# Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Ports-of-Entry From Within the Western Hemisphere > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A07-3104 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** June 26, 2007 - **Citation:** 72 FR 35088 ## Text 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. 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 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. 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. 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. 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). 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 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). 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. 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. 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 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. 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). 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. 9 Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17, 2004). 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 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. 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 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. 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 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). 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. 14 See 71 FR 68412 (Nov. 24, 2006). 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 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. 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. 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 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. 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 20 71 FR 60928. 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 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 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. 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. 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 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 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 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 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). 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 are embarked or disembarked in the United States or its territories. 52 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 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 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. 56 See 71 FR 42605. 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 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 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 § 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, § 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 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 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. Group/population Acceptable document(s) Land Ferry Pleasure vessel Sea (all other vessels) All Travelers (U.S., Can., Mex., Berm.) at all sea and land POEs Valid Passport (and valid visa, if necessary for foreign travelers) Yes Yes Yes Yes. U.S. Citizens at all sea and land POEs when arriving from Canada, Mexico, the Caribbean, and Bermuda Valid Passport card Yes Yes Yes Yes. Trusted Traveler Members at all sea and land POEs when arriving from contiguous territory or adjacent islands Trusted Traveler Cards (NEXUS, FAST, SENTRI) Yes* Yes* Yes* Yes.* U.S. Citizen Merchant Mariner on official mariner business at all sea and land POEs U.S. Merchant Mariners Document (MMD) Yes Yes Yes Yes. Mexican Nationals arriving from Mexico Border Crossing Card (BCC) Yes** Yes** Yes** No. Lawful Permanent Residents (LPRs) at all land and sea POE I-551; I-688 with proper stamp; I-327; I-571; I-512; other evidence of permanent resident status Yes Yes Yes Yes. U.S. Citizen Cruise Ship Passengers on round trip voyages that begin and end in the same U.S. port Government-issued photo ID and certified copy of birth certificate N/A N/A N/A Yes—for round trip voyages that originate in U.S. U.S. and Canadian Citizen Children Under 16 at all sea and land POEs when arriving from contiguous territory or adjacent islands Certified copy of birth certificate (government-issued photo ID recommended, but not or required) Yes Yes Yes Yes. U.S. and Canadian Citizen Children—Groups of Children Under Age 19, under adult supervision with parental/guardian consent at all sea and land POEs when arriving from contiguous territory or adjacent islands Certified copy of birth certificate and parental/guardian consent (government-issued photo ID recommended, but not required.) Yes Yes Yes Yes. U.S. Citizen/Alien Members of U.S. Armed Forces traveling under official orders or permit at all air, sea and land POEs Military ID and Official Orders Yes Yes Yes Yes. Members of NATO Armed Forces at all sea and land POEs Military ID and Official Orders Yes Yes Yes Yes. U.S. and Mexican Kickapoo at all sea and land POEs when arriving from contiguous territory and adjacent islands Form I-872 American Indian Card Yes Yes Yes Yes. * 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 § 212.1 and § 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 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. 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 (D 1 ) for access to Mexico and Canada. At price P 1 , the number of U.S. travelers without passports currently making trips to these countries is represented by Q 1 . 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 P 2 . As a result, the number of travelers making trips to these countries decreases to Q 2 . EP26JN07.005 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 P 2 is shown in the dark gray rectangle, and is calculated as (P 2 −P 1 ) * Q 2 . In other words, the lost consumer surplus of travelers willing to buy the passport or passport card is simply the cost (P 2 −P 1 ) 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 * (Q 1 −Q 2 ) * (P 2 −P 1 ). 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] Year Cost 3% discount rate 7% discount rate 2005 $436 $436 $435 2006 173 168 163 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A07-3104. Public record. Not legal advice.