# 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%3AE8-6725 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 3, 2008 - **Citation:** 73 FR 18384 ## 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 AGENCIES: U.S. Customs and Border Protection, Department of Homeland Security; Bureau of Consular Affairs, Department of State. ACTION: Final rule. SUMMARY: This rule finalizes the second phase of a joint Department of Homeland Security and Department of State plan, known as the Western Hemisphere Travel Initiative, to implement new documentation requirements for U.S. citizens and certain nonimmigrant aliens entering the United States. This final rule details the documents U.S. citizens 1 and nonimmigrant citizens of Canada, Bermuda, and Mexico will be required to present when entering the United States from within the Western Hemisphere at sea and land ports-of-entry. 1 “U.S. citizens” as used in this rule refers to both U.S. citizens and U.S. non-citizen nationals. DATES: This final rule is effective on June 1, 2009. 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., Room 5.4-D, Washington, DC 20229, telephone number (202) 344-1220. Department of State: Consuelo Pachon, Office of Passport Policy, Planning and Advisory Services, Bureau of Consular Affairs, telephone number (202) 663-2662. SUPPLEMENTARY INFORMATION: Table of Contents I. Background A. Documentation Requirements for Arrivals at Sea and Land Ports-of-Entry Prior to This Rule 1. U.S. Citizens 2. Nonimmigrant Aliens From Canada and the British Overseas Territory of Bermuda 3. Mexican Nationals B. Statutory and Regulatory History 1. Intelligence Reform and Terrorism Prevention Act 2. Advance Notice of Proposed Rulemaking 3. Rules for Air Travel From Within the Western Hemisphere 4. Amendments to Section 7209 of IRTPA 5. Other Relevant Legislation 6. Passport Cards 7. Certifications to Congress II. Documentation at the Border III. Summary of Document Requirements in the Proposed Rule IV. Discussion of Comments A. General B. Implementation 1. General 2. Timeline 3. Security/Operational Considerations 4. Technology 5. Cruise Ships 6. MODUs/OCS C. Passports 1. General 2. Cost of Passports 3. Obtaining Passports 4. DOS Issuance Capacity 5. Passport Cards D. Alternative Documents 1. General 2. Driver's License and Birth Certificate 3. Trusted Traveler Documents 4. Children/Groups of Children/Alternative Approaches/Parental Consent 5. State Enhanced Driver's License Projects 6. Mexican/Canadian/Bermudian Documents 7. REAL ID Driver's Licenses E. Native Americans and Canadian Indians F. Outside the Scope of This Rulemaking 1. General 2. Air Rule 3. IBWC 4. Lawful Permanent Residents 5. Dual Nationals G. Public Relations 1. General 2. Outreach H. Regulatory Analyses 1. Regulatory Assessment 2. Regulatory Flexibility Act V. Final Document Requirements A. U.S. Citizens Arriving by Sea or Land B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or Land C. Mexican Nationals Arriving by Sea or Land D. State Enhanced Driver's Licenses and Identification Documents E. Future Documents VI. Special Rules for Specific Populations A. U.S. Citizen Cruise Ship Passengers B. U.S. and Canadian Citizen Children 1. Children Under Age 16 2. Children Under Age 19 Traveling in Groups C. American Indian Card Holders from Kickapoo Band of Texas and Tribe of Oklahoma D. Members of United States Native American Tribes E. Canadian Indians F. Individual Passport Waivers G. Summary of Document Requirements VII. Regulatory Analyses A. Executive Order 12866: Regulatory Planning and Review B. Regulatory Flexibility Act C. Executive Order 13132: Federalism D. Executive Order 12988: Civil Justice Reform E. Unfunded Mandates Reform Act Assessment F. Paperwork Reduction Act G. Privacy Statement List of Subjects Amendments to the Regulations Abbreviations and Terms Used in This Document ANPRM—Advance Notice of Proposed Rulemaking BCC—Form DSP-150, B-1/B-2 Visa and Border Crossing Card CBP—U.S. Customs and Border Protection CBSA—Canada 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. Background For a detailed discussion of the document requirements for travelers entering the United States from within the Western Hemisphere before January 31, 2008, the statutory and regulatory histories through June 26, 2007, and the applicability of the rule related to specific groups, please see the NPRM published at 72 FR 35088. For the document requirements which went into effect on January 31, 2008, please see the Notice “Oral Declarations No Longer Satisfactory as Evidence of Citizenship and Identity” which was published in the Federal Register on December 21, 2007, at 72 FR 72744. A. Documentation Requirements for Arrivals at Land and Sea Ports-of-Entry Prior to the Effective Date of This Rule The following is an overview of the documentation requirements for citizens of the United States, Canada, British Overseas Territory of Bermuda (Bermuda), and Mexico who enter the United States at sea and land ports-of-entry prior to the effective date of this rule. 1. U.S. Citizens Generally, U.S. citizens must possess a valid U.S. passport to depart from or enter the United States. 2 However, U.S. citizens who depart from or enter the United States by land or sea from within the Western Hemisphere other than from Cuba have historically been exempt from this passport requirement. 3 U.S. citizens have always been required to satisfy the inspecting officers of their identity and citizenship. 4 Since January 31, 2008, U.S. citizens ages 19 and older have been asked to present documents proving citizenship, such as a birth certificate, and government-issued documents proving identity, such as a driver's license, when entering the United States through land and sea ports-of-entry. Children under the age of 19 have only been asked to present proof of citizenship, such as a birth certificate. 5 2 Section 215(b) of the Immigration and Nationality Act (INA), 8 U.S.C. 1185(b). 3 See 22 CFR 53.2(b), which waived the passport requirement pursuant to section 215(b) of the INA, 8 U.S.C. 1185(b). 4 In lieu of a passport, travelers claiming U.S. citizenship long have been permitted to enter on an oral declaration or to present a variety of documents to establish their identity and citizenship and right to enter the United States as requested by the CBP officer. A driver's license issued by a state motor vehicle administration or other competent state government authority is a common form of identity document. Citizenship documents generally include birth certificates issued by a United States jurisdiction, Consular Reports of Birth Abroad, Certificates of Naturalization, and Certificates of Citizenship. 5 72 FR 72744. 2. Nonimmigrant Aliens From Canada and the British Overseas Territory of Bermuda Each nonimmigrant alien arriving in the United States must present a valid unexpired passport issued by his or her country of nationality and, if required, a valid unexpired visa issued by a U.S. embassy or consulate abroad. 6 Nonimmigrant aliens entering the United States must also satisfy any other applicable admission requirements (e.g., United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT)). However, the passport requirement is currently waived for most citizens of Canada and Bermuda when entering the United States as nonimmigrant visitors from countries in the Western Hemisphere at land or sea ports-of-entry. 7 These travelers have been required to satisfy the inspecting CBP officer of their identities and citizenship at the time of their applications for admission. Since January 31, 2008, these nonimmigrant aliens also have been asked to present document proving citizenship, such as a birth certificate, and government-issued documents proving identity, such as a driver's license, when entering the United States through land and sea ports-of-entry. 8 6 Section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 1182(a)(7)(B)(i). 7 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR 212.1(a)(2) (Citizens of Bermuda). See also 22 CFR 41.2. 8 72 FR 72744. 3. Mexican Nationals Mexican nationals are generally required to present a valid unexpired passport and visa when entering the United States. However, Mexican nationals arriving in the United States at land and sea ports-of-entry who possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) 9 currently may be admitted without presenting a valid passport if they are coming by land or sea from contiguous territory. 10 9 A BCC is a machine-readable, biometric card, issued by the Department of State, Bureau of Consular Affairs. 10 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g). B. Statutory and Regulatory History This final rule sets forth the second phase of a joint Department of Homeland Security (DHS) and Department of State (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 (IRTPA) on June 1, 2009. 11 A brief discussion of IRTPA, amendments to IRTPA, and related regulatory efforts follows. For a more detailed description of these efforts through June 26, 2007, please refer to the NPRM at 72 FR 35088. 11 Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17, 2004). 1. Intelligence Reform and Terrorism Prevention Act On December 17, 2004, the President signed IRTPA into law. 12 IRTPA mandates that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a plan to require travelers for whom the President had waived the passport requirement to present a passport or other document, or combination of documents, that are “deemed by the Secretary of Homeland Security to be sufficient to denote identity and citizenship” when entering the United States. WHTI thus requires U.S. citizens and nonimmigrant aliens from Canada, Mexico, and Bermuda to comply with the new documentation requirements. 12 Pub. L. 108-458, 118 Stat. 3638 (Dec. 17, 2004). 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) that announced that DHS and DOS were planning to amend their respective regulations to implement section 7209 of IRTPA. For further information, please see the ANPRM document that was published in the Federal Register on September 1, 2005, at 70 FR 52037. Comments to the ANPRM related to arrivals at sea and land ports-of-entry are addressed in this final rule. 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 or NEXUS Air card; U.S. citizens would also be permitted to present a 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 (hereinafter, Air and Sea NPRM). The final rule for travelers entering or departing the United States at air ports-of-entry (hereinafter, Air Final Rule) was published in the Federal Register on November 24, 2006. Beginning January 23, 2007, 13 U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering and departing the United States at air ports-of-entry, which now includes from within the Western Hemisphere, are generally required to bear a valid passport. The main exceptions to this requirement are for U.S. citizens who present a valid, unexpired MMD 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. 14 The Air Rule made no changes to the requirements for members of the United States Armed Forces. Please see the Air Final Rule at 71 FR 68412 for a full discussion of documentation requirements in the air environment. 13 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. 14 The Air Rule did not change the requirements for lawful permanent residents. 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. In the Air Final Rule, DHS and DOS deferred a final decision on the document requirements for arrivals by sea until the second phase. Complete responses to the comments relating to sea travel that were submitted in response to the Air and Sea NPRM are presented in this final rule. 4. Amendments 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). 15 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 required “expeditious[]” action and stated that requirements must be satisfied by the “earlier” of the dates identified. 16 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. 17 However, on December 26, 2007, the President signed into law the Department of Homeland Security Appropriations Act of 2008 (“Omnibus Bill”, Pub. L. 110-161) which amended section 7209(b)(1) of IRTPA to require that WHTI “may not be implemented earlier than the date that is the later of 3 months after the Secretary of State and the Secretary of Homeland Security make the certification required in subparagraph (B) or June 1, 2009.” (Section 545, Omnibus Bill). 15 Pub. L. 109-295, 120 Stat. 1355 (Oct. 4, 2006). 16 Id. at 546. See Congressional Record, 109th Cong., 2nd sess., September 29, 2006 at H7964. 17 Id . 5. Other Relevant Legislation On August 4, 2007, the President signed into law the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act of 2007). 18 Section 723 of the 9/11 Commission Act of 2007 called on the Secretary of Homeland Security to begin to develop pilot programs with states to develop state-issued secure documents that would denote identity and citizenship. Section 724 of the 9/11 Commission Act of 2007 called on the Secretary of State to examine the feasibility of lowering the execution fee for the proposed passport card. 18 Pub. L. 110-53, 121 Stat. 266 (Aug. 4, 2007). 6. Passport Cards On October 17, 2006, to meet the documentation 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 U.S. citizens through land and sea ports-of-entry between the United States and Canada, Mexico, or the Caribbean and Bermuda. 19 The passport card will contain security features similar to the traditional passport book. The passport card will be particularly useful for citizens in border communities who regularly cross the border and will be considerably less expensive than a traditional passport. The validity period for the passport card will be the same as for the traditional passport—ten years for adults and five years for minors under age 16. The final rule on the passport card was published on December 31, 2007 at 72 FR 74169. 19 71 FR 60928. 7. 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. In Section 723 of the 9/11 Commission Act, Congress required the submission of a report to the appropriate congressional committees regarding the state enhanced driver's license pilot program required by a separate provision of the Act. Congress has asked for the following certifications: 1. National Institute of Standards and Technology (NIST) Certification. Acquire NIST certification for the passport card 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 continue to share information and meet regularly with both Mexican and Canadian officials regarding the radio frequency identification (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 and the Postal Service have memorialized their agreement on the fees for the passport card set by DOS, including the execution fee which the Postal Service retains. 4. Groups of Children. Certify that an alternative procedure has been developed for border crossings by groups of children. The final rule contains an alternative procedure for groups of children traveling across an international border under adult supervision with parental consent as proposed in the land and sea NPRM. 5. Infrastructure . Certify that the necessary passport card infrastructure has been installed and employees have been trained. WHTI is a significant operational change in a series of changes that are aimed at transforming the land border management system. DHS will utilize the 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. CBP Officers have been trained in use of this infrastructure. In addition, CBP will deploy an integrated RFID technical infrastructure to support advanced identity verification in incremental deployment phases. CBP Officers receive ongoing training on WHTI policies and procedures and that will continue as we approach full WHTI implementation, including technology deployment, technology capability, and documentary requirements. CBP will develop training requirements and plans, perform the required training, provide on-site training support and monitor its effectiveness through assessment and ongoing support. Initial training was completed in January 2008. 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. DOS issued the final rule on December 31, 2007. DOS has accepted applications for the passport card since February 1, 2008, and expects to issue cards in spring 2008. 7. Common Land and Sea Implementation . Certify to one implementation date. The final rule provides for one implementation date for land and sea travel. 8. State Enhanced Driver's License Projects . Certify to agreement for at least one voluntary program with a state to test a state-issued enhanced driver's license and identification document. 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. On September 26, 2007, the Secretary of Homeland Security and the Governor of Vermont signed a similar Memorandum of Agreement for an enhanced driver's license and identification card to be used for border crossing purposes; on October 27, 2007, the Secretary and the Governor of New York also signed a Memorandum of Agreement. On December 6, 2007, the Secretary of Homeland Security and the Governor of Arizona also signed a similar Memorandum of Agreement to develop, issue, test, and evaluate an enhanced driver's license and identification card. 20 20 For more information on these enhanced driver's license projects, see http://www.dhs.gov . 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. In the unlikely event that the Departments are unable to complete all the necessary certifications by June 1, 2009, the Departments will provide notice to the public and amend the date(s) for compliance with the document requirements for land and sea border crossings as necessary. II. Documentation at the Border In the Land and Sea NPRM, the Departments announced that, separate from WHTI implementation, beginning January 31, 2008, CBP would begin requesting documents that help establish identity and citizenship from all U.S. and Canadian citizens entering the United States. This announcement was made to reduce 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. A person claiming U.S. citizenship must establish that fact to the examining CBP Officer's satisfaction, including by presenting documentation as necessary. Historically, a U.S. citizen has had to present a U.S. passport only if such passport is required under the provisions of 22 CFR part 53. Since January 31, 2008, DHS has expected the evidence of U.S., Bermudian, or Canadian citizenship to include either of the following documents or groups of documents: (1) Document specified in CBP's regulations as WHTI-compliant for that individual's entry; or (2) a government-issued photo identification document presented with proof of citizenship, such as a birth certificate. CBP retains 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. As of January 31, 2008, CBP has required proof of citizenship, such as a birth certificate or other similar documentation as noted in the final rule for U.S. and Canadian children under age 19. III. Summary of Document Requirements in the Proposed Rule In the June 26, 2007, NPRM, the Departments proposed 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 21 from within the Western Hemisphere. The proposed document requirements are summarized below; for a full discussion of the proposed requirements, please refer to the NPRM at 72 FR 35088 (hereinafter Land and Sea NPRM). 21 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 final requirements. The Departments proposed that most U.S. citizens entering the United States at all sea or land ports-of-entry would be required to present either: (1) A U.S. passport book; (2) a U.S. passport card; (3) a valid trusted traveler card (NEXUS, FAST, or SENTRI); (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. The Departments proposed that Canadian citizens entering the United States at sea and land ports-of-entry would be required to present, in addition to a visa, if required: 22 22 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; or 2. A valid trusted traveler program card issued by the Canada Border Services Agency (CBSA) or DHS, e.g. FAST, NEXUS, or SENTRI. 23 23 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. 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. The proposed rule did not alter the passport and visa requirements for other foreign enrollees in SENTRI (i.e., other than Canadian foreign enrollees). In the Land and Sea NPRM, DHS and DOS also noted that they had engaged with the Government of Canada in discussions of alternative documents that could be considered for border crossing use at land and sea ports-of-entry under the proposed rule. DHS and DOS pledged continued engagement in discussions of alternatives and welcomed comments suggesting alternative Canadian documents. Under the 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. In the Land and Sea NPRM, the Departments proposed that 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 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. The Departments proposed that BCCs alone would no longer be acceptable by a Mexican national to enter the United States from Canada; instead, a Mexican national would need to present a passport and visa when entering the United States from Canada. The Departments proposed that Mexican nationals who hold BCCs would be allowed to use their BCCs for entry at the land border from Mexico and, when arriving by ferry or pleasure vessel from Mexico. For travel outside of certain geographical limits or for a stay over 30 days, Mexican nationals who entered the United States from Mexico possessing a BCC would also be required to obtain a Form I-94 from CBP as is currently the practice. 24 The BCC would not be permitted in lieu of a passport for commercial or other sea arrivals in the United States. 24 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). The Departments also proposed continuing the current practice that Mexican nationals may not use the FAST or SENTRI card in lieu of a passport or BCC. Mexican national FAST and SENTRI participants, however, would continue to benefit from expedited border processing. The Departments also proposed to eliminate the exception to the passport requirement for 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 and who currently are not required to present a valid passport. This type of entry generally occurs at land borders. 25 25 See 8 CFR 212.1(c)(1)(ii). In the Land and Sea NPRM, DHS and DOS encouraged U.S. states to consider participation in enhanced driver's license pilot programs and the Government of Canada to propose acceptable WHTI-compliant documents that it would issue to its citizens. DHS proposed to consider, as appropriate, documents such as driver's licenses that satisfy 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 enhanced driver's license project 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. On January 29, 2008, DHS published in the Federal Register a final rule 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. 26 In the January 29, 2008 rule, DHS indicated its intent to work with states interested in developing driver's licenses that will meet both the REAL ID and WHTI requirements. 26 See REAL ID Final Rule at 73 FR 5272. In the Land and Sea NPRM, the Departments also proposed special circumstances for specific groups of travelers permitting other documents: • U.S. citizens on cruise ship voyages that originate and end in the United States may carry government-issued photo identification (IDs) and birth certificates, consular reports of birth abroad or certificates of naturalization; • U.S. and Canadian citizen children under age 16 and children age 16 to 18 traveling in groups may carry originals or certified copies of birth certificates; U.S. citizen children may also carry consular reports of birth abroad or certificates of naturalization; • Members of the Kickapoo Band of Texas and Tribe of Oklahoma may carry the Form I-872, American Indian Card; The Land and Sea NPRM indicated that document requirements for Lawful Permanent Residents (LPRs) of the United States, employees of the International Boundary and Water Commission (IBWC) between the United States and Mexico, workers on the Outer Continental Shelf (OCS), active duty alien members of the U.S. Armed Forces, and members of NATO-Member Armed Forces would remain unchanged. The Departments also outlined certain approaches with regard to Native Americans and Canadian Indians, as well as alternative approaches to children and requested comments on the proposed alternatives for inclusion in this final rule. A discussion of those approaches and the comments received follows in the comment response section. IV. Discussion of Comments In the ANPRM, the Air and Sea NPRM, and Land and Sea NPRM, DHS and DOS sought public comment to assist the Secretary of Homeland Security to make a final determination concerning which document, or combination of documents, other than valid passports, would be accepted at sea and land ports-of-entry. DHS and DOS received 2,062 written comments in response to the ANPRM and over 1,350 written comments in response to the Land and Sea NPRM. The Departments also received several comments to the August 11, 2006, Air and Sea NPRM that addressed sea or land travel or the WHTI plan generally, which have been included and addressed in these comment responses. The majority of the comments (1,910 from the ANPRM) addressed only potential changes to the documentation requirements at land border ports-of-entry. One hundred and fifty-two comments from the ANPRM addressed changes to the documentation requirements for persons arriving at air or sea ports-of-entry. Comments in response to both the ANPRM and the Land and Sea NPRM were received from a wide range of sources including: Private citizens; businesses and associations; local, state, federal, and tribal governments; members of the United States Congress; and foreign government officials. The comments received in response to the ANPRM and the Land and Sea NPRM regarding arrivals by land and sea are addressed in this rulemaking. A summary of the comments from the ANPRM, the Air and Sea NPRM, and the Land and Sea NPRM follows with complete responses to the comments. A. General DHS and DOS received thirty-nine comments to the Land and Sea NPRM expressing general agreement with the proposed requirements. DHS and DOS received several comments to the August 11, 2006, Air and Sea NPRM for implementation of WHTI in the air and sea environments that opposed any requirements for land-border crossings. DHS and DOS received thirty comments to the Land and Sea NPRM expressing general disagreement with the proposed rule. One commenter requested more stringent document requirements than proposed. B. Implementation 1. General Comment: One commenter to the Land and Sea NPRM noted that a U.S. citizen cannot be denied entry to the United States. Response: U.S. citizens cannot be denied entry to the United States; however, the documents that this rule requires are designed to establish citizenship and identity. Travelers without WHTI-compliant documents who claim U.S. citizenship will undergo additional inspection and processing until the inspecting officer is satisfied that the traveler is a U.S. citizen, which could lead to lengthy delays. Comment: Two commenters to the Land and Sea NPRM expressed concern that the manner by which DHS is certifying itself as being ready to implement WHTI does not allow Congress to exercise the necessary oversight of the WHTI program. Response: DOS and DHS disagree. The Departments are in the process of taking the necessary steps to be able to make all certifications to Congress as required by statute. WHTI is a significant operational change in a series of changes that are aimed at transforming the land border management system. DHS will utilize the 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. CBP Officers have been trained in use of this infrastructure. In addition, CBP will deploy an integrated RFID technical infrastructure to support advanced identity verification in incremental deployment phases. CBP Officers receive ongoing training on WHTI policies and procedures and that will continue as we approach full WHTI implementation, including technology deployment, technology capability, and documentary requirements. CBP will develop training requirements and plans, perform the required training, provide on-site training support and monitor its effectiveness through assessment and ongoing support, with initial training having been completed in January 2008. The Departments have worked very closely to update the appropriate congressional committees on the status of the certifications and will continue to do so until final certifications are made. Moreover, the National Institute of Standards and Technology (NIST) certified on May 1, 2007, that the architecture of the passport card meets or exceeds the relevant standard and the best practices for protection of personal identification documents as specified in the statute. DOS and DHS are on track to make all certifications well in advance of the June 1, 2009 implementation date. Comment: Approximately two hundred commenters to the Land and Sea NPRM requested that the Departments commit sufficient resources to fully implement WHTI, including technology, staffing, funding, training, and marketing. Response: DOS and DHS are fully committed to providing the necessary resources to implement WHTI, including technology, staffing, funding, training, and outreach to the traveling public. Comment: Several commenters raised concerns about requiring passports or other forms of documentation during emergency situations. One commenter stated that the passport waiver for U.S. citizens during unforeseen emergencies or for humanitarian or national interest reasons should also extend to Canadian and Mexican citizens. One commenter to the Land and Sea NPRM requested that DHS consult with local emergency responders so that WHTI does not compromise their ability to protect American and Canadian communities. Response: Pursuant to IRTPA, this final rule provides for situations in which documentation requirements may be waived for U.S. citizens on a case-by-case basis for unforeseen emergencies or “humanitarian or national interest reasons.” Similarly, CBP has authority to temporarily admit non-immigrant aliens into the United States on a temporary basis in case of a medical or other emergency, which is not changed by this final rule. Finally, local emergency responders routinely consult with local CBP offices regarding entry procedures into the United States during emergency situations. Comment: One commenter stated that the Land and Sea NPRM would be contrary to U.S. obligations under international human rights law, free trade agreements, and U.S. statutes, including the International Covenant on Civil and Political Rights, the Charter of the Organization of American States, the North American Free Trade Agreement (NAFTA), and the NAFTA Implementation Act because the rules restrict free movement of people in the Western Hemisphere. Response: DHS and DOS are not denying U.S. or non-U.S. citizens the ability to travel to and from the United States by requiring an appropriate document for admission. Pursuant to 8 U.S.C. 1182(a)(7)(A) and 1185, DHS and DOS have authority to require sufficient proof of identity and citizenship via presentation of a passport or alternative document when seeking entry to the United States. By requiring a valid passport or other alternative document for entry to the United States from within the Western Hemisphere, DHS and DOS are eliminating a historical exemption of the requirement that all U.S. citizens and other travelers must posses a passport to enter the country. 2. Timeline Comment: DHS and DOS received one hundred and ten comments to the ANPRM regarding the timeline for implementation of WHTI. Ten of the ANPRM commenters believed that WHTI should be implemented sooner than proposed. Nine of these commenters approved of the timelines proposed, and ninety-four commenters believed that the timeline should be extended. Several comments to the Air and Sea NPRM and to the Land and Sea NPRM asked for an extended implementation timeline. One commenter stated that WHTI in the land and sea environments should be implemented as soon as possible. A few commenters urged that the Departments give the public ample opportunity to prepare for the final implementation. Twenty-four commenters recommended delaying implementation until pilot projects and field trials had been completed. Two hundred and six commenters recommended that DHS should set a clear implementation date of June 2009. Six commenters requested a flexible and phased implementation approach for WHTI. Thirty-six commenters recommended ensuring that there is a critical mass of WHTI-compliant documentation ( i.e. , passports, NEXUS, FAST, and enhanced driver's licenses) in circulation prior to WHTI implementation at land and sea ports-of-entry. One commenter to the Land and Sea NPRM requested that key benchmarks relating to document availability and installation of required infrastructure be developed to determine the timeline for full implementation. Response: Since the publication of the NPRM, Congress has amended section 7209 by the 200 Omnibus Bill, to prohibit WHTI from being implemented before June 1, 2009, at the earliest. DHS and DOS will transition toward WHTI secure document requirements over the next 16 months, with implementation on June 1, 2009. This allows ample time for the public to prepare for the change. Comment: Two commenters stated that ending oral declarations on January 31, 2008, without a plan would cause substantial delays at ports-of-entry and suggested a single implementation date of 2009 rather than a phased implementation. Three commenters were concerned about how the elimination of the practice of accepting oral declarations of citizenship and how processing of travelers without documents in the transition phase will impact the flow of traffic at busy border crossings. Response: In the Land and Sea NPRM, the Departments announced that, separate from WHTI implementation, beginning January 31, 2008, CBP would begin requesting documents that evidence identity and citizenship from all U.S. and Canadian citizens entering the United States at land and sea ports-of-entry. This change was made to reduce the well-known vulnerability posed by those who might illegally purport to be U.S. or foreign citizens trying to enter the United States by land or sea on a mere oral declaration. As of January 31, 2008, a person claiming U.S. citizenship must establish that fact to the examining CBP Officer's satisfaction, generally through the presentation of a birth certificate and government-issued photo identification. CBP retains 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. CBP has relied on its operational experience in processing travelers entering the United States by land to ensure that the elimination of oral declarations is implemented in a manner that will minimize delays while achieving the security benefit underlying WHTI. The changes that took place January 31, 2008, have gone smoothly. Compliance rates are high and continue to increase. There have been no increases in wait times attributable to the end of accepting oral declarations alone at the border. Comment: One commenter to the Land and Sea NPRM stated that WHTI implementation should be delayed until a study underway at the Government Accountability Office (GAO) is completed. Another commenter called upon DHS to conduct a more comprehensive economic impact analysis before the proposed rule is promulgated. Response: The Departments welcome congressional oversight and have cooperated with several GAO engagements that have directly or indirectly touched on WHTI. The Departments intend to fully implement WHTI on June 1, 2009, the earliest possible date, which the Departments believe is in the best interests of national security. Additionally, the Departments are providing ample time for robust communication efforts to and preparation by the traveling public. While the Departments will consider the findings of these GAO engagements with regard to WHTI implementation, it is not necessary, nor would it be appropriate, to delay implementation of WHTI until any particular GAO report is completed. Moreover, CBP has also conducted a robust economic analysis of the proposed rule, as detailed in the Land and Sea NPRM and elsewhere in this document, in accordance with applicable laws, regulations, and policies. 3. Security and Other Operational Considerations Comment: DHS and DOS received approximately thirty-five comments to the ANPRM stating that the implementation of WHTI at the land borders would result in travel delays at the ports-of-entry. Ten commenters to the Land and Sea NPRM recommended that the “border crossing agencies” implement a plan to anticipate and mitigate longer waits at key border crossings. Response: DHS has analyzed the potential for travel delays at the ports-of-entry in the document “Western Hemisphere Travel Initiative in the Land and Sea Environments: Programmatic Environmental Assessment.” The public was invited to comment on this analysis. DHS has concluded that implementation of WHTI in the land environment will not have an adverse impact on wait times. By using documents that contain an MRZ or employ RFID technology, the Departments anticipate that wait times will decrease. The final Programmatic Environmental Assessment is available at http://www.cbp.gov. 4. Technology Comment: Eight commenters to the Land and Sea NPRM stated that WHTI should not be implemented until RFID technology has been deployed. These commenters also stated that RFID technology should be deployed at all land-border crossings. Six hundred and thirty-eight commenters stated that appropriate infrastructure and personnel should be in place for a program of this magnitude. Response: DHS is committed to ensuring that infrastructure and fully trained personnel are in place to successfully implement WHTI in the land environment. DHS believes that deploying new RFID technology at certain land ports-of-entry, in combination with existing technology, is the most cost-effective way to enhance security while ensuring the efficient flow of trade and travelers. DHS believes that RFID deployment to low-volume land-border ports-of-entry in the near future is unnecessary given the current traffic volumes. Comment: Two commenters to the Land and Sea NPRM stated that DHS and DOS should reconsider the use of vicinity RFID technology in the passport card because of the substantial privacy and security risks. Four commenters stated that the implementation of WHTI should protect the personal privacy of travelers. Response: Based on experience to date with the use of RFID technology, DHS is confident that existing and future vicinity RFID-enabled documents can be used at the border in a manner that safeguards personal privacy. RFID technology is currently used as part of existing trusted traveler programs. The RFID chip contained in the passport card issued by DOS will not contain any personal information. The vicinity RFID technology to be deployed would act as a pointer to a secure CBP database and does not transmit personal information. The information is presented to CBP officers as the traveler pulls up to an inspection booth, thus facilitating faster processing of the individual. 5. Cruise Ships Comment: Four commenters to the Land and Sea NPRM stated their appreciation that passports will not be required for those cruise passengers departing and returning to the United States. One commenter disagreed with the proposed alternative document requirement for certain U.S. citizen cruise ship passengers. Response: DHS and DOS appreciate these comments, and have decided to adopt in the final rule the NPRM provision addressing U.S. citizens on round-trip cruises. Thus, U.S. citizens traveling entirely within the Western Hemisphere may present a government-issued photo ID along with an original or a copy of a birth certificate instead of a document designated in this final rule if they: (1) Board a cruise ship at a port or place within the United States and (2) return to the same U.S. port or place from where they originally departed. In addition, DHS and DOS added a new provision that clarifies that U.S. citizens under the age of 16 are required to present either an original or a copy of his or her birth certificate without having to provide a photo ID. Regarding the comment opposing alternative document requirements for 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. Therefore, under certain conditions, U.S. citizen cruise ship passengers traveling within the Western Hemisphere will be permitted to present alternative documentation as described in section V.A. of this document. 6. MODUs/OCS Comment: One commenter to the Land and Sea NPRM supported the clarification on document requirements for workers returning to and from Mobile Offshore Drilling Units (MODUs) within the United States Outer Continental Shelf (OCS). Response: DHS and DOS appreciate this comment. DHS and DOS clarified in the Land and Sea NPRM 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. DHS and DOS note that, for immigration purposes, offshore employees on MODUs underway, which are not considered attached to the OCS, 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 directly from a foreign port or place and, therefore, has not been previously inspected and admitted to the United States, would be required to possess a passport or other designated document when arriving at the United States port-of-entry by sea. C. Passports 1. General Comment: Thirty-one commenters to the Land and Sea NPRM stated that increasing the number of documents in circulation will increase the number of documents that are lost, stolen or misplaced, and thus individuals in these circumstances will need expedited replacement. One commenter to the Land and Sea NPRM expressed concern about how to enter the United States if his passport had been lost or stolen. Response: U.S. citizens whose passports are lost or stolen can apply for replacements and request expedited service if necessary. Individuals who are abroad and have an urgent need to travel are generally issued a one-year, limited validity passport that will enable them to continue their trips. That passport will be replaced within the year for no additional fee either domestically or abroad. Individuals who are within the United States and have an urgent need to travel may pay a fee for expedited processing as defined in 22 CFR 51.56. Comment: One commenter to the Land and Sea NRPM raised concerns about the security of U.S. and foreign passports, stating that passports are easily falsified or altered. One commenter stated that passports can be intercepted in the mail and falsified. Response: A primary purpose of the passport has always been to establish citizenship and identity. It has been used to facilitate travel to foreign countries by displaying any appropriate visas or entry/exit stamps. Passports are globally interoperable, consistent with worldwide standards, and usable regardless of the international destination of the traveler. As such, we recognize that false passports are valuable assets for dangerous people. We take precautionary measures to verify passports and share information with international partners regarding lost and stolen passports. U.S. passports incorporate a host of security features. These security features include, but are not limited to, rigorous adjudication standards and document security features. The adjudication standards establish the individual's citizenship and identity and ensure that the individual meets the qualifications for a U.S. passport. The document authentication features include digitized photographs, embossed seals, watermarks, ultraviolet and fluorescent light verification features, security laminations, micro-printing, and holograms. An application for a U.S. passport is adjudicated by trained DOS experts and issued to persons who have documented their identity and United States citizenship by birth, naturalization or derivation. Applications are subject to additional Federal government checks to ensure the applicants are eligible to receive a U.S. passport under applicable standards. U.S. passports are delivered by priority mail with delivery confirmation providing proof of receipt at the addressee's zip code. Mail carriers are instructed to scan the Priority Mail piece at the time it is delivered to the address indicated on the envelope. Priority Mail envelopes also help protect the passport from loss or theft. The envelopes are sturdy and less likely to become damaged or unsealed during mail processing. Foreign passports accepted for admission to the United States must meet the standards set out in the International Civil Aviation Organization (ICAO) 9303, and a CBP inspecting officer verifies and authenticates such passports presented for admission to the United States. 2. Cost of Passports Comment: In response to the Air and Sea NPRM and Land and Sea NPRM, DHS and DOS received many comments stating that passports are too expensive for routine cross-border visits and that the cost of the passport book should be reduced or eliminated. Several commenters requested that DOS offer lower rates for families, the elderly, and children under 18. One commenter was concerned about the eventual cost of the passport card. One commenter stated that the cost of the passport card should be reasonable and it should remain less expensive than a passport. One commenter to the Land and Sea NPRM requested a no-cost passport card for travelers who cross international borders at unique geographical locations. One commenter urged the State Department to provide expedited passport service to truck drivers at no additional charge. Five commenters to the Land and Sea NPRM suggested that U.S. passport fees be waived for Indian tribal members. One commenter stated that the cost of obtaining a passport would cause people not to travel, negatively affecting commerce. Response: Title 22 of the United States Code mandates that DOS charge a fee for each passport application and a fee for executing each application, where applicable. The law and implementing regulations provide for certain exemptions from passport fees, but the law does not provide DOS the discretion to create additional exemptions or a reduced fee category based on the personal circumstances of the individual. Children do benefit from a lower application fee but it reflects the reduced validity period of the passport rather than a concession based on age. Please see the passport card final rule () for more information on the cost structure of the passport card. See 72 FR 74169. 3. Obtaining Passports Comment: DHS and DOS received seven comments to the Land and Sea NPRM asking why a birth certificate had to be submitted with the passport application or an old passport had to be submitted along with a renewal application, thus potentially leaving travelers without a passport or a birth certificate to use for international travel. Response: To prevent fraud, original birth certificates must be examined by passport examiners who are trained in fraud detection before they are returned to the applicant. For the same reason, a person is not permitted to hold two valid passports of the same type except on DOS authorization. DOS physically cancels current passports when it issues new passports, therefore, current or old passports have to be submitted during the renewal process. If a passport is needed for urgent travel, the traveler can request expedited service. 4. DOS Issuance Capacity Comment: DHS and DOS received one hundred eighty-four comments to the Land and Sea NPRM that expressed concern that DOS would not be able to timely process the increased numbers of passport applications that will result from implementation of the rule. One commenter stated that standard applications should be processed in six weeks and expedited applications in one week. One commenter stated that with the increase of passport applications, adjudicators within DOS are not given enough time to thoroughly check them. One commenter stated that the wait time in applying for the passport card should be less than thirty days. Response: Prior to the implementation of the first phase of WHTI in January 2007, DHS and DOS conducted a successful campaign to alert the traveling public and stakeholders in the private sector to the new document requirements implemented in the air phase, particularly in the aviation and travel and tourism industries. DOS has taken numerous measures in response to the increased demand resulting from the implementation of WHTI. DOS has created hundreds of new positions and is currently producing more than 1.6 million passports per month. DOS anticipates increasing passport issuance to 500,000 documents a week. DOS is also planning to open additional passport facilities around the country. Through these efforts, DOS expects to be able to meet the increased demand resulting from the implementation of WHTI in the land and sea environments. 5. Passport Cards Comment: DHS and DOS received four comments to the Air and Sea NPRM for implementation of WHTI in the air and sea environments requesting that the passport card be designated as an acceptable document in the air environment. Two commenters to the Land and Sea NPRM did not support the issuance of passport cards because the cards cannot be used for international travel beyond Canada, Mexico, the Caribbean, or Bermuda. Response: The passport card is intended as a lower cost means of establishing identity and nationality for U.S. citizens in two limited situations—for U.S. citizens crossing U.S. land borders and traveling by sea between the United States, Canada, Mexico, the Caribbean, or Bermuda. The passport card is not designed to be a globally interoperable travel document as defined by the International Civil Aviation Organization (ICAO). In fact, designating the card format passport for wider use, including by air travelers, would inadvertently undercut the broad-based international effort to strengthen civil aviation security and travel document specifications to address the post 9/11 threat environment because it would not meet all the international standards for passports and other official travel documents. Moreover, in its consideration of the 2007 Appropriations Act for the Department of Homeland Security, Congress, while allowing for the use of the passport card by citizens traveling by sea between the United States, Canada, Mexico, the Caribbean, or Bermuda, did not make parallel changes regarding international air travel. Comment: DHS and DOS received five comments to the Land and Sea NPRM stating that the implementation of WHTI should not take place until the passport card is available. One commenter suggested that the passport card should be issued in conjunction with existing state licensing agencies with federal support. Four commenters stated that the passport card could not possibly be designed, tested, publicized, and be readily obtainable by the summer of 2008. One commenter stated that the issuance of a passport card would not facilitate spontaneous travel. Response: As stated in the Land and Sea NPRM, in which the Departments jointly announced the next phase of WHTI addressing entry into U.S. land and sea ports-of-entry, DHS and DOS have considered the operational challenges posed by the new requirements. As a result, the Departments are taking a flexible, practical approach to land implementation that considers a variety of factors, including the availability of passports, passport cards, and state-issued enhanced driver's licenses pursuant to project agreements with DHS. During this transition period, U.S. citizens will be able to obtain the documents necessary to satisfy WHTI. Comment: The Government of Canada commented on the Land and Sea NPRM and encouraged the sharing of the technological and procurement specifications of the U.S. passport card in order to assist in the development of comparable passport card options in other countries. Response: DHS and DOS have engaged with the Government of Canada in discussions of alternative documents proposed by the Canadian federal government and several provinces that could be considered for border crossing use at land and sea ports-of-entry. DHS and DOS have shared technology and procurement specifications with the Government of Canada regarding alternative travel documents and welcome continued engagement with Canadian counterparts to implement WHTI. Alternative identity and citizenship documents issued by the Government of Canada will be considered in the future. Comment: One commenter to the NPRM recommended that the card should expire not less than ten years from the date issued. Response: Passport cards, like passport books, will be valid for ten years for adults and five years for children less than 16 years of age. D. Alternative Documents 1. General Comment: DHS and DOS received approximately 230 comments to the ANPRM requesting alternative documentation to the traditional passport book. Almost half of those commenters wanted a low-cost identification card that could be used for crossing the border. Many commenters requested that existing CBP Trusted Traveler cards be accepted. Several commenters asked for a clear definition of the documents that would be acceptable under WHTI for land travel. A few commenters stated that only the passport should be acceptable. Two commenters asked that a Transportation Worker Identification Card (TWIC) be designated as an acceptable document. DHS and DOS received three comments to the Land and Sea NPRM requesting a low-cost identification card that could be used for crossing the border. Eleven commenters to the Land and Sea NPRM supported the opportunity for travelers to present a variety of government-approved identifications. Three commenters requested DHS and DOS to further study the possibility for alternative identification that would be accepted in place of a passport. Response: Other acceptable documents are designated in this rule by the Secretary of Homeland Security as sufficient to establish identity and citizenship at land and sea ports-of-entry. For U.S. citizens, along with the passport and lower-cost passport card, CBP Trusted Traveler cards under the NEXUS, SENTRI, and FAST programs will be accepted under this rule. In addition, identification cards issued to military members of the U.S. Armed Forces will be accepted when such personnel are traveling on official travel orders. Merchant Mariner Documents (MMDs) issued by the U.S. Coast Guard to U.S. citizens will also be accepted when traveling for official maritime business. Canadian citizens will be able to present CBP Trusted Traveler Cards. The Border Crossing Card (BCC) issued by DOS to Mexican nationals will be accepted when coming from Mexico. Documents issued as part of a DHS-approved state enhanced driver's license project will be acceptable according to the agreement between the individual state and DHS, or the Government of Canada and DHS. Details on state enhanced driver's license projects will be published as notices in the Federal Register as they are finalized. In addition to the documents described above, DHS and DOS are providing alternatives to the passport requirement for children under 16, children under 18 traveling in groups, Native American U.S. citizens, Canadian Indians, and certain U.S. cruise passengers on “closed-loop” voyages that originate in the United States. DHS and DOS encourage U.S. states and Canadian provinces (through the Government of Canada) to participate in enhanced driver's license projects. Comment: Four commenters to the Land and Sea NPRM asked for a definition of “availability” concerning documents that will be accepted under WHTI. Response: In the Land and Sea NPRM, the Departments stated, in the context of implementation and the effective date of the 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. * * * 27 27 72 FR at 35096. In this context, “availability” means that WHTI-designated documents exist and the public can obtain them. The Departments are publishing this final rule with ample notice to the traveling public. This will also allow sufficient time for the traveling public to obtain documents before June 1, 2009. Comment: Thirteen commenters to the Land and Sea NPRM asked that the Departments include a provision in the final rule for a non-photo identification document (e.g., fingerprint verification) for persons who object to being photographed based on their religious beliefs. Response: While DHS and DOS remain sensitive to the concerns of different religious groups, the Departments must balance those concerns against the need to secure our borders through the implementation of the document standards required by WHTI. In particular, photographs serve a unique and essential function and significantly minimize the opportunities for document fraud, unlike fingerprints, by allowing an inspecting CBP officer or any law enforcement officer to immediately compare the picture on the document against the traveler. In order to be consistent with international travel standards, DHS is requiring all adult travelers to carry a government-issued photographic identification document. Failure to do so may result in delays at the border as officers try to determine identity and citizenship. 2. Driver's License and Birth Certificate Comment: DHS and DOS received almost 300 comments to the ANPRM stating that the combination of a driver's license and birth certificate should be acceptable to denote an individual's citizenship and identity. DOS and DHS received several comments to the Land and Sea NPRM stating that a driver's license and birth certificate should be acceptable to denote an individual's citizenship and identity. One commenter stated that because Native Americans can use their tribal identification cards, northern-border citizens should be allowed to use their state or province-issued birth certificates and driver's licenses. Thirty-eight commenters stated that they should be exempt from a passport requirement due to their unique geographic location. Two commenters requested special provisions for waiving passport requirements for North American Indians traveling through the U.S. border. One commenter disagreed with the cruise ship exemption for U.S. citizens. Response: The Departments agree that U.S. citizens may use the combination of a driver's license and birth certificate when traveling on “closed loop” cruise ship voyages, where the U.S. citizen departs from a U.S. port or place and returns to the same U.S. port upon completion of the voyage. Accordingly, we disagree with the commenter advocating that the Departments not adopt a special provision for cruise travel. 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. In contrast, because of the myriad government entities that issue birth certificates and because of the greater potential for counterfeiting or adulteration associated with general use in the land and sea environments, the Departments have determined that it is not prudent to permit the combination of birth certificates and driver's licenses generally for adults when single, secure documents are available. CBP recognizes that residents of unique geographic locations face special challenges in that some must travel through Canada to get from their homes in the United States to their schools, jobs, and hospitals in other areas of the United States. CBP has worked with many of these communities over the years to facilitate travel. Full implementation of WHTI will not diminish CBP's ability to utilize existing protocols and other inspection processes to admit travelers to and from unique geographic locations. The Departments have elected not to adopt any of the remaining comments. Comment: DHS and DOS received several comments to the Land and Sea NPRM stating that because the combination of a driver's license and birth certificate is acceptable aboard a cruise ship, it should also be acceptable documentation for land-border entries. One commenter stated that because the land-border tourist industry has a far larger impact on the U.S. economy than the cruise-ship industry, the land border deserves no less protection and consideration. Response: DHS and DOS disagree. As mentioned previously, due to the operational environment and the security risks assessed, the Departments have determined that U.S. citizens may use the combination of a driver's license and birth certificate when traveling on certain cruise-ship voyages. As detailed in the Land and Sea NPRM, the security risks associated with designating this document combination for U.S. citizens on round-trip cruises are low. See 72 FR 35096. DHS and DOS have carefully considered the issues surrounding protection of our land borders and have determined that the documents designated in this rule for entry at land ports-of-entry reflect the best approach to balance security and travel efficiency considerations in the land environment. Comment: Three commenters to the Land and Sea NPRM recommended that senior citizens be permitted entry to the United States using government-issued photo identification with proof of citizenship based on their low security risk, significant cross-border linkages, and limited financial resources. Response: DHS and DOS appreciate this comment. DHS and DOS are sensitive to the needs of senior citizens and note that DOS will be offering a lower cost passport card as an alternative to the passport book. Senior citizens who live in participating states or provinces may also be eligible to obtain an enhanced driver's license. 3. Trusted Traveler Documents Comment: Three commenters to the Land and Sea NPRM expressed concern that the existing NEXUS card is not considered an acceptable form of ID at the border. One commenter sought early written assurances that NEXUS cards will be recognized as entry documents in non-dedicated commuter lanes. One commenter stated that DHS should make it a priority to expand both NEXUS and FAST. Response: Existing NEXUS cards are already acceptable documents for entry at land and sea ports-of-entry. CBP is upgrading the card format/features and is conducting a robust training program for its personnel at these ports of entry to ensure that CBP Officers enforce both the current documentation procedures recognizing trusted traveler cards and the WHTI requirements uniformly. Comment: Twenty-six commenters to the Land and Sea NPRM requested the expansion of the NEXUS, SENTRI, and FAST programs. Four commenters requested that the Trusted Traveler Programs be promoted more aggressively. Two commenters requested that the government explore opportunities and technologies to further develop frequent border crossing programs. Two commenters requested the expansion of the NEXUS program to include driver's licenses. Three commenters stated it is imperative that the phrase “as a participant in the program” be interpreted broadly enough to cover situations where truck drivers are crossing the border in a regular commercial or traveler lane for both NEXUS and FAST. Response: CBP is expanding the NEXUS, SENTRI, and FAST Trusted Traveler programs to accommodate an increase in applications expected as a result of the implementation of WHTI. 4. Children/Groups of Children/Alternative Approaches/Parental Consent Comment: Thirty-one commenters to the ANPRM asked to allow travelers under the age of 16 to use a birth certificate as sufficient proof of identity and citizenship. Ninety-three commenters to the Land and Sea NPRM supported the proposed requirements for children. Four commenters to the Land and Sea NPRM suggested the exemption from presenting a passport be raised to age 16 and under. One commenter stated that it would be appropriate to exempt children under the age of 18. Sixty-eight commenters supported the provisions being made for children traveling with their families, in groups, or with chaperones. One commenter stated that there was concern for the treatment of children if they have lost their documentation and were detained at the border. One commenter asked that U.S. and Canadian children traveling in groups for short trips should not be required to carry an original or certified copy of a birth certificate if accompanied by a chaperone. One commenter stated that attendance by students who are not members of athletic teams at high school events is jeopardized by this proposal. Response: Under this final rule, all U.S. citizen children under the age of 16 are permitted to present at all sea and land ports-of-entry when arriving from contiguous territory either: (1) An original or a 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. The Departments have decided to expand the list of documents Canadian children may present. Under the final rule, Canadian citizen children under the age of 16 are permitted to present an original or a copy of a birth certificate, a Canadian Citizenship Card, or Canadian Naturalization Certificate at all sea and land ports-of-entry when arriving from contiguous territory. The final rule relaxes the birth certificate requirement by allowing presentation of either an original or copy of a birth certificate, rather than an original or a certified copy as proposed in the NPRM. DHS and DOS have determined that age 16 is the most appropriate age to begin the requirement to present a passport book, 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. Also, age 16 is the age at which 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 age 16 to obtain a form of government-issued photo identification other than a passport. Under this final rule, U.S. 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, are permitted to present either: (1) An original or a copy of a birth certificate; (2) a Consular Report of Birth Abroad issued by DOS; or (3) a Certificate of Naturalization issued by USCIS. Under this provision, groups of children must be 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 all the children have parental or legal guardian consent to travel. Canadian citizen children under age 19 who are traveling in groups are permitted to present an original or a copy of a birth certificate, a Canadian Citizenship Card, or Canadian Naturalization Certificate under the same circumstances. 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. While DHS and DOS are sensitive to the needs of school groups, carrying an original or copy of a birth certificate represents the minimum travel requirement a person would possess to enable us to secure our borders through the implementation of WHTI. Comment: Six commenters to the Land and Sea NPRM requested that children of Mexican citizenship be included in the special requirements for children under the age of 16 or under the age of 19 when traveling in groups. One of these commenters questioned why Mexican children under the age of 16 were not included under the special requirements for children as Canadian children were. Response: IRTPA directs DHS and DOS 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. All Mexican citizens, including children, are currently required to present either a passport and visa, or a BCC upon arrival in the United States. DHS and DOS are not changing the current document requirements for children of Mexican citizenship entering the United States. Question From the Proposed Rule: Alternative Approach for Children; Parental Consent In the Land and Sea NPRM, the Departments solicited comments on whether a traditional passport or a passport card should be required for any child under 16 entering the United States without his/her parents and not in a group. DOS and DHS also solicited 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. Comment: Two commenters to the Land and Sea NPRM requested that a child under the age of 16 who is traveling with only one parent not be required to have a letter of consent to travel from the other parent. One commenter stated that there needs to be a solution concerning a child traveling across the border with an extended family member who is not the parent. Response: : While the Departments take seriously the issue of child abduction, the final rule does not require a passport or passport card for children or evidence of parental consent for the child to cross the international border. Parents are strongly encouraged to check the requirements of the governments of Mexico and Canada for child travelers as well as review the guidance on the DOS and DHS Web sites when planning international travel for their children. Under this final rule, a U.S. citizen who is under the age of 16 is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by DOS, or a Certificate of Naturalization issued by USCIS when entering the United States from contiguous territory at sea or land ports-of-entry. Based upon a review of the alternative approach for children and the parental consent questions asked in the Land and Sea NPRM and the comments received in response, DHS and DOS are not implementing any additional requirements regarding children or evidence of parental consent to travel other than those proposed in the Land Sea NPRM, which are adopted in this final rule. The Departments note that obtaining a passport book or card or other document with an MRZ or RFID technology may result in faster processing at the border. 5. State Enhanced Driver's License Projects Comment: DHS and DOS received two comments to the Air and Sea NPRM stating that the best solution to increasing security at our borders is one that incorporates improved technology in existing documentation, such as a driver's license. Thirty commenters to the Land and Sea NPRM stated that WHTI should not be implemented until all state or provincial enhanced driver's license pilot programs are in place. Six Canadian provinces urged DHS to explicitly recognize their proposed enhanced driver's license in the final rule. Twelve commenters supported proposed state pilot programs. One hundred-eight commenters recommended that DHS recognize an enhanced driver's license denoting identity and citizenship for entry by both Canadian and American citizens. One commenter stated that programs for producing an enhanced driver's license need more time for development and distribution prior to the summer of 2008. Eleven commenters recommended completing an enhanced driver's license pilot project prior to implementation of WHTI. Fifty-six commenters to the Land and Sea NPRM requested financial and technical assistance from the Federal government so that states could produce enhanced driver's licenses. Response: DHS encourages U.S. states and Canadian provinces acting through the Canadian Government to undertake enhanced driver's license projects. In a separate notice published concurrently in the Federal Register with this final rule, DHS will designate the Washington State enhanced driver's license as acceptable and notes that additional such documents will be added by notice. DHS will consider documents such as U.S. state and Canadian provincial enhanced driver's licenses that satisfy the WHTI requirements by denoting identity and citizenship undertaken pursuant to agreements with DHS. These documents also will have compatible facilitative technology and must meet minimum standards of issuance to meet CBP's operational needs. As noted above, the State of 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. Under this final rule, U.S. citizens arriving from contiguous territory and adjacent islands may present the enhanced driver's license and identification card issued by the State of Washington at land and sea ports-of-entry. To establish an EDL program, each entity individually enters into agreement with DHS based on specific factors such as the entity's level of interest, funding, technology, and other development and implementation factors. As each EDL program is specific to each entity, DHS does not intend to delay the implementation of WHTI until all potential state and provincial enhanced driver's license projects are operational. However, DHS will continue to welcome states and provinces interested in implementing EDL programs—even those that start after WHTI implementation. Comment: Two commenters recommended a meeting with all state driver's license directors by January 2008 before the completion of the Washington State pilot program. Response: DHS appreciates this comment and remains committed to working on a continuing basis with and coordinating efforts among states interested in developing, testing, and implementing pilot programs for enhanced driver's licenses. DHS encourages states interested in developing enhanced driver's licenses to work closely with DHS to that end. 6. Mexican/Canadian/Bermudian Documents Comment: Two commenters to the Land and Sea NPRM mistakenly believed that DHS had accepted Canadian provincial driver's licenses under the proposed rule. Eleven commenters appreciated DHS's acceptance of alternative Canadian citizenship and identity documents. Four commenters urged DHS and DOS to work with border states and Canadian provinces toward acceptable upgrades of existing documents. In its comments to the Land and Sea NPRM, the Government of Canada noted that DHS and DOS would accept the U.S. Merchant Mariner Document (MMD) as a WHTI-compliant document for U.S. citizens traveling on official maritime business and requested that the modernized Canadian Seafarer's Identity Document (SID) issued by Canada also be recognized by DHS and DOS as a WHTI-compliant document at sea and land ports-of-entry. Response: While DHS appreciates these comments, DHS is not designating the provincial driver's license or the Canadian Seafarer's Identity Document as acceptable documents in this final rule. As stated in the Land and Sea NPRM, 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. DHS and DOS will continue working with the Canadian government to explore potential alternative documents in the future. The Departments clarify that the MMD is being phased out and is not a document that will be accepted in the long term. 7. REAL ID Driver's Licenses Comment: Four commenters to the Land and Sea NPRM asked for clarification whether enhanced driver's licenses issued as part of a state pilot program under WHTI would comply with the REAL ID requirements as well. Two commenters cautioned against the action of implementing WHTI using the requirements of REAL ID due to concerns regarding privacy, costs, a complicated verification system, and the issues of federalism. One commenter stated that DHS must definitively declare that WHTI-compliant driver's licenses meet the improved driver's license requirements of the REAL ID Act. Response: DHS has worked to align REAL ID and EDL requirements. EDLs are being developed consistent with the requirements of REAL ID and, as such, can be used for official purposes such as accessing a Federal facility, boarding Federally-regulated commercial aircraft, and entering nuclear power plants. While the REAL ID requirements include proof of legal status in the U.S., the EDL will require that the cardholder be a U.S. citizen. In addition, the EDL will also include technologies that facilitate electronic verification and travel at ports-of-entry. DHS is extremely cognizant of the need to protect privacy, and as such institutes best practices with regard to the collection and use of personal data for all of its programs. 8. IBWC Comment: DHS and DOS received one comment to the Air and Sea NPRM for implementation of WHTI in the air and sea environments requesting that International Boundary and Water Commission (IBWC) identification be acceptable for land and sea travel. DHS and DOS received one comment to the Land and Sea NPRM requesting that IBWC identification be acceptable for land and sea travel. The comment also noted several improvements in the security of IBWC identification documents. Response: The Departments appreciate this comment. As stated in the Land and Sea NPRM, U.S. citizens and Mexican national direct and indirect employees of the IBWC crossing the United States-Mexico border may continue to use their IBWC cards while on official business under this final rule. E. U.S. Native Americans and Canadian Indians 1. Proposed Rule In the Land and Sea NPRM, the Departments sought comments on what Native American tribal documents could be designated as acceptable in the final rule. The Departments specified general criteria for acceptable Native American documents to meet. To satisfy Section 7209 of IRTPA, the documents must establish the identity and citizenship of each individual. In the Land and Sea NPRM, DHS and DOS proposed to accept 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. It was also proposed that 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. Tribes were also obligated to cooperate with CBP on the enhancement of their documents in the future as a condition for the acceptance of the document. DHS and DOS specifically invited comments from those United States tribes with members who continue to cross the border for a traditional purpose. The Departments sought comments from any tribe wishing to propose its tribal enrollment card as an acceptable alternative document. The Land and Sea NPRM asked that such comments include detailed information about traditional border crossings and the locations of those crossings. The Departments also requested information about the enrollment qualifications employed by each such U.S. tribe. A detailed description of the information sought by the Departments is provided in the Land and Sea NPRM. See 72 FR at 35099-35100. DHS and DOS also stated that they were considering alternative approaches and invited comments on these alternative approaches for U.S. Native Americans: • 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. The Land and Sea NPRM proposed that, for Canadian Indians: 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 * * *for comparable federally recognized U.S. tribes. 28 28 72 FR at 35100. The Land and Sea NPRM also proposed acceptance of the new document to be issued by the Canadian Department of Indian Affairs and Northern Development (hereinafter “INAC Card”) 2. Summary of Comments Many tribes and bands commented on the NPRM asking that the Departments include their tribal enrollment cards or other tribal documents as acceptable documents under WHTI. These commenters also proposed that all tribal cards issued by U.S. tribes should be accepted. Several Canadian First Nations commented on the Land and Sea NPRM to propose that their tribal enrollment cards or other tribal documents be designated as acceptable documents. These commenters also proposed that all such band cards for Canadian Indians be accepted. Commenters suggested that, in the alternative, the Departments should accept the proposed, revised INAC card as an acceptable alternative document. 3. Final Rule—U.S. Native Americans As stated in the Land and Sea NPRM, the United States has a special relationship, founded in the Constitution, with its Native American tribes. 29 This relationship allows the federal government, where appropriate, to designate Native American members of federally recognized U.S. tribes for special treatment. 30 Comments throughout the rulemaking process and consultations with U.S. Native American tribes have emphasized the particular impact which a new document requirement may have on Native Americans belonging to U.S. tribes who continue to cross the land borders for traditional historic, religious, and other cultural purposes. Several of these tribes are concerned that their members will be required to obtain a passport, passport card, or alternative document to maintain contact with ethnically related communities, including, for some tribes, members who live on traditional land in Mexico or Canada. 29 See Constitution, I, § section 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). 30 Morton v. Mancari, 417 U.S. 535, 551-55. Based on the record of this rulemaking proceeding, the Departments have adopted an alternative approach from the Land and Sea NPRM for U.S. Native Americans. DHS will work with tribes recognized by the United States government if each tribe (1) Continues to have strong cultural, historic, and religious cross-border ties; and (2) is willing to improve the security of the tribal enrollment documents in the future. Accordingly, paragraph (e) in 8 CFR 235.1 has been revised to capture this change. As stated in the proposed rule, acceptance of a tribal enrollment document would be contingent upon: (1) The tribe satisfactorily establishing identity and citizenship in connection with the use of its document; (2) the tribe providing CBP with access to appropriate parts of its tribal enrollment records; and (3) the tribe agreeing to improve the security of its tribal documents in cooperation with CBP. 4. Final Rule—Canadian Indians As requested by Congress, DHS has consulted with the Government of Canada regarding several alternative documents, including a proposed more secure INAC Card. It is anticipated that this new INAC card will be issued by the Canadian Department of Indian Affairs and Northern Development, Director of Land and Trust Services (LTS). DHS proposes to accept this document for Canadian Indians if and when it is available in connection with features and procedures to satisfactorily evidence identity and citizenship. LTS is responsible for determining the status of all Canadian Indians under Canada's Indian Act of 1876 for purposes of entitlements. Since 1951, the Canadian Government has maintained Indian Registration Lists, which confirm the heritage of each individual for entitlement purposes. Through this long-standing registration process, Canada has formally conferred “registered” Indian status on individuals. Only registered Canadian Indians can apply for the LTS issued “status” card i.e., the INAC card. LTS currently issues an INAC card with some security features such as a photograph of the document holder. The Government of Canada proposes to issue a new INAC card that would comply with international document security standards agreed by the Governments of Canada and the United States as part of the Security and Prosperity Partnership (SPP). When the document is issued in accordance with the SPP 1.1.3 security standard it is expected to include a machine-readable zone (MRZ). It is anticipated that Canada will begin to issue the new INAC cards beginning in 2008. DHS continues to have discussions with the Government of Canada about how to ensure that DHS and CBP will have the capability to electronically validate and verify the identity and citizenship of INAC card holders. Permanent designation of the INAC as an acceptable travel document by the Secretary of Homeland Security will be conditioned on the satisfactory establishment of a process to achieve this validation. If designated by the Secretary of Homeland Security, the proposed new INAC card will also be accepted as satisfactory evidence of the citizenship and identity of registered Canadian Indians. In light of the decision to accept an appropriate document issued by the Government of Canada to those recognized by that government as Canadian Indians, the Departments have decided not to accept the multitude of documents issued by the many Canadian First Nations. 5. Specific Comments Objecting to any Document Requirement Comments: CBP received approximately one hundred comments to the ANPRM and several commenters to the Land and Sea NPRM opposing any regulations that would require Native Americans or Canadian Indians traveling to and from the United States to carry and produce a U.S. or Canadian passport upon entry. These commenters asserted that such a requirement would infringe upon an asserted “right” of indigenous peoples living within the United States and Canada to travel freely across the border. Twenty-two tribes and their representatives commented to the Land and Sea NPRM that WHTI infringed upon an asserted “right” to unrestricted passage across the U.S.-Canadian border granted under the Jay Treaty and other treaties. DHS and DOS received one comment to the Air and Sea NPRM for implementation of WHTI in the air and sea environments similarly stating that Native Americans should not have any restrictions on travel across the borders of the United States. Two commenters stated that assurance was needed that document requirements would not obstruct or discourage them from obtaining those documents or inhibiting the movement of their people. One commenter to the Land and Sea NPRM observed that while Native Americans are eligible to obtain passports as Canadian or U.S. citizens, many choose not to because they perceive it as a threat to their sovereign status. One commenter is concerned that such documents are required to denote citizenship and identity and many believe that accepting citizenship from the U.S. or Canada would undermine the federal government's treaty obligations. Six individuals and one tribe commented that the rule would have a negative impact on Native Americans' ability to maintain familial ties and exercise religious and cultural practices across international borders. One tribe commented that international crossings were based on proximity to water. One tribe commented that the Departments' attempts to fit border crossing needs into a box are simply unrealistic. Response: The INA requires the inspection of all applicants for admission, with the purpose of verifying identity and citizenship. The Jay Treaty of 1794 and other treaties do not prevent the Departments from requiring documentary evidence of identity and citizenship from Native Americans and Canadian Indians. Congress, through the enactment of Section 7209 of IRTPA, specifically mandated that the Departments develop a plan to require documentary evidence of identity and citizenship at the borders. Section 289 of the INA 31 refers to the “right” of “American Indians” born in Canada to “pass the borders of the United States,” provided they possess at least 50 percent of Native American blood. Section 289, however, benefits individuals who establish their identity, their Canadian citizenship, and that they are “American Indians.” 31 See 8 U.S.C. 1359. DHS and DOS have proposed to accept certain tribal documents as an appropriate accommodation to U.S. Native Americans. 6. Specific Native American and Canadian Indian Comments Directed to the Rulemaking Process Comment: Ten commenters to the Land and Sea NPRM requested that DHS and DOS meet with their tribal governments. One tribe and one individual commented that DHS and DOS have failed to adequately consult with federally recognized Indian tribes on the implementation of this rule in accordance with the law and consequently requested that the entire Land and Sea NPRM be retracted until proper “government-to-government” consultations can take place. One tribe expressed concerns that the Land and Sea NPRM would be the “only opportunity” for tribal governments to engage in dialogue regarding the proposed regulation. One commenter encouraged DHS to continue the open dialogue with tribal governments along the international borders and to view tribal governments as an asset for protecting and providing security for the international borders. Response: Throughout the rulemaking process, DHS has met with Native Americans to discuss the WHTI document requirements and tribal concerns. Moreover, DHS specifically solicited comments from Native Americans in an August 6, 2007, letter to all federally recognized tribes. Comment procedures outlined in the Land and Sea NPRM provided Native Americans with the opportunity to provide information about their tribal enrollment documents. The Departments received comments from numerous tribes, and these comments were fully considered in the decision to issue this final rule. Comment: Two tribes requested an extension of the comment period for the Land and Sea NPRM to be able to study the options available to them. Response: We have carefully considered the comments and determined that it is not advisable to reopen the comment period for the Land and Sea NPRM. Section 7209 of IRTPA, as amended, calls on the Departments to act expeditiously to implement WHTI. The Departments believe that the expeditious issuance of this Final Rule best advances our national security. Throughout the entire WHTI rulemaking process, DHS has met with Native Americans and Canadian Indians to discuss the WHTI document requirements and tribal concerns. DHS specifically solicited comments from Native Americans in an August 6, 2007, letter to all federally recognized tribes. As stated above, the Departments received comments from numerous tribes, and these comments were fully considered and are addressed in this final rule. Delaying issuance of the final rule would delay notice to the public and consequently the time available for travelers to obtain designated documentation. For these reasons, DHS and DOS did not reopen the comment period for the Land and Sea NPRM. 7. Comments on the Acceptance of Tribal Documents Comment: Twenty-six tribes, along with three individuals, commented that members should be allowed to use their existing tribal cards at any crossing point. One tribe commented that an independent pilot project is underway for a secure identification document that can be used by that tribe. Seven commenters welcomed the proposal to accept tribal enrollment documents as long as those documents are approved by DHS. Many commenters recommended using tribal documents as an alternative to the passport. Several commenters encouraged DHS to continue working with indigenous peoples to provide a mechanism for border crossing that is as streamlined as possible. One tribe's comment requested that Native Americans be granted the same privileges as U.S. Merchant Mariners if the Departments decide that requiring passports is the only option for entry documents. One commenter requested broader issuance of the American Indian Card now issued to members of the federally recognized Kickapoo Tribe or a similar card. Two commenters requested that existing Canadian Certificates of Indian Status (CIS) be accepted as a WHTI-compliant document for entry into the United States. One commenter urges that secure indigenous, tribal or CIS Identity Cards for the purposes of entry into and from the U.S. and Canada be established within the provisions of WHTI. One tribe requested the acceptance of Canadian First Nations' tribal IDs at all border crossings. One tribe argued that their tribal enrollment records were sufficient to prove citizenship and objected to any notion that state-issued birth certificates were superior to their tribal records. One tribe commented that they support the comments by other tribal governments to develop a national tribal ID card for identification purposes for crossing international borders. One tribe did not understand the reluctance of DHS to accept tribal membership documents as sufficient evidence of identity and citizenship to support the right to enter the United States. Response: DHS and DOS appreciate these comments. As indicated above, based on the comments received and the information provided to the Departments on the particular impact the document requirement would have on Native American tribes, the Departments have determined that, at the time of full implementation of this final rule, U.S. citizens belonging to a federally-recognized tribe may present tribal enrollment documents designated by the Secretary of Homeland Security as meeting the WHTI standards at land ports-of-entry. If designated by the Secretary of Homeland Security as satisfactory, Canadian citizens may present the new proposed INAC card at land ports-of-entry when arriving from contiguous territory. Documents that will be designated by the Secretary must establish the identity and citizenship of the Native American and Canadian Indian document holders. Documents that will be designated by the Secretary must be secure, and U.S. 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. 8. Native American Privacy Issues Comment: Twelve tribes commenting to the Land and Sea NPRM were concerned with disclosure and privacy issues regarding religious and cultural information. One tribe noted that information presumably related to traditional border crossings, which they consider private, was not requested from other state or government entities. These commenters insisted that the request for this information was not necessary. Response: DHS and DOS remain sensitive to related privacy concerns. In the Land and Sea NPRM, DHS and DOS invited any tribe that wished to propose its tribal enrollment card as an acceptable alternative document at one or more traditional border crossing points to submit comments explaining fully why its card should be accepted for travel while noting any privacy concerns. The privacy of tribes and their members will be of the utmost importance to the Departments when consulting with tribes to enhance their documents to be WHTI compliant. 9. Miscellaneous Comments Comment: One commenter to the Land and Sea NPRM sought clarification on what would be considered a “qualifying tribal entity” under the proposed rule. Response: A qualifying tribal entity is one that is federally recognized by the government of the U.S. that agrees to meet WHTI tribal document security standards, including agreeing to provide CBP access to the appropriate entries in its enrollment records. DHS will work with federally recognized tribes to develop, test and produce WHTI-compliant documents. Documents could be produced on behalf of a single tribe or a group of tribes who have agreed to produce a WHTI-compliant tribal document. Comment: One tribe commented to the Land and Sea NPRM that most members are born at home or on reservations and have difficulty producing a birth certificate, which is an important source document used to obtain documents under the proposed rule. Response: DHS and DOS have procedures in place to make determinations of citizenship when birth certificates are unavailable. 10. Kickapoo Tribe American Indian Card Comment: Two commenters to the Land and Sea NPRM asked that DHS and DOS maintain the current practice of allowing members of the Kickapoo Tribe to cross the border under the Texas Band of Kickapoo Act. One commenter is concerned that USCIS has not issued new documents for several years and asks that USCIS resume issuing such form I-872 American Indian Cards. Response: DHS and DOS agree 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 land and sea border ports-of-entry. There are currently no plans to issue new form I-872 American Indian cards. F. Outside the Scope of the NPRM and Final Rule 1. General Comment: DHS and DOS received three comments to the Air and Sea NPRM regarding implementation of WHTI in the air and sea environments that proposed various technical specifications for DOS's passport card. Response: Comments regarding the technical specifications for the DOS-issued passport card are beyond the scope of this rule; however, the public had the opportunity to comment on DOS's proposed passport card NPRM at 71 FR 60928 (October 17, 2006). Comment: Two commenters to the Land and Sea NPRM stated that while the economic analysis predicts job losses in border communities, the federal government is not providing a remedy or addressing the impact in any way. Response: The Departments continue to strive to minimize the potential impact of WHTI implementation, especially on border communities. However, the WHTI plan was mandated by Congress in section 7209 of the IRTPA in response to an important national security imperative identified by the 9/11 Commission. Further, the Departments believe that implementation of WHTI will help facilitate legitimate trade and travel over time. It should also be recognized that a number of factors have a greater effect on the economies of border communities, including overall economic conditions and the current exchange rate. Providing financial support to those communities is beyond the scope of this rule, however. Comment: Two commenters stated that FAST enrollees are not currently treated as trusted travelers, which defeats the purpose of the FAST program. Response: Comments regarding the administration of CBP Trusted Traveler programs are beyond the scope of this rule; however, it should be noted that commercial drivers enrolled in FAST are trusted travelers. Comment: Ten commenters recommended the creation of a NEXUS appeals board. These commenters also recommended a streamlined renewal process for NEXUS. One commenter suggested several changes to the NEXUS program such as a one card/one fee per family program; extending the validity period of the NEXUS card to ten years; streamlining the renewal process; and recognizing NEXUS and FAST cards for entry in non-dedicated commuter lanes. One commenter suggested a clear NEXUS renewal process that ensures no down time for NEXUS members. Response: Comments regarding the administration of CBP Trusted Traveler programs are beyond the scope of this rule. DHS would note, however, that under the final rule, all CBP Trusted Traveler documents will be acceptable entry documents for United States and Canadian citizens at all lanes and all land ports-of-entry. DHS further notes that, if an individual feels that an application to a CBP Trusted Traveler program was denied based upon inaccurate information, redress may be sought through contacting the local trusted traveler Enrollment Center to schedule an appointment to speak with a supervisor, writing the CBP Trusted Traveler Ombudsman, or using the DHS Traveler Redress Inquire Program (DHS TRIP). CBP has also been making incremental improvements to its trusted traveler programs. See http://cbp.gov/xp/cgov/travel/trusted_traveler/ . Comment: Two commenters to the Land and Sea NPRM stated that the cost for a Canadian passport is high and that the process for obtaining a passport should be made easier. Another commenter stated that the process for obtaining a Mexican passport and visa should be made less onerous. Response: While the U.S. government is working closely with passport agencies throughout the Western Hemisphere on WHTI and other travel document security matters, each nation's government ultimately controls the process and cost for obtaining a passport. The application process for and cost of a Canadian or Mexican government-issued document is outside the scope of this rule and outside the Departments' authorities. Comment: One commenter requested that a “full environmental statement” be prepared prior to implementation of passport or documentation control. Response: DHS and DOS documented their assessment of the potential for impact on the quality of the human environment in the “Western Hemisphere Travel Initiative in the Land and Sea Environments: Programmatic Environmental Assessment” dated September 10, 2007. The public was given an opportunity to comment on a draft of the Programmatic Environmental Assessment (PEA) upon the publication of the Notice of Availability on June 25, 2007. See 72 FR 34710. Comments regarding the draft PEA were addressed in the Final PEA. Based on the final PEA, a determination was made that the travel documents proposed for WHTI and use of the travel documents for implementation of IRTPA will not have a significant impact on the quality of the human environment and that further analysis under the National Environmental Policy Act of 1969 (NEPA) would not be necessary. A Finding of No Significant Impact (FONSI) was issued on September 10, 2007, a copy of which is contained in the final PEA. Comment: One commenter to the Land and Sea NPRM disagreed with the employee citizenship requirement for the enhanced driver's license projects because it would result in the loss of valuable workforce for state governments. Response: While DHS appreciates this comment, policies regarding state employee citizenship requirements are beyond the scope of this rule. DHS remains committed to working with and coordinating efforts among states interested in developing, testing, and implementing enhanced driver's license projects. DHS encourages states interested in developing enhanced driver's licenses to work closely with DHS to that end. Comment: Two comments to the Land and Sea NPRM requested that DHS support the proposal to establish DOS offices in border communities to provide flexibility for spontaneous trips. Two commenters recommended an increase in the capacity of one of the regional passport offices specifically for passport service companies. Response: While DHS and DOS appreciate these comments, expansion of DOS passport offices in specific border communities is beyond the scope of this rule. Comment: One commenter to the Land and Sea NPRM recommended that the number of expedited applications for individual passports submitted by service companies be increased. Response: While DHS and DOS appreciate these comments, operational policies between passport service providers and DOS are beyond the scope of this rule. Comment: One commenter to the Land and Sea NPRM recommended that the Departments explore, as part of the proposed pilot project concept, the development of an “Indigenous lane” for border crossing/passage purposes. Response: While DHS remains committed to working with tribal groups, operational policies regarding “dedicated lanes” are beyond the scope of this rule. 2. Air Rule Comment: One commenter to the Land and Sea NPRM requested that the alternative procedure for U.S. and Canadian children entering the United States under age 19 traveling as part of school groups, religious groups, social or cultural organizations, or teams associated with youth support organizations be extended to the air environment in addition to land and sea ports-of-entry. Response: Comments regarding documentation requirements for U.S. and Canadian children entering the U.S. at air ports-of-entry are beyond the scope of this rule; however, the public had the opportunity to comment on these requirements in the August 11, 2006, NPRM for the air environment. Children under the age of 16 arriving from Western Hemisphere countries are required to present a passport when entering the United States by air. For a more detailed description of documentation requirements for children entering the U.S. through air ports-of-entry, see the Air Final Rule at 71 FR 68416 (November 24, 2006). Comment: One commenter to the Land and Sea NPRM requested that an alternative procedure for the transfer of medical patients be established for all modes of travel. Response: The air mode of travel is beyond the scope of this rule; however, IRTPA provides for situations in which documentation requirements may be waived on a case-by-case basis for unforeseen emergencies or “humanitarian or national interest reasons.” Please see the Air Final Rule, 71 FR at 68419, for more information. 3. Lawful Permanent Residents Comment: Three commenters to the Land and Sea NPRM stated that a Lawful Permanent Resident card should be sufficient to travel to and from the United States without the presentation of a passport. One commenter to the NPRM expressed concern about waiting to renew an expired Lawful Permanent Resident card when applying for entry into the United States. Response: Lawful Permanent Residents (LPRs) of the United States will continue to be able to enter the United States upon presenting a Lawful Permanent Resident card (I-551) or other valid evidence of permanent resident status. There are current regulations that already address the entry of LPRs into the United States, which remain unchanged by WHTI. 4. Dual Nationals Comment: One commenter to the Land and Sea NPRM sought clarification on what documents would be required for travelers who have dual citizenship. Response: The WHTI rule lists the new documentation requirements for U.S., Canadian, Bermudan citizens, and Mexican nationals entering the United States by land or sea from within the Western Hemisphere. WHTI does not alter United States immigration law or regulations regarding citizenship. G. Public Relations 1. General Comment: DHS and DOS received fifty comments to the ANPRM asking for a partnership between the U.S. and Canada to address WHTI issues. One hundred commenters to the Land and Sea NPRM expressed a strong desire to see a more robust coordination between Canada and the United States. Nineteen commenters recommended a joint public communications campaign with Canada. Response: The Secretaries of DHS and DOS have worked and continue to work closely with the Canadian and Mexican governments on numerous fronts, including the Security and Prosperity Partnership (SPP) of North America, the Smart Border Declaration, and the Shared Border Accord. The objectives of the initiatives are to establish a common approach to security to protect North America from external threats, prevent and respond to threats within North America, and further streamline the secure and efficient movement of legitimate traffic across our shared borders. The Secretaries are committed to working with our international partners to establish a common security strategy. Comment: One commenter stated that a new comment period should be opened or else the Land and Sea NPRM should be withdrawn. Response: The Departments have carefully considered the comment and determined that it is not advisable to reopen the comment period for the Land and Sea NPRM. Section 7209 of the IRTPA, as amended, calls on the Departments to implement WHTI expeditiously, which the Departments believe is in the best interests of national security. The procedures for the 60-day comment period outlined in the Land and Sea NPRM provided the public the opportunity to provide meaningful comments on the proposed rule and questions asked. The Departments received over 1,350 comments, which were fully considered and are addressed in this document. Moreover, delaying issuance of the final rule would delay notice to the public and shorten the time availa [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%3AE8-6725. Public record. Not legal advice.