------------------

    \51\ See 19 CFR 4.7b (vessel arrivals) and 19 CFR 4.64 (vessel 
departures).
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    While on the voyage, the cruise lines also check the identity of 
passengers as they return to the ship at various ports of call along 
the voyage. CBP has worked with the cruise lines to establish proper 
security protocols for these voyages and will continue to work with the 
cruise lines on security protocols in the future.
    When the cruise ships return to the United States, CBP officers 
examine the documents of the incoming passengers as they would for 
other cruise passengers. Because of the advanced passenger information 
supplied to CBP upon departure and because of CBP's ability to check 
this passenger data against the information supplied by passengers upon 
return to the United States, the security risks associated with 
allowing U.S. citizens to use the documents described below are low.
    Accordingly, and in response to public comments, DHS and DOS 
propose the following alternative document requirement for U.S. cruise 
ship passengers. For purposes of the proposed rule, a cruise ship is 
defined as a passenger vessel over 100 gross tons, carrying more than 
12 passengers for hire, making a voyage lasting more than 24 hours any 
part of which is on the high seas, and for which passengers

[[Page 35097]]

are embarked or disembarked in the United States or its 
territories.\52\
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    \52\ For this proposed rule, DHS proposes to adopt the 
definition of a cruise ship used by the U.S. Coast Guard. See 33 CFR 
101.105.
---------------------------------------------------------------------------

    U.S. cruise ship passengers traveling within the Western Hemisphere 
would be permitted to present a government issued photo identification 
document in combination with either (1) An original or a certified copy 
of a birth certificate, (2) a Consular Report of Birth Abroad issued by 
DOS, or (3) a Certificate of Naturalization issued by U.S. Citizenship 
and Immigration Services (USCIS), when returning to the United States, 
under certain conditions:
     The passengers must board the cruise ship at a port or 
place within the United States; and
     The passengers must return on the same ship to the same 
U.S. port or place from where they originally departed.
    All passengers arriving on a cruise ship that originated at a 
foreign port or place would have to present travel documents that 
comply with applicable document requirements otherwise specified in 
this NPRM when arriving in the United States. For voyages where the 
cruise ship originated in the United States, if any new passengers 
board the ship at a foreign port or place, the new passengers would 
have to present travel documents that comply with applicable document 
requirements otherwise specified in this NPRM when arriving in the 
United States. U.S. citizen cruise ship passengers that would fall 
under this alternative document requirement are reminded to carry 
appropriate travel documentation to enter any foreign countries or 
stops on the cruise.

B. U.S. and Canadian Citizen Children

    The U.S. government currently requires all children arriving from 
countries outside the Western Hemisphere to present a passport when 
entering the United States. Currently, children (like adults) from the 
United States, Canada, and Bermuda are not required to present a 
passport when entering the United States from contiguous territory or 
adjacent islands by sea or land, excluding Cuba. Mexican children are 
currently required to present either a passport and visa or BCC upon 
arrival in the United States, as discussed above.
    DHS and DOS considered extending this passport requirement to all 
U.S. and Canadian children entering the United States by sea or land 
from within the Western Hemisphere as well; however, many public 
comments have expressed a desire for an exception to be made for these 
children traveling across international borders, primarily in the land 
environment.
    Because DHS and DOS believe that these children traveling in the 
sea and land environments pose a low security risk, DHS, in 
consultation with DOS, proposes the procedures below.
    Mexican children are currently required to present either a 
passport and visa or BCC upon arrival in the United States, as 
discussed above. DHS and DOS do not propose to change the current 
document requirements for Mexican children entering the United States 
because Mexican children must now present either a passport and visa or 
BCC upon arrival in the United States from contiguous territory. As 
discussed above, IRTPA directs DHS to implement a plan to require 
documents for citizens for whom the general passport requirements have 
previously been waived, not to eliminate document requirements 
currently in place.
1. Children Under Age 16
    Under the proposed rule, all U.S. citizen children under the age of 
16 would be permitted to present either (1) An original or a certified 
copy of a birth certificate; (2) a Consular Report of Birth Abroad 
issued by DOS; or (3) a Certificate of Naturalization issued by USCIS 
at all sea and land ports-of-entry when arriving from contiguous 
territory. Canadian citizen children under the age of 16 would be 
permitted to present an original or a certified copy of a birth 
certificate at all sea and land ports-of-entry when arriving from 
contiguous territory.
    DHS and DOS have determined that 16 is the most appropriate age to 
begin the requirement to present a passport, passport card (for U.S. 
citizens), or other approved document because at that age most states 
begin issuing photo identification to children, such as a driver's 
license, and at that point, the child would consequently, have a known 
and established identity that could be readily accessed by border 
security and law enforcement personnel. CBP officers at the border 
could more easily determine if the traveler was wanted for a federal 
crime, or if the person had been listed as missing in a Federal 
database. Also, age 16 is the age that DOS begins to issue adult 
passports, valid for 10 years instead of 5 years for children. DHS and 
DOS also recognize that it is difficult for the majority of children 
under 16 to obtain a form of government-issued photo identification 
other than a passport or passport card. U.S. and Canadian children age 
16 and over who arrive from contiguous territory would be subject to 
the WHTI document requirements specified below or otherwise specified 
in this NPRM.
    In order to facilitate law enforcement functions, DHS and DOS 
recommend that those attempting to enter the United States with 
children under the age of 16 have verbal or written evidence of 
parental consent for the child to travel internationally. For example, 
both parents or legal guardians, or one parent or guardian with sole 
custody, may provide written consent for a child's international travel 
with an adult who is not that child's parent or guardian.
2. Groups of Children Under Age 19
    In Section 546 of the DHS Appropriations Act of 2007, Congress 
expressed an interest that an alternative procedure be developed for 
groups of children traveling across an international border under adult 
supervision with parental consent.
    Under this proposed rule, U.S. and Canadian citizen children under 
age 19, who are traveling with public or private school groups, 
religious groups, social or cultural organizations, or teams associated 
with youth sport organizations that arrive at U.S. sea or land ports-
of-entry from contiguous territory, would be permitted to present 
either (1) An original or a certified copy of a birth certificate; (2) 
a Consular Report of Birth Abroad issued by DOS; or (3) a Certificate 
of Naturalization issued by USCIS, when the groups are under the 
supervision of an adult affiliated with the organization (including a 
parent of one of the accompanied children who is only affiliated with 
the organization for purposes of a particular trip) and when all the 
children have parental or legal guardian consent to travel. For 
purposes of this alternative procedure, an adult would be considered to 
be a person age 19 or older, and a group would consist of two or more 
people.
    The group, organization, or team would be required to contact CBP 
upon crossing the border at the port-of-entry where it will cross and 
provide on organizational letterhead: (1) The name of the group, 
organization or team and the name of the supervising adult; (2) a list 
of the children on the trip; (3) for each child, the primary address, 
primary phone number, date of birth, place of birth, and name of at 
least one parent or legal guardian; and (4) the signature of the 
supervising adult certifying that he or she has obtained parental or 
legal guardian consent for each participating child. The group, 
organization, or team would be able to demonstrate parental or legal 
guardian consent by having the adult leading the group sign and certify 
in writing that he

[[Page 35098]]

or she has obtained parental or legal guardian consent for each 
participating child.
    For Canadian children, in addition to the information indicated 
above, a trip itinerary, including the stated purpose of the trip, the 
location of the destination, and the length of stay would be required.
    As it is structured, we believe most of the groups utilizing this 
alternative procedure would be high school groups or groups containing 
children aged 16 to 18. Based on experience, there is little, if any, 
risk of child trafficking or parental abduction in the group travel 
context. To avoid delays upon arrival at a port-of-entry, CBP would 
recommend that the group, organization, or team provide this 
information well in advance of arrival, and would recommend that each 
participant traveling on an original or certified copy of a birth 
certificate, Consular Report of Birth Abroad, or Certificate of 
Naturalization carry a government or school issued photo identification 
document, if available. Travelers with the group who are age 19 and 
over would be subject to the generally applicable travel document 
requirements specified in 8 CFR parts 211, 212 or 235 and 22 CFR parts 
41 or 53.
3. Alternative Approach for Children; Parental Consent
    DOS and DHS also seek comments regarding approaches to ensuring 
proper documentation to address concerns about child abduction, 
parental kidnapping, and trafficking in children across U.S. borders.
    DOS's Office to Monitor and Combat Trafficking in Persons estimates 
that approximately half the victims of trafficking who enter the United 
States are minors. At any one time, there are approximately 700 open 
cases of parental child abduction across the United States borders with 
Canada and Mexico.
    In light of concerns about the safety of children, the American 
public supported changes in passport processing beginning in 1999 to 
require evidence of parental consent. Currently, DOS requires the 
execution of a passport application by both parents or legal 
guardian(s) before the passport agent or passport acceptance agent as a 
precondition to the issuance of a passport to a child under 14. On 
March 7, 2007, DOS published for public comment a rule proposing to 
require the execution of a passport application by both parents or 
legal guardian(s) for a passport application pertaining to a minor 
under the age of 16.\53\ Furthermore, parents are making use of the DOS 
Children's Passport Issuance Alert System. Under this system, DOS 
notifies a parent or court ordered legal guardian, when requested, 
before issuing a U.S. passport for his or her child.
---------------------------------------------------------------------------

    \53\ See 72 FR 10095.
---------------------------------------------------------------------------

    DOS and DHS are soliciting comments on whether a traditional 
passport or a passport card should be required for any child under 16 
entering the United States not in a group without his/her parents. DOS 
and DHS are also soliciting comments on what would be the advantages 
and disadvantages to requiring a traditional passport or a passport 
card, and not allowing child travelers in such circumstances to rely 
upon a birth certificate, Consular Record of Birth Abroad, or 
Certificate of Naturalization.

C. Lawful Permanent Residents of the United States

    Section 7209 of IRTPA does not apply to Lawful Permanent Residents 
(LPRs), because LPRs are immigrant aliens exempted from the requirement 
to present a passport under section 211(b) of the INA. LPRs will 
continue to be able to enter the United States upon presentation of a 
valid Form I-551, Permanent Resident Card \54\ or other evidence of 
permanent resident status.\55\
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    \54\ See Section 211(b) of the INA, 8 U.S.C. 1181(b).
    \55\ See 8 CFR 211.1.
---------------------------------------------------------------------------

    We note that 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.\56\ CBP Trusted Traveler program members (FAST, SENTRI or NEXUS) 
who are LPRs must always carry their Form I-551 cards in addition to 
their membership card.
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    \56\ See 71 FR 42605.
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D. Alien Members of the U.S. Armed Forces

    Pursuant to Section 284 of the INA,\57\ alien members of the U.S. 
Armed Forces entering under official orders presenting military 
identification are not required to present a passport and visa.\58\ 
Because this statutory exemption does not fall within the scope of 
section 7209 of IRTPA, under this proposed rule, alien members of the 
U.S. Armed Forces traveling under orders would continue to be exempt 
from the requirement to present a passport when arriving in the United 
States at sea and land ports-of-entry. Accordingly, under this NPRM, 
alien members of the U.S. Armed Forces traveling under official orders 
or permit of the Armed Forces would be permitted to present those 
orders and a military identification card in lieu of a passport when 
entering the United States at air, sea, and land ports-of-entry. 
However, spouses and dependents of military members are not covered by 
the exemption set forth in section 284 of the INA.\59\ Under this 
proposed rule, spouses and dependents of these alien military members, 
unless they are LPRs, will be subject to the same document requirements 
as other sea and land border arrivals otherwise specified in this NPRM 
or the INA.
---------------------------------------------------------------------------

    \57\ See 8 U.S.C. 1354.
    \58\ See 8 CFR 235.1(c).
    \59\ See 8 U.S.C. 1354.
---------------------------------------------------------------------------

E. Members of NATO Armed Forces

    Pursuant to Article III of the Agreement Between the Parties to the 
North Atlantic Treaty Regarding the Status of Their Forces, June 19, 
1951,\60\ North Atlantic Treaty Organization (NATO) military personnel 
on official duty are normally exempt from passport and visa regulations 
and immigration inspection on entering and leaving the territory of a 
NATO party, but, if asked, must present a personal identification card 
issued by their NATO party of nationality and official orders from an 
appropriate agency of that country or from NATO.\61\ Because their 
exemption from the passport requirement is based on the NATO Status of 
Forces Agreement rather than a waiver under section 212(d)(4)(B), they 
are not subject to section 7209 of IRTPA. Therefore, notwithstanding 
this proposed rule, NATO military personnel would not be subject to the 
requirement to present a passport when arriving in the United States at 
sea and land ports-of-entry.
---------------------------------------------------------------------------

    \60\ Agreement Between the Parties to the North Atlantic Treaty 
Regarding the Status of Their Forces, June 19, 1951, [1953, pt.2] 4 
U.S.T. 1792, T.I.A.S. No. 2846 (effective Aug. 23, 1953). NATO 
member countries are: Belgium, Bulgaria, Canada, the Czech Republic, 
Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, 
Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, 
Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, the United 
Kingdom of Great Britain and Northern Ireland, and the United 
States.
    \61\ See 8 CFR 235.1(c).
---------------------------------------------------------------------------

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

    U.S. Citizenship and Immigration Services (USCIS) issues American 
Indian Cards (Form I-872) to members of the Kickapoo Band of Texas and 
Tribe of Oklahoma to document their status. The American Indian Card is 
issued pursuant to the Texas Band of

[[Page 35099]]

Kickapoo Act of 1983 (TBKA), 25 U.S.C. 1300b-13. There are two versions 
of the American Indian Card: (1) For Kickapoos who opted to become U.S. 
citizens under the TBKA (the filing deadline for this benefit closed in 
1989) and (2) for Kickapoos who opted not to become U.S. citizens, but 
instead were afforded ``pass/repass'' status.
    We note that by Federal law, all of the Kickapoo Indians described 
above, whether or not they are U.S. citizens, may ``pass the borders'' 
between Mexico and the United States,\62\ which has historically 
applied to land border crossings. We propose to continue the current 
practice of allowing U.S. citizen and Mexican national Kickapoo Indians 
to enter and exit the United States using their American Indian Cards, 
issued by USCIS, as an alternative to the traditional passport or 
passport card at all sea and land border ports-of-entry.
---------------------------------------------------------------------------

    \62\ See Texas Band of Kickapoo Act, Pub. L. 97-429, 96 Stat. 
2269 (1983).
---------------------------------------------------------------------------

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

G. Members of United States Native American Tribes

    IRTPA expressly applies to all United States citizens. Federal 
statutes apply to Native Americans born in the United States \63\ 
absent some clear indication that Congress did not intend the statute 
to apply.\64\ However, the United States has a special relationship, 
founded in the Constitution, with its Native American tribes.\65\ This 
relationship permits special rules for Native American members of 
federally recognized United States tribes.\66\
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    \63\ In 1924, Congress conferred United States citizenship on 
all Native Americans born in the United States. Act of June 2, 1924, 
ch. 233, 43 Stat. 253, codified as INA Sec.  301(b), 8 U.S.C. 
1401(b).
    \64\ 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).
    \65\ See Constitution, I, Sec.  8, cl.3; Cherokee Nation v. 
Georgia, 30 U.S. 1, 17 (1831); Worcester v. Georgia, 31 U.S. 515, 
561 (1832); U.S. v. Sandoval, 231 U.S. 28, 46-47 (1913).
    \66\ Morton v. Mancari, 417 U.S. 535, 551-55.
---------------------------------------------------------------------------

    Comments on the ANPRM and consultations with United States Native 
American tribes have emphasized the particular impact which a new 
document requirement may have on Native Americans belonging to United 
States tribes who continue to cross the land borders for traditional 
historic, religious, and other cultural purposes. A number of border 
tribes are particularly concerned that their members will be required 
to obtain a passport card or other alternative document to maintain 
contact with ethnically related communities, including, for some 
tribes, members who live on traditional land in Mexico or Canada.
1. Proposed Acceptance of Satisfactory Tribal Enrollment Documents at 
Traditional Border Crossing Points for Tribes Who Continue Traditional 
Land Border Crossings
    DHS and DOS do not propose to accept any particular tribal 
enrollment documents as part of this NPRM. DHS and DOS do propose, 
however, to consider such documents for the final rule as discussed 
below. Documents that may be found acceptable and so designated in the 
final rule must establish the identity and citizenship of members of 
United States tribes. DHS and DOS propose to accept such tribal 
enrollment documents only if members of the issuing tribe continue to 
cross the land border of the United States for a historic, religious or 
other cultural purpose.\67\ The tribal enrollment card must be 
satisfactory to CBP, may only be used at that tribe's traditional 
border crossing points and will only be accepted so long as that tribe 
cooperates with the verification and validation of the document. These 
tribes must also cooperate with CBP on the enhancement of their 
documents in the future as a condition for the continued acceptance of 
the document.
---------------------------------------------------------------------------

    \67\ From our consultations with Native American communities, 
DHS understands that members of a number of federally recognized 
tribes maintain contact with ethnically related people across our 
land border. For example, the Kumeyaay of California, Tohono O'odham 
of Arizona, Kickapoo of Texas, Oklahoma and Kansas, and 
Haudenosaunee or Six Nations of the New York State area maintain 
contact with ethnically related people on the other side of border. 
We also have been told that the three Kickapoo bands in the United 
States all lay their dead to rest in a traditional cemetery in 
Mexico. Traditional border crossings may continue for these and 
similar historic, religious and cultural purposes.
---------------------------------------------------------------------------

    DHS and DOS invite comments from those United States tribes that 
enroll members who continue to cross the border for a traditional 
purpose. Any tribe that wishes to propose its tribal enrollment card as 
an acceptable alternative document at one or more traditional border 
crossing points should submit comments supporting acceptance of its 
tribal enrollment card as an alternative for its members. All such 
comments should explain fully why the proposed tribal enrollment card 
should be an acceptable alternative document for its members.
    Each comment should explain the traditional border crossings of 
that tribe by:
    a. Specifically identifying the federally recognized tribe;
    b. Indicating the traditional destination or destinations across 
the border that are visited by members of the tribe;
    c. Explaining in detail the purpose or purposes of all such travel;
    d. Relating all such travel to traditional ethnic, religious, 
cultural or other activities of the tribe;
    e. Indicating the frequency of the travel; and
    f. Specifying the border crossing point or points which are 
generally utilized to travel to each destination.
    If the cross-border travel is reciprocated by a tribe, community, 
or band from Canada or Mexico, the United States tribe should also 
fully explain the connection with Canadian or Mexican Native Americans 
including a complete description of all such travel into the United 
States by individuals from the related Native American community.
    The record of the rulemaking will need to detail the enrollment 
qualifications employed by each United States tribe in order to propose 
the acceptance of the tribe's enrollment document. All qualifications 
for membership in any such tribe should be fully described in the 
comments as well as whether, and in what circumstances, spouses, 
children or others may be ``adopted'' into the tribe. In addition, each 
tribe should indicate the relevant categories of information from its 
enrollment records that support the acceptance of its tribal enrollment 
document as an acceptable citizenship and identity document. Such 
comments should explain and document the reliability of each tribe's 
records. For that reason, tribes interested in pursuing this option 
should indicate the information that it is willing to make available to 
CBP from tribal enrollment records. At a minimum, CBP will need to 
verify the names, residences, and birthplaces of enrolled tribal 
members, the identity of the parents of enrolled tribal members who 
were not born in the United States, and the procedures followed by each 
tribe to document all such information contained in its enrollment 
records.
    DHS and DOS also welcome comments concerning the determination

[[Page 35100]]

of which cards are satisfactory as well as information concerning the 
specific features of each tribal enrollment card used by tribal members 
who continue to cross the land border for a traditional purpose. All 
biometric and other security features on each card should be described 
in full in the comments and a life size image of both sides of a sample 
card should be submitted for the record with each set of comments.
    Comments must also include a description of the issuance process 
used by the tribe to physically issue the tribal enrollment document. 
DHS and DOS are particularly interested in the materials and techniques 
used to ensure that the tribal enrollment document cannot be obtained 
improperly. This description must also include a description of the 
physical security features utilized to ensure that documents are not 
issued to individuals who are not qualified to receive such documents.
    A tribe that issues an acceptable tribal enrollment document may be 
asked to regularly provide CBP with an electronic copy of current 
relevant information from its tribal enrollment roles for purposes of 
verifying and validating tribal enrollment documents. Comments should 
indicate whether the tribe is willing and able to provide this 
information on an ongoing basis.
    DHS and DOS are also sensitive to the privacy of tribal enrollment 
records not related to the establishment of identity and citizenship 
such as alternative tribal names. Comments explaining specific privacy 
and other concerns related to the sharing of tribal enrollment 
information are particularly encouraged.
    Each tribe which proposes a tribal enrollment card as an 
alternative border crossing document should indicate whether the tribe 
is willing to cooperate with CBP on the enhancement of the document in 
the future.
    Tribes will only have the opportunity to participate in the shaping 
of the standards for tribal documents through this rulemaking. 
Therefore any tribe that is considering submitting the information 
outlined above must do so through this rulemaking process, as outlined 
in this NPRM.
2. Possible Alternative Treatment of United States Native Americans
    DHS and DOS are also considering alternative approaches and invite 
comments on the following approaches:
     Make no special provision for U.S. Native Americans 
because they have an equal opportunity to obtain the same documents 
that are available to all other U.S. citizens.
     Consider broader issuance of the American Indian Card now 
issued to members of the federally recognized Kickapoo Tribes or a 
similar card.
     Accept tribal enrollment cards from tribes whose members 
continue traditional border crossings without any limitation on the 
border crossing point or points where each such tribal enrollment card 
is accepted.
     Accept all tribal enrollment cards from all federally 
recognized Native American tribes at some or all border crossing 
points.
    DHS and DOS specifically request comments on these alternatives and 
suggestions for any other alternatives for U.S. Native Americans.

H. Canadian Indians

    Section 289 of the INA \68\ refers to the ``right'' of Native 
Americans born in Canada to ``pass the borders of the United States,'' 
provided they possess at least 50 percent of Native American blood. 
Under this proposed rule, Canadian members of First Nations or 
``bands'' would be permitted to enter the United States at traditional 
border crossing points with tribal membership documents subject to the 
same conditions applicable to United States Native Americans. Canadian 
First Nations or bands who seek to have their tribal enrollment cards 
accepted for border crossing purposes should submit comments for the 
record which contain the information requested in subsection G for 
comparable federally recognized U.S. tribes.
---------------------------------------------------------------------------

    \68\ See 8 U.S.C. 1359.
---------------------------------------------------------------------------

    As previously noted, the new Indian and Northern Affairs Canada 
card may also be accepted as satisfactory evidence of the citizenship 
and identity of registered Canadian Indians.

I. Sea Travel From Territories Subject to the Jurisdiction of the 
United States

    As we stated in the Air Rule, for purposes of the passport 
requirement of section 215(c) of the INA,\69\ the term ``United 
States'' includes all territory and waters, continental or insular, 
subject to the jurisdiction of the United States. The United States, 
for purposes of section 215 of the INA and section 7209 of the IRTPA, 
includes Guam, Puerto Rico, the U.S. Virgin Islands, American Samoa, 
Swains Island, and the Commonwealth of the Northern Mariana 
Islands.\70\ Because section 7209, applies only to persons traveling 
between the United States and foreign countries, these requirements to 
carry specified documents will not apply to United States citizens and 
nationals who travel directly between parts of the United States, as 
defined in section 215(c) of the INA, without touching at a foreign 
port or place.
---------------------------------------------------------------------------

    \69\ See 8 U.S.C. 1185(c).
    \70\ See 8 CFR 215.1(e) and 22 CFR 50.1.
---------------------------------------------------------------------------

J. Outer Continental Shelf Employees

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

K. International Boundary and Water Commission Employees

    Alien direct and indirect employees of the International Boundary 
and Water Commission (IBWC) are not required to present a passport and 
visa when seeking admission to the United States temporarily in 
connection with their employment.\71\ Instead, these employees usually 
present IBWC identification cards. The exemption is pursuant to treaty 
and thus not affected by IRPTA. Accordingly, there is no substantive

[[Page 35101]]

change to the rule regarding alien employees of the IBWC.
---------------------------------------------------------------------------

    \71\ Article 20 of the 1944 Treaty Between the United States and 
Mexico (regarding division of boundary water and the functions of 
International Boundary and Water Commission), TS 922, Bevan 1166, 59 
Stat. 1219; 8 CFR 212.1(c)(5).
---------------------------------------------------------------------------

    U.S. citizen direct and indirect employees of the IBWC who enter 
the United States from Mexico in connection with their IBWC employment 
would continue to be able to present an IBWC identification card.

L. Individual Cases of Passport Waivers

    The passport requirement may be waived for U.S. citizens in certain 
individual cases on a case-by-case basis.\72\ A waiver may be granted 
in the case of an emergency, such as individuals in need of emergency 
medical treatment, fire fighters responding to a call, emergency 
workers responding to a natural disaster, Medi-vac (land and air 
ambulance) cases, sick or injured crewmembers, and shipwreck or plane 
crash survivors. A waiver may also be granted in other cases of 
humanitarian or national interest.\73\
---------------------------------------------------------------------------

    \72\ See 22 CFR 53.2.
    \73\ See section 7209(c)(2) of IRTPA.
---------------------------------------------------------------------------

M. Summary of Document Requirements

    The following chart summarizes the acceptable documents for sea and 
land arrivals from the Western Hemisphere under WHTI.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Acceptable                                                                                       Sea (all other
        Group/population              document(s)                Land                      Ferry                Pleasure vessel            vessels)
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Travelers (U.S., Can., Mex.,  Valid Passport (and  Yes.....................  Yes.....................  Yes.....................  Yes.
 Berm.) at all sea and land POEs.  valid visa, if
                                   necessary for
                                   foreign travelers).
U.S. Citizens at all sea and      Valid Passport card  Yes.....................  Yes.....................  Yes.....................  Yes.
 land POEs when arriving from
 Canada, Mexico, the Caribbean,
 and Bermuda.
Trusted Traveler Members at all   Trusted Traveler     Yes*....................  Yes*....................  Yes*....................  Yes.*
 sea and land POEs when arriving   Cards (NEXUS,
 from contiguous territory or      FAST, SENTRI).
 adjacent islands.
U.S. Citizen Merchant Mariner on  U.S. Merchant        Yes.....................  Yes.....................  Yes.....................  Yes.
 official mariner business at      Mariners Document
 all sea and land POEs.            (MMD).
Mexican Nationals arriving from   Border Crossing      Yes**...................  Yes**...................  Yes**...................  No.
 Mexico.                           Card (BCC).
Lawful Permanent Residents        I-551; I-688 with    Yes.....................  Yes.....................  Yes.....................  Yes.
 (LPRs) at all land and sea POE.   proper stamp; I-
                                   327; I-571; I-512;
                                   other evidence of
                                   permanent resident
                                   status.
U.S. Citizen Cruise Ship          Government-issued    N/A.....................  N/A.....................  N/A.....................  Yes--for round trip
 Passengers on round trip          photo ID and                                                                                       voyages that
 voyages that begin and end in     certified copy of                                                                                  originate in U.S.
 the same U.S. port.               birth certificate.
U.S. and Canadian Citizen         Certified copy of    Yes.....................  Yes.....................  Yes.....................  Yes.
 Children Under 16 at all sea      birth certificate
 and land POEs when arriving       (government-issued
 from contiguous territory or      photo ID
 adjacent islands.                 recommended, but
                                   not or required).
U.S. and Canadian Citizen         Certified copy of    Yes.....................  Yes.....................  Yes.....................  Yes.
 Children--Groups of Children      birth certificate
 Under Age 19, under adult         and parental/
 supervision with parental/        guardian consent
 guardian consent at all sea and   (government-issued
 land POEs when arriving from      photo ID
 contiguous territory or           recommended, but
 adjacent islands.                 not required.).
U.S. Citizen/Alien Members of     Military ID and      Yes.....................  Yes.....................  Yes.....................  Yes.
 U.S. Armed Forces traveling       Official Orders.
 under official orders or permit
 at all air, sea and land POEs.
Members of NATO Armed Forces at   Military ID and      Yes.....................  Yes.....................  Yes.....................  Yes.
 all sea and land POEs.            Official Orders.

[[Page 35102]]

 
U.S. and Mexican Kickapoo at all  Form I-872 American  Yes.....................  Yes.....................  Yes.....................  Yes.
 sea and land POEs when arriving   Indian Card.
 from contiguous territory and
 adjacent islands.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Approved for Mexican national members traveling with passport and visa or BCC.
** In conjunction with a valid I-94 for travel outside the 25- or 75-mile geographic limits of the BCC.

VI. Section-by-Section Discussion of Proposed Amendments

    Based on the discussion above, the following changes are necessary 
to the regulations.

8 CFR 212.0

    This amendment would add a new section 212.0 that would define the 
terms ``adjacent islands'', ``cruise ship'', ``ferry'', ``pleasure 
vessel'', and ``United States'' for purposes of Sec.  212.1 and Sec.  
235.1 of this subchapter of title 8.

8 CFR 212.1

    The amendments to this section would revise paragraphs (a)(1) and 
(a)(2) to add a requirement that Canadians and citizens of the British 
Overseas Territory of Bermuda present a passport when seeking admission 
to the United States at sea or land ports-of-entry, except in certain 
enumerated circumstances. The amendment designates acceptable 
alternative documents for trusted traveler program (NEXUS, FAST, or 
SENTRI) members; children under age 16; and children under age 19 
traveling in groups.
    In addition, the amendments to this section would revise paragraph 
(c)(1) by deleting the current paragraph (c)(1)(ii), which provides a 
passport exception to Mexican nationals obtaining a passport at Mexican 
consulates in the United States. The amendment would add a new 
paragraph (c)(1)(ii), allowing alternative documentation to be 
presented by Mexican national Kickapoo holders of a Form I-872 American 
Indian Card.

8 CFR 235.1

    The amendment to this section would revise paragraph (b) to provide 
that certain categories of United States citizens may present 
alternative documentation in lieu of a passport when they enter the 
United States. The revised paragraph (b) would list the acceptable 
documentation for each category of U.S. citizen when they enter the 
United States at sea or land ports-of-entry: a passport; a passport 
card; a trusted traveler card (NEXUS, FAST, or SENTRI); an unexpired 
MMD for merchant mariners traveling in conjunction with official 
maritime business.
    The amendments would designate acceptable alternative documents to 
the passport for: U.S. citizen members of the Armed Forces of the 
United States; cruise ship passengers on cruises that originate and 
return to the United States; children under age 16; children under to 
age 19 traveling in groups; and U.S. citizen direct and indirect 
employees of the International Boundary and Water Commission traveling 
in connection with Commission employment with proper identification.
    The amendments to this section also remove the current paragraph 
(d) and add a new paragraph (d), which provides that the Secretary of 
Homeland Security may designate certain documents or combinations of 
documents as sufficient to denote identity and citizenship for certain 
approved pilot programs effective upon publishing notice in the Federal 
Register.

22 CFR Part 41

    The amendments to this part would add definitions in a new section 
numbered 41.0, delete section 41.1(b) and revise sections 41.2(a), (b), 
and (g). These sections currently provide passport exceptions for 
Canadian citizens and citizens of the British Overseas Territory of 
Bermuda. In the amendments, new language is proposed that would require 
a passport when seeking admission to the United States at sea or land 
ports-of-entry from contiguous territory within the Western Hemisphere, 
except in certain enumerated circumstances. The amendments propose the 
deletion of section 41.2(b) and the reservation of that subsection for 
future rulemaking. The visa exception for certain Native Americans born 
in Canada is moved to revised section 41.2(a). As outlined in the 
preamble, the proposed rule would consider designation of a 
satisfactory alternative document for Canadian Native Americans 
belonging to a First Nation, tribe, or band whose members continue 
traditional border crossings. The proposed amendment would add passport 
exceptions for trusted traveler program (NEXUS, FAST, or SENTRI) 
members; children under age 16; and children under age 19 traveling in 
groups.
    The amendments to 22 CFR 41.2(g) would eliminate the passport 
exceptions for Mexican nationals obtaining a passport at Mexican 
consulates in the United States and would add a passport exception for 
Mexican national Kickapoo holders of a Form I-872 American Indian Card.

22 CFR 53.2

    The proposed amendments to this section would add additional 
categories of United States citizens who may present alternative 
documentation in lieu of a passport when traveling by land and sea. 
Specifically, the amendments would add passport exceptions for: U.S. 
citizen members of the Armed Forces of the United States; children 
under age 16; and children under age 19 traveling in groups.

VII. Regulatory Analyses

A. Executive Order 12866: Regulatory Planning and Review

    This rule is considered to be an economically significant 
regulatory action under Executive Order 12866 because it may result in 
the expenditure of over $100 million in any one year. Accordingly, this 
proposed rule has been reviewed by the Office of Management and Budget 
(OMB). The following summary presents the costs and benefits of the 
proposed rule plus a range of alternatives considered. (The 
``Regulatory Assessment'' can be found in the docket for this 
rulemaking: http://www.regulations.gov; see also http://www.cbp.gov). 
There are two documents: one document examines the impacts of WHTI in 
the cruise ship environment; the second document examines the impacts 
on border crossings by land, ferry, and pleasure vessels. Comments 
regarding both of the analyses and the underlying assumptions are 
encouraged and may be submitted by any of the methods described under 
the ADDRESSES section of this document.
    The regulatory assessments summarized here consider U.S. travelers 
entering the United States via land

[[Page 35103]]

ports-of-entry on the northern and southern borders (including arrivals 
by ferry and pleasure boat) as well as certain cruise ship passengers. 
The impacts to the public due to the requirement to obtain the 
necessary documentation for air travel were considered in a previous 
analysis examining the implementation of WHTI in the air environment 
(the Regulatory Assessment for the November 2006 Final Rule for 
implementation of WHTI in the air environment can be found at http://www.regulations.gov; document number USCBP-2006-0097-0108). If 
travelers have already purchased a passport for travel in the air 
environment, they would not need to purchase a passport for travel in 
the land or sea environments. We do not attempt to estimate with any 
precision the number of travelers who travel in more than one 
environment, and, therefore, may have already obtained a passport due 
to the air rule and will not incur any burden due to this rulemaking. 
To the extent that the three traveling populations overlap in the air, 
land, and sea environments, we have potentially overestimated the 
direct costs of the proposed rule presented here.
    The period of analysis is 2005-2014 (10 years). We calculate costs 
beginning in 2005 because although the full suite of WHTI rules is not 
yet in place, DOS has already seen a dramatic increase in passport 
applications since the WHTI plan was announced in early 2005. We 
account for those passports obtained prior to full implementation to 
more accurately estimate the economic impacts of the rule as well as to 
incorporate the fairly sizable percentage of travelers that currently 
hold passports in anticipation of the new requirements.
    In addition to the traditional passport book, the Secretary of 
Homeland Security is designating the passport card, CBP trusted 
traveler cards (NEXUS, SENTRI, FAST), the Merchant Mariner Document, 
and specified documents from a DHS-approved WHTI pilot program as 
generally acceptable travel documents for U.S. citizens to enter the 
United States at land and sea ports-of-entry. Because DHS and DOS 
believe that children under the age of 16 pose a low security threat in 
the sea and land environments, U.S. children may present a certified 
copy of a birth certificate in lieu of the designated documents. 
Additionally, DHS and DOS have determined that exempting certain cruise 
passengers from a passport requirement is the best approach to balance 
security and travel efficiency considerations in the cruise ship 
environment. To meet the cruise exemptions, a passenger must board the 
cruise ship at a port or place within the United States and the 
passenger must return on the same ship to the same U.S. port or place 
from where he or she originally departed.
    For the summary of the analysis presented here, CBP assumes that 
only the passport, trusted traveler cards, and the MMD are available in 
the first years of the analysis (recalling that the period of analysis 
begins in 2005 when passport cards and pilot-program documents were not 
yet available). CBP also assumes that most children under 16 will not 
obtain a passport or passport card but will instead use alternative 
documentation (birth certificates). The estimates reflect that CBP 
trusted traveler cards would be accepted at land and sea ports-of-
entry. Finally, CBP assumes that most of the U.S. cruise passenger 
population will present alternative documentation (government-issued 
photo ID and certified copy of birth certificate) because they meet the 
waiver criteria proposed.
    To estimate the costs of the rule, we follow this general 
analytical framework--
     Determine the number of U.S. travelers that will be 
covered.
     Determine how many already hold acceptable documents.
     Determine how many will opt to obtain passports or 
passport cards, and estimate their lost ``consumer surplus.''
     Determine how many will forgo travel instead of obtaining 
passports or passport cards, and estimate their lost ``consumer 
surplus.''
    We estimate covered land travelers using multiple sources, 
including: Crossing data from the Bureau of Transportation Statistics 
(BTS, 2004 data), a study of passport demand conducted by DOS,\74\ and 
a host of regional studies conducted by State and local governments and 
academic research centers.
    Other than the DOS passport demand study, no source exists to our 
knowledge that has estimated the total number of land entrants 
nationwide. Researchers almost always count or estimate crossings, not 
crossers and focus on a region or locality, not an entire border. 
Building on the work conducted for the DOS passport study, we distilled 
approximately 300 million annual crossings into the number of frequent 
(defined as at least once a year), infrequent (once every 3 years), and 
rare (once every 10 years) ``unique U.S. adult travelers.'' We then 
estimate the number of travelers without the documentation this 
rulemaking proposes to be required and estimate the cost to obtain such 
documents. The fee for the passport varies depending on the age of the 
applicant, whether or not the applicant is renewing a passport, whether 
or not the applicant is requesting expedited service, and whether or 
not the applicant obtains a passport or a passport card. Additionally, 
we consider the amount of time required to obtain the document and the 
value of that time. To estimate the value of an applicant's time in the 
land environment, we conducted new research that builds on existing 
estimates from the Department of Transportation.\75\ To estimate the 
value of an applicant's time in the sea environment, we use estimates 
for air travelers' value of time (recall that air and sea travelers 
share very similar characteristics) from the Federal Aviation 
Administration (FAA, 2005 data). We use the 2005 DOS passport demand 
study and CBP statistics on the trusted traveler programs to estimate 
how many unique U.S. travelers already hold acceptable documents.
    We estimate covered cruise passengers using data from the Maritime 
Administration (MARAD, 2006 data) and itineraries available on the 
cruise line Web sites (for 2007). The overwhelming majority of Western 
Hemisphere cruise passengers--92 percent--would fall under the proposed 
cruise-passenger waiver. Passengers not covered by the waiver fall into 
four trade markets--Alaska (72 percent), Trans-Panama Canal (16 
percent), U.S. Pacific Coast (8 percent), and Canada/New England (4 
percent). We estimate that these passengers will have to obtain a 
passport rather than one of the other acceptable documents because 
these travelers will likely have an international flight as part of 
their cruise vacation, and only the passport is a globally accepted 
travel document. We use a comment to the August 2006 NPRM for 
implementation of WHTI in the air and sea environments (71 FR 46155) 
from the International Council of Cruise Lines to estimate how many 
unique U.S. cruise travelers already hold acceptable documentation; 
however, we will continue to study this issue.

[[Page 35104]]

    Based on CBP's analysis, approximately 3.2 million U.S. travelers 
are affected by the proposed rule in the first year of analysis (2005). 
Of these, approximately 2.9 million enter through a land-border 
crossing (via privately owned vehicle, commercial truck, bus, train, on 
foot) and ferry and recreational boat landing sites. An estimated 0.3 
million are cruise passengers that do not meet the waiver criteria in 
the NPRM (note that over 90 percent of U.S. cruise passengers are 
expected to meet the proposed waiver criteria). CBP estimates that the 
traveling public acquired approximately 3.2 million passports in the 
first year of the analysis, in the anticipation of the passport 
requirements, at a direct cost of $417 million. These estimates are 
summarized in Table A.
---------------------------------------------------------------------------

    \74\ A Study to Determine the Inaugural and Annual Demand for 
U.S. Passports by U.S. Citizens Living in and Traveling to Canada, 
Mexico and the Caribbean (U.S. State Department, Prepared by Bearing 
Point Oct. 2005).
    \75\ U.S. Department of Transportation, Departmental Guidance 
for the Valuation of Travel Time in Economic Analysis (Memorandum 
from F.E. Kruesi) (April 1997); and U.S. Department of 
Transportation. Revised Departmental Guidance, Valuation of Travel 
Time in Economic Analysis (Memorandum from E.H. Frankel) (February 
2003).

     Table A.--First-Year Estimates (2005) for U.S. Adult Travelers
                       [All estimates in millions]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Affected Travelers:
  Land/ferry/pleasure boat crossers..........................        2.9
  Cruise passengers..........................................        0.3
                                                              ----------
    Total....................................................        3.2
Passports demanded:
  Land/ferry/pleasure boat crossers..........................        2.7
  Cruise passengers..........................................        0.3
                                                              ----------
    Total....................................................        3.0
Total cost of passports:
  Land-border crossers.......................................     $370.7
  Cruise passengers..........................................       45.8
                                                              ----------
    Total....................................................     $416.5
------------------------------------------------------------------------

    To estimate potential forgone travel in the land environment, we 
derive traveler demand curves for access to Mexico and Canada based on 
survey responses collected in the DOS passport study. We estimate that 
when the rule is implemented, the number of unique U.S. travelers to 
Mexico who are frequent travelers decreases by 6.5 percent, the unique 
U.S. travelers who are infrequent travelers decreases by 7.3 percent, 
and the unique U.S. travelers who are rare travelers decreases by 17.8 
percent. The number of U.S. travelers visiting Canada who are frequent 
travelers decreases by 3.7 percent, the unique U.S. travelers who are 
infrequent travelers decreases by 10.7 percent, and the unique U.S. 
travelers who are rare travelers decreases by 10.9 percent. These 
estimates account for the use of a passport card for those travelers 
who choose to obtain one. For unique travelers deciding to forgo future 
visits, their implied value for access to these countries is less than 
the cost of obtaining a passport card.
    To estimate potential forgone travel in the relatively small number 
of cruises affected in the sea environment, we use a study from 
Coleman, Meyer, and Scheffman (2003), which described the Federal Trade 
Commission investigation into potential impacts of two cruise-line 
mergers and estimated a demand elasticity for cruise travel. We 
estimate that the number of travelers decreases by 24.4 percent, 13.4 
percent, 7.0 percent, and 5.6 percent for travelers on short (1 to 5 
nights), medium (6 to 8 nights), long (9 to 17 nights), and very long 
cruises (over 17 nights) once the rule is implemented.
    We then estimate total losses in consumer surplus. The first figure 
below represents U.S. travelers' willingness to pay (D1) for 
access to Mexico and Canada. At price P1, the number of U.S. 
travelers without passports currently making trips to these countries 
is represented by Q1. As seen in the second figure, if the 
government requires travelers to obtain a passport or passport card in 
order to take trips to Mexico and Canada, the price of access increases 
by the cost of obtaining the new document, to P2. As a 
result, the number of travelers making trips to these countries 
decreases to Q2.
[GRAPHIC] [TIFF OMITTED] TP26JN07.005

    All travelers in this figure experience a loss in consumer surplus; 
the size of the surplus loss depends on their willingness to pay for 
access to these countries. The lost surplus experienced by travelers 
whose willingness to pay exceeds P2 is shown in the dark 
gray rectangle, and is calculated as (P2-P1) * 
Q2. In other words, the lost consumer surplus of travelers 
willing to buy the passport or passport card is simply the cost 
(P2-P1) of the passport or passport card. 
Travelers whose willingness to pay for access to these countries is 
less than the price of the passport or passport card will experience a 
loss equal to the area of the light gray triangle, calculated as \1/2\ 
* (Q1-Q2) * (P2-P1).
    Costs of the rule (expressed as losses in consumer surplus) are 
summed by year of the analysis. We then add the government costs of 
implementing WHTI over the period of analysis. Ten-year costs are $3.3 
billion at the 3 percent discount rate and $2.8 billion at 7 percent, 
as shown in Table B. Annualized costs are $384 million at 3 percent and 
$406 million at 7 percent.

                      Table B.--Total Costs for U.S. Travelers Over the Period of Analysis
                                            [2005-2014, in $Millions]
----------------------------------------------------------------------------------------------------------------
                                                                                  3%  discount     7%  discount
                             Year                                    Cost             rate             rate
----------------------------------------------------------------------------------------------------------------
2005.........................................................             $436             $436             $435
2006.........................................................              173              168              163

[[Page 35105]]

 
2007.........................................................              405              381              357
2008.........................................................              603              552              498
2009.........................................................              476              423              368
2010.........................................................              386              333              280
2011.........................................................              297              249              202
2012.........................................................              291              236              184
2013.........................................................              276              218              163
2014.........................................................              361              277              198
                                                              --------------------------------------------------
    Total....................................................  ...............           $3,272           $2,848
----------------------------------------------------------------------------------------------------------------

    The primary analysis for land summarized here assumes a constant 
number of border crossers over the period of analysis; in the complete 
Regulatory Assessment, we also consider scenarios where the number of 
border crossers both increases and decreases over the period of 
analysis. It is worth noting that border crossings have been mostly 
decreasing at both the northern and southern borders since 1999. The 
analysis for sea travel assumes a 6 percent annual increase in 
passenger counts over the period of analysis as the Western Hemisphere 
cruise industry continues to experience growth.
    Finally, we conduct a formal uncertainty (Monte Carlo) analysis to 
test our assumptions in the land environment. We first conducted a 
preliminary sensitivity analysis to identify the variables that have 
the most significant effect on consumer welfare losses. We found that 
the frequency of travel (frequent, infrequent, rare), crossings at 
multiple ports-of-entry, future annual affected individuals, and the 
amount of time spent applying for documentation were the most sensitive 
variables in the analysis. The variables that did not appear to have an 
impact on consumer losses were the estimated number of crossings by 
Lawful Permanent Residents (LPRs) or Native Americans and estimated 
future timing with which travelers will apply for acceptable 
documentation. After we conducted our formal Monte Carlo we found that 
our most sensitive assumptions are: the projected crossing growth rate, 
the frequency of travel, and the number of new unique travelers that 
enter the population annually. The results of the Monte Carlo analysis 
are presented in Table C. Note that these estimates do not include the 
government costs of implementation, estimated at an annualized cost of 
$100 million (3 percent discount rate, 10 years), because we have no 
basis for assigning uncertainty parameters for government costs.

Table C.--Summary of Key Characteristics of Probability Distributions of
 Total Welfare Losses in the Land Environment (2005-2014, in $Billions),
                         3 Percent Discount Rate
------------------------------------------------------------------------
                        Statistic                              Value
------------------------------------------------------------------------
Trials..................................................          10,000
Mean....................................................            $2.1
Median..................................................            $2.1
Std Dev.................................................            $0.5
Variance................................................         2.8E+08
5th Percentile..........................................            $1.4
95th Percentile.........................................            $3.1
Point Estimate..........................................            $2.2
------------------------------------------------------------------------

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

[[Page 35106]]

well in advance, passengers on these voyages are more likely to already 
possess a passport, and the passport cost is a smaller fraction of the 
total trip cost.
    Because border-crossing activity is predominantly a localized 
phenomenon, and the activities engaged in while visiting the United 
States are well documented in existing studies, we can explore the 
potential impacts of forgone travel more quantitatively in the land 
environment. Using various studies on average spending per trip in the 
United States, Canada, and Mexico, we estimate the net results of 
changes in expenditure flows in 2008 (the presumed first year the 
requirements will be implemented) and subsequent years. Because Mexican 
crossers already possess acceptable documentation to enter the United 
States (passport or BCC), we do not estimate that Mexican travelers 
will forgo travel to the United States. The summary of expenditure 
flows is presented in Table D.

  Table D.--Net Expenditure Flows in North America, 2008 and Subsequent
                                  Years
                               [$Millions]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
2008:
    Spending by U.S. travelers who forgo travel to Mexico..        +$440
    Spending by Mexican travelers who forgo travel to the              0
     United States.........................................
    Spending by U.S. travelers who forgo travel to Canada..         +170
    Spending by Canadian travelers who forgo travel to              -200
     United States.........................................
                                                            ------------
        Net................................................         $410
Subsequent years (annual):
    Spending by U.S. travelers who forgo travel to Mexico..        +$310
    Spending by Mexican travelers who forgo travel to                  0
     United States.........................................
    Spending by U.S. travelers who forgo travel to Canada..         +120
    Spending by Canadian travelers who forgo travel to              -200
     United States.........................................
                                                            ------------
        Net................................................         $230
------------------------------------------------------------------------

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

                         Table E.--Modeled Distributional Effects in Eight Case Studies
----------------------------------------------------------------------------------------------------------------
                                                                                    Change as % of total . . .
             Study area (counties)                            State              -------------------------------
                                                                                      Output        Employment
----------------------------------------------------------------------------------------------------------------
San Diego.....................................  California......................           +0.03           +0.03
Pima, Santa Cruz..............................  Arizona.........................           +0.03           +0.03
Hidalgo, Cameron..............................  Texas...........................           +0.22           +0.19
Presidio......................................  Texas...........................           +0.55           +0.62
Niagara, Erie.................................  New York........................           -0.06           -0.12
Washington....................................  Maine...........................           -0.61           -1.41
Macomb, Wayne, Oakland........................  Michigan........................           -0.01           -0.01
Whatcom.......................................  Washington......................           -0.21           -0.53
----------------------------------------------------------------------------------------------------------------

    As shown, we anticipate very small net positive changes in the 
southern-border case studies because Mexican travelers to the United 
States use existing documentation, and their travel is not affected. 
The net change in regional output and employment is negative (though 
still very small) in the northern-border case studies because Canadian 
travelers forgoing trips outnumber U.S. travelers staying in the United 
States and because Canadian travelers to the United States generally 
spend more per trip than U.S. travelers to Canada. On both borders, 
those U.S. travelers that forgo travel do not necessarily spend the 
money they would have spent outside the United States in the case-study 
region; they may spend it outside the region, and thus outside the 
model.
    As this is one of the first comprehensive attempts by DHS to 
develop a model to estimate localized cross-border economic impacts due 
to a rulemaking, we explicitly seek comment on this proposed analysis. 
Specifically, we may not have captured all of the changes in local 
expenditures that may be attributable to the proposed rulemaking. For 
example, U.S. citizens purchasing documentation required for travel to 
Canada or Mexico will not have that money available for other 
consumption. Similarly, Canadian travelers may spend less in the United 
States on travel to compensate for the costs of acquiring 
documentation.
    Finally, because the benefits of homeland security regulations 
cannot readily be quantified using traditional analytical methods, we 
conduct a ``breakeven analysis'' to determine what the reduction in 
risk would have to be given the estimated costs of the implementation 
of WHTI (land environment only). Using the Risk Management Solutions 
U.S. Terrorism Risk Model (RMS model), we estimated the critical risk 
reduction that would have to occur in order for the costs of the rule 
to equal the benefits--or break even.
    The RMS model has been developed for use by the insurance industry 
and provides a comprehensive assessment of the overall terrorism risk 
from both foreign and domestic terrorist

[[Page 35107]]

organizations. The RMS model generates a probabilistic estimate of the 
overall terrorism risk from loss estimates for dozens of types of 
potential attacks against several thousand potential targets of 
terrorism across the United States. For each attack mode-target pair 
(constituting an individual scenario) the model accounts for the 
probability that a successful attack will occur and the consequences of 
the attack. RMS derives attack probabilities from a semi-annual 
structured expert elicitation process focusing on terrorists' 
intentions and capabilities. It bases scenario consequences on physical 
modeling of attack phenomena and casts target characteristics in terms 
of property damage and casualties of interest to insurers. 
Specifically, property damages include costs of damaged buildings, loss 
of building contents, and loss from business interruption associated 
with property to which law enforcement prohibits entry immediately 
following a terrorist attack. RMS classifies casualties based on 
injury-severity categories used by the worker compensation insurance 
industry.
    The results in the figure below are for the cost estimates 
presented above and casualty costs based on willingness-to-pay 
estimates and a $3 million value of a statistical life (VSL). These 
results show that a decrease in perceived risk leads to a smaller 
annualized loss and a greater critical risk reduction, and an increase 
in perceived risk leads to a greater annualized loss and a smaller 
critical risk reduction. The total range in critical risk reduction is 
a factor of four and ranges from 6.6 to 26 percent, with a critical 
risk reduction of 13 percent required for the standard risk scenario.
[GRAPHIC] [TIFF OMITTED] TP26JN07.006

    The critical risk reduction for all risk levels considered and 
multiple injury and fatality estimates are presented in Table F. As 
shown, critical risk reduction ranges from 3.5 percent (high risk, 
quality-of-life, VSL $6 million) to 35 percent (low risk, cost-of-
injury, no VSL). Note that because the annualized costs of the 
rulemaking are very similar at the 7 percent discount rate, the 
critical risk reduction estimates presented in Table F would not change 
appreciably at the 7 percent rate.

         Table F.--Critical Risk Reduction for the Proposed Rule
            [Standard risk scenario, 3 percent discount rate]
------------------------------------------------------------------------
                                        Critical risk reduction (%)
                                 ---------------------------------------
                                      Low        Standard        High
------------------------------------------------------------------------
Cost of injury (fatality =                 35          17            8.7
 $1.1m).........................
Willingness to pay (VSL = $3m)..           26          13            6.6
Quality of life (VSL = $3m).....           22          11            5.6
Willingness to pay (VSL = $6m)..           18           8.8          4.4
Quality of life (VSL = $6m).....           14           6.9          3.5
------------------------------------------------------------------------

    In addition to the methodology used to value casualties, several 
other key factors affect the critical risk reduction estimate. These 
factors include: The uncertainty in the risk estimate produced by the 
RMS model; the

[[Page 35108]]

potential for other types of baseline losses not captured in the RMS 
model; and the size of other non-quantified direct and ancillary 
benefits of the rule. The RMS model likely underestimates total 
baseline terrorism loss because it only reflects the direct, insurable 
costs of terrorism. It does not include any indirect losses that would 
result from continued change in consumption patterns or preferences or 
that would result from propagating consequences of interdependent 
infrastructure systems. For example, the RMS model does not capture the 
economic disruption of a terrorism event beyond the immediate insured 
losses. Furthermore, the model also excludes non-worker casualty losses 
and losses associated with government buildings and employees. Finally, 
the model may not capture less-tangible components of losses that the 
public wishes to avoid, such as the fear and anxiety associated with 
experiencing a terrorist attack. Omission of these losses will cause us 
to overstate the necessary risk reductions.
Alternatives to the Proposed Rule
    CBP considered the following alternatives to the NPRM--
    1. Require all U.S. travelers (including children) to present a 
valid passport book upon return to the United States from countries in 
the Western Hemisphere.
    2. Require all U.S. travelers (including children) to present a 
valid passport book, passport card, CBP trusted traveler document, MMD, 
or a specified document from a DHS-approved WHTI pilot program upon 
return to the United States from countries in the Western Hemisphere.
    Calculations of costs for the alternatives can be found in the two 
Regulatory Assessments for the NPRM.
Alternative 1: Require All U.S. Travelers (Including Children) to 
Present a Valid Passport Book
    This alternative would require all U.S. citizens, including minors 
under 16 and all cruise passengers, to present a valid passport book. 
The passport card, CBP trusted traveler documents, the MMD, and 
documents from DHS-approved pilot programs would not be accepted. This 
would be a more stringent alternative, and it was rejected as 
potentially too costly and burdensome for low-risk populations of 
travelers. While the traditional passport book will always be an 
acceptable document for a U.S. citizen to present upon entry to the 
United States, DHS and DOS believe that the cost of a traditional 
passport book may be too burdensome for some U.S. citizens, 
particularly those living in border communities where land-border 
crossings are an integral part of everyday life. As stated previously, 
DHS and DOS believe that children under the age of 16 pose a low 
security threat in the land and sea environments and will be permitted 
to present a certified copy of a birth certificate when arriving in the 
United States at all land and sea ports-of-entry from within the 
Western Hemisphere. Additionally, DHS and CBP have developed an 
alternative procedure for children traveling in groups. DHS and DOS 
have also determined that exempting certain cruise passengers from a 
passport requirement is the best approach to balance security and 
travel efficiency considerations in the cruise ship environment.
Alternative 2: Require All U.S. Ttravelers (Including All Cchildren) to 
Present a Valid Passport Book, Passport Card, or Other Approved 
Document
    The second alternative is similar to the proposed rule, though it 
includes children and does not exempt cruise passengers. It is again 
more stringent than the proposed rule. While this alternative 
incorporates the low-cost passport card and CBP trusted traveler cards 
as acceptable travel documents, this alternative was ultimately 
rejected as potentially too costly and burdensome for low-risk 
populations of travelers (certain cruise passengers and minors under 
16).
    Table G presents a comparison of the costs of the proposed rule and 
the alternatives considered.

                                 Table G.--Comparison of Regulatory Alternatives
                                                 [In $Millions]
----------------------------------------------------------------------------------------------------------------
                                                                Cost  compared
                  Alternative                    10-year cost     to proposed            Reason rejected
                                                     (7%)            rule
----------------------------------------------------------------------------------------------------------------
Proposed rule.................................          $2,848             n/a
1. Passport book only for all U.S. travelers..           5,254         +$2,406  Cost of a passport considered
                                                                                 too high for citizens in border
                                                                                 communities; low-risk traveling
                                                                                 populations (certain cruise
                                                                                 passengers, children under 16)
                                                                                 unduly burdened.
2. Passport book, passport card, and other               5,448          +2,600  Low-risk traveling populations
 designated documents for all U.S. travelers.                                    (certain cruise passengers,
                                                                                 children under 16) unduly
                                                                                 burdened.
----------------------------------------------------------------------------------------------------------------

    It is important to note that for scenarios where the passport card 
is acceptable (the proposed rule and Alternative 2), the estimates 
include government implementation costs for CBP to install the 
appropriate technology at land ports-of-entry to read RFID-enabled 
passport cards and the next generation of CBP trusted traveler 
documents. These technology deployment costs are estimated to be 
substantial, particularly in the early phases of implementation. As a 
result, the alternatives allowing more documents than just the passport 
cost more over 10 years than alternatives allowing only the passport, 
which can be processed with existing readers that scan the passport's 
MRZ. Providing waivers for minors and most cruise passengers results in 
notable cost savings over 10 years (about $2.5 billion depending on the 
documents considered).
    The passport card is designed specifically to address the needs and 
travel patterns of those who live in land-border communities and 
frequently cross the border in their day-to-day activities. The 
passport card is intended not only to enhance security efforts for 
international land and sea travel between the U.S. and Canada, Mexico, 
the Caribbean, or Bermuda, but is also intended to assist DHS in 
expediting the movement of legitimate travel within the Western 
Hemisphere.
    In particular, the land border presents complex operational 
challenges, in that a tremendous amount of traffic must be processed in 
a short amount of time. There are often several passengers in a 
vehicle, and multiple vehicles arriving at one time at each land border 
port-of-entry. Many of the people encountered

[[Page 35109]]

crossing at the land border ports-of-entry are frequent crossers. 
However, CBP does not receive advance information on these land border 
travelers. For these reasons, the Department of State, in consultation 
with DHS, agreed to develop a technology-based solution.
    The data printed on the face of the passport card will be the same 
as that currently shown on the data page of the U.S. passport--bearer's 
facial image, full name, date and place of birth, passport card number, 
dates of validity and issuing authority. The reverse side of the 
passport card will carry a machine-readable zone (MRZ) and notation 
that the card is valid only for international land and sea travel 
between the U.S. and Canada, Mexico, the Caribbean, or Bermuda. In 
addition, each passport card will utilize Radio Frequency (RF) 
technology to store and transmit only a unique reference number that 
will serve as a link to information safeguarded in a secure database 
managed by CBP. This reference number will be assigned by Department of 
State at the time the passport card is issued and no personal or 
biographic information will be stored or transmitted using Radio 
Frequency (RF) technology. Presenting the passport card will allow the 
linked information to be retrieved from the secure DHS database to 
allow the CBP officer to compare the citizen presenting him or herself 
for entry into the United States with the original issuance record to 
ensure that it is the same person. This database could include 
additional information, for example, information about the bearer's 
membership in one of CBP's trusted traveler programs (NEXUS, SENTRI, or 
FAST).
    After reviewing a number of options to provide the CBP officer with 
appropriate personal information to facilitate the processing of 
travelers, DOS and DHS believe that the most promising technology is RF 
technology. This technology utilizes a passive chip deriving its power 
from the reader that communicates with it. We focused on RF vicinity 
read (GEN 2) technology.
    RF vicinity read technology conforms to International Standards 
Organization (ISO) 18000 6-C specifications. Vicinity read technology 
would allow the passport card data to be read at a distance of up to 20 
feet from the reader. The vicinity read chip would contain only a 
unique reference number that will serve as a link to information 
safeguarded in a secure database managed by CBP. In addition to having 
commercial applications, vicinity-read technology is currently being 
used in a number of DHS programs. Operationally, it has similarities to 
CBP land border international trusted traveler programs, and DHS's 
pilot electronic I-94 program currently in place at several land border 
crossings in that it will only store and transmit a unique reference 
number and no personal or biographic information. Vicinity read 
technology is similar to that used in highway toll systems throughout 
the U.S. From an operational sense, this technology would allow 
passengers approaching a land crossing in vehicles to present the 
passport card to the reader easily from within the vehicle and these 
readers could process information from up to eight cards at one time. 
In addition, the use of vicinity technology would provide information 
to border security personnel further in advance of a traveler's arrival 
at an inspection booth, facilitate a faster processing of individuals, 
and provide more opportunities to leverage existing technologies.
    DHS selected RF vicinity read technology for its border management 
system. To ensure compatibility and interoperability with the DHS 
border management system, and to secure significant travel facilitation 
advantages, DOS proposed to produce the passport card utilizing RF 
vicinity read technology (see 71 FR 60928 for DOS's proposed rule, 
which contains a more detailed discussion of the advantages and 
disadvantages of different technology choices). The selection of 
vicinity read technology for the passport card was made in an effort to 
ensure a seamless operational environment with DHS, and provide the 
infrastructure support to strengthen our national security at U.S. land 
borders. DOS proposed to produce the card and deliver them with a thin 
protective sleeve, designed to protect the card from unauthorized 
access. The card could be stored in the sleeve and removed only when 
needed.
    In addition to the State Department's proposed rule referenced 
above, please see the DHS Land border analysis document for a more 
detailed discussion of both the deployment and other costs of the 
proposed form of the passport card, and the advantages to the border 
management system provided by the RF vicinity read technology.
Accounting Statement
    As required by OMB Circular A-4, CBP has prepared an accounting 
statement showing the classification of the expenditures associated 
with this rule. The table below provides an estimate of the dollar 
amount of these costs and benefits, expressed in 2005 dollars, at 7 
percent and 3 percent discount rates. We estimate that the cost of this 
rule will be approximately $406 million annualized (7 percent discount 
rate) and approximately $384 million annualized (3 percent discount 
rate). Non-quantified benefits are enhanced security and efficiency.

    Accounting Statement: Classification of Expenditures, 2005--2014
                             [2005 dollars]
------------------------------------------------------------------------
                                3% Discount rate      7% Discount rate
------------------------------------------------------------------------
Costs:
    Annualized monetized      $384 million........  $406 million.
     costs.
    Annualized quantified,    None................  None.
     but un-monetized costs.
    Qualitative (un-          Indirect costs to     Indirect costs to
     quantified) costs.        the travel and        the travel and
                               tourism industry.     tourism industry.
Benefits:
    Annualized monetized      None quantified.....  None quantified.
     benefits.
    Annualized, quantified,   None quantified.....  None quantified.
     but un-monetized
     benefits.
    Qualitative (un-          Enhanced security      Enhanced security
     quantified) benefits.     and efficiency.       and efficiency.
------------------------------------------------------------------------


[[Page 35110]]

B. Regulatory Flexibility Act

    CBP has prepared this section to examine the impacts of the 
proposed rule on small entities as required by the Regulatory 
Flexibility Act (RFA).\76\ 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).
---------------------------------------------------------------------------

    \76\ See 5 U.S.C. 601-612.
---------------------------------------------------------------------------

    When considering the impacts on small entities for the purpose of 
complying with the RFA, CBP consulted the Small Business 
Administration's guidance document for conducting regulatory 
flexibility analysis.\77\ 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.\78\ This guidance 
document also includes a good discussion describing how direct and 
indirect costs of a regulation are considered differently for the 
purposes of the RFA. CBP does not believe that small entities are 
subject to the requirements of the proposed rule; individuals are 
subject to the requirements, and individuals are not considered small 
entities. To wit, ``The courts have held that the RFA requires an 
agency to perform a regulatory flexibility analysis of small entity 
impacts only when a rule directly regulates them.'' \79\
---------------------------------------------------------------------------

    \77\ See Small Business Administration, Office of Advocacy, A 
Guide for Government Agencies: How to Comply with the Regulatory 
Flexibility Act, May 2003.
    \78\ See id. at 69.
    \79\ See id. at 20.
---------------------------------------------------------------------------

    As described in the Regulatory Assessment for this rulemaking, CBP 
could not quantify the indirect impacts of the proposed rule with any 
degree of certainty; it instead focused the analysis on the direct 
costs to individuals recognizing that some small entities will face 
indirect impacts.
    Some of the small entities indirectly affected will be foreign 
owned and will be located outside the United States. Additionally, 
reductions in international travel that result from the proposed rule 
could lead to gains for domestic industries. Most travelers are 
expected to eventually obtain passports and continue traveling. 
Consequently, indirect effects are expected to be spread over wide 
swaths of domestic and foreign economies.
    Small businesses may be indirectly affected by the proposed rule if 
international travelers forego travel to affected Western Hemisphere 
countries. These industry sectors may include (but are not limited to):

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

    Because this rule does not directly regulate small entities, we do 
not believe that this rule has a significant economic impact on a 
substantial number of small entities. The exception could be certain 
``sole proprietors'' who could be considered small businesses and could 
be directly affected by the rule if their occupations required travel 
within the Western Hemisphere where a passport was not previously 
required. The cost to such businesses would be only $128 for a first-
time passport applicant, or $195 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.'' We welcome comments on our 
assumptions. The most helpful comments are those that can provide 
specific information or examples of a direct impact on small entities. 
If we do not receive comments that demonstrate that the rule causes 
small entities to incur direct costs, we may certify that this action 
does not have a significant economic impact on a substantial number of 
small entities during the final rule.
    The complete analysis of impacts to small entities for this 
proposed rulemaking is available on the CBP Web site at: http://www.regulations.gov; see also http://www.cbp.gov. Comments regarding 
the analysis and the underlying assumptions are encouraged and may be 
submitted by any of the methods described under the ADDRESSES section 
of this document.

C. Executive Order 13132: Federalism

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

D. Unfunded Mandates Reform Act Assessment

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

[[Page 35111]]

impact is discussed under the Executive Order 12866 discussion.

E. National Environmental Policy Act of 1969

    DHS and CBP, in consultation with DOS, the Environmental Protection 
Agency and the General Services Administration have been reviewing the 
potential environmental and other impacts of this proposed rule in 
accordance with the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.), the regulations of the Council on 
Environmental Quality (40 CFR part 1500), and DHS Management Directive 
5100.1, Environmental Planning Program of April 19, 2006. A 
programmatic environmental assessment (PEA) is being prepared that 
examines, among other things, potential alternatives regarding 
implementation of the proposed rule at the various land and sea ports 
of entry and what, if any, environmental impacts may result from the 
proposed rule and its implementation. The PEA will serve as the basis 
for the determination whether the proposed rule and its implementation 
will have a significant impact on the quality of the human environment 
such that it will require further analysis under NEPA.
    A Notice of Availability will be published in the Federal Register, 
and the PEA will be available for viewing and comments on http://www.regulations.gov. The Notice of Availability will also be published 
in newspapers, and copies placed in public libraries, in certain border 
areas. Additionally, copies of the PEA will be posted on the CBP Web 
site at http://www.cbp.gov. The Notice of Availability will provide 
details on how the public may provide comments on the PEA. In addition, 
copies may be obtained by writing to: U.S. Customs and Border 
Protection, 1300 Pennsylvania Avenue, NW., Room 5.4C, Attn: WHTI 
Environmental Assessment, Washington, DC 20229.

F. Paperwork Reduction Act

1. Passports/Passport Cards
    The collection of information requirement for passports is 
contained in 22 CFR 51.20 and 51.21. The required information is 
necessary for DOS Passport Services to issue a United States passport 
in the exercise of authorities granted to the Secretary of State in 22 
U.S.C. Section 211a et seq. and Executive Order 11295 (August 5, 1966) 
for the issuance of passports to United States citizens and non-citizen 
nationals. The issuance of U.S. passports requires the determination of 
identity and nationality with reference to the provisions of Title III 
of the Immigration and Nationality Act (8 U.S.C. sections 1401-1504), 
the Fourteenth Amendment to the Constitution of the United States, and 
other applicable 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. 
Applicants for the proposed passport cards would use the same 
application forms (DS-11 and DS-82). 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 will amend the OMB form 83-I (Paperwork Reduction Act 
Submission) relating to the DS-11 to reflect these increases.
    The collection of information encompassed within this rule has been 
submitted to the OMB for review in accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and 
a person is not required to respond to, a collection of information 
unless the collection of information displays a valid control number 
assigned by OMB.
    Estimated annual average reporting and/or recordkeeping burden: 
14.7 million hours.
    Estimated annual average number of respondents: 9 million.
    Estimated average burden per respondent: 1 hour 25 minutes.
    Estimated frequency of responses: every 10 years (adult passport 
and passport card applications); every 5 years (minor passport and 
passport card applications).
    Comments on this collection of information should be sent to the 
Office of Management and Budget, Attention: Desk Officer of the 
Department of State, Office of Information and Regulatory Affairs, 
Washington, DC 20503. Comments should be submitted within the time 
frame that comments are due regarding the substance of the proposal.
    Comments are invited on: (a) Whether the collection is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility; (b) the accuracy 
of the agency's estimate of the burden of the collection of the 
information; (c) ways to enhance the quality, utility, and clarity of 
the information to be collected; (d) ways to minimize the burden of the 
collection of information on respondents, including through the use of 
automated collection techniques or other forms of information 
technology; and (e) estimates of capital or startup costs and costs of 
operations, maintenance, and purchases of services to provide 
information.
2. Groups of Children
    The collection of information requirements for groups of children 
would be contained in 8 CFR 212.1 and 235.1. The required information 
is necessary to comply with section 7209 of IRTPA, as amended, to 
develop an alternative procedure for groups of children traveling 
across an international border under adult supervision with parental 
consent. DHS, in consultation with DOS, has developed alternate 
procedures requiring that certain information be provided to CBP so 
that these children would not be required to present a passport. 
Consequently, U.S. and Canadian citizen children through age 18, who 
are traveling with public or private school groups, religious groups, 
social or cultural organizations, or teams associated with youth sport 
organizations that arrive at U.S. sea or land ports-of-entry, would be 
permitted to present a certified copy of a birth certificate (rather 
than a passport), when the groups are under the supervision of an adult 
affiliated with the organization and when all the children have 
parental or legal guardian consent to travel. U.S. citizen children 
would also be permitted to present a certification of Naturalization or 
a Consular Report of Birth Abroad.
    When crossing the border at the port-of-entry, the U.S. group, 
organization, or team would be required to provide to CBP on 
organizational letterhead the following information: (1) The name of 
the group; (2) the name of each child on the trip; (3) the primary 
address, primary phone number, date of birth, place of birth, and name 
of at least one parent or legal guardian for each child on the trip; 
(4) the name of the chaperone or supervising adult; and (5) the 
signature of the supervising adult certifying that he or she has 
obtained parental or legal guardian consent for each child.

[[Page 35112]]

    The primary purpose for soliciting the information is to allow 
groups of children arriving at the U.S. border under adult supervision 
with parental consent to present either an original or a certified copy 
of a birth certificate, Consular Report of Birth Abroad, or Certificate 
of Naturalization, rather than a passport, when the requested 
information is provided to CBP. This information is necessary for CBP 
to verify that the group of children entering the United States would 
be eligible for this alternative procedure so that the children would 
not be required to present a passport.
    The collection of information encompassed within this proposed rule 
has been submitted to the OMB for review in accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not 
conduct, and a person is not required to respond to, a collection of 
information unless the collection of information displays a valid 
control number assigned by OMB.
    Estimated annual reporting and/or recordkeeping burden: 1,625 
hours.
    Estimated average annual respondent or recordkeeping burden: 15 
minutes.
    Estimated number of respondents and/or recordkeepers: 6,500 
respondents.
    Estimated annual frequency of responses: 6,500 responses.
    Comments on this collection of information should be sent to the 
Office of Management and Budget, Attention: Desk Officer of the 
Department of Homeland Security, Office of Information and Regulatory 
Affairs, Washington, DC 20503. Comments should be submitted within the 
time frame that comments are due regarding the substance of the 
proposal.
    Comments are invited on: (a) Whether the collection is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility; (b) the accuracy 
of the agency's estimate of the burden of the collection of the 
information; (c) ways to enhance the quality, utility, and clarity of 
the information to be collected; (d) ways to minimize the burden of the 
collection of information on respondents, including through the use of 
automated collection techniques or other forms of information 
technology; and (e) estimates of capital or startup costs and costs of 
operations, maintenance, and purchases of services to provide 
information.

G. Privacy Statement

    A Privacy Impact Assessment (PIA) is being posted to the DHS Web 
site in conjunction with the publication of this proposed rule in the 
Federal Register. The changes proposed in this rule involve the removal 
of an exception for U.S. citizens from having to present a passport in 
connection with Western Hemisphere travel other than Cuba, such that 
said individuals would now be required to present a passport or other 
identified alternative document when traveling from points of origin 
both within and without of the Western Hemisphere. The rule expands the 
number of individuals submitting passport information for travel within 
the Western Hemisphere, but does not involve the collection of any new 
data elements. Presently, CBP collects and stores passport information 
from all travelers, required to provide such information pursuant to 
the Aviation and Transportation Security Act of 2001 (ATSA) and the 
Enhanced Border Security and Visa Reform Act of 2002 (EBSA), in the 
Treasury Enforcement Communications System (TECS) (for which a System 
of Records Notice is published at 66 FR 53029). By removing the 
exception for submitting passport information from U.S. citizens 
traveling within the Western Hemisphere, DOS and CBP are requiring 
these individuals to comply with the general requirement to submit 
passport information when traveling to and from the United States.

List of Subjects

8 CFR Part 212

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

8 CFR Part 235

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

22 CFR Part 41

    Aliens, Nonimmigrants, Passports and visas.

22 CFR Part 53

    Passports and visas, Travel restrictions.

Proposed Amendments to the Regulations

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

Title 8--Aliens and Nationality

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

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

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227, 1359; 8 U.S.C. 1185 note 
(section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. 
L. 109-295).

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


Sec.  212.0  Definitions.

    For purposes of Sec.  212.1 and Sec.  235.1 of this chapter:
    Adjacent islands means Bermuda and the islands located in the 
Caribbean Sea, except Cuba.
    Cruise ship means a passenger vessel over 100 gross tons, carrying 
more than 12 passengers for hire, making a voyage lasting more than 24 
hours any part of which is on the high seas, and for which passengers 
are embarked or disembarked in the United States or its territories.
    Ferry means any vessel operating on a pre-determined fixed schedule 
and route, which is being used solely to provide transportation between 
places that are no more than 300 miles apart and which is being used to 
transport passengers, vehicles, and/or railroad cars;
    Pleasure vessel means a vessel that is used exclusively for 
recreational or personal purposes and not to transport passengers or 
property for hire; and
    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)).
    3. Section 212.1 is amended by:
    a. Revising paragraphs (a)(1) and (a)(2); and
    b. Revising paragraph (c)(1).
    The revisions read as follows:


Sec.  212.1  Documentary requirements for nonimmigrants.

* * * * *
    (a) Citizens of Canada or Bermuda, Bahamian nationals or British 
subjects resident in certain islands--(1) Canadian citizens. A visa is 
generally not required for Canadian citizens, except those Canadians 
that fall under nonimmigrant visa categories E, K, S or V as provided 
in paragraphs (h), (l), and (m) of this section and 22 CFR 41.2. A 
valid unexpired passport is required for Canadian citizens arriving in 
the United States, except when meeting one of the following 
requirements:

[[Page 35113]]

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

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

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

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 
1228, 1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of 
Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).

    5. Section 235.1 is amended by:
    a. Revising paragraph (b); and
    b. Revising paragraph (d).
    The revised text reads as follows:


Sec.  235.1  Scope of Examination.

* * * * *
    (b) U.S. Citizens. A person claiming United States citizenship must 
establish that fact to the examining officer's satisfaction and must 
present a passport or alternative documentation as required by 22 CFR 
part 53. If such applicant for admission fails to satisfy the examining 
immigration officer that he or she is a citizen, he or she shall 
thereafter be inspected as an alien. A United States citizen must 
present a valid unexpired traditional passport upon entering the United 
States, unless he or she presents one of the following documents:
    (1) Passport Card. A United States citizen who possesses a valid 
unexpired United States passport card, as defined in 22 CFR 53.1, may 
present the passport card when entering the United States from Canada, 
Mexico, the Caribbean or Bermuda at sea or land ports-of-entry.
    (2) Merchant Mariner Document. A United States citizen who holds a 
Merchant Mariner Document (MMD) issued by the U.S. Coast Guard may 
present an unexpired MMD used in conjunction with official maritime 
business when entering the United States.
    (3) Military Identification. Any U.S. citizen member of the U.S. 
Armed Forces who is in the uniform of, or bears documents identifying 
him or her as a member of, such Armed Forces, and who is coming to or 
departing from the United States under official orders or permit of 
such Armed Forces, may present a military identification card and the 
official orders when entering the United States.
    (4) Trusted Traveler Programs. A United States citizen who travels 
as a participant in the NEXUS, FAST or SENTRI programs may present a 
valid NEXUS program card when using a NEXUS Air kiosk or a valid NEXUS, 
FAST, or SENTRI card at a sea or land port-of-entry prior to entering 
the

[[Page 35114]]

United States from contiguous territory or adjacent islands. A United 
States citizen who enters the United States by pleasure vessel from 
Canada using the remote inspection system may present a NEXUS program 
card.
    (5) Certain Cruise Ship Passengers. A United States citizen 
traveling entirely within the Western Hemisphere is permitted to 
present a government-issued photo identification document in 
combination with either an original or a certified copy of his or her 
birth certificate, a Consular Report of Birth Abroad issued by the 
Department of State, or a Certificate of Naturalization issued by U.S. 
Citizenship and Immigration Services before entering the United States 
when the United States citizen:
    (i) Boards a cruise ship at a port or place within the United 
States; and,
    (ii) Returns on the same cruise ship to the same United States port 
or place from where he or she originally departed.
    (6) Native American Holders of an American Indian Card. A Native 
American holder of a Form I-872 American Indian Card arriving from 
contiguous territory is permitted to present the Form I-872 card prior 
to entering the United States at a land or sea port-of-entry.
    (7) Children. A child who is a United States citizen entering the 
United States from contiguous territory at a sea or land ports-of-entry 
may present certain other documents, if the arrival meets the 
applicable requirements described below.
    (i) Children Under Age 16. A United States citizen who is under the 
age of 16 is permitted to present either an original or a certified 
copy of his or her birth certificate, a Consular Report of Birth Abroad 
issued by the Department of State, or a Certificate of Naturalization 
issued by U.S. Citizenship and Immigration Services when entering the 
United States from contiguous territory at sea or land ports-of-entry.
    (ii) Groups of Children Under Age 19. A United States citizen, who 
is under age 19 and is traveling with a public or private school group, 
religious group, social or cultural organization or team associated 
with a youth sport organization is permitted to present either an 
original or a certified copy of his or her birth certificate, a 
Consular Report of Birth Abroad issued by the Department of State, or a 
Certificate of Naturalization issued by U.S. Citizenship and 
Immigration Services when arriving from contiguous territory at sea or 
land ports-of-entry, when the group, organization, or team is under the 
supervision of an adult affiliated with the group, organization, or 
team and when the child has parental or legal guardian consent to 
travel. For purposes of this paragraph, an adult is considered to be a 
person age 19 or older. The following requirements will apply:
    (A) The group or organization must provide to CBP upon crossing the 
border, on organizational letterhead:
    (1) The name of the group, organization or team, and the name of 
the supervising adult;
    (2) A list of the children on the trip;
    (3) For each child, the primary address, primary phone number, date 
of birth, place of birth, and name of a parent or legal guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (b)(7)(ii)(A) of this section that he or 
she has obtained for each child the consent of at least one parent or 
legal guardian.
    (C) The inspection procedure described in this paragraph is limited 
to members of the group, organization, or team who are under age 19. 
Other members of the group, organization, or team must comply with 
other applicable document and/or inspection requirements found in this 
part.
* * * * *
    (d) Pilot Programs; alternate requirements. For purposes of 
conducting a test program or procedure designed to evaluate the 
effectiveness of technology or operational procedures regarding the 
suitability of travel documents that denote citizenship and identity, 
the Secretary of Homeland Security may enter into a voluntary pilot 
program agreement with a State, tribe, province, territory, or foreign 
government. The Secretary of Homeland Security may, by publication of a 
notice in the Federal Register, designate as an acceptable document for 
travel into the United States from elsewhere in the Western Hemisphere, 
on a temporary basis, a valid and lawfully obtained document from a 
State, tribe, province, territory, or foreign government developed in 
accordance with a voluntary pilot program agreement between that entity 
and the Department of Homeland Security. If a pilot program document is 
announced in such a notice, United States citizens or foreign nationals 
may present these accepted pilot program documents in lieu of a 
passport upon entering or seeking admission to the United States 
according to the terms announced in the pilot program agreements. A 
list of such programs and documents are available on the Customs and 
Border Protection Web site.
* * * * *

Title 22--Foreign Relations

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

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

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 
through 2681-801; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458, as amended by section 546 of Pub. L. 109-295).

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

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


Sec.  41.0  Definitions.

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

    3. Section 41.1 is amended by removing and reserving paragraph (b).
    4. Section 41.2 is amended by revising the introductory text and 
paragraphs (a), (b), and (g)(1), and adding a paragraph (g)(5) to read 
as follows:


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

    Pursuant to the authority of the Secretary of State and the 
Secretary of Homeland Security under INA as amended a passport and/or 
visa is not

[[Page 35115]]

required for the following categories of nonimmigrants:
    (a) Canadian citizens. A visa is not required for an American 
Indian born in Canada having at least 50 percentum of blood of the 
American Indian race. A visa is not required for other Canadian 
citizens except for those who apply for admission in E, K, V, or S 
nonimmigrant classification as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1. A passport is required for Canadian 
citizens applying for admission to the United States, except when one 
of the following exceptions applies:
    (1) NEXUS Program. A Canadian citizen who is traveling as a 
participant in the NEXUS program may present a valid NEXUS program card 
when using a NEXUS Air kiosk or when entering the United States from 
contiguous territory or adjacent islands at a land or sea port-of-
entry, and who is not otherwise required to present a passport and visa 
as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1. 
A Canadian citizen who enters the United States by pleasure vessel from 
Canada under the remote inspection system may present a NEXUS program 
card.
    (2) FAST Program. A Canadian citizen who is traveling as a 
participant in the FAST program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid FAST card at a sea or 
land port-of-entry prior to entering the United States from contiguous 
territory or adjacent islands.
    (3) SENTRI Program. A Canadian citizen who is traveling as a 
participant in the SENTRI program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid SENTRI card at a sea 
or land port-of-entry prior to entering the United States from 
contiguous territory or adjacent islands.
    (4) Children. A child who is a Canadian citizen who is seeking 
admission to the United States when arriving from contiguous territory 
at a sea or land port-of-entry, may present certain other documents if 
the arrival meets the applicable requirements described below.
    (i) Children Under Age 16. A Canadian citizen who is under the age 
of 16 is permitted to present an original or certified copy of his or 
her birth certificate when arriving in the United States from 
contiguous territory at sea or land ports-of-entry.
    (ii) Groups of Children Under Age 19. A Canadian citizen who is 
under age 19 and who is traveling with a public or private school 
group, religious group, social or cultural organization, or team 
associated with a youth sport organization may present an original or 
certified copy of his or her birth certificate when applying for 
admission to the United States from contiguous territory at all sea and 
land ports-of-entry, when the group, organization or team is under the 
supervision of an adult affiliated with the organization and when the 
child has parental or legal guardian consent to travel. For purposes of 
this paragraph, an adult is considered to be a person who is age 19 or 
older.
    The following requirements will apply:
    (A) The group, organization, or team must provide to CBP upon 
crossing the border, on organizational letterhead:
    (1) The name of the group, organization or team, and the name of 
the supervising adult;
    (2) A trip itinerary, including the stated purpose of the trip, the 
location of the destination, and the length of stay;
    (3) A list of the children on the trip;
    (4) For each child, the primary address, primary phone number, date 
of birth, place of birth, and the name of at least one parent or legal 
guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (a)(4)(ii)(A) of this section that he or 
she has obtained for each child the consent of at least one parent or 
legal guardian.
    (C) The procedure described in this paragraph is limited to members 
of the group, organization, or team that are under age 19. Other 
members of the group, organization, or team must comply with other 
applicable document and/or inspection requirements found in this part 
and 8 CFR parts 212 and 235.
    (5) Pilot Programs. A Canadian citizen who is traveling as a 
participant in a pilot program approved by the Secretary of Homeland 
Security pursuant to 8 CFR 235.1(d) may present an acceptable 
alternative document specified for that pilot program when entering the 
United States from contiguous territory or adjacent islands at a land 
or sea port-of-entry, and who is not otherwise required to present a 
passport and visa as provided in paragraphs (k) and (m) of this section 
and 8 CFR 212.1. A Canadian citizen who enters the United States by 
pleasure vessel from Canada under the remote inspection system may also 
present an acceptable pilot program document if the Canadian citizen is 
participating in a pilot program which specifically provides that the 
acceptable pilot program document may be presented for remote entry.
* * * * *
    (b) Citizens of the British Overseas Territory of Bermuda. A visa 
is not required, except for Citizens of the British Overseas Territory 
of Bermuda who apply for admission in E, K, V, or S nonimmigrant visa 
classification as provided in paragraphs (k) and (m) of this section 
and 8 CFR 212.1. A passport is required for Citizens of the British 
Overseas Territory of Bermuda applying for admission to the United 
States.
* * * * *
    (g) Mexican nationals. (1) A visa and a passport are not required 
of a Mexican national who is applying for admission from Mexico as a 
temporary visitor for business or pleasure at a land port-of-entry, or 
arriving by pleasure vessel or ferry, if the national is in possession 
of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a 
machine-readable biometric identifier, issued by the Department of 
State.
* * * * *
    (5) A visa and a passport are not required of a Mexican national 
who is applying for admission from contiguous territory or adjacent 
islands at a land or sea port-of-entry, if the national is a member of 
the Texas Band of Kickapoo who is in possession of a Form I-872 
American Indian Card issued by U.S. Citizenship and Immigration 
Services (USCIS).
* * * * *

PART 53--PASSPORT REQUIREMENT AND EXCEPTIONS

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

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

    6. Section 53.2 is revised to read as follows:


Sec.  53.2  Exceptions.

    (a) U.S. citizens are not required to bear U.S. passports when 
traveling directly between parts of the United States as defined in 
Sec.  50.1 of this chapter.
    (b) A U.S. citizen is not required to bear a valid U.S. passport to 
enter or depart the United States:
    (1) When traveling as a member of the Armed Forces of the United 
States on active duty and when he or she is in the uniform of, or bears 
documents identifying him or her as a member of, such Armed Forces, 
when under official orders or permit of such Armed Forces, and when 
carrying a military identification card; or

[[Page 35116]]

    (2) When traveling entirely within the Western Hemisphere on a 
cruise ship, when the U.S. citizen boards the cruise ship at a port or 
place within the United States, and, returns on the same cruise ship to 
the same United States port or place from where he or she originally 
departed. That U.S. citizen may present a government-issued photo 
identification document in combination with either an original or a 
certified copy of his or her birth certificate, a Consular Report of 
Birth Abroad issued by the Department, or a Certificate of 
Naturalization issued by U.S. Citizenship and Immigration Services 
before entering the United States; or
    (3) When traveling as a U.S. citizen seaman, carrying an unexpired 
Merchant Marine Document (MMD) in conjunction with maritime business. 
The MMD is not sufficient to establish citizenship for purposes of 
issuance of a United States passport under part 51 of this chapter; or
    (4) Trusted Traveler Programs--(i) NEXUS Program. When traveling as 
a participant in the NEXUS program, he or she may present a valid NEXUS 
program card when using a NEXUS Air kiosk or when entering the United 
States from contiguous territory or adjacent islands at a sea or land 
port-of-entry. A U.S. citizen who enters the United States by pleasure 
vessel from Canada under the remote inspection system may also present 
a NEXUS program card;
    (ii) FAST Program. A U.S. citizen who is traveling as a participant 
in the FAST program may present a valid FAST card when entering the 
United States from contiguous territory or adjacent islands at a sea or 
land port-of-entry;
    (iii) SENTRI Program. A U.S. citizen who is traveling as a 
participant in the SENTRI program may present a valid SENTRI card when 
entering the United States from contiguous territory or adjacent 
islands at a sea or land port-of-entry;
    (iv) The NEXUS, FAST, and SENTRI cards are not sufficient to 
establish citizenship for purposes of issuance of a U.S. passport under 
part 51 of this chapter; or
    (5) When arriving at land ports of entry and sea ports of entry 
from contiguous territory or adjacent islands, Native American holders 
of American Indian Cards (Form I-872) issued by United States 
Citizenship and Immigration Services (USCIS) may present those cards.
    (6) When bearing documents or combinations of documents the 
Secretary of Homeland Security has determined under Section 7209(b) of 
Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote 
identity and citizenship.
    (7) When the U.S. citizen is employed directly or indirectly on the 
construction, operation, or maintenance of works undertaken in 
accordance with the treaty concluded on February 3, 1944, between the 
United States and Mexico regarding the functions of the International 
Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 
1219, or other related agreements, provided that the U.S. citizen bears 
an official identification card issued by the IBWC and is traveling in 
connection with such employment; or
    (8) 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
    (9) 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.
    (10) When the U.S. citizen is a child under the age of 19 arriving 
from contiguous territory in the following circumstances:
    (i) Children Under Age 16. A United States citizen who is under the 
age of 16 is permitted to present either an original or a certified 
copy of his or her birth certificate, a Consular Report of Birth 
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship 
and Immigration Services when entering the United States from 
contiguous territory at sea or land ports-of-entry.
    (ii) Groups of Children Under Age 19. A U.S. citizen who is under 
age 19 and who is traveling with a public or private school group, 
religious group, social or cultural organization, or team associated 
with a youth sport organization may present either an original or 
certified copy of his or her birth certificate, a Consular Report of 
Birth Abroad, or a Certificate of Naturalization issued by U.S. 
Citizenship and Immigration Services when arriving in the United States 
from contiguous territory at all land or sea ports of entry, when the 
group, organization or team is under the supervision of an adult 
affiliated with the organization and when the child has parental or 
legal guardian consent to travel. For purposes of this paragraph, an 
adult is considered to be a person who is age 19 or older. The 
following requirements will apply:
    (A) The group, organization, or team must provide to CBP upon 
crossing the border on organizational letterhead:
    (1) The name of the group, organization or team, and the name of 
the supervising adult;
    (2) A list of the children on the trip; and
    (3) For each child, the primary address, primary phone number, date 
of birth, place of birth, and the name of at least one parent or legal 
guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by providing certifying 
in the writing submitted in paragraph (b)(10)(ii)(A) of this section 
that he or she has obtained for each child the consent of at least one 
parent or legal guardian.
    (C) The procedure described in this paragraph is limited to members 
of the group, organization, or team who are under age 19. Other members 
of the group, organization, or team must comply with other applicable 
document and/or inspection requirements found in 8 CFR parts 211, 212 
or 235.

Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.
    Dated: June 19, 2007.
Henrietta Fore,
Under Secretary of State for Management, Department of State.
[FR Doc. 07-3104 Filed 6-21-07; 2:11 pm]
BILLING CODE 9111-14-P