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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: April 3, 2008 (Volume 73, Number 65)]
[Rules and Regulations]               
[Page 18383-18420]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ap08-19]                         


[[Page 18383]]

-----------------------------------------------------------------------

Part III





Department of Homeland Security

Department of State





-----------------------------------------------------------------------



8 CFR Parts 212 and 235

22 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; Designation of an Enhanced Driver's License and Identity 
Document Issued by the State of Washington as a Travel Document Under 
the Western Hemisphere Travel Institute; Final Rule and Notice


[[Page 18384]]


=======================================================================
-----------------------------------------------------------------------

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.

[[Page 18385]]

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

[[Page 18386]]

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.

[[Page 18387]]

    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

[[Page 18388]]

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

[[Page 18389]]

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

[[Page 18390]]

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).

[[Page 18391]]

    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

[[Page 18392]]

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

[[Page 18393]]

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

[[Page 18394]]

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.

[[Page 18395]]

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

[[Page 18396]]

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

[[Page 18397]]

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, Sec.  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

[[Page 18398]]

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

[[Page 18399]]

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

[[Page 18400]]

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 available to the traveling 
public to obtain designated documentation. For these reasons, DHS and 
DOS did not open a new comment period and did not withdraw the Land and 
Sea NPRM.
2. Outreach
    Comment: DHS and DOS received thirteen comments to the ANPRM that 
recommended the Departments work with the travel industry to launch an 
effective communications campaign to inform and educate the traveling 
public about any new documentation requirements. One hundred seventy 
comments were received to the Land and Sea NPRM stating that all the 
changes taking place during implementation of WHTI are confusing. Seven 
hundred and seventeen commenters encouraged DHS to formulate, 
implement, and fully fund a public awareness communications campaign 
immediately, particularly as it could add clarity. Six commenters 
recommended that a public relations/marketing firm be hired. One

[[Page 18401]]

commenter encouraged DHS and DOS to timely convey information 
concerning the plan to end oral declarations on January 31, 2008. One 
commenter requested that the DHS undertake a full review of the public 
education plan for WHTI.
    Response: DHS and DOS are committed to an effective and intensive 
communications strategy during the implementation of WHTI. As was done 
in preparation for the changes at the border that took place on January 
31, 2008, the Departments will continue to issue detailed press 
releases, address the public's frequently asked questions, supply 
travel information on their Web sites, and hold public meetings in 
affected communities. During the early phase of the implementation of 
WHTI in the air environment, DHS and CBP worked closely with the travel 
industry and other industries to disseminate timely, accurate 
information, and aggressively publicize the new requirements. CBP found 
that the overwhelming majority of affected air travelers, approximately 
99 percent, presented acceptable documentation upon entry to the United 
States from within the Western Hemisphere from the earliest stages of 
implementation. This figure included not only U.S. citizens but also 
the citizens of Canada, Mexico, and Bermuda. The Departments believe 
that this coordinated public outreach effort will continue to serve as 
a useful model for implementation in the land and sea phase of WHTI.

H. Regulatory Analyses

1. Regulatory Assessment
    Comment: DHS and DOS received over 1,700 comments to the ANPRM that 
expressed concern that WHTI would have a negative impact on trade and 
tourism. Twenty-four comments to the Air and Sea NPRM for WHTI stated 
that implementation would have a negative impact on cross-border 
travel. Five commenters to the Land and Sea NPRM stated that 
implementation would have a negative impact on day trips across the 
border. Approximately nine hundred commenters stated that WHTI would 
have a negative impact on trade and tourism resulting in revenue 
losses. Twenty-two commenters to the Land and Sea NPRM recommended that 
security be improved without damaging healthy cross-border trade and 
commerce.
    Response: Pursuant to Executive Order 12866, CBP conducted an 
economic analysis to address the potential impacts of reduced travel 
that could result from the implementation of WHTI in the land and sea 
environments. This analysis was published concurrently with the Land 
and Sea NPRM, and CBP requested comments on the documents. Based on the 
Regulatory Assessment, CBP acknowledges that WHTI could have a negative 
impact on travel in both environments; however, as demonstrated in 
intensive case studies of eight representative U.S. communities along 
both the Canadian and Mexican borders, reduced travel attributable to 
WHTI is predicted to have a less-than-1 percent impact on local output 
and employment levels in those communities. Additionally, CBP found 
that the cruises covered by the rule would not likely be greatly 
affected because obtaining a travel document represents a small portion 
of overall cost for most cruise passengers. Finally, the analysis for 
travel in the air environment was finalized with the Air Final Rule 
(Documents Required for Travelers Departing From or Arriving in the 
United States at Air Ports-of-Entry From Within the Western Hemisphere 
published November 24, 2006 (71 FR 68412)).
    Comment: CBP received three comments to the Regulatory Assessment 
for the Land and Sea NPRM stating that the analysis understated the 
economic losses that would result from implementation of the rule. 
Eight commenters to the Regulatory Assessment for the Land and Sea NPRM 
contended that the economic analysis was incomplete and insufficient. 
Two commenters stated that the underlying assumptions in the analysis 
were arbitrary and low. Several commenters stated that there must be a 
meaningful, third-party economic impact assessment of any proposed 
measures before proceeding.
    Response: While these commenters were dissatisfied with the 
economic analysis, they did not submit specific information that would 
enhance the current analysis, nor did they submit alternative analyses 
that more robustly considered the impacts on the U.S. and foreign 
economies. The analysis prepared by CBP for the Land and Sea NPRM was 
reviewed by the Office of Management and Budget (OMB) in accordance 
with Executive Order 12866 and OMB Circular A-4. According to OMB 
Circular A-4, a good regulatory analysis should include: (1) A 
statement of the need for the proposed action, (2) an examination of 
alternative approaches, and (3) an evaluation of the benefits and 
costs--quantitative and qualitative--of the proposed action and the 
main alternatives identified by the analysis. The two Regulatory 
Assessments that were published in the public docket concurrently with 
the Land and Sea NPRM (see USCBP-2007-0061-0002 and USCBP-2007-0061-
0004) fully met these criteria. A regulatory analysis conducted by a 
``third party'' is not a requirement under either Executive Order 12866 
or OMB Circular A-4.
    Comment: CBP received one comment to the Regulatory Assessment of 
the Land and Sea NPRM stating that it did not make sense for predicted 
forgone cruise travel to have a higher percentage of reduced travel 
than forgone land travel.
    Response: CBP notes that estimated forgone travel was predicted 
using elasticities of demand for cruise travel and derived demand 
elasticities for land travel. CBP estimates that cruise travel is more 
elastic than land-border travel because cruise passengers travel almost 
exclusively for leisure purposes. Cruise passengers, thus, have many 
potential substitutes for their cruise trips; in economic terms, cruise 
passengers' demand for travel is very ``elastic.'' Conversely, land 
travelers cross the border for a myriad of reasons, including work, 
shopping, visiting family and friends, as well as vacation purposes. 
Because land-border trips are less ``elastic'' than cruise trips, the 
percent of forgone travelers is lower in the land environment than the 
cruise environment.
    Comment: Two commenters to the Land and Sea NPRM stated that the 
economic analysis cannot be considered reliable because it examines a 
program that is not yet in place.
    Response: Per Executive Order 12866, an economic analysis is 
required for all major rulemakings prior to final implementation. This 
analysis must contain an identification of the regulatory ``baseline'' 
as well as the anticipated costs and benefits of the rule on relevant 
stakeholders. The analysis prepared for the Land and Sea NPRM was 
reviewed by the Office of Management and Budget (OMB) in accordance 
with Executive Order 12866 and OMB Circular A-4.
    Comment: Two commenters to the Land and Sea NPRM stated that the 
Regulatory Assessment erroneously analyzed expenditure flows from the 
Mexican and Canadian border together, when they should actually be 
analyzed separately.
    Response: As described in the detailed Regulatory Assessment for 
implementation of WHTI in the land environment (USCBP-2007-0061-0002) 
published concurrently with the Land and Sea NPRM and this final rule, 
the analysis did address economic impacts on the northern and southern 
borders separately.

[[Page 18402]]

    Comment: Two commenters to the Land and Sea NPRM asked about 
calculated risk reduction that would occur as a result of 
implementation of WHTI. One commenter stated that a third-party 
assessment of improved border security should be conducted.
    Response: Typically, reductions in the probability of a terrorist 
attack resulting from a regulation are measured against the baseline 
probability of occurrence (the current likelihood that a terrorist 
attack involving an individual arriving in the United States in the sea 
environment will be attempted and be successful) and combined with 
information about the consequences of the attack. The difference 
between the baseline probability of occurrence and the probability of 
occurrence after the regulation is implemented would represent the 
incremental probability reduction attributable to the rule.
    Historical data on the frequency of terrorist attacks to estimate 
the current baseline probability of attack within the United States 
cannot be used for several reasons: existing data does not provide 
information about whether documented attacks were attributable to the 
lack of a passport requirement; the data on international events 
occurring within the United States in the last decade are limited, and 
little information is available to describe the consequences of most of 
these events; and use of these data to project future probability of 
attack requires an understanding of the socioeconomic and political 
conditions motivating and facilitating these events historically and 
foresight with regard to how these factors may change in the future. In 
the absence of more detailed data, DHS and DOS are unable to 
quantitatively estimate the incremental reduction in the probability of 
terrorist attack that will result from this rule.
    Instead, CBP conducted a ``breakeven analysis'' to determine what 
the reduction in risk would have to be given the estimated costs of the 
implementation of WHTI (land environment only). Using the Risk 
Management Solutions U.S. Terrorism Risk Model (RMS model), CBP 
estimated the critical risk reduction that would have to occur in order 
for the costs of the rule to equal the benefits--or break even. As 
calculated, critical risk reduction required for the rule to break even 
ranges from 3 percent to 34 percent (for more detail see the section 
below on Executive Order 12866).
    This breakeven analysis prepared by CBP for the Land and Sea NPRM 
was reviewed by OMB in accordance with Executive Order 12866 and OMB 
Circular A-4. An analysis conducted by a ``third party'' is not a 
requirement under either Executive Order 12866 or OMB Circular A-4.
    Comment: Two commenters to the Land and Sea NPRM stated that the 
costs to the State Department to ``catch up'' on the backlog of 
passport applications were not considered.
    Response: The commenter is correct. CBP did not consider the costs 
to DOS in the Regulatory Assessment because the increased costs to DOS 
as a result of increased demand for passports due to WHTI can be 
recouped by a surcharge on the fee for the application of a passport. 
See 22 U.S.C. 214(b). It would be inappropriate, therefore, to present 
these as costs of the regulation.
    Comment: One commenter to the Land and Sea NPRM stated that she was 
``mystified'' by the assertion that an economic analysis was not 
necessary.
    Response: DHS and DOS did not make this assertion in the Land and 
Sea NPRM. CBP conducted two extensive Regulatory Assessments for 
implementation of WHTI in the land and sea environments that were 
summarized in the preamble to the Land and Sea NPRM and were available 
in full for public comment (see USCBP-2007-0061-0002 and USCBP-2007-
0061-0004).
    Comment: Four commenters to the Land and Sea NPRM stated that the 
estimated costs of lost trips by Canadian travelers were incorrectly 
calculated in the Regulatory Assessment for the implementation of WHTI 
in the land environment.
    Response: DHS and DOS appreciate these comments. CBP has modified 
the Regulatory Assessment for this final rule to more accurately 
account for potential lost trips from Canadian visitors to the United 
States. Please refer to the section below titled ``Executive Order 
12866'' for a summary of the revised analysis and refer to the public 
docket and http://www.cbp.gov for the complete Regulatory Assessments 
for the final rule.
    Comment: Three commenters to the Land and Sea NPRM stated that the 
Regulatory Assessment erroneously assumed that lost spending in Canada 
and Mexico resulting from forgone travel to those countries would 
instead be spent in border communities. One commenter stated that the 
Regulatory Assessment erroneously assumed that U.S. dollars that would 
have been spent in Canada and Mexico would now remain in the United 
States.
    Response: These commenters appear to have misread the Regulatory 
Assessments. As described in the detailed Regulatory Assessment for 
Implementation of WHTI in the Land Environment (USCBP-2007-0061-0002) 
published concurrently with the Land and Sea NPRM, the analysis did not 
assume that all lost spending in Canada and Mexico would instead be 
spent exclusively in border communities. CBP made several simplifying 
assumptions in order to estimate increases in U.S. spending within the 
regional areas designated for case study. The analysis assumed that 
only a subset of the U.S. travelers who choose not to obtain 
documentation and stay in the United States spend in the regional study 
area what they would have spent in Mexico or Canada. In other words, 
the analysis assumed U.S. travelers visiting Mexico and Canada for 
tourist reasons will substitute their forgone trips abroad with trips 
within the United States outside of the regional study area.
    Additionally, as noted in the Regulatory Assessment, CBP made the 
simplifying assumption that the money these travelers would have spent 
on foreign travel remains in their home country. The analysis did not 
attempt to determine the portion of forgone travel-related expenditures 
that might be used instead for purchasing goods from foreign entities 
via mail order or the Internet. This factor was acknowledged as a 
source of uncertainty in the cost estimates for WHTI implementation in 
the land environment.
    Comment: One commenter stated that the analysis of tourism 
expenditures did not consider the impact of the cost of acquiring 
documentation on spend rates.
    Response: CBP agrees that the impact of the cost of acquiring WHTI-
compliant documentation should be included in the estimate of lost 
expenditures in U.S. border communities. Specifically, in the final 
Regulatory Assessment, CBP considered whether the costs of obtaining 
documentation would be offset by reduced spending on the trip itself, 
or whether the traveler would reduce household spending locally by a 
commensurate amount. A review of the travel economics literature was 
inconclusive, but suggests that travelers often do not adhere to a 
budget while on a trip, particularly vacations. Also, CBP was unable to 
identify literature predicting whether travelers would amortize 
documentation costs across all the trips taken in a given time period, 
or whether they might reduce spending on the first trip taken after 
obtaining acceptable documentation to offset documentation costs. For 
these reasons, CBP believes it is most appropriate to assume that 
individuals who continue traveling after the implementation of WHTI 
will not spend less on cross-border trips. Rather, the costs of 
obtaining acceptable documentation

[[Page 18403]]

will result in reduced household spending in the travelers' home 
communities. Therefore, the analysis of the distributional impacts of 
the final rule includes a reduction in household expenditures by U.S. 
citizens to offset the cost of obtaining WHTI-compliant documents. 
Similar changes in spending by Mexican and Canadian travelers are 
assumed to occur in those travelers home communities, and as a result, 
do not affect expenditures in the United States. Please refer to the 
section below titled ``Executive Order 12866'' for a summary of the 
revised analysis and refer to the public docket and http://www.cbp.gov 
for the complete Regulatory Assessments for the final rule.
    Comment: One commenter stated that some of the findings of the 
Regulatory Assessments analysis is based on surveys of traveler 
responses that may not be accurate.
    Response: CBP disagrees with this comment. Estimation of lost 
consumer surplus under each of the regulatory alternatives considered 
requires information about travelers' willingness to pay for access to 
Mexico or Canada. Willingness to pay is the maximum sum of money an 
individual would be willing to pay rather than do without a good or 
amenity. If the cost of access to Mexico or Canada is within the range 
of costs below this maximum value, the traveler will pay for access and 
continue to travel. Likewise, if the cost of access exceeds this 
maximum, travelers will forgo future travel. Therefore, because it 
represents a maximum value, willingness to pay for access to these 
countries will not vary depending on the regulatory alternative 
considered. It is calculated once, and then that value, or in this case 
demand curve, can be used to evaluate decisions about future travel 
based on a range of regulatory alternatives with varying access costs.
    The Regulatory Assessment relies on the results of a survey 
conducted for the Department of State. The surveyors informed 
respondents that after the implementation of WHTI, they would be 
required to have a valid passport for travel to Mexico and Canada. 
While the survey did not specify the cost of obtaining the document, a 
passport is a well-known, familiar form of identification with 
published fees that has been available for decades. Therefore, CBP 
believes it is acceptable to assume that the survey respondents had a 
reasonable idea of the cost of the document when responding to this 
question. The response to this question and information about the 
number of travelers making trips is used to estimate travelers' 
willingness to pay for access to these countries in the form of a 
linear demand curve. For the reasons discussed previously, this demand 
curve is relevant regardless of the regulatory option considered. 
Therefore, CBP used it to predict responses to varying regulatory 
alternatives not considered in the original survey that incorporate 
ranges of compliance options and costs.
2. Regulatory Flexibility Act
    Comment: One commenter noted several examples of individuals who 
would be considered small businesses, including sole proprietors, self-
employed individuals, and freelancers.
    Response: CBP agrees that these ``sole proprietors'' would be 
considered small businesses and could be directly affected by the rule 
if their occupation requires travel within the Western Hemisphere where 
a passport was not previously required. The number of such sole 
proprietors is not available from the Small Business Administration or 
other available business databases, but we acknowledge that the number 
could be considered ``substantial.'' However, as estimated in the 
Regulatory Assessment for implementation of WHTI in the land 
environment, the cost to such businesses would be only $125 for a 
first-time passport applicant, $70 for a first-time passport card 
applicant plus an additional $60 if expedited service were requested.

V. Final Document Requirements

    Based on the analysis of the comments and section 7209 of IRTPA, as 
amended, DHS and DOS have determined that U.S. citizens and 
nonimmigrant aliens from Canada, Bermuda, and Mexico entering the 
United States at land and sea ports-of-entry from the Western 
Hemisphere will be required to present documents or combinations of 
documents designated by this final rule. DHS and DOS expect the date of 
full WHTI implementation to be June 1, 2009. As noted, the Congress has 
mandated that WHTI shall be implemented no 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). The Departments will 
implement on June 1, 2009.

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

    Under the final rule, most U.S. citizens \32\ entering the United 
States at all sea or land ports-of-entry are required to have either: 
(1) A U.S. passport; (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.
---------------------------------------------------------------------------

    \32\ Unless the U.S. citizen falls into one of the special rule 
categories listed below.
---------------------------------------------------------------------------

    Under the final rule, cards issued for the DHS Trusted Traveler 
Programs NEXUS, Free and Secure Trade (FAST), and Secure Electronic 
Network for Travelers Rapid Inspection (SENTRI) are designated as entry 
documents for U.S. citizens at all lanes at all land and sea ports-of-
entry when traveling from contiguous territory or adjacent islands. 
Additionally, U.S. citizens who have been pre-screened as part of the 
NEXUS or Canadian Border Boat Landing Program who arrive by pleasure 
vessel from Canada are permitted to report their arrival by telephone 
or by remote video inspection, respectively.
    U.S. citizens who arrive by pleasure vessel from Canada are 
permitted to show the NEXUS card in lieu of a passport or passport card 
along the northern border under the auspices of the remote inspection 
system for pleasure vessels, such as the Outlying Area Reporting System 
(OARS). Currently, as NEXUS members, U.S. citizen recreational boaters 
can report their arrival to CBP by telephone. Otherwise, these U.S. 
citizen pleasure vessel travelers arriving from Canada are required to 
report in person to a port-of-entry in order to enter the United 
States.\33\
---------------------------------------------------------------------------

    \33\ See 8 CFR 235.1(g). U.S. citizen holders of a Canadian 
Border Boat Landing Permit (Form I-68) are required to possess a 
passport, passport card, or trusted traveler program document when 
arriving in the United States in combination with the Form I-68 and 
are required to show this documentation when applying for or 
renewing the Form I-68. Participants would continue to benefit from 
entering the United States from time to time without having to wait 
for a physical inspection, subject to the applicable regulations. 
More information on the Canadian Border Boat Landing Program (I-68 
Permit Program) is available on the CBP Web site at http://
www.cbp.gov.
---------------------------------------------------------------------------

    After full implementation of WHTI, dedicated lanes for trusted 
traveler programs will still exist at certain land ports-of-entry, 
which will provide program members with the opportunity for expedited 
inspections.

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

1. Canadians
    Under this final rule, Canadian citizens entering the United States 
at sea and land ports-of-entry are required to

[[Page 18404]]

present, in addition to any visa required: \34\
---------------------------------------------------------------------------

    \34\ See 8 CFR 212.1(h), (l), and (m) and 22 CFR 41.2(k) and 
(m).
---------------------------------------------------------------------------

     A valid passport issued by the Government of Canada;\35\ 
or
---------------------------------------------------------------------------

    \35\ Foreign passports remain an acceptable travel document 
under section 7209 of the IRTPA.
---------------------------------------------------------------------------

     A valid trusted traveler program card issued by CBSA or 
DHS, e.g., FAST, NEXUS, or SENTRI.\36\
---------------------------------------------------------------------------

    \36\ Canadian citizens who demonstrate a need may enroll in the 
SENTRI program and currently may use the SENTRI card in lieu of a 
passport. To enroll in SENTRI, a Canadian participant must present a 
valid passport and a valid visa, if required, when applying for 
SENTRI membership. Other foreign participants in the SENTRI program 
must present a valid passport and a valid visa, if required, when 
seeking admission to the United States, in addition to the SENTRI 
card. This final rule does not alter the passport and visa 
requirements for other foreign enrollees in SENTRI (i.e., other than 
Canadian foreign enrollees). Currently, Canadian citizens can show a 
SENTRI, NEXUS, or FAST card for entry into the United States only at 
designated lanes at designated land border ports-of-entry.
---------------------------------------------------------------------------

    Additionally, Canadian citizens in the NEXUS program who arrive by 
pleasure vessel from Canada are permitted to present a NEXUS membership 
card in lieu of a passport along the northern border under the auspices 
of the remote inspection system for pleasure vessels, such as the 
Outlying Area Reporting System (OARS).\37\ Currently, as NEXUS members, 
Canadian recreational boaters can report their arrival to CBP by 
telephone.\38\ Otherwise, these Canadian pleasure vessel travelers 
arriving from Canada are required to report in person to a port-of-
entry in order to enter the United States.\39\
---------------------------------------------------------------------------

    \37\ Permanent residents of Canada must also carry a valid 
passport and valid visa, if required.
    \38\ Remote pleasure vessel inspection locations are only 
located on the northern border.
    \39\ See 8 CFR 235.1(g). Canadian holders of a Canadian Border 
Boat Landing Permit (Form I-68) are required to possess a passport 
or trusted traveler card when arriving in the United States in 
combination with the Form I-68 and would be required to show this 
documentation when applying for or renewing the Form I-68.
---------------------------------------------------------------------------

2. Bermudians
    Under this final rule, all Bermudian citizens are required to 
present a passport \40\ 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.
---------------------------------------------------------------------------

    \40\ Bermudian citizens must also satisfy any applicable visa 
requirements. See 8 CFR 212.1(h), (l), and (m) and 22 CFR 41.2(k) 
and (m).
---------------------------------------------------------------------------

C. Mexican Nationals Arriving by Sea or Land

    Under this final rule, all Mexican nationals are 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 BCC 
when seeking admission to the United States at land ports-of-entry or 
arriving by pleasure vessel or by ferry from Mexico.
    For purposes of this rule, a pleasure vessel is defined as a vessel 
that is used exclusively for recreational or personal purposes and not 
to transport passengers or property for hire. A ferry is defined as any 
vessel: (1) Operating on a pre-determined fixed schedule; (2) providing 
transportation only between places that are no more than 300 miles 
apart; and (3) transporting passengers, vehicles, and/or railroad cars. 
We note that ferries are subject to land border-type processing on 
arrival from, or departure to, a foreign port or place. Arrivals aboard 
all vessels other than ferries and pleasure vessels would be treated as 
sea arrivals.\41\
---------------------------------------------------------------------------

    \41\ For example, commercial vessels are treated as arrivals at 
sea ports-of-entry for purposes of this final rule. A commercial 
vessel is any civilian vessel being used to transport persons or 
property for compensation or hire to or from any port or place. A 
charter vessel that is leased or contracted to transport persons or 
property for compensation or hire to or from any port or place would 
be considered an arrival by sea under this rule. Arrivals by 
travelers on fishing vessels, research or seismic vessels, other 
service-type vessels (such as salvage, cable layers, etc.), or 
humanitarian service vessels (such as rescue vessels or hospital 
ships) are considered as arrivals by sea.
---------------------------------------------------------------------------

    Mexican nationals who hold BCCs will continue to be allowed to use 
their BCCs in lieu of a passport for admission at the land border from 
Mexico and when arriving by ferry or pleasure vessel from Mexico when 
traveling within the border zone for a limited time period. For travel 
beyond certain geographical limits or a stay over 30 days, Mexican 
nationals who enter the United States from Mexico possessing BCCs are 
required to obtain a Form I-94 from CBP.\42\ The BCC is not permitted 
in lieu of a passport for commercial or other sea arrivals to the 
United States.
---------------------------------------------------------------------------

    \42\ 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).
---------------------------------------------------------------------------

    Under current regulations, Mexican nationals may not use the FAST 
or SENTRI card in lieu of a passport or BCC. This will continue under 
the final rule, however, these participants would continue to benefit 
from expedited border processing.
    Currently, Mexican nationals who are admitted to 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 are not currently required to 
present a valid passport.\43\ This final rule eliminates this exception 
to the passport requirement for Mexican nationals. Under the final 
rule, Mexican nationals will be required to have a BCC or a passport 
with a visa to enter the United States for all purposes.
---------------------------------------------------------------------------

    \43\ See 8 CFR 212.1(c)(1)(ii).
---------------------------------------------------------------------------

D. State Enhanced Driver's License Projects

    DHS remains committed to considering travel documents developed by 
the various U.S. states and the Governments of Canada and Mexico in the 
future that would denote identity and citizenship and would also 
satisfy section 7209 of IRTPA, as amended by section 723 of the 9/11 
Commission Act of 2007.
    Under this final rule, DHS will consider as appropriate documents 
such as state driver's licenses and identification cards that satisfy 
the WHTI requirements by denoting identity and citizenship. These 
documents must also have compatible technology, security criteria, and 
must respond to CBP's operational concerns.
    Such acceptable documents will be announced and updated by 
publishing a notice in the Federal Register. A list of such programs 
and documents will also be maintained on the CBP Web site. It is still 
anticipated that the Secretary of Homeland Security will designate 
documents that satisfy section 7209 and the technology, security, and 
operational concerns discussed above as documents acceptable for travel 
under section 7209.
    To date, DHS has entered into formal Memoranda of Agreement (MOAs) 
with the States of Washington, Vermont, New York, and Arizona which 
have begun voluntary programs to develop an ``enhanced driver's 
license'' and identification card that would denote identity and 
citizenship.\44\ Concurrent with this final rule, DHS is also 
publishing a separate notice in today's Federal Register wherein the 
Secretary of Homeland Security is designating that the State of 
Washington enhanced

[[Page 18405]]

driver's license document is secure. Therefore, U.S. citizens may 
present the enhanced driver's licenses and identification cards issued 
by the State of Washington pursuant to the MOA at land and sea ports-
of-entry when arriving from contiguous territory and adjacent islands.
---------------------------------------------------------------------------

    \44\ 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 similar Memorandum of 
Agreement. The state of Arizona has also announced its intention to 
sign an MOA with DHS to begin an enhanced driver's license project. 
For more information on these projects, see http://www.dhs.gov.
---------------------------------------------------------------------------

    DHS is continuing discussions on the development of enhanced 
driver's license projects with several other states and the Government 
of Canada. CBSA and several Canadian provinces are planning and 
developing EDL projects. DHS remains committed to working with and 
coordinating efforts among states interested in developing, testing, 
and implementing programs for enhanced driver's licenses on a 
continuing basis. DHS encourages states interested in developing 
enhanced driver's licenses to work closely with DHS to that end.
    On January 28, 2008, DHS published a final rule in the Federal 
Register 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 of 2005.\45\ 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. The enhanced driver's license will also include technologies 
that facilitate electronic verification and travel at ports-of-entry. 
While the proposed REAL ID requirements include proof of legal status 
in the U.S., the enhanced driver's license will require that the card 
holder be a U.S. citizen.
---------------------------------------------------------------------------

    \45\ The REAL ID Act of 2005 prohibits Federal agencies, 
effective May 11, 2008, from accepting a driver's license or 
personal identification card for any official purpose unless the 
license or card has been issued by a State that is meeting the 
requirements set forth in the Act. See Pub. L. 109-13m 119 Stat. 
231, 302 (May 11, 2005) (codified at 49 U.S.C. 30301 note). On March 
9, 2007, DHS issued a rule proposing to establish minimum standards 
for State-issued driver's licenses and identification cards that 
Federal agencies would accept for official purposes after May 11, 
2008. See 72 FR 10820.
---------------------------------------------------------------------------

E. Future Documents

    Additionally, DHS and DOS remain committed to considering travel 
documents developed by the various U.S. states, Native American tribes 
and nations, and the Government of Canada in the future that would 
satisfy section 7209 of IRTPA.
    Both DHS and DOS continue to engage 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. Other alternative identity and citizenship documents issued by 
the Government of Canada will be considered, as appropriate. The 
Departments welcome comments suggesting alternative Canadian documents.
    Various Canadian provinces have indicated their interest or 
intention in pursuing projects with enhanced driver's licenses similar 
to the Washington State, Vermont and Arizona programs with DHS. Because 
documents accepted for border crossing under WHTI must denote 
citizenship, the participation of the Government of Canada in 
determinations of citizenship on behalf of its citizens, and 
recognition of this determination, is a strong consideration by the 
United States in the acceptance of documents for Canadian citizens. We 
will consider additional documents in the future, as appropriate.

VI. Special Rules for Specific Populations

A. U.S. Citizen Cruise Ship Passengers

    Because of the nature of round trip cruise ship travel, DHS has 
determined that when U.S. citizens depart from and reenter the United 
States on board the same cruise ship, they pose a low security risk in 
contrast to cruise ship passengers who embark in foreign ports.
    DHS and DOS have adopted the following alternative document 
requirement for U.S. cruise ship passengers. For purposes of the final 
rule, a cruise ship is defined as a passenger vessel over 100 gross 
tons, carrying more than twelve passengers for hire, making a voyage 
lasting more than 24 hours any part of which is on the high seas, and 
for which passengers are embarked or disembarked in the United States 
or its territories.\46\
---------------------------------------------------------------------------

    \46\ For this final rule, DHS adopts the definition of a cruise 
ship used by the U.S. Coast Guard. See 33 CFR 101.105.
---------------------------------------------------------------------------

    U.S. citizen cruise ship passengers traveling within the Western 
Hemisphere are permitted to present a government-issued photo 
identification document in combination with 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 (USCIS), when returning to the 
United States, under certain conditions:
     The passengers must board the cruise ship at a port or 
place within the United States; and
     The passengers must return on the same ship to the same 
U.S. port or place from where they originally departed.
    On such cruises, U.S. Citizens under the age of 16 may present an 
original or a copy of a birth certificate, a Consular Report of Birth 
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship 
and Immigration Services. All passengers arriving on a cruise ship that 
originated at a foreign port or place are required to present travel 
documents that comply with applicable document requirements otherwise 
specified in this final rule when arriving in the United States. For 
voyages where the cruise ship originated in the United States, if any 
new passengers board the ship at a foreign port or place or another 
location in the United States, the new passengers will have to present 
travel documents that comply with applicable document requirements 
otherwise specified in this final rule when arriving in the United 
States. U.S. citizen cruise ship passengers that fall under this 
alternative document requirement are reminded to carry appropriate 
travel documentation to enter any foreign countries on the cruise. If 
the ship returns to a U.S. port different from the point of 
embarkation, all passengers must carry a passport or other WHTI 
compliant documentation.

B. U.S. and Canadian Citizen Children

    The U.S. government currently requires all children arriving from 
countries outside the Western Hemisphere to present a passport when 
entering the United States. Currently, children (like adults) from the 
United States, Canada, and Bermuda are not required to present a 
passport when entering the United States by land or sea from contiguous 
territory or adjacent islands, other than Cuba. Mexican children are 
currently required to present either a passport and visa, or a BCC upon 
arrival in the United States, as discussed above. DHS, in consultation 
with DOS, has adopted the procedures below in this final rule.
1. Children Under Age 16
    Under the final rule, all U.S. citizen children under age 16 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, at all sea and 
land ports-of-entry when arriving from contiguous territory. Canadian 
citizen children under age 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

[[Page 18406]]

arriving from contiguous territory. U.S. and Canadian children age 16 
and over who arrive from contiguous territory are subject to the WHTI 
document requirements otherwise specified in this final rule.
    All Canadian birth certificates are issued from a centralized 
location within the provinces and territories. Each province or 
territory can issue two types of birth certificates: a long form, which 
is a one-page paper document similar to U.S. birth certificates, or a 
short form, which is a laminated card version of the long form. All 
versions of the birth certificate throughout the provinces are similar 
in format (paper form or laminated card).
    All Canadian-issued birth certificates are considered by the 
Government of Canada as certified and are accepted by CBSA. Both the 
long and short forms of certified Canadian birth certificates issued by 
the provinces and territories are permissible documents under the final 
rule.
2. Children Under Age 19 Traveling in Groups
    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, may 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, when the 
groups are under the supervision of an adult affiliated with the 
organization (including a parent of one of the accompanied children who 
is only affiliated with the organization for purposes of a particular 
trip) and when all the children have parental or legal guardian consent 
to travel. Canadian citizen children under age 19 may 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. For purposes of this 
alternative procedure, an adult would be considered to be a person age 
19 or older, and a group would consist of two or more people.
    The group, organization, or team will be required to contact CBP 
upon crossing the border at the port-of-entry and provide on 
organizational letterhead: (1) The name of the group, organization or 
team and the name of the supervising adult; (2) a list of the children 
on the trip; (3) for each child, the primary address, primary phone 
number, date of birth, place of birth, and name of at least one parent 
or legal guardian; and (4) the written and signed statement of the 
supervising adult certifying that he or she has obtained parental or 
legal guardian consent for each participating child. The group, 
organization, or team would be able to demonstrate parental or legal 
guardian consent by having the adult leading the group sign and certify 
in writing that he or she has obtained parental or legal guardian 
consent for each participating child. For Canadian children, in 
addition to the information indicated above, a trip itinerary, 
including the stated purpose of the trip, the location of the 
destination, and the length of stay would be required.
    To avoid delays upon arrival at a port-of-entry, CBP would 
recommend that the group, organization, or team provide this 
information to that port-of-entry well in advance of arrival, and would 
recommend that each participant traveling on the trip carry in addition 
to the above mentioned documents a government or school issued photo 
identification document, if available. Travelers with the group who are 
age 19 and over are subject to the generally applicable travel document 
requirements specified in 8 CFR parts 211, 212 or 235 and 22 CFR parts 
41 or 53.
    Based upon a review of the alternative approach for children and 
the parental consent questions asked in the Land and Sea NPRM, DHS and 
DOS are not implementing any additional requirements regarding children 
such as parental consent to travel.

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

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

D. Members of United States Native American Tribes

    For the reasons discussed above, upon full implementation of this 
final rule and if designated by the Secretary of Homeland Security as 
acceptable under WHTI, Native American enrollment or identification 
cards from a federally-recognized tribe or group of federally 
recognized tribes will be permitted for use at entry at any land and 
sea port-of-entry when arriving from contiguous territory or adjacent 
islands.

E. Canadian Indians

    For the reasons discussed above, upon full implementation of this 
final rule and if designated by the Secretary of Homeland Security, the 
proposed new Indian and Northern Affairs Canada (INAC) card to be 
issued by LTS and to contain a photograph and an MRZ, may also be 
presented as evidence of the citizenship and identity of Canadian 
Indians when they seek to enter the United States from Canada at land 
ports-of-entry.

F. Individual Cases of Passport Waivers

    The passport requirement may be waived for U.S. citizens in certain 
individual situations on a case-by-case basis, such as an unforeseen 
emergency or cases of humanitarian or national interest.\47\ Existing 
individual passport waivers for non-immigrant aliens are not changed by 
the final rule.\48\
---------------------------------------------------------------------------

    \47\See section 7209(c)(2) of IRTPA. See also 22 CFR 53.2.
    \48\See 8 CFR Part 212.
---------------------------------------------------------------------------

G. Summary of Document Requirements

    The following chart summarizes the acceptable documents for sea and 
land arrivals from the Western Hemisphere under WHTI.
    The Departments note 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, OCS workers, active duty alien members of the U.S. 
Armed Forces, and members of NATO-member Armed Forces, as discussed in 
the Land and Sea NPRM, remain unchanged.

[[Page 18407]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
         Group/population            Acceptable document(s)           Land                  Ferry            Pleasure vessel     Sea (all other vessels)
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Travelers (U.S., Can., Mex.,   Valid Passport book (and   Yes.................  Yes.................  Yes.................  Yes.
 Berm.) at all sea and land POEs.   valid visa, if necessary
                                    for foreign travelers).
U.S. Citizens at all sea and land  Valid Passport card......  Yes.................  Yes.................  Yes.................  Yes.
 POEs when arriving from Canada,
 Mexico, the Caribbean, and
 Bermuda.
U.S. and Canadian citizen Trusted  Trusted Traveler Cards     Yes*................  Yes*................  Yes*................  * Yes.
 Traveler Members at all sea and    (NEXUS, FAST, SENTRI).
 land POEs when arriving from
 contiguous territory or adjacent
 islands.
U.S. Citizen Merchant Mariners on  U.S. Merchant Mariner      Yes.................  Yes.................  Yes.................  Yes.
 official mariner business at all   Document (MMD).
 sea and land POEs.
Mexican Nationals arriving from    Border Crossing Card       Yes**...............  Yes**...............  Yes**...............  No.
 Mexico.                            (BCC).
U.S. Citizen Cruise Ship           Government-issued photo    N/A.................  N/A.................  N/A.................  Yes--for round trip
 Passengers on round trip voyages   ID and original or copy                                                                      voyages that originate
 that begin and end in the same     of birth certificate;                                                                        in U.S.
 U.S. port.                         under age 16, birth
                                    certificate.
U.S. and Canadian Citizen          Original or copy of birth  Yes.................  Yes.................  Yes.................  Yes.
 Children Under 16 at all sea and   certificate***
 land POEs when arriving from       (government-issued photo
 contiguous territory.              ID recommended, but not
                                    required).
U.S. and Canadian Citizen          Original or copy of birth  Yes.................  Yes.................  Yes.................  Yes.
 Children--Groups of Children       certificate*** and
 Under Age 19, under adult          parental/guardian
 supervision with parental/         consent (government -
 guardian consent at all sea and    issued photo ID
 land POEs when arriving from       recommended, but not
 contiguous territory.              required).
U.S. Citizen/Alien Members of      Military ID and Official   Yes.................  Yes.................  Yes.................  Yes.
 U.S. Armed Forces traveling        Orders.
 under official orders or permit
 at all air, sea and land POEs.
U.S. and Mexican Kickapoo at land  Form I-872 American        Yes.................  Yes.................  Yes.................  Yes.
 and sea POEs when arriving from    Indian Card.
 contiguous territory and
 adjacent islands.
U.S. citizen members of Native     Tribal Enrollment          Yes.................  Yes.................  Yes.................  Yes.
 American tribes recognized by      Documents designated by
 the U.S. Government when           the Secretary of
 arriving from contiguous           Homeland Security as
 territory at land and sea POEs.    meeting WHTI tribal
                                    document security.
Canadian citizen members of First  If designated by the       Yes.................  Yes.................  Nos.................  No.
 Nations or bands recognized by     Secretary of Homeland
 the Canadian Government when       Security, the proposed
 arriving from Canada at land       new INAC card issued by
 POEs.                              the Government of Canada
                                    containing an MRZ.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Approved for Mexican national members traveling with BCC or a passport and visa.
** In conjunction with a valid I-94 for travel outside the 25- or 75-mile geographic limits of the BCC.
*** U.S. children would also be permitted to present a Certificate of Birth Abroad or Certificate of Naturalization; Canadian children would be
  permitted to present a Canadian Citizenship Card or Canadian Naturalization Certificate.

VII. Regulatory Analyses

    A. Executive Order 12866: Regulatory Planning and Review
    This final rule implementing the second phase of WHTI for entries 
by land and sea is considered to be an economically significant 
regulatory action under Executive Order 12866 because it may result in 
the expenditure of over $100 million in any one year. Accordingly, this 
rule has been reviewed by the Office of Management and Budget (OMB). 
The following summary presents the costs and benefits of requirements 
for U.S. citizens entering the United States from other countries in 
the Western Hemisphere by land and sea, plus the costs and benefits of 
several alternatives considered during the rulemaking process.
    The regulatory assessments summarized here consider U.S. travelers 
entering the United States via land ports-of-entry on the northern and 
southern borders (including arrivals by ferry and pleasure boat) as 
well as certain cruise ship passengers. Costs to obtain the necessary 
documentation for air travel were considered in a previous analysis 
examining the implementation of WHTI in the air environment (the 
Regulatory Assessment for the November 2006 Final Rule for 
implementation of WHTI in the air environment can be found at 
www.regulations.gov; document number USCBP-2006-0097-0108). If 
travelers have already purchased a passport for travel in the air 
environment, they would not need to purchase a passport for travel in 
the land or sea environments. CBP does not attempt to estimate with any 
precision the number of travelers who travel in more than one 
environment, and, therefore, may have already obtained a passport due 
to the air rule and will not incur any burden due to this rule. To the 
extent that the three traveling populations overlap in the air, land, 
and sea environments, we have potentially overestimated the direct 
costs of the rule presented here.
    The period of analysis is 2005-2018 (14 years). We calculate costs 
beginning in 2005 because although the suite of WHTI rules was not yet 
in place, DOS experienced a dramatic increase in passport applications 
since the WHTI plan was announced in early 2005. We account for those 
passports obtained prior to full implementation to more accurately 
estimate the economic impacts of the rule as well as to incorporate the 
fairly sizable percentage of travelers who currently hold passports in 
anticipation of the new requirements.

[[Page 18408]]

    The Secretary of Homeland Security is designating CBP trusted 
traveler cards (NEXUS, SENTRI, FAST), the Merchant Mariner Document 
(MMD), and specified documents from DHS-approved enhanced driver's 
license programs as acceptable travel documents for U.S. citizens to 
enter the United States at land and sea ports-of-entry. Because DHS and 
DOS believe that children under the age of 16 pose a low security 
threat in the land and sea environments, U.S. children may present a 
birth certificate in lieu of other designated documents. Additionally, 
DHS and DOS have determined that exempting certain cruise passengers 
from a passport requirement is the best approach to balance security 
and travel efficiency considerations in the cruise ship environment. To 
meet the cruise exemption, a passenger must board the cruise ship at a 
port or place within the United States and the passenger must return on 
the same ship to the same U.S. port or place from where he or she 
originally departed.
    For the summary of the analysis presented here, CBP assumes that 
only the passport, trusted traveler cards, and the MMD were available 
in the first years of the analysis (recalling that the period of 
analysis begins in 2005 when passport cards and enhanced driver's 
licenses were not yet available). CBP also assumes that most children 
under 16 will not obtain a passport or passport card but will instead 
use alternative documentation (birth certificates). The estimates 
reflect that CBP trusted traveler cards will be accepted at land and 
sea ports-of-entry. Finally, CBP assumes that most of the U.S. cruise 
passenger population will present alternative documentation 
(government-issued photo ID and birth certificate) because they meet 
the alternative documentation provision in the rule.
    To estimate the costs of the rule, we follow this general 
analytical framework:
--Determine the number of U.S. travelers that will be covered
--Determine how many already hold acceptable documents
--Determine how many will opt to obtain passports (and passport cards) 
and estimate their lost ``consumer surplus''
--Determine how many will forgo travel instead of obtaining passports 
or passport cards and estimate their lost ``consumer surplus''

    We estimate covered land travelers using multiple sources, 
including: crossing data from the Bureau of Transportation Statistics 
(BTS, 2004 data), a study of passport demand conducted by DOS 
(completed in 2005), and a host of regional studies conducted by state 
and local governments and academic research centers.
    Other than DOS's passport demand study, no source exists to our 
knowledge that has estimated the total number of land entrants 
nationwide. Researchers almost always count or estimate crossings, not 
crossers and focus on a region or locality, not an entire border. 
Building on the work conducted for DOS's passport study, we distilled 
approximately 300 million annual crossings into the number of frequent 
(defined as at least once a year), infrequent (once every three years), 
and rare (once every ten years) ``unique U.S. adult travelers.'' We 
then estimate the number of travelers without acceptable documentation 
and estimate the cost to obtain a document. The fee for the passport 
varies depending on the age of the applicant, whether or not the 
applicant is renewing a passport, whether or not the applicant is 
requesting expedited service, and whether or not the applicant obtains 
a passport or a passport card. Additionally, we consider the amount of 
time required to obtain the document and the value of that time. To 
estimate the value of an applicant's time in the land environment, we 
conducted new research that built on existing estimates from the 
Department of Transportation. To estimate the value of an applicant's 
time in the sea environment, we use estimates for air travelers' value 
of time (air and sea travelers share very similar characteristics) from 
the Federal Aviation Administration (FAA, 2005 data). We use the 2005 
DOS passport demand study and CBP statistics on the trusted traveler 
programs to estimate how many unique U.S. travelers already hold 
acceptable documents.
    We estimate covered cruise passengers using data from the Maritime 
Administration (MARAD, 2006 data) and itineraries available on the 
cruise line Web sites (for 2007). The overwhelming majority of Western 
Hemisphere cruise passengers--92 percent--would fall under the cruise-
passenger alternative documentation provision. Passengers not covered 
by the alternative documentation provision fall into four trade 
markets--Alaska (72 percent), Trans-Panama Canal (16 percent), U.S. 
Pacific Coast (8 percent), and Canada/New England (4 percent). We 
estimate that these passengers will have to obtain a passport rather 
than one of the other acceptable documents because these travelers will 
likely have an international flight as part of their cruise vacation, 
and only the passport is a globally accepted travel document. We use a 
comment to the August 2006 NPRM for implementation of WHTI in the air 
and sea environments (71 FR 46155) from the International Council of 
Cruise Lines to estimate how many unique U.S. cruise travelers already 
hold acceptable documentation.
    Based on CBP's analysis, approximately 3.6 million U.S. travelers 
are affected in the first year of implementation, 2009 (note that the 
analysis anticipates a significant number of travelers will obtain 
WHTI-compliant documents in 2005 through 2008, prior to the 
implementation of the rule. In addition, travelers who only make trips 
in the first half of 2009 will not be covered by the rule). Of these, 
approximately 3.5 million enter through a land-border crossing (via 
privately owned vehicle, commercial truck, bus, train, on foot) and 
ferry and recreational boat landing sites. An estimated 0.1 million are 
cruise passengers who do not meet the alternative documentation 
provision in the final rule (note that over 90 percent of U.S. cruise 
passengers are expected to meet the exemption criteria). CBP estimates 
that the traveling public will acquire approximately 3.1 million 
passports in 2009, at a direct cost to traveling individuals of $283 
million. These estimates are summarized in Table A.

         Table A.--First-Year Estimates for U.S. Adult Travelers
                       [All estimates in millions]
------------------------------------------------------------------------

------------------------------------------------------------------------
Affected travelers:
     Land/ferry/pleasure boat crossers...........................    3.5
     Cruise passengers...........................................    0.1
                                                                  ------
         Total...................................................    3.6
 Passports demanded:
    Land/ferry/pleasure boat crossers............................    3.1
    Cruise passengers............................................    0.1
                                                                  ------
        Total....................................................    3.2
Total cost of passports:
    Land-border crossers.........................................   $272
    Cruise passengers............................................     11
                                                                  ------
        Total....................................................   $283
------------------------------------------------------------------------

    To estimate potential forgone travel in the land environment, we 
derive traveler demand curves for access to Mexico and Canada based on 
survey responses collected in DOS's passport study. We estimate that 
when the rule is implemented, the number of unique U.S. travelers to 
Mexico who are frequent travelers decreases by 5.7 percent, the unique 
U.S. travelers who are infrequent travelers decreases by 6.4 percent, 
and the unique U.S. travelers who are rare travelers decreases by 15.7 
percent. The number of U.S. travelers visiting Canada who are frequent

[[Page 18409]]

travelers decreases by 3.3 percent, the unique U.S. travelers who are 
infrequent travelers decreases by 9.5 percent, and the unique U.S. 
travelers who are rare travelers decreases by 9.6 percent. These 
estimates account for the use of a passport card for those travelers 
who choose to obtain one. For unique travelers deciding to forgo future 
visits, their implied value for access to these countries is less than 
the cost of obtaining a passport card.
    To estimate potential forgone travel in the sea environment, we use 
a study from Coleman, Meyer, and Scheffman (2003), which described the 
Federal Trade Commission investigation into potential impacts of two 
cruise-line mergers and estimated a demand elasticity for cruise 
travel. We estimate that the number of travelers decreases by 24 
percent, 13 percent, 7 percent, and 6 percent for travelers on short (1 
to 5 nights), medium (6 to 8 nights), long (9 to 17 nights), and very 
long cruises (over 17 nights) once the rule is implemented.
    We then estimate total losses in consumer surplus. The first figure 
below represents U.S. travelers' willingness to pay (D1) for access to 
Mexico and Canada. At price P1, the number of U.S. travelers without 
passports currently making trips to these countries is represented by 
Q1. As seen in the second figure, if the government requires travelers 
to obtain a passport or passport card in order to take trips to Mexico 
and Canada, the price of access increases by the cost of obtaining the 
new document, to P2. As a result, the number of travelers making trips 
to these countries decreases to Q2.
BILLING CODE 9111-14-P
[GRAPHIC] [TIFF OMITTED] TR03AP08.007

BILLING CODE 9111-14-C
    All travelers in this figure experience a loss in consumer surplus; 
the size of the surplus loss depends on their willingness to pay for 
access to these countries. The lost surplus experienced by travelers 
whose willingness to pay exceeds P2 is shown in the dark 
blue rectangle, and is calculated as (P2-P1) * 
Q2. Travelers whose willingness to pay for access to these 
countries is less than the price of the passport or passport card will 
experience a loss equal to the area of the aqua triangle, calculated as 
1/2 * (Q1-Q2) * (P2-P1).
    Costs of the rule (expressed as losses in consumer surplus) are 
summed by year of the analysis. We then add the government costs of 
implementing WHTI over the period of analysis. Fourteen-year costs are 
$3.3 billion at the 3 percent discount rate and $2.7 billion at 7 
percent, as shown in Table B. Annualized costs are $296 million at 3 
percent and $314 million at 7 percent.

  Table B.--Total Costs for U.S. Travelers Over the Period of Analysis
                        [2005-2018, in $millions]
------------------------------------------------------------------------
                                                        3%         7%
                   Year                      Cost    discount   discount
                                                       rate       rate
------------------------------------------------------------------------
2005.....................................     $435       $435       $435
2006.....................................      153        148        143
2007.....................................       91         85         79
2008.....................................      493        451        406
2009.....................................      431        383        333
2010.....................................      352        304        255
2011.....................................      270        226        183
2012.....................................      235        191        149
2013.....................................      235        186        140
2014.....................................      290        222        159
2015.....................................      314        234        161
2016.....................................      250        181        120
2017.....................................      225        158        101
2018.....................................      201        137         84
                                          ------------------------------
    Total................................  .......     $3,340     $2,748
------------------------------------------------------------------------

    The primary analysis for land summarized here assumes a constant 
number of border crossers over the period of analysis; in the complete 
Regulatory Assessment we also consider scenarios where the number of 
border crossers both increases and decreases over the period of 
analysis. It is worth noting that border crossings have been mostly 
decreasing at both the northern and southern borders since 1999. The 
analysis for sea travel assumes a 6 percent annual increase in 
passenger counts over the period of analysis as the Western Hemisphere 
cruise industry continues to experience growth.
    Finally, we conduct a formal uncertainty (Monte Carlo) analysis to 
test our assumptions for the analysis in the land environment. We first 
conducted a preliminary sensitivity analysis to identify the variables 
that have the most significant effect on consumer welfare losses. We 
found that the frequency of travel (frequent, infrequent, rare), 
crossings at multiple ports-of-entry, future annual affected 
individuals, and the amount of time spent applying for documentation 
were the most sensitive variables in the analysis. The variables that 
did not appear to have an impact on consumer losses were the estimated 
number of crossings by Lawful Permanent Residents or Native Americans 
and estimated future timing with which travelers will apply for 
acceptable documentation. After we conducted our formal Monte Carlo 
analysis we found that our most sensitive assumptions are: The 
projected crossing growth rate, the frequency of travel, and the number 
of new unique travelers that enter the population annually. The results 
of the Monte Carlo analysis are presented in Table C. Note that these 
estimates do not include the government costs of implementation, 
estimated to be $0.8 billion over the time period of the analysis (3 
percent discount rate) because we have no basis for assigning 
uncertainty parameters for government costs.

[[Page 18410]]



Table C.--Summary of Key Characteristics of Probability Distributions of
 Total Welfare Losses in the Land Environment (2005-2018, in $Billions),
                         3 Percent Discount Rate
------------------------------------------------------------------------
                          Statistic                              Value
------------------------------------------------------------------------
Trials......................................................      10,000
Mean........................................................        $2.2
Median......................................................        $2.1
Std Dev.....................................................        $0.5
Variance....................................................     2.4E+08
5th Percentile..............................................        $1.5
95th Percentile.............................................        $3.1

Point Estimate..............................................        $2.3
------------------------------------------------------------------------

    We then consider the secondary impacts of forgone travel in the 
land and sea environments. Forgone travel will result in gains and 
losses in the United States, Canada, and Mexico. For this analysis, we 
made the simplifying assumption that if U.S. citizens forgo travel to 
Canada and Mexico, their expenditures that would have been spent 
outside the country now remain here. In this case, industries receiving 
the diverted expenditure in the United States experience a gain, while 
the travel and related industries in Canada and Mexico suffer a loss. 
Conversely, if Canadian and Mexican citizens forgo travel to the United 
States, their potential expenditures remain abroad--a loss for the 
travel and related industries in the United States, but a gain to 
Canada and Mexico. Note that ``gains'' and ``losses'' in this analysis 
cannot readily be compared to the costs and benefits of the rule, since 
they represent primarily transfers in and out of the U.S. economy.
    For cruise passengers, we have only rough estimates of where U.S. 
passengers come from, how they travel to and from the ports where they 
embark, where they go, and the activities they engage in while 
cruising. We know even less about how they will alter their behavior if 
they do, in fact, forgo obtaining a passport. Ideally, we could model 
the indirect impacts of the rule with an input-output model (either 
static or dynamic) that could give us a reasonable estimation of the 
level the impact, the sectors affected, and regional impacts. 
Unfortunately, given the dearth of data, the assumptions we had to 
make, the very small numbers of travelers who are estimated to forgo 
travel, and the fact that much of their travel experience occurs 
outside the United States, using such a model would not likely produce 
meaningful results. We recognize, however, that multiple industries 
could be indirectly affected by forgone cruise travel, including (but 
not limited to): Cruise lines; cruise terminals and their support 
services; air carriers and their support services; travel agents; 
traveler accommodations; dining services; retail shopping; tour 
operators; scenic and sightseeing transportation; hired transportation 
(taxis, buses); and arts, entertainment, and recreation.
    According to the MARAD dataset used for the sea analysis, there are 
17 cruise lines operating in the Western Hemisphere, 9 of which are 
currently offering cruises that would be indirectly affected by a 
passport requirement. While we expect that cruise lines will be 
indirectly affected by the rule, how they will be affected depends on 
their itineraries, the length of their cruises, their current capacity, 
and future expansion, as well as by travelers' decisions. We expect 
short cruises (1 to 5 nights) to be most notably affected because the 
passport represents a greater percentage of the overall trip cost, 
passengers on these cruises are less likely to already hold a passport, 
and travel plans for these cruises are frequently made closer to voyage 
time. Longer cruises are less likely to be affected because these trips 
are planned well in advance, passengers on these voyages are more 
likely to already possess a passport, and the passport cost is a 
smaller fraction of the total trip cost.
    Because border-crossing activity is predominantly a localized 
phenomenon, and the activities engaged in while visiting the United 
States are well documented in existing studies, we can explore the 
potential impacts of forgone travel more quantitatively in the land 
environment. Using various studies on average spending per trip in the 
United States, Canada, and Mexico, we estimate the net results of 
changes in expenditure flows in 2008 (the presumed first year the 
requirements will be implemented) and subsequent years. Because Mexican 
crossers already possess acceptable documentation to enter the United 
States (passport or Border Crossing Card), we do not estimate that 
Mexican travelers will forgo travel to the United States. The summary 
of expenditure flows is presented in Table D.

    Table D.--Net Expenditure Flows in North America, 2009, 2010, and
                            Subsequent Years
                              [In millions]
------------------------------------------------------------------------

------------------------------------------------------------------------
2009:
    Spending by U.S. travelers who forgo travel to Mexico.....     +$160
    Spending by Mexican travelers who forgo travel to the              0
     United States............................................
    Spending by U.S. travelers who forgo travel to Canada.....       +60
    Spending by Canadian travelers who forgo travel to United       -400
     States...................................................
                                                               ---------
        Net...................................................      -180
2010:
    Spending by U.S. travelers who forgo travel to Mexico.....      +280
    Spending by Mexican travelers who forgo travel to the              0
     United States............................................
    Spending by U.S. travelers who forgo travel to Canada.....      +110
    Spending by Canadian travelers who forgo travel to United       -440
     States...................................................
                                                               ---------
        Net...................................................       -50

Subsequent years (annual):
    Spending by U.S. travelers who forgo travel to Mexico.....      +280
    Spending by Mexican travelers who forgo travel to United           0
     States...................................................
    Spending by U.S. travelers who forgo travel to Canada.....      +110
    Spending by Canadian travelers who forgo travel to United       -330
     States...................................................
                                                               ---------
        Net...................................................       +60
------------------------------------------------------------------------


[[Page 18411]]

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

                         Table E.--Modeled Distributional Effects in Eight Case Studies
----------------------------------------------------------------------------------------------------------------
                                                                                       Change as % of total* * *
              Study area (counties)                              State               ---------------------------
                                                                                         Output      Employment
----------------------------------------------------------------------------------------------------------------
San Diego.......................................  California........................         +0.02         +0.03
Pima, Santa Cruz................................  Arizona...........................         +0.02         +0.02
Hidalgo, Cameron................................  Texas.............................         +0.1          +0.1
Presidio........................................  Texas.............................         +0.4          +0.4
Niagara, Erie...................................  New York..........................         -0.2          -0.3
Washington......................................  Maine.............................         -1.4          -3.2
Macomb, Wayne, Oakland..........................  Michigan..........................         -0.02         -0.04
Whatcom.........................................  Washington........................         -0.5          -1.3
----------------------------------------------------------------------------------------------------------------

    As shown, we anticipate very small net positive changes in the 
southern-border case studies because Mexican travelers to the United 
States use existing documentation, and their travel is not affected. 
The net change in regional output and employment is negative (though 
still very small) in the northern-border case studies because Canadian 
travelers forgoing trips outnumber U.S. travelers staying in the United 
States and because Canadian travelers to the United States generally 
spend more per trip than U.S. travelers to Canada. On both borders, 
those U.S. travelers that forgo travel do not necessarily spend the 
money they would have spent outside the United States in the case-study 
region; they may spend it outside the region, and thus outside the 
model.
    Finally, because the benefits of homeland security regulations 
cannot readily be quantified using traditional analytical methods, we 
conduct a ``breakeven analysis'' to determine what the reduction in 
risk would have to be given the estimated costs of the implementation 
of WHTI (land environment only). Using the Risk Management Solutions 
U.S. Terrorism Risk Model (RMS model), we estimated the critical risk 
reduction that would have to occur in order for the costs of the rule 
to equal the benefits--or break even.
    The RMS model has been developed for use by the insurance industry 
and provides a comprehensive assessment of the overall terrorism risk 
from both foreign and domestic terrorist organizations. The RMS model 
generates a probabilistic estimate of the overall terrorism risk from 
loss estimates for dozens of types of potential attacks against several 
thousand potential targets of terrorism across the United States. For 
each attack mode-target pair (constituting an individual scenario) the 
model accounts for the probability that a successful attack will occur 
and the consequences of the attack. RMS derives attack probabilities 
from a semi-annual structured expert elicitation process focusing on 
terrorists' intentions and capabilities. It bases scenario consequences 
on physical modeling of attack phenomena and casts target 
characteristics in terms of property damage and casualties of interest 
to insurers. Specifically, property damages include costs of damaged 
buildings, loss of building contents, and loss from business 
interruption associated with property to which law enforcement 
prohibits entry immediately following a terrorist attack. RMS 
classifies casualties based on injury-severity categories used by the 
worker compensation insurance industry.
    The results in Table F are based on the annualized cost estimate 
(assuming a seven percent discount rate) of the rule presented above. 
These results show that a decrease in perceived risk (the ``low risk'' 
scenario generated by RAND to characterize the expected annual losses 
in the United States from terrorist attacks) leads to a smaller 
annualized loss and a greater required critical risk reduction for the 
benefits of the rule to break even with costs. Conversely, an increase 
in perceived risk (the ``high risk'' scenario) leads to a greater 
annualized loss and a smaller required critical risk reduction. The 
total range in critical risk reduction under the standard threat 
outlook produced by the RMS model is a factor of three and ranges from 
5.5 to 14 percent depending on the methodology used to value the 
benefits of avoided terrorist attacks (the value of avoided injuries 
and deaths).

             Table F.--Critical Risk Reduction for the Rule
                        [7 percent discount rate]
------------------------------------------------------------------------
                                                        Critical risk
                                                        reduction (%)
              Valuation   methodology               --------------------
                                                     Low  Standard  High
------------------------------------------------------------------------
Cost of injury (fatality = $1.1m)..................   27    14       6.8
Willingness to pay (VSL = $3m).....................   21    10       5.2
Quality of life (VSL = $3m)........................   18     8.8     4.4
Willingness to pay (VSL = $6m).....................   14     7.0     3.5
Quality of life (VSL = $6m)........................   11     5.5     2.8
------------------------------------------------------------------------

    Several key factors affect estimates of the critical risk reduction 
required for the benefits of the rule to equal or exceed the costs. 
These factors include: the uncertainty in the risk estimate produced by 
the RMS model; the potential for other types of baseline losses not 
captured in the RMS model; and the size of other non-quantified direct 
and ancillary benefits of the rule. The RMS model likely underestimates 
total baseline terrorism loss because it only reflects the direct, 
insurable costs of terrorism. It does not include any indirect losses 
that would result from continued change in consumption patterns or 
preferences or that would result from propagating consequences of 
interdependent infrastructure systems. For example, the RMS model does 
not capture the economic disruption of a terrorism event beyond the 
immediate insured losses. Furthermore, the model also excludes non-
worker casualty losses and losses associated with government buildings 
and employees. Finally, the model may not capture less-tangible 
components of losses that the

[[Page 18412]]

public wishes to avoid, such as the fear and anxiety associated with 
experiencing a terrorist attack. Omission of these losses will cause us 
to overstate the necessary risk reductions.
    Although the risk reduction associated with the final rule cannot 
be quantified due to data limitations, a separate analysis of the 
potential benefits resulting from reductions in wait time at the border 
suggests that the net benefits of the rule (total benefits minus total 
costs) have the potential to be positive. In a separate effort, CBP 
estimated the costs and benefits of processing technology investments 
at ports-of-entry. As part of this analysis, analysts evaluated the 
wait time impact attributable to each technology alternative. The 
results suggest that implementing standard documents and RFID 
technology could result in reductions in wait time valued as highly as 
$2.4 billion to $3.3 billion between 2009 and 2018 (discount rates of 7 
and 3 percent, respectively). Subtracting total present value costs 
suggests the potential for net benefits as high as $0.9 billion to $1.7 
billion (discount rates of 7 and 3 percent, respectively).
Alternatives to the Rule
    CBP considered the following alternatives to the final rule--
    1. Require all U.S. travelers (including children) to present a 
valid passport book upon return to the United States from countries in 
the Western Hemisphere.
    2. Require all U.S. travelers (including children) to present a 
valid passport book, passport card, or CBP trusted traveler document 
upon return to the United States from countries in the Western 
Hemisphere.
    3. Alternative 2, but without RFID-enabled passport cards.
    Calculations of costs for the alternatives can be found in the two 
Regulatory Assessments for the final rule.
    Alternative 1: Require all U.S. travelers (including children) to 
present a valid passport book.
    The first alternative would require all U.S. citizens, including 
minors under 16 and all cruise passengers, to present a valid passport 
book only. This alternative was rejected as potentially too costly and 
burdensome for low-risk populations of travelers. While the passport 
book will always be an acceptable document for a U.S. citizen to 
present upon entry to the United States, DHS and DOS believe that the 
cost of a traditional passport book may be too expensive for some U.S. 
citizens, particularly those living in border communities where land-
border crossings are an integral part of everyday life. As stated 
previously, DHS and DOS, believe that children under the age of 16 pose 
a low security threat in the land and sea environments and will be 
permitted to present a birth certificate when arriving in the United 
States at all land and sea ports-of-entry from contiguous territory. 
DHS and DOS have also determined that designating alternative 
documentation for certain cruise passengers from a passport requirement 
is the best approach to balance security and travel efficiency 
considerations in the cruise ship environment.
    Alternative 2: Require all U.S. travelers (including children) to 
present a valid passport book, passport card, or trusted traveler 
document.
    The second alternative is similar to the final rule, though it 
includes children and does not provide a passport exception for cruise 
passengers. While this alternative incorporates the low-cost passport 
card and CBP trusted traveler cards as acceptable travel documents, 
this alternative was ultimately rejected as potentially too costly and 
burdensome for low-risk populations of travelers (certain cruise 
passengers and minors under 16).
    Alternative 3: Require all U.S. travelers (including children) to 
present a valid passport book, passport card, or trusted traveler 
document; no RFID-enabled passport card.
    The third alternative is similar to the second; it just now assumes 
that the passport card is not enabled with RFID technology. For this 
analysis, we assume that this does not change the fee charged for the 
passport card; we assume, however, that government costs to test and 
deploy the appropriate technology at the land borders to read the 
passport cards are eliminated. This alternative was rejected because 
DHS and DOS strongly believe that facilitation of travel, particularly 
at the land borders where wait times are a major concern, should be a 
primary achievement of WHTI implementation.
    Table G presents a comparison of the costs of the final rule and 
the alternatives considered.

                                 Table G.--Comparison of Regulatory Alternatives
                                                 [In $millions]
----------------------------------------------------------------------------------------------------------------
                                                              Compared
                  Alternative                      13-year    to final               Reason rejected
                                                  cost (7%)     rule
----------------------------------------------------------------------------------------------------------------
Final rule.....................................      $2,748         n/a  .......................................
Alternative 1: Passport book only for all U.S.       $6,728     +$3,979  Cost of a passport considered too high
 travelers.                                                               for citizens in border communities;
                                                                          low-risk traveling populations
                                                                          (certain cruise passengers, children
                                                                          under 16) unduly burdened.
Alternative 2: Passport book, passport card,         $5,751     +$3,003  Low-risk traveling populations (certain
 and other designated documents for all U.S.                              cruise passengers, children under 16)
 travelers.                                                               unduly burdened.
Alternative 3: Passport book, passport card,         $5,340     +$2,591  Low-risk traveling populations (certain
 and other designated documents for all U.S.                              cruise passengers, children under 16)
 travelers; no RFID-enabled passport card.                                unduly burdened, unacceptable wait
                                                                          times at land-border ports of entry.
----------------------------------------------------------------------------------------------------------------

    It is important to note that for scenarios where the RFID-capable 
passport card is acceptable (the final rule and Alternative 2), the 
estimates include government implementation costs for CBP to install 
the appropriate technology at land ports-of-entry to read RFID-enabled 
passport cards and the next generation of CBP trusted traveler 
documents. These technology deployment costs are estimated to be 
substantial, particularly in the early phases of implementation. As a 
result, the alternatives allowing more documents than just the passport 
book result higher government costs over thirteen years than 
alternatives allowing only the passport book or the passport card that 
is not RFID-enabled, which can be processed with existing readers that 
scan the passport's machine-readable zone. Allowing presentation of 
alternative documentation for minors and most cruise passengers results 
in

[[Page 18413]]

notable cost savings over thirteen years (about $2.5 billion to $4.0 
billion depending on the documents considered).
Accounting statement
    As required by OMB Circular A-4, CBP has prepared an accounting 
statement showing the classification of the expenditures associated 
with this rule. The table below provides an estimate of the dollar 
amount of these costs and benefits, expressed in 2005 dollars, at 7 
percent and 3 percent discount rates. We estimate that the cost of this 
rule will be approximately $314 million annualized (7 percent discount 
rate) and approximately $296 million annualized (3 percent discount 
rate). Non-quantified benefits are enhanced security and efficiency.

     Accounting Statement: Classification of Expenditures, 2005-2017
                             [2005 Dollars]
------------------------------------------------------------------------
                                3% discount rate      7% discount rate
------------------------------------------------------------------------
Costs:
    Annualized monetized      $296 million........  $314 million.
     costs.
    Annualized quantified,    Indirect costs to     Indirect costs to
     but un-monetized costs.   the travel and        the travel and
                               tourism industry.     tourism industry.
    Qualitative (un-          Indirect costs to     Indirect costs to
     quantified) costs.        the travel and        the travel and
                               tourism industry.     tourism industry.
Benefits:
    Annualized monetized      None quantified.....  None quantified.
     benefits.
    Annualized quantified,    None quantified.....  None quantified.
     but un-monetized
     benefits.
    Qualitative (un-          Enhanced security     Enhanced security
     quantified) benefits.     and efficiency.       and efficiency.
------------------------------------------------------------------------

B. Regulatory Flexibility Act

    CBP has prepared this section to examine the impacts of the final 
rule on small entities as required by the Regulatory Flexibility Act 
(RFA).\49\ A small entity may be a small business (defined as any 
independently owned and operated business not dominant in its field 
that qualifies as a small business per the Small Business Act); a small 
not-for-profit organization; or a small governmental jurisdiction 
(locality with fewer than 50,000 people).
---------------------------------------------------------------------------

    \49\ See 5 U.S.C. 601-612.
---------------------------------------------------------------------------

    When considering the impacts on small entities for the purpose of 
complying with the RFA, CBP consulted the Small Business 
Administration's guidance document for conducting regulatory 
flexibility analyses.\50\ Per this guidance, a regulatory flexibility 
analysis is required when an agency determines that the rule will have 
a significant economic impact on a substantial number of small entities 
that are subject to the requirements of the rule.\51\ This guidance 
document also includes a good discussion describing how direct and 
indirect costs of a regulation are considered differently for the 
purposes of the RFA. CBP does not believe that small entities are 
subject to the requirements of the rule; individuals are subject to the 
requirements, and individuals are not considered small entities. To 
wit, ``The courts have held that the RFA requires an agency to perform 
a regulatory flexibility analysis of small entity impacts only when a 
rule directly regulates them.'' \52\
---------------------------------------------------------------------------

    \50\ See Small Business Administration, Office of Advocacy, A 
Guide for Government Agencies: How to Comply with the Regulatory 
Flexibility Act, May 2003.
    \51\ See id. at 69.
    \52\ See id. at 20.
---------------------------------------------------------------------------

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

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

    Because this rule does not directly regulate small entities, we do 
not believe that this rule has a significant economic impact on a 
substantial number of small entities. The exception could be certain 
``sole proprietors'' who could be considered small businesses and could 
be directly affected by the rule if their occupations required travel 
within the Western Hemisphere where a passport was not previously 
required. However, as estimated in the Regulatory Assessment for 
implementation of WHTI in the land environment, the cost to such 
businesses would be only $125 for a first-time passport applicant, $70 
for a first-time passport card applicant, plus an additional $60 if 
expedited service were requested. We believe such an expense would not 
rise to the level of being a ``significant economic impact.''
    CBP thus certifies that this regulatory action does not have a 
significant economic impact on a substantial number of small entities.
    The complete analysis of impacts to small entities for this rule is 
available on the CBP Web site at: http://www.regulations.gov; see also 
http://www.cbp.gov.

C. Executive Order 13132: Federalism

    Executive Order 13132 requires DHS and DOS to develop a process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' Policies that have federalism implications are defined 
in the Executive Order to include rules that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' DHS and DOS 
have analyzed the rule in accordance

[[Page 18414]]

with the principles and criteria in the Executive Order and have 
determined that it does not have federalism implications or a 
substantial direct effect on the States. The rule requires U.S. 
citizens and nonimmigrant aliens from Canada, Bermuda and Mexico 
entering the United States by land or by sea from Western Hemisphere 
countries to present a valid passport or other identified alternative 
document. States do not conduct activities subject to this rule. For 
these reasons, this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

D. Unfunded Mandates Reform Act Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 
enacted as Public Law 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the UMRA is any 
provision in a Federal agency regulation that will impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section 
204(a), provides that, before establishing any regulatory requirements 
that might significantly or uniquely affect small governments, the 
agency shall have developed a plan that, among other things, provides 
for notice to potentially affected small governments, if any, and for a 
meaningful and timely opportunity to provide input in the development 
of regulatory proposals.
    This rule would not impose a significant cost or uniquely affect 
small governments. The rule does have an effect on the private sector 
of $100 million or more. This impact is discussed in the Executive 
Order 12866 discussion.

E. National Environmental Policy Act of 1969

    DHS, in consultation with DOS, the Environmental Protection Agency 
and the General Services Administration have reviewed the potential 
environmental and other impacts of this proposed rule in accordance 
with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 
4321 et seq.), the regulations of the Council on Environmental Quality 
(40 CFR part 1500), and DHS Management Directive 5100.1, Environmental 
Planning Program of April 19, 2006. A programmatic environmental 
assessment (PEA) was prepared that examined, among other things, 
potential alternatives regarding implementation of the proposed rule at 
the various land and sea ports of entry and what, if any, environmental 
impacts may result from the rule and its implementation.
    The final PEA was published on September 10, 2007, and resulted in 
a Finding of No Significant Impact (FONSI) for the WHTI sea and land 
plan. A review of the relative impacts showed that none of the 
alternatives analyzed would result in a significant impact on the human 
environment.
    A Notice of Availability for the final PEA and FONSI was published 
on September 26, 2007, in the Federal Register, and the PEA and FONSI 
are available for viewing on http://www.dhs.gov and http://www.cbp.gov. 
In addition, copies may be obtained by writing to: U.S. Customs and 
Border Protection, 1300 Pennsylvania Avenue, NW., Room 5.4D, Attn: WHTI 
Environmental Assessment, Washington, DC 20229.

F. Paperwork Reduction Act

1. Passports/Passport Cards
    The collection of information requirement for passports is 
contained in 22 CFR 51.20 and 51.21. The required information is 
necessary for DOS Passport Services to issue a United States passport 
in the exercise of authorities granted to the Secretary of State in 22 
U.S.C. Section 211a et seq. and Executive Order 11295 (August 5, 1966) 
for the issuance of passports to United States citizens and non-citizen 
nationals. The issuance of U.S. passports requires the determination of 
identity and nationality with reference to the provisions of Title III 
of the Immigration and Nationality Act (8 U.S.C. sections 1401-1504), 
the Fourteenth Amendment to the Constitution of the United States, and 
other applicable laws. The primary purpose for soliciting the 
information is to establish nationality, identity, and entitlement to 
the issuance of a United States passport or related service and to 
properly administer and enforce the laws pertaining to issuance 
thereof.
    There are currently two OMB-approved application forms for 
passports, the DS-11 Application for a U.S. Passport (OMB Approval No. 
1405-0004) and the DS-82 Application for a U.S. Passport by Mail. 
Applicants for the passport cards would use the same application forms 
(DS-11 and DS-82). The forms have been modified to allow the applicant 
to elect a card or book formal passport, or both. First time applicants 
must use the DS-11. The rule would result in an increase in the number 
of persons filing the DS-11 and could result in an increase in the 
number of persons filing the DS-82, and a corresponding increase in the 
annual reporting and/or record-keeping burden. In conjunction with 
publication of the final rule, DOS will amend the OMB form 83-I 
(Paperwork Reduction Act Submission) relating to the DS-11 to reflect 
these increases.
    The collection of information encompassed within this rule has been 
submitted to the OMB for review in accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and 
a person is not required to respond to, a collection of information 
unless the collection of information displays a valid control number 
assigned by OMB.
    Estimated annual average reporting and/or recordkeeping burden: 
14.7 million hours.
    Estimated annual average number of respondents: 9 million.
    Estimated average burden per respondent: 1 hour 25 minutes.
    Estimated frequency of responses: Every 10 years (adult passport 
and passport card applications); every 5 years (minor passport and 
passport card applications) Comments on this collection of information 
should be sent to the Office of Management and Budget, Attention: Desk 
Officer of the Department of State, Office of Information and 
Regulatory Affairs, Washington, DC 20503.
2. Groups of Children
    The collection of information requirements for groups of children 
would be contained in 8 CFR 212.1 and 235.1. The required information 
is necessary to comply with section 7209 of IRTPA, as amended, to 
develop an alternative procedure for groups of children traveling 
across an international border under adult supervision with parental 
consent. DHS, in consultation with DOS, has developed alternate 
procedures

[[Page 18415]]

requiring that certain information be provided to CBP so that these 
children would not be required to present a passport. Consequently, 
U.S. and Canadian citizen children through age 18, who are traveling 
with public or private school groups, religious groups, social or 
cultural organizations, or teams associated with youth sport 
organizations that arrive at U.S. sea or land ports-of-entry, would be 
permitted to present an original or a copy of a birth certificate 
(rather than a passport), when the groups are under the supervision of 
an adult affiliated with the organization and when all the children 
have parental or legal guardian consent to travel. U.S. citizen 
children would also be permitted to present a Certificate of 
Naturalization or a Consular Report of Birth Abroad. Canadian children 
would also be permitted to present a Canadian Citizenship Card or 
Canadian Naturalization Certificate.
    When crossing the border at the port-of-entry, the U.S. group, 
organization, or team would be required to provide to CBP on 
organizational letterhead the following information: (1) The name of 
the group; (2) the name of each child on the trip; (3) the primary 
address, primary phone number, date of birth, place of birth, and name 
of at least one parent or legal guardian for each child on the trip; 
(4) the name of the chaperone or supervising adult; and (5) the signed 
statement of the supervising adult certifying that he or she has 
obtained parental or legal guardian consent for each child.
    The primary purpose for soliciting the information is to allow 
groups of children arriving at the U.S. border under adult supervision 
with parental consent to present either an original or a copy of a 
birth certificate, (either for U.S. children: a Consular Report of 
Birth Abroad, or Certificate of Naturalization; or for Canadian 
children: a Canadian Citizenship Card or Canadian Naturalization 
Certificate), rather than a passport, when the requested information is 
provided to CBP. This information is necessary for CBP to verify that 
the group of children entering the United States is eligible for this 
alternative procedure so that the children would not be required to 
present a passport or other generally acceptable document.
    The collection of information encompassed within this proposed rule 
has been submitted to the OMB for review in accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not 
conduct, and a person is not required to respond to, a collection of 
information unless the collection of information displays a valid 
control number assigned by OMB.
    Estimated annual reporting and/or recordkeeping burden: 1,625 
hours.
    Estimated average annual respondent or recordkeeping burden: 15 
minutes.
    Estimated number of respondents and/or recordkeepers: 6,500 
respondents.
    Estimated annual frequency of responses: 6,500 responses.
    Comments on this collection of information should be sent to the 
Office of Management and Budget, Attention: Desk Officer of the 
Department of Homeland Security, Office of Information and Regulatory 
Affairs, Washington, DC 20503.

G. Privacy Statement

    A Privacy Impact Assessment (PIA) was posted to the DHS Web site 
(at http://www.dhs.gov/xinfoshare/publications/editorial_0511.shtm) 
regarding the proposed rule. The changes adopted in this final rule 
involve the removal of an exception for U.S. citizens from having to 
present a passport in connection with Western Hemisphere travel other 
than Cuba, such that said individuals would now be required to present 
a passport or other identified alternative document when traveling from 
foreign points of origin both within and without of the Western 
Hemisphere. The rule expands the number of individuals submitting 
passport information for travel within the Western Hemisphere, but does 
not involve the collection of any new data elements. Presently, CBP 
collects and stores passport information from all travelers required to 
provide such information pursuant to the Aviation and Transportation 
Security Act of 2001 (ATSA) and the Enhanced Border Security and Visa 
Reform Act of 2002 (EBSA), in the Treasury Enforcement Communications 
System (TECS) (for which a System of Records Notice is published at 66 
FR 53029). By removing the passport exception for U.S. Citizens 
traveling within the Western Hemisphere, DHS and DOS are requiring 
these individuals to comply with the general requirement to submit 
passport information when traveling to and from the United States.

List of Subjects

8 CFR Part 212

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

8 CFR Part 235

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

22 CFR Part 41

    Aliens, Nonimmigrants, Passports and visas.

22 CFR Part 53

    Passports and visas, travel restrictions.

Amendments to the Regulations

0
For the reasons stated above, DHS and DOS amend 8 CFR parts 212 and 235 
and 22 CFR parts 41 and 53 as set forth below.



Title 8--Aliens and Nationality

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

0
1. The authority citation for part 212 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1223, 1225, 1226, 1227, 1359; 8 U.S.C. 1185 note 
(section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. 
L. 109-295 and by section 723 of Pub. L. 110-53).


0
2. A new Sec.  212.0 is added to read as follows:


Sec.  212.0  Definitions.

    For purposes of Sec.  212.1 and Sec.  235.1 of this chapter:
    Adjacent islands means Bermuda and the islands located in the 
Caribbean Sea, except Cuba.
    Cruise ship means a passenger vessel over 100 gross tons, carrying 
more than 12 passengers for hire, making a voyage lasting more than 24 
hours any part of which is on the high seas, and for which passengers 
are embarked or disembarked in the United States or its territories.
    Ferry means any vessel operating on a pre-determined fixed schedule 
and route, which is being used solely to provide transportation between 
places that are no more than 300 miles apart and which is being used to 
transport passengers, vehicles, and/or railroad cars.
    Pleasure vessel means a vessel that is used exclusively for 
recreational or personal purposes and not to transport passengers or 
property for hire.
    United States means ``United States'' as defined in section 215(c) 
of the

[[Page 18416]]

Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1185(c)).
    U.S. citizen means a United States citizen or a U.S. non-citizen 
national.
    United States qualifying tribal entity means a tribe, band, or 
other group of Native Americans formally recognized by the United 
States Government which agrees to meet WHTI document standards.
* * * * *

0
3. Section 212.1 is amended by:
0
a. Revising paragraphs (a)(1) and (a)(2); and
0
b. Revising paragraph (c)(1).
    The revisions read as follows:


Sec.  212.1  Documentary requirements for nonimmigrants.

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

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
4. The authority citation for part 235 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 
1228, 1365a note, 1379, 1731-32; 8 U.S.C. 1185 note (section 7209 of 
Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295 and by 
section 723 of Pub. L. 110-53).


0
5. Section 235.1 is amended by:
0
a. Revising paragraph (b);
0
b. Revising paragraph (d); and
0
c. Revise paragraph (e).

[[Page 18417]]

    The revised text reads as follows:


Sec.  235.1  Scope of examination.

* * * * *
    (b) U.S. Citizens. A person claiming U.S. citizenship must 
establish that fact to the examining officer's satisfaction and must 
present a U.S. passport or alternative documentation as required by 22 
CFR part 53. If such applicant for admission fails to satisfy the 
examining immigration officer that he or she is a U.S. citizen, he or 
she shall thereafter be inspected as an alien. A U.S. citizen must 
present a valid unexpired U.S. passport book upon entering the United 
States, unless he or she presents one of the following documents:
    (1) Passport Card. A U.S. citizen who possesses a valid unexpired 
United States passport card, as defined in 22 CFR 53.1, may present the 
passport card when entering the United States from contiguous territory 
or adjacent islands at land or sea ports-of-entry.
    (2) Merchant Mariner Document. A U.S. citizen who holds a valid 
Merchant Mariner Document (MMD) issued by the U.S. Coast Guard may 
present an unexpired MMD used in conjunction with official maritime 
business when entering the United States.
    (3) Military Identification. Any U.S. citizen member of the U.S. 
Armed Forces who is in the uniform of, or bears documents identifying 
him or her as a member of, such Armed Forces, and who is coming to or 
departing from the United States under official orders or permit of 
such Armed Forces, may present a military identification card and the 
official orders when entering the United States.
    (4) Trusted Traveler Programs. A U.S. citizen who travels as a 
participant in the NEXUS, FAST, or SENTRI programs may present a valid 
NEXUS program card when using a NEXUS Air kiosk or a valid NEXUS, FAST, 
or SENTRI card at a land or sea port-of-entry prior to entering the 
United States from contiguous territory or adjacent islands. A U.S. 
citizen who enters the United States by pleasure vessel from Canada 
using the remote inspection system may present a NEXUS program card.
    (5) Certain Cruise Ship Passengers. A U.S. citizen traveling 
entirely within the Western Hemisphere is permitted to present a 
government-issued photo identification document in combination with 
either an original or a copy of his or her birth certificate, a 
Consular Report of Birth Abroad issued by the Department of State, or a 
Certificate of Naturalization issued by U.S. Citizenship and 
Immigration Services for entering the United States when the United 
States citizen:
    (i) Boards a cruise ship at a port or place within the United 
States; and,
    (ii) Returns on the return voyage of the same cruise ship to the 
same United States port or place from where he or she originally 
departed.


On such cruises, U.S. Citizens under the age of 16 may present an 
original or a copy of a birth certificate, a Consular Report of Birth 
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship 
and Immigration Services.

    (6) Native American Holders of an American Indian Card. A Native 
American holder of a Form I-872 American Indian Card arriving from 
contiguous territory or adjacent islands may present the Form I-872 
card prior to entering the United States at a land or sea port-of-
entry.
    (7) Native American Holders of Tribal Documents. A U.S. citizen 
holder of a tribal document issued by a United States qualifying tribal 
entity or group of United States qualifying tribal entities, as 
provided in paragraph (e) of this section, who is arriving from 
contiguous territory or adjacent islands may present the tribal 
document prior to entering the United States at a land or sea port-of-
entry.
    (8) Children. A child who is a United States citizen entering the 
United States from contiguous territory at a sea or land ports-of-entry 
may present certain other documents, if the arrival falls under 
subsection (i) or (ii).
    (i) Children Under Age 16. 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 the 
Department of State, or a Certificate of Naturalization issued by U.S. 
Citizenship and Immigration Services when entering the United States 
from contiguous territory at land or sea ports-of-entry.
    (ii) Groups of Children Under Age 19. A U.S. citizen, who is under 
age 19 and is traveling with a public or private school group, 
religious group, social or cultural organization, or team associated 
with a youth sport organization is permitted to present either an 
original or a copy of his or her birth certificate, a Consular Report 
of Birth Abroad issued by the Department of State, or a Certificate of 
Naturalization issued by U.S. Citizenship and Immigration Services when 
arriving from contiguous territory at land or sea ports-of-entry, when 
the group, organization, or team is under the supervision of an adult 
affiliated with the group, organization, or team and when the child has 
parental or legal guardian consent to travel. For purposes of this 
paragraph, an adult is considered to be a person age 19 or older. The 
following requirements will apply:
    (A) The group or organization must provide to CBP upon crossing the 
border, on organizational letterhead:
    (1) The name of the group, organization or team, and the name of 
the supervising adult;
    (2) A list of the children on the trip;
    (3) For each child, the primary address, primary phone number, date 
of birth, place of birth, and name of a parent or legal guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (b)(8)(ii)(A) of this section that he or 
she has obtained for each child the consent of at least one parent or 
legal guardian.
    (C) The inspection procedure described in this paragraph is limited 
to members of the group, organization, or team who are under age 19. 
Other members of the group, organization, or team must comply with 
other applicable document and/or inspection requirements found in this 
part.
* * * * *
    (d) Enhanced Driver's License Projects; alternative requirements. 
Upon the designation by the Secretary of Homeland Security of an 
enhanced driver's license as an acceptable document to denote identity 
and citizenship for purposes of entering the United States, U.S. and 
Canadian citizens may be permitted to present these documents in lieu 
of a passport upon entering or seeking admission to the United States 
according to the terms of the agreements entered between the Secretary 
of Homeland Security and the entity. The Secretary of Homeland Security 
will announce, by publication of a notice in the Federal Register, 
documents designated under this paragraph. A list of the documents 
designated under this paragraph will also be made available to the 
public.
    (e) Native American Tribal Cards; alternative requirements. Upon 
the designation by the Secretary of Homeland Security of a United 
States qualifying tribal entity document as an acceptable document to 
denote identity and citizenship for purposes of entering the United 
States, Native Americans may be permitted to present tribal cards upon 
entering or seeking admission to the United States according to the 
terms of the voluntary agreement entered between the Secretary of 
Homeland Security and the tribe. The Secretary of Homeland Security 
will announce, by publication of a notice in the Federal

[[Page 18418]]

Register, documents designated under this paragraph. A list of the 
documents designated under this paragraph will also be made available 
to the public.
* * * * *



Title 22--Foreign Relations

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

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

0
1. The authority citation for part 41 is revised to read as follows:

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


0
2. A new Sec.  41.0 is added to read as follows:


Sec.  41.0  Definitions.

    For purposes of this part and part 53:
    Adjacent islands means Bermuda and the islands located in the 
Caribbean Sea, except Cuba.
    Cruise ship means a passenger vessel over 100 gross tons, carrying 
more than 12 passengers for hire, making a voyage lasting more than 24 
hours any part of which is on the high seas, and for which passengers 
are embarked or disembarked in the United States or its territories.
    Ferry means any vessel operating on a pre-determined fixed schedule 
and route, which is being used solely to provide transportation between 
places that are no more than 300 miles apart and which is being used to 
transport passengers, vehicles, and/or railroad cars.
    Pleasure vessel means a vessel that is used exclusively for 
recreational or personal purposes and not to transport passengers or 
property for hire.
    United States means ``United States'' as defined in section 215(c) 
of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 
1185(c)).
    U.S. citizen means a United States citizen or a U.S. non-citizen 
national.
    United States qualifying tribal entity means a tribe, band, or 
other group of Native Americans formally recognized by the United 
States Government which agrees to meet WHTI document standards.


Sec.  41.1  [Amended]

0
3. Section 41.1 is amended by removing and reserving paragraph (b).

0
4. Section 41.2 is amended by revising the heading, the introductory 
text, and paragraphs (a), (b), (g)(1) and (g)(2) to read as follows:


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

    Pursuant to the authority of the Secretary of State and the 
Secretary of Homeland Security under the INA, as amended, a passport 
and/or visa is not required for the following categories of 
nonimmigrants:
    (a) Canadian citizens. A visa is not required for an American 
Indian born in Canada having at least 50 percentum of blood of the 
American Indian race. A visa is not required for other Canadian 
citizens except for those who apply for admission in E, K, V, or S 
nonimmigrant classifications as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1. A passport is required for Canadian 
citizens applying for admission to the United States, except when one 
of the following exceptions applies:
    (1) NEXUS Program. A Canadian citizen who is traveling as a 
participant in the NEXUS program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid NEXUS program card 
when using a NEXUS Air kiosk or when entering the United States from 
contiguous territory or adjacent islands at a land or sea port-of-
entry. A Canadian citizen who enters the United States by pleasure 
vessel from Canada under the remote inspection system may present a 
NEXUS program card.
    (2) FAST Program. A Canadian citizen who is traveling as a 
participant in the FAST program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid FAST card at a land 
or sea port-of-entry prior to entering the United States from 
contiguous territory or adjacent islands.
    (3) SENTRI Program. A Canadian citizen who is traveling as a 
participant in the SENTRI program, and who is not otherwise required to 
present a passport and visa as provided in paragraphs (k) and (m) of 
this section and 8 CFR 212.1, may present a valid SENTRI card at a land 
or sea port-of-entry prior to entering the United States from 
contiguous territory or adjacent islands.
    (4) Canadian Indians. If designated by the Secretary of Homeland 
Security, a Canadian citizen holder of an Indian and Northern Affairs 
Canada (``INAC'') card issued by the Canadian Department of Indian 
Affairs and North Development, Director of Land and Trust Services 
(LTS) in conformance with security standards agreed upon by the 
Governments of Canada and the United States, and containing a machine 
readable zone, and who is arriving from Canada, may present the card 
prior to entering the United States at a land port-of-entry.
    (5) Children. A child who is a Canadian citizen who is seeking 
admission to the United States when arriving from contiguous territory 
at a sea or land port-of-entry, may present certain other documents if 
the arrival meets the requirements described in either paragraph (i) or 
(ii) of this section.
    (i) Children Under Age 16. A Canadian citizen who is under the age 
of 16 is permitted to present an original or a copy of his or her birth 
certificate, a Canadian Citizenship Card, or a Canadian Naturalization 
Certificate when arriving in the United States from contiguous 
territory at land or sea ports-of-entry.
    (ii) Groups of Children Under Age 19. A Canadian citizen who is 
under age 19 and who is traveling with a public or private school 
group, religious group, social or cultural organization, or team 
associated with a youth sport organization may present an original or a 
copy of his or her birth certificate, a Canadian Citizenship Card, or a 
Canadian Naturalization Certificate when applying for admission to the 
United States from contiguous territory at all land and sea ports-of-
entry, when the group, organization or team is under the supervision of 
an adult affiliated with the organization and when the child has 
parental or legal guardian consent to travel. For purposes of this 
paragraph, an adult is considered to be a person who is age 19 or 
older. The following requirements will apply:
    (A) The group, organization, or team must provide to CBP upon 
crossing the border, on organizational letterhead:
    (1) The name of the group, organization or team, and the name of 
the supervising adult;
    (2) A trip itinerary, including the stated purpose of the trip, the 
location of the destination, and the length of stay;
    (3) A list of the children on the trip;
    (4) For each child, the primary address, primary phone number, date 
of birth, place of birth, and the name of at least one parent or legal 
guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (a)(5)(ii)(A) of this section

[[Page 18419]]

that he or she has obtained for each child the consent of at least one 
parent or legal guardian.
    (C) The procedure described in this paragraph is limited to members 
of the group, organization, or team that are under age 19. Other 
members of the group, organization, or team must comply with other 
applicable document and/or inspection requirements found in this part 
and 8 CFR parts 212 and 235.
    (6) Enhanced Driver's License Programs. Upon the designation by the 
Secretary of Homeland Security of an enhanced driver's license as an 
acceptable document to denote identity and citizenship for purposes of 
entering the United States, Canadian citizens may be permitted to 
present these documents in lieu of a passport when seeking admission to 
the United States according to the terms of the agreements entered 
between the Secretary of Homeland Security and the entity. The 
Secretary of Homeland Security will announce, by publication of a 
notice in the Federal Register, documents designated under this 
paragraph. A list of the documents designated under this paragraph will 
also be made available to the public.
    (b) Citizens of the British Overseas Territory of Bermuda. A visa 
is not required, except for Citizens of the British Overseas Territory 
of Bermuda who apply for admission in E, K, V, or S nonimmigrant visa 
classification as provided in paragraphs (k) and (m) of this section 
and 8 CFR 212.1. A passport is required for Citizens of the British 
Overseas Territory of Bermuda applying for admission to the United 
States.
* * * * *
    (g) Mexican nationals. (1) A visa and a passport are not required 
of a Mexican national who is applying for admission from Mexico as a 
temporary visitor for business or pleasure at a land port-of-entry, or 
arriving by pleasure vessel or ferry, if the national is in possession 
of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a 
machine-readable biometric identifier, issued by the Department of 
State.
    (2) A visa and a passport are not required of a Mexican national 
who is applying for admission from contiguous territory or adjacent 
islands at a land or sea port-of-entry, if the national is a member of 
the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is 
in possession of a Form I-872 American Indian Card issued by U.S. 
Citizenship and Immigration Services (USCIS).
* * * * *

PART 53--PASSPORT REQUIREMENT AND EXCEPTIONS

0
5. The authority citation for part 53 continues to read as follows:

    Authority: 8 U.S.C. 1185; 8 U.S.C. 1185 note (section 7209 of 
Pub. L. 108-458); E.O. 13323, 69 FR 241 (Dec. 23, 2003).


0
6. Section 53.2 is revised to read as follows:


Sec.  53.2  Exceptions.

    (a) U.S. citizens, as defined in Sec.  41.0 of this chapter, are 
not required to bear U.S. passports when traveling directly between 
parts of the United States as defined in Sec.  51.1 of this chapter.
    (b) A U.S. citizen is not required to bear a valid U.S. passport to 
enter or depart the United States:
    (1) When traveling as a member of the Armed Forces of the United 
States on active duty and when he or she is in the uniform of, or bears 
documents identifying him or her as a member of, such Armed Forces, 
when under official orders or permit of such Armed Forces, and when 
carrying a military identification card; or
    (2) When traveling entirely within the Western Hemisphere on a 
cruise ship, and when the U.S. citizen boards the cruise ship at a port 
or place within the United States and returns on the return voyage of 
the same cruise ship to the same United States port or place from where 
he or she originally departed. That U.S. citizen may present a 
government-issued photo identification document in combination with 
either an original or a copy of his or her birth certificate, a 
Consular Report of Birth Abroad issued by the Department, or a 
Certificate of Naturalization issued by U.S. Citizenship and 
Immigration Services before entering the United States; if the U.S. 
citizen is under the age of 16, he or she may present either an 
original or a copy of his or her birth certificate, a Consular Report 
of Birth Abroad issued by the Department, or a Certificate of 
Naturalization issued by U.S. Citizenship and Immigration Services; or
    (3) When traveling as a U.S. citizen seaman, carrying an unexpired 
Merchant Marine Document (MMD) in conjunction with maritime business. 
The MMD is not sufficient to establish citizenship for purposes of 
issuance of a United States passport under part 51 of this chapter; or
    (4) Trusted Traveler Programs. (i) NEXUS Program. When traveling as 
a participant in the NEXUS program, he or she may present a valid NEXUS 
program card when using a NEXUS Air kiosk or when entering the United 
States from contiguous territory or adjacent islands at a land or sea 
port-of-entry. A U.S. citizen who enters the United States by pleasure 
vessel from Canada under the remote inspection system may also present 
a NEXUS program card;
    (ii) FAST Program. A U.S. citizen who is traveling as a participant 
in the FAST program may present a valid FAST card when entering the 
United States from contiguous territory or adjacent islands at a land 
or sea port-of-entry;
    (iii) SENTRI Program. A U.S. citizen who is traveling as a 
participant in the SENTRI program may present a valid SENTRI card when 
entering the United States from contiguous territory or adjacent 
islands at a land or sea port-of-entry; The NEXUS, FAST, and SENTRI 
cards are not sufficient to establish citizenship for purposes of 
issuance of a U.S. passport under part 51 of this chapter; or
    (5) When arriving at land ports of entry and sea ports of entry 
from contiguous territory or adjacent islands, Native American holders 
of American Indian Cards (Form I-872) issued by U.S. Citizenship and 
Immigration Services (USCIS) may present those cards; or
    (6) When arriving at land or sea ports of entry from contiguous 
territory or adjacent islands, U.S. citizen holders of a tribal 
document issued by a United States qualifying tribal entity or group of 
United States qualifying tribal entities as provided in 8 CFR 235.1(e) 
may present that document. Tribal documents are not sufficient to 
establish citizenship for purposes of issuance of a United States 
passport under part 51 of this chapter; or
    (7) When bearing documents or combinations of documents the 
Secretary of Homeland Security has determined under Section 7209(b) of 
Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote 
identity and citizenship. Such documents are not sufficient to 
establish citizenship for purposes of issuance of a U.S. passport under 
part 51 of this chapter; or
    (8) When the U.S. citizen is employed directly or indirectly on the 
construction, operation, or maintenance of works undertaken in 
accordance with the treaty concluded on February 3, 1944, between the 
United States and Mexico regarding the functions of the International 
Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 
1219, or other related agreements, provided that the U.S. citizen bears 
an official identification card issued by the IBWC and is traveling in 
connection with such employment; or

[[Page 18420]]

    (9) When the Department of State waives, pursuant to EO 13323 of 
December 30, 2003, Section 2, the requirement with respect to the U.S. 
citizen because there is an unforeseen emergency; or
    (10) When the Department of State waives, pursuant to EO 13323 of 
December 30, 2003, Sec 2, the requirement with respect to the U.S. 
citizen for humanitarian or national interest reasons; or
    (11) When the U.S. citizen is a child under the age of 19 arriving 
from contiguous territory in the following circumstances:
    (i) Children Under Age 16. A United States citizen who is under the 
age of 16 is permitted to present either an original or a copy of his 
or her birth certificate, a Consular Report of Birth Abroad, or a 
Certificate of Naturalization issued by U.S. Citizenship and 
Immigration Services when entering the United States from contiguous 
territory at land or sea ports-of-entry; or
    (ii) Groups of Children Under Age 19. A U.S. citizen who is under 
age 19 and who is traveling with a public or private school group, 
religious group, social or cultural organization, or team associated 
with a youth sport organization may present either an original or a 
copy of his or her birth certificate, a Consular Report of Birth 
Abroad, or a Certificate of Naturalization issued by U.S. Citizenship 
and Immigration Services when arriving in the United States from 
contiguous territory at all land or sea ports of entry, when the group, 
organization or team is under the supervision of an adult affiliated 
with the organization and when the child has parental or legal guardian 
consent to travel. For purposes of this paragraph, an adult is 
considered to be a person who is age 19 or older.
    The following requirements will apply:
    (A) The group, organization, or team must provide to CBP upon 
crossing the border on organizational letterhead:
    (1) The name of the group, organization or team, and the name of 
the supervising adult;
    (2) A list of the children on the trip; and
    (3) For each child, the primary address, primary phone number, date 
of birth, place of birth, and the name of at least one parent or legal 
guardian.
    (B) The adult leading the group, organization, or team must 
demonstrate parental or legal guardian consent by certifying in the 
writing submitted in paragraph (b)(11)(ii)(A) of this section that he 
or she has obtained for each child the consent of at least one parent 
or legal guardian.
    (C) The procedure described in this paragraph is limited to members 
of the group, organization, or team who are under age 19. Other members 
of the group, organization, or team must comply with other applicable 
document and/or inspection requirements found in 8 CFR parts 211, 212, 
or 235.

    Dated: March 26, 2008.
Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.

Patrick Kennedy,
Under Secretary of State for Management, Department of State.
[FR Doc. E8-6725 Filed 4-2-08; 8:45 am]
BILLING CODE 9111-14-P




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