Observations on Efforts to Implement the Western Hemisphere
Travel Initiative on the U.S. Border with Canada (25-MAY-06,
GAO-06-741R).
Securing the U.S. border has received increasing attention since
the terrorist attacks of September 11, 2001. For years, U.S. and
Canadian citizens have crossed the northern border using
documents such as driver's licenses or birth certificates or in
some cases without showing any documentation. Border crossings
are commonplace; in 2005, for example, an estimated 13 million
U.S. citizens crossed the northern border. In the heightened
national security environment after September 11, we have
previously reported that documents like driver's licenses and
birth certificates can easily be obtained, altered, or
counterfeited and used by terrorists to travel into and out of
the country. The Intelligence Reform and Terrorism Prevention Act
of 2004 requires the Secretary of Homeland Security, in
consultation with the Secretary of State, to develop and
implement a plan that requires a passport or other document or
combination of documents that the Secretary of Homeland Security
deems sufficient to show identity and citizenship for U.S.
citizens and citizens of Bermuda, Canada, and Mexico when
entering the United States from certain countries in North,
Central, or South America. The act requires the Department of
Homeland Security (DHS) and the Department of State (State) to
implement this requirement by January 2008, and the effort to do
so is called the Western Hemisphere Travel Initiative (Travel
Initiative). As the statutory deadline for implementing DHS's and
State's plans draws closer, questions have arisen about the
agencies' progress in carrying out the Travel Initiative. As part
of our examination of the Travel Initiative, Congress asked us to
provide a status report on the progress these agencies have made.
On April 7, 2006, we briefed Congress on our observations to
date, which focused primarily on implementation along the
northern border. This letter summarizes the information we
provided at that briefing. It addresses the following questions:
(1) What steps have been taken and what challenges remain in
implementing the Travel Initiative by the statutory deadline of
January 2008? (2) What challenges have been identified with
alternative documents or programs that have been suggested as
substitutes for passports or PASS cards under the Travel
Initiative?
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-06-741R
ACCNO: A55039
TITLE: Observations on Efforts to Implement the Western
Hemisphere Travel Initiative on the U.S. Border with Canada
DATE: 05/25/2006
SUBJECT: Antiterrorism
Border security
Homeland security
Identification cards
Passports
Travel
Canada
Western Hemisphere Travel Initiative
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GAO-06-741R
* PDF6-Ordering Information.pdf
* Order by Mail or Phone
May 25, 2006
The Honorable Loretta Sanchez
Ranking Minority Member
Subcommittee on Economic Security,
Infrastructure Protection, and Cybersecurity
Committee on Homeland Security
House of Representatives
The Honorable Louise M. Slaughter
The Honorable John M. McHugh
House of Representatives
Subject: Observations on Efforts to Implement the Western Hemisphere
Travel Initiative on the U.S. Border with Canada
Securing the U.S. border has received increasing attention since the
terrorist attacks of September 11, 2001. For years, U.S. and Canadian
citizens have crossed the northern border using documents such as driver's
licenses or birth certificates or in some cases without showing any
documentation. Border crossings are commonplace; in 2005, for example, an
estimated 13 million U.S. citizens crossed the northern border. In the
heightened national security environment after September 11, we have
previously reported that documents like driver's licenses and birth
certificates can easily be obtained, altered, or counterfeited and used by
terrorists to travel into and out of the country.1 The Intelligence Reform
and Terrorism Prevention Act of 2004 requires the Secretary of Homeland
Security, in consultation with the Secretary of State, to develop and
implement a plan that requires a passport or other document or combination
of documents that the Secretary of Homeland Security deems sufficient to
show identity and citizenship for U.S. citizens and citizens of Bermuda,
Canada, and Mexico when entering the United States from certain countries
in North, Central, or South America.2 The act requires the Department of
Homeland Security (DHS) and the Department of State (State) to implement
this requirement by January 2008, and the effort to do so is called the
Western Hemisphere Travel Initiative (Travel Initiative).
While requiring passports for all border crossings would meet the
requirements of the law, the possibility that DHS and State would do so
has been highly controversial, and it centers attention on the difficult
task of improving border security while still facilitating commerce and
travel. Members of Congress, officials from state and local governments,
officials from the Canadian government, and representatives of the
business community have expressed concern about the Travel Initiative,
particularly as it relates to the cost of purchasing passports for
families and the possible impact on cross-border tourism at the northern
border.3 For example, it would cost an American family of four over $350
to purchase passports to return to the United States after making a trip
or multiple trips to Canada or elsewhere. Many fear the cost of passports
will discourage unplanned or spontaneous travel, especially among those
who cross the border to shop or dine or take a last-minute weekend trip.
DHS and State have responded to these concerns by proposing a People
Access Security Service (PASS) card that may cost less than a passport.4
The proposed card would be an alternative form of a passport for U.S.
citizens who cross the border by land, and it would demonstrate both
citizenship and identity. Meanwhile, various other alternatives have been
proposed or suggested as ways to meet the Travel Initiative. One proposal,
for example, would continue or make greater use of existing frequent
traveler programs.5 These programs prescreen travelers to help speed their
entrance into Canada and the United States and are a required component of
the Travel Initiative under the Intelligence Reform and Terrorism
Prevention Act.6 Other proposals include the use of driver's licenses with
enhanced security features and a day pass-a document that could facilitate
travel for individuals who take infrequent or spontaneous trips across the
border.
1GAO, Counterfeit Documents Used to Enter the United States from Certain
Western Hemisphere Countries Not Detected, GAO-03-713T (Washington, D.C.:
May 13, 2003).
2Pub. L. No. 108-458, S: 7209, 118 Stat. 3638, 3823 (2004).
As the statutory deadline for implementing DHS's and State's plans draws
closer, questions have arisen about the agencies' progress in carrying out
the Travel Initiative. As part of our examination of the Travel
Initiative, you asked us to provide a status report on the progress these
agencies have made. On April 7, 2006, we briefed your office on our
observations to date, which focused primarily on implementation along the
northern border. This letter summarizes the information we provided you at
that briefing. It addresses the following questions:
o What steps have been taken and what challenges remain in
implementing the Travel Initiative by the statutory deadline of
January 2008?
o What challenges have been identified with alternative documents
or programs that have been suggested as substitutes for passports
or PASS cards under the Travel Initiative?
3A study commissioned by State estimated that 26 percent of the eligible
citizen population in the United States have passports. 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;
Phase Four: U.S. Land Border Passport Demand Survey, prepared for the
Passport Services Office, Bureau of Consular Affairs, U.S. Department of
State, by BearingPoint (October, 2005)
4According to State, it is also examining the cost of a passport to see
whether it can be reduced.
5The United States and Canada operate two frequent traveler programs:
NEXUS and FAST. NEXUS is for commuters who live in border communities who
frequently travel back and forth across the border. FAST is for truck
companies and their drivers who transport goods across the border.
6The act requires DHS and State to seek to expedite the travel of frequent
travelers, including those who reside in border communities, and that, in
doing so, they make readily available a registered traveler program.
To do our work, we interviewed DHS and State officials in Washington,
D.C.; reviewed relevant laws and regulations; and examined documents and
reports about the Travel Initiative and proposals for alternative
documents and programs. We also interviewed DHS and State officials about
existing border crossing programs, reviewed available documentation about
these programs, and met with various local stakeholders in New York and
Washington states to discuss their views about the Travel Initiative. We
focused our initial work on the U.S.-Canadian border because the vast
majority of concerns expressed about the Travel Initiative are from
communities and states that border Canada. Our observations are based on
the challenges faced by existing frequent traveler and other
border-crossing programs as well as on our understanding of how the Travel
Initiative is likely to be structured. Our work was conducted between
January 2006 and May 2006 in accordance with generally accepted government
auditing standards. Appendix I discusses our scope and methodology in more
detail.
Results
DHS and State are within 20 months of the January 2008 deadline for
implementing the Travel Initiative, and while the agencies have taken
initial steps to carry out the program, broad and extensive challenges
remain. The steps taken and the challenges that remain fall into five main
areas: (1) making a decision about what documents individuals will need
when they enter the United States, (2) resolving technical and
programmatic issues related to PASS cards, (3) proceeding through the
rule-making process, (4) carrying out a cost-benefit study, and (5)
managing implementation of the program. Achieving the intended security
benefits of the Travel Initiative by the statutory milestone date, without
simply requiring all travelers to carry a passport, appears in jeopardy,
given the volume of work that remains. Here is a summary of steps taken
and the challenges that remain.
o Documentary requirements: DHS still needs to decide what
alternative documents, if any, will be acceptable in lieu of a
passport when U.S. citizens and citizens of Canada enter or return
to the United States-and, in some cases, what documentation
individuals will have to present in order to obtain them. DHS and
State have taken steps to propose or examine an alternative form
of a passport, called a PASS card, or alternatives to a passport,
such as frequent traveler programs and day passes, but final
decisions are still in process. Determining documentary
requirements is key to making decisions on how DHS inspects
individuals entering or returning to the United States from
Canada. Also, these decisions are the first steps needed to make
progress toward meeting the mandate.
o Implementing PASS cards: If DHS and State elect to proceed with
a PASS card as an alternative form of a passport for U.S. citizens
crossing land borders, they will still need to make key decisions
about it. For example, DHS and State have taken steps to identify
the PASS card as a lower-cost alternative form of a passport, and
they have had extensive discussions on which type of technology to
use in a PASS card, but the issue remains unresolved.7 One type of
technology allows the cards to be read by equipment that is as
much as 30 feet away. For example, existing frequent traveler
programs at land ports use this technology. A second type of
technology requires the card to be read from close proximity.
Deciding on a technology involves a broad set of considerations
that include (1) utilizing security features to protect personal
information, (2) ensuring that proper equipment and facilities are
in place to facilitate crossings at land borders, and (3)
enhancing compatibility with other border-crossing technology
currently in use. Whatever technology is chosen, designing,
developing, testing, and evaluating the card and reader system
will take time. Once the cards and equipment are deemed suitable,
DHS and State will need to develop and implement operating
procedures and policies to issue and inspect the cards.
Installation time for the reader equipment will also need to be
factored in, if the PASS card option is implemented.8 For example,
not all land ports of entry currently have equipment to read
documents, and existing equipment may not be compatible with the
approach chosen. Other decisions on the PASS card that remain open
include the cost of the card and equipment and whether the card
will replace cards used in frequent traveler programs.9
o Rule-making process: To implement the Travel Initiative, DHS
and State plan to issue three rules to establish (1) the
documentary requirements for travel by air and sea, (2) the
requirements for using a PASS card, and (3) the documentary
requirements for travel by land.10 Although DHS and State are not
required to implement the law until January 2008, they have set an
interim goal of implementing the rule for air and sea travelers a
year early, or by January 2007, as part of the strategy to
implement all three rules by the 2008 deadline. This interim goal
appears in jeopardy since DHS and State have yet to submit the
rule to the Office of Management and Budget (OMB) for review and
to the public for comment-both of which, along with the process of
responding to comments received and modifying the rule as needed,
can take up to 8 months or more to complete.11 Adding pressure to
the schedule is the fact that the regulation is generally issued
at least 2 months before it takes effect. DHS and State face no
legal requirement to meet this self-imposed early deadline for the
first rule, but being unable to do so will mean that more work
will shift into the 1 year that remains. According to officials at
State, the rule for air and sea has been drafted and is now in the
final clearance process at DHS.
o Cost-benefit study: One requirement of the rule-making process
is that any decision on an approach must be preceded by a
comprehensive and publicly disclosed cost-benefit study when the
economic impact may be $100 million or more in any single year.12
This requirement could apply to decisions about documentation for
crossing the border.13 DHS is in the early stages of studying
costs and benefits, but much more work will be needed. For
example, examining the costs of the new rules could involve
studies of the extent to which the Travel Initiative discourages
tourism and commerce by increasing the cost of acquiring needed
documentation and by possibly creating delays at the border. In
addition, policy guidance calls on agencies to analyze alternative
actions, such as the use of frequent traveler programs, and to
examine expected benefits, such as the expected reduction in lives
lost, property damage, and disruptions to the economy as a result
of reducing the likelihood of a terrorist attack. The requirement
to include the Mexican border in the study further expands the
scope and the work involved. Completing the study is dependent, in
part, on knowing what kind of card and technology that DHS and
State are likely to use-a decision that remains open. Appendix III
provides more details on cost-benefit and other analytic
requirements.
o Managing implementation: Once decisions are made on what
documents will be needed, DHS and State will face challenges in
program implementation and management. Major challenges remain in
developing (1) an implementation plan, (2) budget estimates, (3)
awareness programs for the public, (4) training programs for DHS
staff, (5) bilateral coordination with Canada, and (6) a common
understanding of how the Travel Initiative links to the overall
strategy for securing the nation's borders. Falling short in any
of these areas may hinder the ability of the agencies to achieve
their goal of improving security while facilitating commerce and
tourism. According to DHS officials, they have formed working
groups to take action in each of these areas, but much more work
remains in developing plans and approaches that improve the
likelihood of program success. For example, DHS did not request
funds for fiscal year 2007 to implement the Travel Initiative, and
it remains unclear what funds DHS will need to install equipment
or infrastructure to support the use of a PASS card by January
2008, if PASS is chosen. In contrast, State has developed and
begun implementing plans for processing more passports in
preparation for the Travel Initiative, and it has requested funds
for fiscal year 2007 to do so. For example, it has hired more
staff to adjudicate an increase in passport demand. In addition,
State and DHS have been involved in numerous outreach efforts to
members of Congress and stakeholders in northern border
communities, but much more remains to be done once key decisions
are made on the program.
7The technology that DHS and State are considering is called radio
frequency identification (RFID). RFID is an automated data-capture
technology that can be used to electronically identify, track, and store
information contained on a tag. Identification and tracking capabilities
are provided using wireless communication to transmit data. Current RFID
applications include building access badges, highway toll collection, and
supply chain management.
8While the Intelligence Reform and Terrorism Prevention Act of 2004
addresses documentary requirements for certain cross-border travelers, it
is silent on whether such documents should be read electronically.
9According to officials at State, the department will issue and adjudicate
the PASS card in the same way as traditional passports.
10In September 2005, DHS and State issued an advance notice of proposed
rule making that invited the public to provide comments on possible means
of implementing the Travel Initiative, including comments on documents
other than passports that should be accepted.
11See appendix II for a more detailed description of the steps and
potential time frames involved in the rule-making process.
12Executive Order 12866-Regulatory Planning and Review-states that for any
regulation that may result in an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the environment,
public health or safety, or state, local, or tribal governments or
communities, an agency must develop and submit a cost benefit analysis to
OMB and make it available to the public after publication of the proposed
regulation in the Federal Register. While agencies must conduct an
assessment of the potential costs and benefits for any rule deemed to be
significant under the executive order, this more rigorous requirement is
triggered by the $100 million threshold.
13A study commissioned by State estimated that 6.8 million, or about 51
percent, of all U.S. citizens who visited Canada in 2005 did not possess a
passport. If 2 million of these individuals purchased a PASS card for $50
in any single year, the Travel Initiative would meet the $100 million
threshold. 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; Phase Four: U.S. Land Border Passport Demand Survey,
prepared for the Passport Services Office, Bureau of Consular Affairs,
U.S. Department of State, by BearingPoint (October, 2005).
The various alternative documents or programs proposed by federal
agencies, the business community, and others as substitutes for a U.S.
passport or PASS card all present major challenges as well. The suggested
alternatives fall into three main categories: (1) frequent traveler
programs, (2) driver's licenses with enhanced security features and the
capacity to denote citizenship, and (3) day passes. Appendix IV offers
more details on these alternatives. Below we discuss the major challenges
for each of these alternatives.
o Frequent traveler programs for land crossings: Participants in
these programs are required to undergo an application process that
includes providing fingerprints, undergoing an interview with a
DHS or Canadian officer, submitting evidence of citizenship and
identity, and taking a digital photograph. The cards issued to
participants show citizenship and identity and, according to DHS,
are expected to meet the requirements of the Travel Initiative,
including the requirement that DHS and State make readily
available a registered traveler program. Furthermore, they would
provide Canadian citizens with an alternative to a passport for
entering the United States. While DHS could involve more U.S. and
Canadian citizens who frequently cross the border in these
programs, these documents may not be useful as alternatives to a
passport for all travelers because (1) millions of U.S. and
Canadian citizens who cross the northern border do so only once a
year or once every several years and they may not want to incur
the cost of a card, and (2) for the vast majority of individuals
seeking to cross the border, application and processing times and
requirements could be as extensive as for passports.14 In
addition, several management and policy decisions would need to be
made in order to make using frequent traveler programs a viable
alternative under the Travel Initiative, including identifying the
requirements for making these cards official travel documents and
determining how to make the application process accessible to all
citizens. DHS and State currently do not view these cards as
official travel documents.
o Driver's licenses with enhanced security features: A number of
stakeholders are advocating a driver's license with enhanced
security features as a substitute for a passport. They maintain
that when states adopt driver's licenses with enhanced security
features in accordance with the REAL ID Act, the document should
be sufficient for land border crossings under the Travel
Initiative.15 However, the new driver's licenses will not show
citizenship and therefore would not by themselves meet the legal
requirements of the Travel Initiative. Congress most likely would
have to give states the statutory authority to determine
citizenship and display it on driver's licenses or establish a
process for the federal government to determine the citizenship
status of driver's license applicants and provide this information
to state authorities.16 This approach also would not enable
Canadians to continue to enter the United States with a driver's
license because Canadian driver's licenses would not be subject to
any new enhanced security and citizenship requirements imposed in
the United States.
o Day passes:17 This alternative would likely involve having U.S.
citizens fill out a pass application on the U.S. side of the
border and show the pass upon their return to the United States.
It could provide travelers with an option to cross the border
without obtaining a passport and without making travel plans in
advance. DHS has not decided whether a day pass would cover
documentary requirements for Canadian citizens wanting to cross
the border. However, there are many operational issues to
consider, including (1) the process that DHS would use to verify a
person's identity and citizenship to obtain the pass; (2) the
security features needed to be included on the day pass to prevent
fraud and counterfeiting; (3) the additional facilities,
infrastructure, and staff needed to issue a day pass; and (4) the
training staff will need to process day pass requests. For
example, U.S. facilities at popular border crossings would need
the necessary space and personnel to accommodate and process the
people who would need to stop, fill out their application forms,
and have their documentation verified. This would take time and
individuals may not view a day trip as worth the time it could
take to obtain a pass.
14Currently, less than 1 percent of U.S. citizens who cross the northern
border are participants in frequent traveler programs.
15In May 2005, Congress passed legislation-known as the REAL ID Act of
2005 (Pub. L. No. 109-13, S:S: 201-207, 119 Stat. 302, 311-316 )-that
requires states that want their driver's licenses to be accepted for
official federal purposes to adopt standard practices for adding enhanced
security features in driver's licenses by May 2008.
Concluding Observations
DHS and State have taken some steps to carry out the Travel Initiative.
However, they have a long way to go to implement their proposed plans, and
the time to get the job done is slipping by. The many challenges that they
face mirror the complexities and the nuances involved in developing a
border security program that is a major cultural change in the way that
individuals and commerce cross the U.S.-Canadian border. There are no easy
alternatives to a passport or a PASS card that meet the legal requirement
to show identity and citizenship. Alternative programs or documents, such
as frequent traveler programs and driver's licenses with enhanced security
features, have their own set of challenges, and using them in lieu of a
passport will not easily resolve the management issues faced by DHS and
State. These conditions, coupled with the significant cross-border
commerce and tourism, heighten the need to take care in planning,
evaluating, testing, and implementing an approach that ultimately improves
security at the northern border without adversely affecting commerce and
tourism in a significant way. Attempting to address these challenges under
what appears to be an ambitious schedule adds uncertainty and risk.
16The REAL ID Act does not specifically allow or require states to show
citizenship on driver's licenses. A driver's license with citizenship
information on it could be controversial if it were perceived as a
national identification card since concerns have been raised about such
cards in regards to individuals' privacy and freedom to travel.
17Unlike frequent traveler programs that DHS has operated for several
years, the proposal to use a day pass has recently surfaced, and it is in
the very early stages of consideration.
Agency Comments and Our Evaluation
We provided a draft of this report to DHS and State for comment. DHS did
not have official comments on our draft, but did provide technical
comments which we incorporated in this report where appropriate.
In its official comments, State generally agreed with the challenges we
described in the draft report, but expressed concern that our concluding
observations did not adequately recognize various steps it had taken to
carry out the program. State provided examples of actions it had taken in
several areas, such as proceeding with the rulemaking process, estimating
the increase in passport demand, developing the PASS card, examining the
cost of a passport, and carrying out an outreach effort to members of
Congress and the public. We revised the report where appropriate to
recognize the steps taken by State in these areas. These steps
notwithstanding, we continue to believe that the work remaining for both
DHS and State, the complexities and nuances involved, and the time
required to complete the implementation steps present a challenge for the
agencies to meet the statutory deadline. State's official comments are
reprinted in appendix V.
_ _ _ _ _ _
As arranged with your offices, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its issue date. At that time, we will send copies of this report to
interested congressional committees and subcommittees. We will also make
copies available to others on request. In addition, this report will be
available at no charge on GAO's Web site at http://www.gao.gov.
If you or your staff have any questions about this report or wish to
discuss the matter further, please contact me at (202) 512-8777 or
[email protected]. Contact points for our Offices of Congressional Relations
and Public Affairs may be found on the last page of this report. Other key
contributors to this report were John Mortin, Assistant Director, Neil
Asaba, Chuck Bausell, Frances Cook, Richard Hung, Sara Margraf, Amanda
Miller.
Richard M. Stana
Director, Homeland Security and Justice Issues
Appendix I
Scope and Methodology
While the Travel Initiative applies to citizens of Bermuda, Canada, and
Mexico entering the United States from certain countries in North, Central
and South America, we focused our initial work on the U.S.-Canadian border
because the vast majority of concerns expressed about the Travel
Initiative were from communities and states that border Canada. To
determine what steps have been taken and what challenges remain, we
reviewed several announcements by DHS and State on their plans and
schedule for carrying out the initiative. At DHS and State headquarters,
we met with program officials in charge of carrying out the Travel
Initiative and talked to them about the current status of the program. We
also reviewed key procedures for carrying out cost-benefit studies, and we
discussed the process for issuing new regulations with DHS lawyers
involved in the rule-making process. We also reviewed reports on border
security with Canada. As part of our work, we met with local stakeholders,
such as officials from the Bellingham/Whatcom County Chamber of Commerce
(Washington) and the Buffalo Niagara Partnership (New York), who have
expressed concern to members of Congress regarding the initiative and the
economic impact it might have on northern border communities. We reviewed
pertinent laws and regulations related to the Travel Initiative and other
documents provided by DHS and State. Our ability to analyze these
challenges was limited because key decisions about the program have not
yet been made. To determine what challenges have been identified with
alternative travel documents or programs that have been suggested as
substitutes for passports or PASS cards under the Travel Initiative, we
reviewed program documents on frequent traveler programs, such as NEXUS-a
DHS program for commuters who live in border communities who frequently
travel back and forth across the border-and FAST-a program for truck
companies and their drivers who transport goods and commerce across the
border. We selected and visited ports of entry in Blaine, Washington, and
Buffalo, New York, because of their geographic location and because each
has NEXUS and FAST facilities. We also visited Alexandria Bay, New York,
because of its proximity to Buffalo, New York. At all three locations, we
met with staff in charge of border-crossing programs to gain a better
understanding of border-crossing procedures, infrastructure, and
technology. Our work was conducted between January 2006 and May 2006 in
accordance with generally accepted government auditing standards.
Appendix II
General Overview of the Federal Rule-Making Process
This appendix provides an overview of the steps in the rule-making process
for a significant regulatory action under Executive Order 12866 and the
potential time involved for some of the steps.
Step 1: Agency (or agencies, if a joint rule) completes development of the
notice of proposed rule making (NPRM), which includes the proposed rule
and supplemental information.18
Step 2: Agency submits the draft NPRM and supporting materials, including
any required cost-benefit analysis, to the Office of Management and Budget
(OMB) for review.
Step 3: OMB reviews the draft NPRM and supporting materials and
coordinates review of the proposed rule by any other agencies that may
have an interest in it.
Step 4: OMB notifies the agency in writing of the results of its review,
including any provisions requiring further consideration by the agency,
within 90 calendar days after the date of submission to OMB.19
Step 5: OMB resolves disagreements or conflicts, if any, between or among
agency heads or between OMB and any agency; if it cannot do so, such
disagreements or conflicts are resolved by the President or by the Vice
President acting at the request of the President.
Step 6: Once OMB notifies the agency that it has completed its review
without any requests for further consideration, the agency reviews the
NPRM and publishes it for public comment in the Federal Register.
Step 7: Agency is to give the public a meaningful opportunity to comment
on the proposed rule, which generally means a comment period of not less
than 60 days.
18An agency may also begin this process with an advance notice of proposed
rule making that seeks comments and suggestions from the public on the
potential content of a forthcoming NPRM, but this step is not required by
law or executive order in most cases.
19Executive Order 12866 provides that, for rules governed by a statutory
deadline, the agency shall, to the extent practicable, schedule
rule-making proceedings so as to permit sufficient time for OMB review. It
also provides that when an agency is obligated by law to act more quickly
than normal review procedures allow, the agency shall comply with the
requirements to submit the proposed rule and required supporting materials
to OMB, "to the extent practicable."
Appendix II
Step 8: Once the comment period has closed, the agency reviews the
comments received, makes appropriate revisions to the proposed rule, and
prepares a notice of the final rule, including supplemental information
with responses to comments received.20
Step 9: Agency submits draft notice and final rule, including updated
supporting materials or cost-benefit analysis, to OMB for review.
Step 10: OMB reviews the draft notice, final rule, and supporting
materials; coordinates review by any other agencies that may have an
interest in the rule; and notifies the agency of the results within 90
calendar days after the date of submission to OMB.21
Step 11: Once OMB notifies the agency that it has completed its review
without any requests for further consideration, the agency reviews the
rule one more time and generally publishes the final rule and supplemental
information in the Federal Register at least 60 days before the new rule
takes effect.
20If the final rule is materially different from the proposed rule,
possibly because of new issues raised or other important legal or
substantive developments during the comment period, an agency may decide
to publish it as a proposed rule instead with a second comment period.
This approach helps the agency provide sufficient notice and opportunity
for public comment on how the rule addresses the new issues or
developments, but it delays implementation of the final rule.
21This time period is reduced to 45 days if OMB has previously reviewed
the rule and supporting information and there has been no material change
in the facts and circumstances upon which the rule is based.
Appendix III
Summary of Federal Guidelines for Cost-Benefit Analysis and Other Analytic
Requirements
Section 6(a)(3)(C) of Executive Order 12866 (Regulatory Planning and
Review) and OMB Circular A-4 provide guidance to federal agencies involved
in developing a cost-benefit analysis for a rule that may have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy or certain other sectors.22 OMB designed this
guidance to standardize the way benefits and costs of federal regulatory
actions are measured and reported. Besides calling on agencies to estimate
the overall benefits and costs of a proposed rule, this guidance
stipulates that an agency's cost-benefit analysis should provide a
separate description of distributional effects (i.e., how both benefits
and costs are distributed among populations of particular concern) so that
decision makers can properly consider them along with the effects on
economic efficiency.
Another area of the guidance deals with the scope of the analysis as it
pertains to effects outside the United States. While the guidance notes
that analysis should focus on benefits and costs that accrue to citizens
and residents of the United States, it also states that where an agency
chooses to evaluate a regulation that is likely to have effects beyond the
borders of the United States, these effects should be reported separately.
OMB Circular A-4 also reminds agencies that in preparing analytical
support for rule making, there are a number of analytic requirements
imposed by law and executive order that are in addition to the regulatory
analysis requirements of Executive Order 12866. An agency should consider
whether the rule will need specialized analysis of any of the following
issues.23
o Impact on small businesses and other small entities: Under the
Regulatory Flexibility Act (5 U.S.C. S:S: 603-604), agencies must
prepare an initial and a final regulatory flexibility analysis
(RFA) if the rule making could have a significant impact on a
substantial number of small entities. Circular A-4 provides that
an agency should consider posting its RFA on the Internet so the
public can review its findings.
Circular A-4 also states that an agency should have guidelines on
how to prepare an RFA and encourages agencies to consult with the
Chief Counsel for Advocacy of the Small Business Administration on
expectations concerning what is an adequate RFA. Executive Order
13272 requires an agency to notify
Appendix III
the Chief Counsel for Advocacy of any draft rules that might have
a significant economic impact on a substantial number of small
entities.
o Analysis of unfunded mandates: Under the Unfunded Mandates Act
(2 U.S.C. S: 1532), an agency must prepare a written statement
about benefits and costs prior to issuing a proposed or final rule
(for which the agency published a proposed rule) that may result
in aggregate expenditure by state, local, and tribal governments,
or by the private sector, of $100 million or more in any year
(adjusted annually for inflation). According to OMB, an agency's
analytical requirements under Executive Order 12866 are similar to
the analytical requirements under this act, and thus the same
analysis may permit it to comply with both analytical
requirements.
o Information collection, paperwork, and record-keeping burdens:
Under the Paperwork Reduction Act (44 U.S.C. S:S: 3506-3507), an
agency will need to consider whether its rule making (or other
actions) will create any additional information collection,
paperwork, or record-keeping burdens. These burdens are
permissible only if it can justify the practical utility of the
information for the implementation of its rule. OMB approval will
be required of any new requirements for a collection of
information imposed on 10 or more persons, and a valid OMB control
number must be obtained for any covered paperwork. According to
Circular A-4, an agency's Chief Information Officer should be able
to assist it in complying with the Paperwork Reduction Act.
22OMB Circular A-4 (2003).
23OMB Circular A-4 requires agencies to address seven issues to determine
whether a specialized analysis will be needed. In this appendix, we
included only those that may pertain to the Travel Initiative.
Appendix IV
Alternatives Proposed for Use under the Travel Initiative and Their
Suitability for Use in Lieu of a Passport
We reviewed several alternative documents or programs that have been
proposed as substitutes for a passport under the Travel Initiative. Table
1 summarizes several alternatives that have been proposed for the
U.S.-Canadian land border. For comparison purposes, we also include
Canadian and U.S. passports in the table. Frequent traveler programs refer
to the NEXUS and FAST programs, which operate along the northern border.24
NEXUS is for commuters who live in border communities who frequently
travel back and forth across the border, and FAST is for truck companies
and their drivers who transport goods across the border. Driver's licenses
with enhanced security features are required under the REAL ID Act.25 The
act requires states that want their driver's licenses to be accepted for
official federal purposes to adopt standard practices for adding enhanced
security features in driver's licenses by May 2008. The act does not
specifically require states to show citizenship on driver's licenses.
Because DHS and State have not made a final decision as to which
alternative to implement or whether to implement one at all, our
assessment is based upon the information we obtained from interviews with
DHS and State officials and announcements made by the agencies.
24Since we are focusing our work on the northern border, we did not
include SENTRI, a frequent traveler program for those crossing the
southern border, in our evaluation.
25Pub. L. No. 109-13, S:S: 201-207, 119 Stat. 302, 311-316 (2005).
Appendix IV
Table 1: Alternatives Proposed for Use under the Travel Initiative for the
U.S.-Canadian Land Bordera
Establishes Establishes Available Available
citizenship identity to U.S. to
citizens Canadian Document
citizens Cost validity
PASS card Undecided Undecided
Frequent $50 USD 5 years
traveler $80 CAN
programs
Enhanced Varies by Varies by
driver's state law state law
licenses
Day passes Undecided Undecided Undecided Undecided Undecided Undecided
U.S. $97 USD 10 years
passportb
Canadian $87 CAN 5 years
passportc
Source: GAO analysis of DHS and State data.
aAccording to DHS officials, other documents that could be considered are
U.S. military identification and American Indian/tribal identification.
bThe cost of a U.S. passport is $97 USD for an adult 16 years and older
and is valid for 10 years. The cost of a U.S. passport for a child under
16 is $82 USD and is valid for 5 years.
cCanadian passports issued to Canadians living in Canada cost $87 CAN. For
those Canadians living in the United States, the cost to obtain a Canadian
passport is $97 CAN. For those Canadians living elsewhere, the cost to
obtain a passport is $100 CAN.
Appendix V
Comments from the U.S. Department of State
(440481)
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