[Federal Register Volume 84, Number 115 (Friday, June 14, 2019)]
[Rules and Regulations]
[Pages 27704-27707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12301]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 235

[CBP Dec. 19-05]
RIN 1651-AB24


U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel 
Card Program Regulations

AGENCY: U.S. Customs and Border Protection, U.S. Department of Homeland 
Security.

ACTION: Final rule; conforming amendment.

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SUMMARY: This document amends the Department of Homeland Security's 
(DHS) regulations pertaining to the U.S. Asia-Pacific Economic 
Cooperation (APEC) Business Travel Card Program to conform to the Asia-
Pacific Economic Cooperation Business Travel Cards Act of 2017 (APEC 
Act of 2017). Among other conforming changes, it removes the sunset 
provision and adds a definition of trusted traveler program. It also 
updates the regulations to correct two minor errors.

DATES: The final rule is effective June 14, 2019.

FOR FURTHER INFORMATION CONTACT: Eddy (Rafael) R. Henry, Office of 
Field Operations, (202) 344-3251, [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. Asia-Pacific Economic Cooperation (APEC)
    B. The APEC Business Travel Card (ABTC)
    C. U.S. Participation in the ABTC Program
II. Discussion of Regulatory Changes
III. Inapplicability of Notice and Delayed Effective Date
IV. Statutory and Regulatory Requirements
    A. Executive Orders 12866 (Regulatory Planning and Review), 
13563 (Improving Regulation and Regulatory Review) and 13771 
(Reducing Regulation and Controlling Regulatory Costs)
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
List of Subjects
Amendments to the Regulations

I. Background

    The Asia-Pacific Economic Cooperation Business Travel Cards Act of 
2011 (APEC Act of 2011) established the U.S. APEC Business Travel Card 
(ABTC) Program and authorized the Secretary of Homeland Security to 
issue ABTCs through September 30, 2018. Public Law 112-54, 125 Stat. 
550. It also authorized DHS to issue implementing regulations. The U.S. 
ABTC Program provides qualified U.S. business travelers engaged in 
business in the APEC region, or U.S. Government officials actively 
engaged in APEC business, the ability to access fast-track immigration 
lanes at participating airports in foreign APEC member economies. DHS 
implemented the program, including the general eligibility 
requirements, through an interim final rule (IFR) published in the 
Federal Register (79 FR 27161) on May 13, 2014. This interim rule was 
adopted as a final rule published in the Federal Register (81 FR 84403) 
on November 23, 2016. On November 2, 2017, the President signed into 
law the Asia-Pacific Economic Cooperation Business Travel Cards Act of 
2017 (APEC Act of 2017). Public Law 115-79, 131 Stat. 1258. The APEC 
Act of 2017 replaced the APEC Act of 2011, setting forth, without 
changing, the general eligibility requirements for the U.S. ABTC and 
making the U.S. ABTC Program an ongoing program. In addition, the APEC 
Act of 2017 included some clarifying provisions, such as a definition 
of a trusted traveler program. APEC, the U.S. ABTC Program, and the new 
law are discussed in more detail below.

A. Asia-Pacific Economic Cooperation (APEC)

    The United States is a member of APEC, which is an economic forum 
comprised of twenty-one members.\1\ APEC's primary goal is to support 
sustainable economic growth and prosperity in the Asia-Pacific region. 
One way APEC promotes this is by facilitating a favorable and 
sustainable business environment. APEC also promotes regional 
connectivity through better physical and institutional linkages to 
ensure goods, services, and people move quickly and efficiently across 
borders. The ABTC Program discussed in Section B makes it simpler for 
business people to travel, thus enabling them to conduct their 
business, trade, and investment.
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    \1\ APEC members are also referred to as `economies' since the 
APEC process is primarily concerned with trade and economic issues 
with the members engaging each other as economic entities. The most 
recently updated list of members is available at the APEC website at 
https://www.apec.org/About-Us/About-APEC/Member-Economies (last 
accessed Oct. 22, 2018). For simplicity, we will generally refer to 
them in the preamble of this document as APEC ``members,'' except 
where the term ``member economy'' or ``member economies'' is more 
appropriate.
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B. The APEC Business Travel Card (ABTC)

    One of APEC's business facilitation initiatives is the ABTC 
Program. Pursuant to the ABTC Program, APEC members can issue ABTC 
cards to

[[Page 27705]]

business travelers and senior government officials who meet certain 
standards established by the members to provide simpler short-term 
entry procedures within the APEC region.\2\ The parameters of the ABTC 
Program are more fully set forth in the APEC Business Travel Card 
Operating Framework (``APEC Framework'').\3\
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    \2\ APEC distinguishes between fully participating and 
transitional members for the purposes of the ABTC Program. In 
particular, fully participating members do not require a separate 
business visa or permit application from ABTC holders to whom they 
have granted preclearance. Generally, pre-clearance is the prior 
permission given by economies to an ABTC holder that grants 
cardholders the authorization to travel to, enter and undertake 
legitimate business in participating economies without first 
obtaining a visa. While this term is not strictly defined in the 
current iteration of the APEC Framework, later versions of the 
framework may include such a definition. The United States does not 
currently participate in the pre-clearance aspect of the ABTC 
Program. Canada and the United States are currently transitional 
members and do not offer visa-free travel for ABTC holders unless 
they otherwise qualify for visa-free travel. The IFR published on 
May 13, 2014 includes a more detailed description of the two types 
of membership. 79 FR 27161, 27162.
    \3\ According to the IFR, standards for the ABTCs were set forth 
in the APEC Framework, dated October 2010. 79 FR 27161, 27162. At 
the time the IFR was published, the current version of the APEC 
Framework was Version 17, agreed to on January 30, 2013. 79 FR 
27161, 27163 at n. 11. The APEC Framework is now current as Version 
20, agreed to on February 26, 2018. Any subsequent revisions to the 
APEC Framework that directly affect the U.S. ABTC may require a 
regulatory change.
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    Individuals may apply for the ABTC Program if they: (1) Are 
citizens of a participating member economy; \4\ (2) have never been 
convicted of a criminal offense; (3) hold a valid passport issued by 
the home economy; \5\ and, (4) are bona fide business persons engaged 
in business who may need to travel frequently on short-term visits 
within the APEC region to fulfill business commitments. A bona fide 
business person is defined in the APEC Framework as a person who is 
engaged in the trade of goods, the provision of services, or the 
conduct of investment activities. Senior government officials or other 
government officials actively engaged in APEC business may be eligible 
for an ABTC as well. Each APEC member determines its own definition of 
the term ``senior Government official.'' Under the APEC Framework, the 
following persons are not eligible for ABTCs: the business person's 
dependent spouse or children; persons who wish to engage in paid 
employment (i.e., obtain a paid employment position located in a 
foreign APEC member economy) or a working holiday; and professional 
athletes, news correspondents, entertainers, musicians, artists, or 
persons engaged in similar occupations. Finally, the APEC Framework 
provides that members may impose additional eligibility criteria.
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    \4\ In the case of Hong Kong China, this applies to its 
permanent residents who hold Hong Kong permanent identity cards.
    \5\ In the case of Hong Kong China, this applies to its 
permanent residents who hold a Hong Kong Special Administrative 
Region passport or a valid travel document issued by another country 
or territory.
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C. U.S. Participation in the ABTC Program

(i) APEC Act of 2011
    The APEC Act of 2011 became law on November 12, 2011. Public Law 
112-54, 125 Stat. 550. It set forth the basic eligibility and 
operational criteria for the U.S. ABTCs, and authorized the Secretary 
of Homeland Security, in coordination with the Secretary of State, to 
issue U.S. ABTCs through September 30, 2018. The APEC Act of 2011 
specifically authorized the Secretary of Homeland Security to issue 
U.S. ABTCs to any eligible person, including business persons and U.S. 
Government officials actively engaged in APEC business, who is approved 
and in good standing in an international trusted traveler program of 
DHS. The APEC Act of 2011 also authorized the Secretary of Homeland 
Security, in coordination with the Secretary of State, to prescribe the 
necessary regulations regarding conditions of or limitations on 
eligibility for an ABTC.
    Pursuant to the APEC Act of 2011, and after consultation with the 
Department of State and the private sector, DHS published an IFR in the 
Federal Register amending the DHS regulations to establish the U.S. 
ABTC program. 79 FR 27161 (May 13, 2014).\6\ The rule promulgated 
regulations that adhered to the APEC Framework in effect at that time 
and implemented the U.S. ABTC program in accordance with the APEC Act 
of 2011. A final rule published on November 23, 2016 that adopted the 
interim amendments as final.\7\
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    \6\ The IFR became effective on June 12, 2014. 79 FR 27161 (May 
13, 2014).
    \7\ 81 FR 84403. As discussed in more detail below, the final 
rule adopted the interim amendments as final. Notwithstanding this, 
subsequent citations are to the IFR only, except where a citation to 
the final rule is necessary.
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    The IFR explained that, in accordance with the APEC Framework, 
participation in the U.S. ABTC Program was limited to U.S. citizens \8\ 
who are either bona fide business persons engaged in APEC business, or 
U.S. Government officials actively engaged in APEC business. 79 FR 
27161, 27164, 27174. It further defined ``bona fide business persons 
engaged in business in the APEC region'' as persons engaged in the 
trade of goods, the provision of services or the conduct of investment 
activities in the APEC region, and ``APEC business'' to mean U.S. 
Government activities that support the work of APEC. Id. At the same 
time, the IFR noted that, in accordance with the APEC Framework, 
professional athletes, news correspondents, entertainers, musicians, 
artists or persons engaged in similar occupations were not considered 
to be bona fide business travelers. Id.
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    \8\ In accordance with the APEC Framework, CBP noted that an 
APEC member may only issue ABTCs to its own citizens; thus, 
eligibility for the U.S. ABTC was limited to U.S. citizens. 79 FR 
27161, 27162, 27174.
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    The IFR clarified that, while the APEC Act of 2011 referred to 
membership in a DHS trusted traveler program as a precondition for 
participation in the U.S. ABTC Program, not all DHS trusted traveler 
programs were compatible with U.S. ABTC travel. Consequently, DHS 
limited eligibility to participants of Global Entry, NEXUS and SENTRI 
due to their eligibility requirements, vetting process and expedited 
processing at ports of entry.\9\ Id. The IFR and final rule also set 
forth the U.S. ABTC application process.\10\ See, 79 FR 27161, 27165, 
81 FR 84403, 84407.
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    \9\ DHS determined that other DHS trusted traveler programs such 
as FAST and TSA Precheck do not fit the parameters of the U.S. ABTC 
Program due to their vetting process and their inapplicability to 
international air travel.
    \10\ At the time the IFR and final rule were published, U.S. 
ABTC applications were accepted through CBP's Global Online 
Enrollment System (GOES) website. On October 1, 2017, CBP launched a 
new cloud-based website, the Trusted Traveler Programs (TTP) System, 
which replaced the Global Online Enrollment System (GOES). The TTP 
website can be accessed at https://ttp.cbp.dhs. gov/.
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    The IFR provided that U.S. ABTC card holders may apply to renew 
their membership up to a year prior to the expiration of their ABTCs, 
as long as they did so before the expiration of the U.S. ABTC Program. 
The IFR also noted that a renewal application would require a new U.S. 
ABTC application, fee and review of eligibility criteria, including 
membership in a CBP trusted traveler program. Id.
    Finally, the IFR set forth the notification procedures for 
applicants who may be denied a U.S. ABTC, listed reasons that a U.S. 
ABTC holder may be removed from the U.S. ABTC Program, and provided 
redress procedures for individuals who wished to contest their denial 
or termination from the U.S. ABTC Program. Id. at 27165-66, 27175.
    The IFR became effective on June 12, 2014, and on that date CBP 
began issuing U.S. ABTCs to qualified U.S. citizens. At that time, in 
accordance

[[Page 27706]]

with the APEC Framework, CBP issued U.S. ABTCs valid for three years or 
until the expiration date of the card holder's passport (if earlier), 
provided the card holder's participation in the program was not revoked 
by CBP prior to the end of the period. On November 23, 2016, DHS 
adopted the interim amendments as final, albeit with two changes: The 
final rule amended the validity period of U.S. ABTCs to five years in 
conformity with revisions to the APEC Framework, and removed all 
references in the regulations to suspension from the program because 
CBP does not use suspension as a remedial action. 81 FR 84403.
(ii) APEC Act of 2017
    The APEC Act of 2017 became law on November 2, 2017. Public Law 
115-79, 131 Stat. 1258. The APEC Act of 2017 replaced the APEC Act of 
2011, setting forth, without changing, the general eligibility 
requirements for the U.S. ABTC and making the U.S. ABTC Program 
permanent. Id. In comparison with the APEC Act of 2011, the APEC Act of 
2017 provides more specific details on eligibility and incorporates 
certain definitions of terms that were originally set forth in the IFR 
and regulations that implemented the APEC Act of 2011.
    Although certain differences exist between the APEC Act of 2011 and 
the APEC Act of 2017, in most cases, these differences are consistent 
with the current regulations and therefore do not warrant a change in 
the regulations. For example, the APEC Act of 2017 now specifies U.S. 
citizenship in the eligibility criteria for U.S. ABTCs, whereas the 
APEC Act of 2011 did not. However, the IFR had clarified the 
eligibility criteria to include U.S. citizenship based on the criteria 
set forth in the APEC Framework. Since the regulations limit 
eligibility to U.S. citizens, the inclusion of this requirement in the 
APEC Act of 2017 does not warrant a change in the regulations. 
Similarly, the APEC Act of 2017 provides that U.S. ABTCs may be issued 
to individuals who are ``engaged in business'' in the APEC region and 
U.S. Government officials ``actively engaged in [APEC] business.'' 
Public Law 115-79. This language is consistent with the eligibility 
requirements set forth in the APEC Framework. In contrast, the APEC Act 
of 2011 had described as eligible ``business leaders and United States 
Government officials who are actively engaged in [APEC] business.'' 
Public Law 112-54, 125 Stat. 550. The IFR implementing the APEC Act of 
2011 had retained the distinction made in the APEC Framework, which is 
now made clearer in the APEC Act of 2017. As such, no amendment to the 
regulations is necessary as a result of this change. Finally, the APEC 
Act of 2017 specifically vested authority for implementing the program 
with the Commissioner of CBP, where previously, in the APEC Act of 
2011, such authority had been vested in the Secretary of Homeland 
Security. As the IFR was issued jointly by CBP and DHS, no change to 
the regulations is required per se.\11\
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    \11\ The APEC Act of 2017 also does not provide the Commissioner 
of CBP with authority to terminate the U.S. ABTC Program. 
Previously, pursuant to the APEC Act of 2011, the Secretary of 
Homeland Security had such authority, provided that termination was 
determined to be in the interest of the United States. As there is 
no provision regarding termination in the regulations, no change or 
amendment is required.
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    Two specific differences between the APEC Act of 2017 and the APEC 
Act of 2011 do require modifications to the regulations: (1) The 
inclusion of a definition for ``trusted traveler program'' in the APEC 
Act of 2017, and (2) the provision within the APEC Act of 2017 that 
makes the U.S. ABTC Program an ongoing program. The APEC Act of 2017 
provides that, solely for the purposes of the U.S. ABTC Program, ``the 
term `trusted traveler program' means a voluntary program of the 
Department that allows U.S. Customs and Border Protection to expedite 
clearance of pre-approved, low-risk travelers arriving in the United 
States''; no such definition was included in the APEC Act of 2011. 
Public Law 115-79; Public Law 112-54, 125 Stat. 54. DHS is 
incorporating this definition into the regulations. We note that as 
this definition is consistent with CBP's previous interpretation, its 
inclusion in the regulations does not necessitate a change in the CBP 
trusted traveler programs deemed compatible with the U.S. ABTC Program. 
The Global Entry, SENTRI, and NEXUS trusted traveler programs meet this 
definition and will continue to be the applicable trusted traveler 
programs for purposes of the ABTC regulations.\12\ Additionally, the 
APEC Act of 2017 makes the U.S. ABTC Program an ongoing program and the 
regulations are amended accordingly, as discussed in the section below.
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    \12\ CBP does not consider the FAST and TSA Precheck programs to 
meet the statutory definition. The FAST program is a commercial 
clearance program for known low-risk commercial shipments entering 
the United States from Canada and Mexico. FAST has its own vetting 
process and focuses more specifically on the business of highway 
carriers using trucks to transport cargo into the United States 
rather than on low-risk travelers in general. The TSA Precheck 
program does not deem an individual low-risk for CBP inspectional 
purposes. It facilitates pre-flight aviation security screening of 
travelers boarding flights within and departing the United States on 
U.S. carriers.
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    The regulations contained at 8 CFR 235.13, as revised, remain 
critical to the implementation of the U.S. ABTC Program as they set 
forth specific application, renewal and redress procedures not 
contained in the APEC Act of 2017, and they define terms used, but not 
defined, in the APEC Act of 2017.

II. Discussion of Regulatory Changes

    Section 235.13(b)(1) sets forth the eligibility criteria for 
participation in the U.S. ABTC Program. This same section provides 
definitions for terms and phrases used in the relevant statutory and 
regulatory provisions. This document revises Sec.  235.13(b)(1)(ii) by 
incorporating the definition of ``trusted traveler program'' included 
in the APEC Act of 2017.
    In the final rule establishing the regulations governing the U.S. 
ABTC Program, DHS removed references to suspension of previously issued 
cards as CBP does not use suspension as a remedial action. One 
reference to suspension inadvertently remained in the regulations, at 8 
CFR 235.13(g). This document corrects the error by removing the 
remaining reference to suspension. Additionally, this document corrects 
an inadvertent editorial error in Sec.  235.13(g)(1) by adding a space 
between the words ``removal'' and ``by''.
    Section 235.13(h) concerns the duration of the U.S. ABTC Program 
and provides that DHS will issue ABTCs through September 30, 2018. The 
APEC Act of 2017 makes the ABTC Program ongoing. Public Law 115-79, 131 
Stat. 1258. Therefore, Sec.  235.13(h) is no longer necessary. This 
document removes the now-obsolete provision. In light of the savings 
clause in section 4(b)(2) of the APEC Act of 2017, any ABTCs issued 
pursuant to the APEC Act of 2011 remain valid until their stated 
expiration date unless otherwise revoked.

III. Inapplicability of Notice and Delayed Effective Date

    The Administrative Procedure Act (APA) generally requires that 
agencies publish a notice of proposed rulemaking in the Federal 
Register and provide interested persons the opportunity to submit 
comments. See 5 U.S.C. 553(b) and (c). However, there are certain 
exceptions to this rule.
    The APA provides an exception from notice and comment procedures 
when an agency finds for good cause that those procedures are 
``impracticable, unnecessary, or contrary to the public

[[Page 27707]]

interest.'' See 5 U.S.C. 553(b)(3)(B). In this case, CBP finds that 
good cause exists for dispensing with notice and public procedure as 
unnecessary because the conforming amendments and minor non-substantive 
edits set forth in this document are required to ensure that the 
regulation reflects changes to the underlying statutory authority 
affected by the APEC Act of 2017 and to remove a minor inadvertent 
error. For this same reason, pursuant to 5 U.S.C. 553(d)(3), CBP finds 
that good cause exists for dispensing with the requirement for a 
delayed effective date.

IV. Statutory and Regulatory Requirements

A. Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review) and 13771 (Reducing 
Regulation and Controlling Regulatory Costs)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 12866 section 3(f) provides criteria for what constitutes 
``significant regulatory action'' and Executive Order 13563 emphasizes 
the importance of quantifying both costs and benefits, of reducing 
costs, of harmonizing rules, and of promoting flexibility. Executive 
Order 13771 (Reducing Regulation and Controlling Regulatory Costs) 
directs agencies to reduce regulation and control regulatory costs, and 
provides that for each new regulation issued, two prior regulations 
must be identified for elimination. Executive Order 13771 also requires 
that agencies prudently manage and control the cost of planned 
regulations through a budgeting process. As these amendments to the 
regulations are conforming amendments to reflect statutory changes and 
to make minor non-substantive edits, they do not meet the criteria for 
a ``significant regulatory action'' as specified in Executive Order 
12866, and as supplemented by Executive Order 13563. Accordingly, OMB 
has not reviewed this regulation. Further, as this rule is not a 
significant regulatory action, it is exempt from the requirements of 
Executive Order 13771. See OMB's Memorandum titled ``Guidance 
Implementing Executive Order 13771, Titled `Reducing Regulation and 
Controlling Regulatory Costs''' (April 5, 2017).

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended 
by the Small Business Regulatory Enforcement and Fairness Act of 1996, 
requires an agency to prepare and make available to the public a 
regulatory flexibility analysis that describes the effect of a proposed 
rule on small entities (i.e., small businesses, small organizations, 
and small governmental jurisdictions) when the agency is required to 
publish a general notice of proposed rulemaking for a rule. Since this 
document is not subject to the notice and public procedure requirements 
of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory 
Flexibility Act. 5 U.S.C. 601 et seq.

C. Paperwork Reduction Act

    Under the Paperwork Reduction Act, an agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless the collection of information displays a valid OMB 
control number. The collections of information in this final rule are 
approved in accordance with the requirements of the Paperwork Reduction 
Act under control number 1651-0121. There are no changes being made to 
the information collection as a result of this final rule.

List of Subjects in 8 CFR Part 235

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

Amendments to the Regulations

    For the reasons set forth above, 8 CFR part 235 is amended as set 
forth below.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
1. The authority citations for part 235 is revised to read as follows:

    Authority: 6 U.S.C. 218 and note; 8 U.S.C. 1101 and note, 1103, 
1158, 1182, 1183, 1185 (pursuant to E.O. 13323, 69 FR 241, 3 CFR, 
2004 Comp., p.278), 1185 note, 1201, 1224, 1225, 1226, 1228, 1365a 
note, 1365b, 1379, 1731-32; 48 U.S.C. 1806 and note.


0
2. Amend Sec.  235.13 as follows:
0
a. Revise paragraph (b)(1)(ii);
0
b. In paragraph (g) introductory text, remove the words ``suspended 
or'' in the first sentence;
0
c. In the first sentence of paragraph (g)(1), add a space between the 
words ``removal'' and ``by''; and
0
d. Remove paragraph (h).
    The revision reads as follows:


Sec.  235.13  U.S. Asia-Pacific Economic Cooperation Business Travel 
Card Program.

* * * * *
    (b) * * *
    (1) * * *
    (ii) An existing member in good standing of a CBP trusted traveler 
program or approved for membership in a CBP trusted traveler program 
during the application process described in paragraph (c) of this 
section. For the purpose of this section only, ``trusted traveler 
program'' is defined as a voluntary program of the Department that 
allows U.S. Customs and Border Protection to expedite clearance of pre-
approved, low-risk travelers arriving in the United States; and
* * * * *

    Dated: May 24, 2019.
Kevin K. McAleenan,
Acting Secretary.
[FR Doc. 2019-12301 Filed 6-13-19; 8:45 am]
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