Notice of Proposed Rulemaking

Tuesday,
June 26, 2007

Part II

Department of
Homeland Security
8 CFR Parts 212 and 235

Department of State

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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;
Proposed Rule

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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 Portsof-Entry From Within the Western
Hemisphere
U.S. Customs and Border
Protection, Department of Homeland
Security; Bureau of Consular Affairs,
Department of State.
ACTION: Notice of proposed rulemaking.

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AGENCY:

SUMMARY: The Intelligence Reform and
Terrorism Prevention Act of 2004
(IRTPA), as amended, provides that
upon full implementation, U.S. citizens
and certain classes of nonimmigrant
aliens may enter the United States only
with passports or such alternative
documents as the Secretary of
Homeland Security designates as
satisfactorily establishing identity and
citizenship. This notice of proposed
rulemaking (NPRM) is the second phase
of a joint Department of Homeland
Security (DHS) and Department of State
(DOS) plan, known as the Western
Hemisphere Travel Initiative, to
implement these new requirements.
This NPRM proposes the specific
documents that, as early as January
2008, and no sooner than 60 days from
publication of the final rule, U.S.
citizens and nonimmigrant aliens from
Canada, Bermuda, and Mexico will be
required to present when entering the
United States at sea and land ports-ofentry from Western Hemisphere
countries.
DATES: Written comments must be
submitted on or before August 27, 2007.
ADDRESSES: Comments, identified by
docket number USCBP–2007–0061, may
be submitted by one of the following
methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Comments by mail are to be
addressed to U.S. Customs and Border
Protection, Office of International Trade,
Office of Regulations and Rulings,
Border Security Regulations Branch,
1300 Pennsylvania Avenue, NW. (Mint
Annex), Washington, DC 20229.
Submitted comments by mail may be
inspected at the U.S. Customs and

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Border Protection at 799 9th Street,
NW., Washington, DC. To inspect
comments, please call (202) 572–8768 to
arrange for an appointment.
Instructions: All submissions
regarding the proposed rule and
regulatory assessment must include the
agency name and docket number
USCBP–2007–0061. All comments will
be posted without change to http://
www.regulations.gov, including any
personal information sent with each
comment. For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see the ‘‘Public Participation’’ heading
of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to
read background documents or
submitted comments, go to http://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Department of Homeland Security:
Colleen Manaher, WHTI, Office of
Field Operations, U.S. Customs and
Border Protection, 1300 Pennsylvania
Avenue, NW., Washington, DC 20229,
telephone number (202) 344–3003.
Department of State: Consuelo Pachon,
Office of Passport Policy, Planning
and Advisory Services, Bureau of
Consular Affairs, telephone number
(202) 663–2662.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Current Document Requirements for
U.S. Citizens Arriving by Sea or Land
B. Current Document Requirements for
Nonimmigrant Aliens Arriving by Sea or
Land
1. Canadian Citizens and Citizens of the
British Overseas Territory of Bermuda
2. Mexican Nationals
C. Statutory and Regulatory History
1. Intelligence Reform and Terrorism
Prevention Act of 2004
2. Advance Notice of Proposed Rulemaking
3. Rules for Air Travel from within the
Western Hemisphere
4. Amendment to Section 7209 of IRTPA
5. Passport Card NPRM
6. Certifications to Congress
III. Security and Operational Considerations
at the U.S. Border
IV. Proposed WHTI Document Requirements
for U.S. Citizens and Nonimmigrant
Aliens
A. U.S. Citizens Arriving by Sea or Land
1. Passport Book
2. Passport Card
3. Trusted Traveler Program Documents
a. NEXUS Program
b. FAST Program
c. SENTRI Program
4. Merchant Mariner Document (MMD)
5. United States Military Identification
B. Canadian Citizens and Citizens of
Bermuda Arriving by Sea or Land

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1. Canadians
2. Bermudians
C. Mexican Nationals Arriving by Sea or
Land
1. Border Crossing Card (BCC)
2. Trusted Traveler Program Use
3. Elimination of Passport Waiver to Obtain
Documents at Mexican Consulate in
United States
D. Other Approved Documents
E. Timing of Changes and Effective Date for
Final Rule
1. Satisfactory Evidence of Citizenship
2. Implementation and Effective Date of
Final Rule
V. Special Rules for Specific Groups of
Travelers Permitted to Present Other
Documents
A. U.S. Citizen Cruise Ship Passengers
B. U.S. and Canadian Citizen Children
1. Children Under Age 16
2. Children in Groups Under Age 19
3. Alternative Approach for Children;
Parental Consent
C. Lawful Permanent Residents
D. Alien Members of the U.S. Armed
Forces
E. Members of NATO Armed Forces
F. American Indian Card Holders From
Kickapoo Band of Texas and Tribe of
Oklahoma
G. Members of United States Native
American Tribes
1. Proposed Acceptance of Satisfactory
Tribal Enrollment Documents at
Traditional Border Crossing Points for
Tribes Who Continue Traditional Land
Border Crossings
2. Possible Alternative Treatment of United
States Native Americans
H. Canadian Indians
I. Sea Travel From Territories Subject to
the Jurisdiction of the United States
J. Outer Continental Shelf Employees
K. International Boundary and Water
Commission Employees
L. Individual Cases of Passport Waivers
M. Summary of Document Requirements
VI. Section-By-Section Discussion of
Proposed Amendments
VII. Regulatory Analyses
A. Executive Order 12866: Regulatory
Planning and Review
B. Regulatory Flexibility Act
C. Executive Order 13132: Federalism
D. Unfunded Mandates Reform Act
Assessment
E. National Environmental Policy Act of
1969
F. Paperwork Reduction Act
G. Privacy Statement
List of Subjects
Abbreviations and Terms Used in This
Document
ANPRM—Advance Notice of Proposed
Rulemaking
BCC—Form DSP–150, B–1/B–2 Visa and
Border Crossing Card
CBP—U.S. Customs and Border Protection
CBSA—Canadian Border Services Agency
DHS—Department of Homeland Security
DOS—Department of State
FAST—Free and Secure Trade

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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

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I. Public Partication
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of the
proposed rule. DHS and DOS also invite
comments that relate to the economic
effects or the federalism implications
that might result from this proposed
rule. Comments that will provide the
most assistance to DHS and DOS in
developing these procedures will
reference a specific portion of the
proposed rule, explain the reason for
any recommended change, and include
data, information, or authority that
support such recommended change.
This notice includes proposed
regulatory text that represents the initial
preference of DHS and DOS unless
otherwise identified, but the
Departments also seek comment on
proposals and ideas discussed in the
preamble, but not contained in the
regulatory text because the Departments
are interested in comments on these
alternative approaches and may include
these alternatives in the final rule. See
ADDRESSES above for information on
how to submit comments.
II. Background
The current document requirements
for travelers entering the United States
by sea or land generally depend on the
nationality of the traveler and whether
or not the traveler is entering the United
States from a country within the
Western Hemisphere.1 The following is
1 For purposes of this proposed rule, the Western
Hemisphere is understood to be North, South or

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an overview of the current document
requirements for citizens of the United
States, Canada, British Overseas
Territory of Bermuda, and Mexico who
enter the United States at sea or land
ports-of-entry. The requirements
discussed in this section are the subject
of proposed changes under this NPRM.
A. Current Document Requirements for
U.S. Citizens Arriving by Sea or Land
In general, under Federal law it is
‘‘unlawful for any citizen of the United
States to depart from or enter * * * the
United States unless he bears a valid
United States passport.’’ 2 However, the
statutory passport requirement has been
waived in the past for U.S. citizens
traveling between the United States and
locations within the Western
Hemisphere by land or sea, other than
from Cuba.3 Currently, a U.S. citizen
entering the United States by land or sea
from within the Western Hemisphere is
inspected by a Customs and Border
Protection (CBP) Officer. To enter the
United States in conformance with the
Immigration and Nationality Act (INA),
these U.S. citizens must satisfy the CBP
Officer of their citizenship.4 In addition
to assessing the verbal declaration and
examining whatever documentation a
traveler may present initially, the CBP
Officer may ask for additional
identification and proof of citizenship
until such time as the CBP Officer is
satisfied that the traveler seeking entry
into the United States is a U.S. citizen.
U.S. citizens arriving at sea or land
ports-of-entry from within the Western
Hemisphere, other than Cuba, can
currently present to CBP Officers a wide
variety of documents to establish their
right to enter the United States. A
driver’s license issued by a state motor
vehicle administration or other
competent state government authority is
the most common form of identity
document now provided to CBP at the
border even though such documents do
not denote citizenship. Documents
currently used at these ports-of-entry
also include birth certificates issued by
a U.S. jurisdiction, Consular Reports of
Birth Abroad, Certificates of
Naturalization, and Certificates of
Citizenship.
Central America, and associated islands and waters.
Adjacent islands are understood to mean Bermuda
and the islands located in the Caribbean Sea, except
Cuba.
2 See section 215(b) of the Immigration and
Nationality Act (INA), 8 U.S.C. 1185(b).
3 See 22 CFR 53.2(b), which waives the passport
requirement pursuant to section 215(b) of the INA,
8 U.S.C. 1185(b).
4 See 8 CFR 235.1(b).

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B. Current Document Requirements for
Nonimmigrant Aliens Arriving by Sea
or Land
Currently, each nonimmigrant alien
arriving in the United States must
present to the CBP Officer at the portof-entry a valid passport issued by his
or her country of citizenship and a valid
visa issued by a U.S. embassy or
consulate abroad, unless one or both
requirements have been waived.5
Nonimmigrant aliens applying for entry
to the United States must also satisfy
any other applicable entry requirements
(e.g., U.S. Visitor and Immigrant Status
Indicator Technology Program (US–
VISIT)) and overcome all grounds of
inadmissibility before being admitted to
the United States. For nonimmigrant
aliens arriving in the United States at
sea or land ports-of-entry, the only
current waiver to the passport
requirement applies to (1) Citizens of
Canada and Bermuda arriving from
within the Western Hemisphere, and (2)
Mexican nationals with a Border
Crossing Card (BCC) arriving from a
contiguous territory.6
1. Canadian Citizens and Citizens of the
British Overseas Territory of Bermuda
In most cases, Canadian citizens and
citizens of the British Overseas Territory
of Bermuda (Bermuda) are not currently
required to present a passport and visa 7
when entering the United States by sea
or land as nonimmigrant visitors from
countries in the Western Hemisphere.
These travelers must nevertheless
satisfy the inspecting CBP Officer of
their identity, citizenship, and
admissibility at the time of their
application for admission. The
applicant may present any proof of
citizenship in his or her possession. An
individual who initially fails to satisfy
the inspecting CBP Officer that he or she
is a Canadian or Bermudian citizen may
then be required by CBP to provide
further identification and proof of
citizenship such as a birth certificate,
passport, or citizenship card.
2. Mexican Nationals
Mexican nationals arriving in the
United States are generally required to
present a passport and visa when
applying for entry to the United States.
However, Mexican nationals who
5 See section 212(a)(7)(B)(i) of the INA, 8 U.S.C.
1182(a)(7)(B)(i).
6 Mexican nationals arriving in the United States
who possess a Form DSP–150, B–1/B–2 Visa and
Border Crossing Card (BCC) may be admitted
without presenting a valid passport when coming
from contiguous territory. See 8 CFR 212.1(c)(1).
7 See 8 CFR 212.1(a)(1) (Canadian citizens) and 8
CFR 212.1(a)(2) (Citizens of Bermuda). See also 22
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possess a Form DSP–150, B–1/B–2 Visa
and Border Crossing Card (BCC)
currently may be admitted at sea and
land ports-of-entry without presenting a
passport when arriving in the United
States from contiguous territory.8 A BCC
is a machine-readable, biometric card,
issued by the U.S. Department of State,
Bureau of Consular Affairs.
C. Statutory and Regulatory History
This NPRM is the second phase of a
joint DHS and DOS plan, known as the
Western Hemisphere Travel Initiative
(WHTI), to implement section 7209 of
the Intelligence Reform and Terrorism
Prevention Act of 2004, as amended
(hereinafter IRTPA).9 A brief discussion
of IRTPA and related regulatory efforts
follows.

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1. Intelligence Reform and Terrorism
Prevention Act of 2004
Section 7209 of IRTPA requires that
the Secretary of Homeland Security, in
consultation with the Secretary of State,
develop and implement a plan to
require travelers entering the United
States to present a passport, other
document, or combination of
documents, that are ‘‘deemed by the
Secretary of Homeland Security to be
sufficient to denote identity and
citizenship.’’ Section 7209 expressly
provides that U.S. citizens and nationals
for whom documentation requirements
have previously been waived on the
basis of reciprocity under section
212(d)(4)(B) of the INA (8 U.S.C
1182(d)(4)(B)) (i.e., citizens of Canada,
Mexico, and Bermuda) will be required
to comply.10
Section 7209 limits the President’s
authority 11 to waive generally
8 See 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g).
Mexican BCC holders traveling for less than 72
hours within a certain geographic area along the
United States’ border with Mexico: usually up to 25
miles from the border but within 75 miles under the
exception for Tucson, Arizona, do not need to
obtain a form I–94. If they travel outside of that
geographic area and/or period of time, they must
obtain an I–94 from CBP at the port-of-entry. 8 CFR
235.1(h)(1).
9 Pub. L. 108–458, as amended, 118 Stat. 3638
(Dec. 17, 2004).
10 Section 7209 does not apply to Lawful
Permanent Residents, who will continue to be able
to enter the United States upon presentation of a
valid Form I–551, Permanent Resident Card, or
other valid evidence of permanent resident status.
See section 211(b) of the INA, 8 U.S.C. 1181(b). It
also does not apply to alien members of the United
States Armed Forces traveling under official orders
who present military identification. See section 284
of the INA, 8 U.S.C. 1354. Additionally, section
7209 does not apply to nonimmigrant aliens from
anywhere other than Canada, Mexico, or Bermuda.
See section 212(d)(4)(B) of the INA, 8 U.S.C
1182(d)(4)(B). Such nonimmigrant aliens are
currently required to show a passport for admission
into the United States.
11 See section 212(d)(4)(B) of the INA, 8 U.S.C.
1182(d)(4)(B), and section 215(b) of the INA, 8

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applicable documentation requirements
after the complete implementation of
the plan required by IRTPA. With
respect to non-immigrant aliens
currently granted a passport waiver
under section 212(d)(4)(B) of the INA
(i.e., nationals of contiguous territory or
adjacent islands), the President may not
waive the document requirement
imposed by IRTPA. With respect to U.S.
citizens, once WHTI is completely
implemented, the President may waive
the new documentation requirements
for departing or entering the United
States only in three specific
circumstances: (1) When the Secretary
of Homeland Security determines that
‘‘alternative documentation’’ that is the
basis of the waiver is sufficient to
denote identity and citizenship; (2) in
an individual case of an unforeseen
emergency; or (3) in an individual case
based on ‘‘humanitarian or national
interest reasons.’’ 12
Accordingly, U.S. citizens and those
nonimmigrant aliens who currently are
not required to present passports,
pursuant to sections 215(b) and
212(d)(4)(B) of the INA respectively,
will be required to present a passport or
other acceptable document that
establishes identity and citizenship
deemed sufficient by the Secretary of
Homeland Security when entering the
United States from any location,
including from countries within the
Western Hemisphere. The principal
groups affected by this provision of
IRPTA are citizens of the United States,
Canada, and Bermuda entering the
United States from within the Western
Hemisphere and Mexican nationals in
possession of a BCC entering the United
States from contiguous territory.13
2. Advance Notice of Proposed
Rulemaking
On September 1, 2005, DHS and DOS
published in the Federal Register an
advance notice of proposed rulemaking
(ANPRM), at 70 FR 52037, announcing
a joint DHS and DOS plan to amend
their respective regulations to
implement section 7209 of IRTPA. The
ANPRM announced that DHS and DOS
anticipated implementing the
documentation requirements of section
7209 in two stages. The first stage would
have affected those travelers entering
U.S.C. 1185(b) (delegated to the Secretaries of State
and Homeland Security under Executive Order
13323, 69 FR 241 (Dec. 30, 2003)).
12 See section 7209(c)(2) of IRTPA.
13 These groups of individuals are currently
exempt from the general passport requirement
when entering the United States. See 8 CFR
212.1(a)(1) (Canadian citizens), 8 CFR 212.1(c)(1)(i)
(Mexican citizens), and 8 CFR 212.1(a)(2)
(Bermudian citizens).

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the United States by air and sea from
within the Western Hemisphere and the
second stage would have addressed
travelers arriving by land. The two-stage
approach was intended to ensure an
orderly transition, provide affected
persons with adequate notice to obtain
necessary documents, and ensure that
adequate resources were available to
issue additional passports or other
authorized documents.
In the ANPRM, DHS and DOS sought
public comment to assist the Secretary
of Homeland Security to make a final
determination of which documents or
combination of documents other than
passports would be accepted at ports-ofentry to satisfy section 7209. DHS and
DOS also solicited public comments
regarding the economic impact of
implementing section 7209, the costs
anticipated to be incurred by U.S.
citizens and others as a result of new
document requirements, potential
benefits of the rulemaking, alternative
methods of complying with the
legislation, and the proposed stages for
implementation. In addition to receiving
written comments, DHS and DOS
representatives attended listening
sessions and town hall meetings across
the country and met with community
leaders and stakeholders to discuss the
initiative.
DHS and DOS received 2,062 written
comments in response to the ANPRM.
Comments were received from a wide
range of U.S. and Canadian sources
including: Private citizens; businesses
and associations; local, State, Federal,
and tribal governments; and members of
the U.S. Congress and Canadian
Parliament. The majority of the
comments (1,910) addressed potential
changes to the documentation
requirements at land border ports-ofentry. One hundred and fifty-two (152)
comments addressed changes to the
documentation requirements for persons
arriving at air or sea ports-of-entry. The
comments related to air travel were
addressed separately in the air final
rule, which is discussed below.14
Complete responses to the comments
from the ANPRM related to sea and land
arrivals will be presented in the final
WHTI sea and land rule.
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
14 See

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Mexico, entering the United States by
air and sea would be required to present
a valid passport, NEXUS Air card, or
Merchant Mariner Document (MMD).
The NPRM provided that the
requirements would not apply to
members of the United States Armed
Forces. For a detailed discussion of
what was proposed for air and sea
arrivals, please see the NPRM at 71 FR
41655.
Based on the DOS proposal to allow
use of a passport card in the sea
environment discussed below,
Congressional intent with respect to
land and sea travel also discussed
below, and the public comments, DHS
and DOS deferred until this rulemaking
decision on the document requirements
for arrivals by sea. Complete responses
to the comments relating to sea travel
that were submitted in response to the
air and sea NPRM will be presented in
the final sea and land rule.
The final rule for travelers entering or
departing the United States at air portsof-entry (Air Rule) was published in the
Federal Register on November 24, 2006.
Beginning January 23, 2007,15 U.S.
citizens and nonimmigrant aliens from
Canada, Bermuda, and Mexico entering
and departing the United States at air
ports-of-entry from within the Western
Hemisphere are generally required to
present a valid passport. The main
exceptions to this requirement are for
U.S. citizens who present a valid,
unexpired Merchant Mariner Document
traveling in conjunction with maritime
business and U.S. and Canadian citizens
who present a NEXUS Air card for use
at a NEXUS Air kiosk.16 The Air Rule
made no changes to the requirements for
members of the United States Armed
Forces. Please see the Air Rule at 71 FR
68412 for a full discussion of the air
requirements.

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4. Amendment to Section 7209 of
IRTPA
On October 4, 2006, the President
signed into law the Department of
Homeland Security Appropriations Act
of 2007 (DHS Appropriations Act of
2007).17 Section 546 of the DHS
Appropriations Act of 2007 amended
section 7209 of IRTPA by stressing the
need for DHS and DOS to expeditiously
implement the WHTI requirements no
15 DHS and DOS determined that delaying the
effective date of the Air Rule to January 23, 2007,
was appropriate for air travel because of operational
considerations and available resources. See id.
16 Under the Air Rule, Lawful Permanent
Residents of the United States continue to need to
carry their I–551 cards, and permanent residents of
Canada continue to be required to present a
passport and a visa, if necessary, as they did before
the rule came into effect.
17 Pub. L. 109–295, 120 Stat. 1355 (Oct. 4, 2006).

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later than the earlier of two dates, June
1, 2009, or three months after the
Secretaries of Homeland Security and
State certify that certain criteria have
been met. The section requires
‘‘expeditious[]’’ action and states that
requirements must be satisfied by the
‘‘earlier’’ of the dates identified. By
using this language, the drafters
expressed an intention for rapid
action.18 Congress also expressed an
interest in having the requirements for
sea and land implemented at the same
time and having alternative procedures
for groups of children traveling under
adult supervision.19
5. Passport Card NPRM
On October 17, 2006, to meet the
documentary requirements of WHTI and
to facilitate the frequent travel of
persons living in border communities,
DOS, in consultation with DHS,
proposed to develop a card-format
passport for international travel by
United States citizens through land and
sea ports of entry between the United
States, Canada, Mexico, or the
Caribbean and Bermuda.20
The passport card would contain
security features similar to the
traditional passport book. The passport
card would be particularly useful for
citizens in border communities who
regularly cross the border and would be
considerably less expensive than a
traditional passport. DOS anticipates the
validity period for the passport card to
be the same as for the traditional
passport—ten years for adults and five
years for minors under age 16. Please
see the Passport Card NPRM at 71 FR
60298, for a full discussion of the
background and details of the proposed
passport card. DOS will issue a final
rule prior to making passport cards
available to the public.
6. Certifications to Congress
In Section 546 of the DHS
Appropriations Act of 2007, Congress
called for DHS and DOS to make certain
certifications before completing the
implementation of the WHTI plan. The
Departments have been working toward
making these certifications since
October 2006 and have made great
progress in meeting them. The
Departments are instructed to certify to:
1. NIST Certification. National
Institute of Standards and Technology
(‘‘NIST’’) certification concerning
security standards and best practices for
18 Id. at 546. See Congressional Record, 109th
Cong., 2nd Sess., September 29, 2006 at H7964.
19 Id.
20 71 FR 60928.

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protection of personal identification
documents.
On May 1, 2007, NIST certified that
the proposed card architecture of the
passport card meets or exceeds the
relevant standard and best practices, as
specified in the statute.
2. Technology Sharing. Certify that
passport card technology has been
shared with Canada and Mexico.
DHS and DOS have been sharing
information and meeting regularly with
both Mexican and Canadian officials,
including the decision to select RFID
technology for the passport card.
3. Postal Service Fee Agreement.
Certify that an agreement has been
reached and reported to Congress on the
fee collected by the U.S. Postal Service
for acceptance agent services.
DOS is working with the Postal
Service to memorialize their agreement
including the proposed new fees to be
set by DOS so that the appropriate
certification can be made and the
detailed justification submitted.
4. Groups of Children. Certify that an
alternative procedure has been
developed for border crossings by
groups of children.
This NPRM contains an alternative
procedure for groups of children
traveling across an international border
under adult supervision with parental
consent.
5. Infrastructure. Certify that the
necessary passport card infrastructure
has been installed and employees have
been trained.
DHS anticipates using existing
equipment along with the deployment
of new technology. CBP has technology
currently in place at all ports-of-entry to
read any travel document with a
machine-readable zone, including
passports and the new passport card.
All CBP Officers at ports-of-entry are
currently trained in the use of this
technology. Depending upon the results
of our environmental analysis, CBP will
deploy an integrated RFID technical
infrastructure to support advanced
identity verification in incremental
deployment phases. RFID technology
training plans and requirements are
currently being developed with initial
training to be completed by November
2007.
6. Passport Card Issuance. Certify that
the passport card is available to U.S.
citizens.
DOS has developed an ambitious and
aggressive schedule to develop the
passport card and is making progress
toward that goal. The Request for
Procurement (RFP) to potential
contractors was issued on May 25, 2007.
DOS expects to begin testing product
samples in the summer. In accordance

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with testing requirements established in
the certification by NIST, DOS will
conduct the full range of security,
durability and privacy tests on the
passport card and protective sleeve to
ensure that a high-quality, secure card is
issued to the American public. DOS is
planning to issue a final rule in the near
future.
7. Common Land and Sea
Implementation. Certify to one
implementation date.
This NPRM sets forth one
implementation date for land and sea
travel.
The Departments have worked very
closely to update the appropriate
congressional committees on the status
of these certifications and will continue
to do so until final certifications are
made. DOS and DHS believe that these
certifications will be made well in
advance of the June 1, 2009 deadline for
implementation.
DOS and DHS are planning to
conduct a robust public outreach
program to the traveling public, which
will include a more targeted effort in
border communities.
We anticipate that RFID infrastructure
will be rolled out to cover the top 39
ports-of-entry (in terms of number of
travelers) through which 95 percent of
the land traffic enters the United States.
The remaining land and all sea ports-ofentry would utilize existing machinereadable zone technology to read the
travel documents. Machine-readable
zone technology is currently in place in
all air, sea, and land ports-of-entry.
III. Security and Operational
Considerations at the U.S. Border
WHTI will reduce vulnerabilities
identified in the final report of the
National Commission on Terrorist
Attacks Upon the United States, also
known as the 9/11 Commission. WHTI
is intended not only to enhance security
efforts at the borders, but is also
intended to expedite the movement of
legitimate travel within the Western
Hemisphere.
The land border, in particular,
presents complex operational
challenges, in that a tremendous amount
of traffic must be processed in a short
amount of time. For example, there are
often several passengers in a vehicle,
and multiple vehicles arriving at one
time at each land border port-of-entry.
Many of the people encountered
crossing at the land border ports-ofentry are repeat crossers, who travel
back and forth across the border
numerous times a day.
The historical absence of standard
travel document requirements for the
travel of Canadian and U.S. citizens

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across our northern and southern
borders has resulted in the current
situation, where a multiplicity of
documents can be presented at ports-ofentry by Canadian and U.S. travelers. As
a result, those individuals who seek to
enter the United States or Canada
illegally or who pose a potential threat
could falsely declare themselves as U.S.
or Canadian citizens. They can do this
through several methods: presenting
fraudulent documents that cannot be
validated; presenting facially valid
documentation that cannot be validated
against the identity of the holder 21;
assuming the identity of the legitimate
authentic document holder; or
undocumented false claims. These same
vulnerabilities exist for individuals
purporting to be U.S. citizens crossing
back and forth across the southern
border with Mexico.
U.S. travel document requirements for
Mexican nationals already addressed
most of these vulnerabilities prior to the
passage of the IRTPA. Generally,
Mexican nationals are required to
present either a Mexican passport with
a visa or a biometric BCC 22 when
entering the United States. Mexican
nationals can also apply for membership
in DHS Trusted Traveler Programs such
as FAST and SENTRI.23
The current documents presented by
U.S., Canadian, and Bermudian citizens
arriving from within the Western
Hemisphere vary widely in terms of the
security and reliability as evidence of
identity, status, and nationality. This
variety poses challenges for accurate
identity and admissibility
determinations by border officials and
has been identified as a security
vulnerability for cross-border travel
between these countries. It is recognized
that national passports of Canada,
Mexico, Bermuda (whether Bermudian
or British passports) and the United
States do currently, and will continue
to, provide reliable evidence of identity
and nationality for the purposes of
cross-border travel.
Standardizing documentation
requirements for travelers entering the
21 This refers to individuals who obtain valid
documents through malfeasance. In such cases, the
individual uses fraudulently obtained source/feeder
documents to impersonate the U.S. or Canadian
citizen in order to obtain the new document (i.e.,
identity theft).
22 Development of the biometric BCC was a joint
effort of DOS and U.S. Citizenship and Immigration
Services (USCIS) to comply with Section 104 of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRIA) Pub. L. 104–
208, Div. C, 110 Stat. 3009–546.
23 Additionally, Mexican nationals who
temporarily reside lawfully in Canada or the United
States during the term of the NEXUS membership
and pass an Interpol criminal history check may
also be eligible to participate in NEXUS.

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United States in the land border
environment would enhance our
national security and secure and
facilitate the entry process into the
United States. Limiting the number of
acceptable, secure documents would
allow border security officials to
quickly, efficiently, accurately, and
reliably review documentation, identify
persons of concern to national security,
and determine eligibility for entry of
legitimate travelers without disrupting
the critically important movement of
people and goods across our land
borders. Standardizing travel documents
for citizens of the United States, Canada,
Bermuda, and Mexico entering the
United States in the land border
environment would also reduce
confusion for the travel industry and
make the entry process more efficient
for CBP officers and the public alike.
Originally, DHS and DOS proposed to
implement new documentation
requirements for those travelers by air
and most sea travel in the first phase of
the WHTI plan. However, for the
reasons described above, the
Departments decided to delay new
requirements for sea travel until the
passport card would be available for use
in the sea environment. The
Departments also believed it would be
less confusing to the public if sea and
land requirements, both of which would
accept the passport card, were
implemented at the same time. Thus,
documentation requirements for sea
travelers were deferred to this
rulemaking.24
IV. Proposed WHTI Document
Requirements for U.S. Citizens and
Nonimmigrant Aliens
This NPRM proposes new
documentation requirements for U.S.
citizens and nonimmigrant aliens from
Canada, Bermuda, and Mexico entering
the United States by land from Canada
and Mexico, or by sea 25 from within the
Western Hemisphere. A discussion of
the proposed requirements for most U.S.
citizens, Canadians, Bermudians, and
Mexican nationals follows in Section IV.
In Section V., we explain the special
circumstances under which specific
groups or persons may present other
documents for entry into the United
States by sea or land, such as U.S. and
Canadian citizen children and U.S.
citizens traveling on cruise ships.
24 Please see the Air Rule for a full discussion of
the reasons that the sea regulations were deferred,
at 71 FR 68412.
25 In some circumstances under this rule, it is
important to distinguish between types of sea
travel. Those circumstances are so noted in the
discussion of the proposed requirements.

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A. U.S. Citizens Arriving by Sea or
Land
Under this proposed rule, most U.S.
citizens entering the United States at all
sea or land ports-of-entry would be
required to have either (1) A U.S.
passport; (2) a U.S. passport card; (3) a
trusted traveler card (NEXUS, FAST, or
SENTRI); 26 (4) a valid MMD when
traveling in conjunction with official
maritime business; or (5) a valid U.S.
Military identification card when
traveling on official orders or permit.
1. Passport Book
U.S. passports are internationally
recognized, secure documents that
demonstrate the individual’s identity
and citizenship and continue to be
specifically authorized for all bordercrossing purposes. Traditional U.S.
passport books contain security features
including digitized photographs,
embossed seals, watermarks, ultraviolet
and fluorescent light verification
features, security laminations, microprinting, holograms, and pages for visas
and stamps.
U.S. electronic passports or
e-passports, which DOS has issued to
the public since August 2006, are the
same as traditional passports with the
addition of a small contactless
integrated circuit (computer chip)
embedded in the back cover. The chip
securely stores the same data visually
displayed on the photo page of the
passport, and will additionally include
a digital photograph. The inclusion of
the digital photograph will enable
biometric comparison, through the use
of facial recognition technology at
international borders. The U.S.
‘‘e-passport’’ incorporates additional
anti-fraud and security features.27

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2. Passport Card
DOS published an NPRM announcing
the development and issuance of a cardformat passport on October 17, 2006 (71
FR 60928), which would be a secure
citizenship and identity document that
carries most of the rights and privileges
of a traditional U.S. passport, but with
validity limited to international travel
by land and sea between the United
States and Canada, Mexico, the
Caribbean or Bermuda.
The passport card would contain
security features similar to the passport
book, would be issued by DOS, would
contain biographical information about
26 Currently, U.S. citizens can show a NEXUS,
SENTRI, or FAST card for entry into the United
States only at dedicated lanes at designated land
border ports-of-entry.
27 More information about e-passports is available
at http://www.state.gov. See also, 70 FR 61553 (Oct.
25, 2005)(final rule for e-passports).

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the holder, and would be readily
authenticated and validated at the
border. The passport card will contain
a radio frequency identification (RFID)
chip, which will link the card, via a
manufacturer-generated reference
number, to a stored record in secure
government databases. Unlike the
e-passport, which contains personal
data on the RFID chip, there will be no
personal information stored on the
passport card’s RFID chip. The passport
card would be particularly useful for
citizens in border communities who
cross the land border every day. The
passport card would satisfy the
definition of a passport, and, therefore,
it would be specifically authorized in
section 7209 of IRTPA.
3. Trusted Traveler Program Documents
Under the proposed rule, U.S. citizens
would be permitted to present cards
issued for certain DHS Trusted Traveler
Programs, such as NEXUS, Free and
Secure Trade (FAST), and Secure
Electronic Network for Travelers Rapid
Inspection (SENTRI), at all lanes at all
land and sea ports-of-entry when
traveling from contiguous territory or
adjacent islands.
These trusted traveler cards contain
numerous security features, are issued
by either U.S. or Canadian border
security agencies, contain biographical
information about the holder, and are
readily authenticated and validated at
the border. These programs are
implemented in partnership with the
Governments of Canada and Mexico,
and many citizens of these countries
participate in the programs.
Under the proposed rule, U.S. citizens
who arrive by pleasure vessel 28 from
contiguous territory would be permitted
to show the trusted traveler cards,
among other documents, at all ports of
entry. Additionally, U.S. citizens who
have been pre-screened as part of the
NEXUS or Canadian Border Boat
Landing Program who arrive by pleasure
vessel from Canada would be permitted
to report their arrival by telephone or by
remote video inspection, respectively.
U.S. citizens who arrive by pleasure
vessel from Canada would be permitted
to show the NEXUS card in lieu of a
passport or passport card along the
northern border under the auspices of
the remote inspection system for
pleasure vessels, such as the Outlying
Area Reporting System (OARS).
Currently, as NEXUS members, U.S.
citizen recreational boaters can report
28 For purposes of this rule, a pleasure vessel is
a vessel that is used exclusively for recreational or
personal purposes and not to transport passengers
or property for hire.

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their arrival to CBP by telephone.
Otherwise, these pleasure vessel
travelers would be required to report in
person to a port-of-entry in order to
enter the United States.29
a. NEXUS Program
The NEXUS program is implemented
by CBP and the Canadian Border
Services Agency (CBSA), pursuant to
the Shared Border Accord and Smart
Border Declaration between the United
States and Canada.30 NEXUS
streamlines border inspection for prescreened, low-risk travelers by utilizing
one application form, a joint enrollment
process, bi-national security screening,
and one card for expedited entry to both
Canada and the United States for air,
land and sea travel.31
Applicants for NEXUS complete a
joint U.S./Canada NEXUS Application.
The application is then reviewed by
both CBP and the CBSA. Once approved
by both countries, the applicant reports
to a joint CBP/CBSA enrollment center
where the applicant is interviewed and
fingerprinted by CBP and CBSA.
Applicants who are deemed low-risk
and are approved for the program are
then issued a NEXUS Identification
Card.
b. FAST Program
The Free and Secure Trade (FAST)
program is designed to enhance the
security and safety along both the
northern and southern land borders of
the United States, while also enhancing
the economic prosperity of the United
States, Canada, and Mexico, by
coordinating, to the maximum extent
possible, their customs commercial
programs. The program accomplishes
this by allowing member commercial
29 See 8 CFR 235.1(g). U.S. citizen holders of a
Canadian Border Boat Landing Permit (Form I–68)
would be required to possess a passport, passport
card, or other document specified in this NPRM
when arriving in the United States in combination
with the Form I–68 and would be required to show
this documentation when applying for or renewing
the Form I–68. Participants would continue to
benefit from entering the United States from time
to time without having to wait for a physical
inspection, subject to the applicable regulations.
More information on the Canadian Border Boat
Landing Program (I–68 Permit Program) is available
on the CBP Web site at http://www.cbp.gov.
30 On December 14, 2006, CBP announced that
the NEXUS air, highway, and marine modes had
been integrated into one program. This integration
means that there will be one application form and
fee to participate in all three modes of the NEXUS
program. CBP also announced that NEXUS would
expand the number of processing locations at
Canadian airports in 2007. More information on the
NEXUS program is available on the CBP Web site
at http://www.cbp.gov.
31 Lawful Permanent Residents of the United
States would continue to be required to carry I–551
Permanent Resident cards while they are traveling
under the NEXUS program.

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drivers to cross the border with
expedited customs and immigration
processing and to transport eligible
goods for FAST approved carriers along
the northern and southern borders.
Commercial drivers applying for the
FAST program on the northern border
complete a U.S./Canada FAST
Commercial Driver Application and
send it to the FAST Application
Processing Center in Canada. The
application is then reviewed by both
CBP and CBSA. Once approved by both
countries, the applicant reports to a
joint CBP/CBSA enrollment center
where he or she is interviewed by CBP
and CBSA.
During the application process, a U.S.
applicant’s ten fingerprints are taken
and submitted to the FBI for a records
check; 32 identification and immigration
documents are checked for validity; and
a digital photograph is taken.
Applicants who are deemed low-risk
and are approved for the program are
then issued a FAST Commercial Driver
Identification Card (FAST Card). Drivers
applying for the FAST program on the
southern border enroll in a similar
process where the card applications are
reviewed and cards are issued by CBP.
c. SENTRI Program
SENTRI currently streamlines border
inspection for pre-approved low-risk
travelers for expedited entry into the
United States for land travel along the
southern border, similar to NEXUS and
FAST.33 To enroll in SENTRI a
participant must provide acceptable
proof of citizenship or permanent
resident status in the United States. U.S.
citizens and Lawful Permanent
Residents must provide an original birth
certificate with government-issued
photo identification, a valid passport, or
a certificate of naturalization.
4. Merchant Mariner Document (MMD)

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Currently, a Merchant Mariner
Document (MMD) is accepted for U.S.
citizen Merchant Mariners in lieu of a
passport.34 U.S. citizen Merchant
Mariners must provide proof of their
U.S. citizenship and undergo an
application process that includes a
fingerprint background check submitted
to the FBI, a National Driver Register
check, and a drug test from an
authorized official that administers a
32 For Canadian applicants, fingerprints are
submitted to Canadian authorities for a records
check.
33 Enrollment in the program is available to
Mexican nationals, United States citizens or lawful
permanent residents, and a national of any other
country who demonstrates a need to use the
program.
34 See 22 CFR 53.2(c).

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drug testing program in order to obtain
an MMD.
The Air Rule provides that an MMD
used by U.S. citizens in conjunction
with maritime business is sufficient to
denote identity and citizenship when
presented upon arrival at an air port-ofentry.
Under this proposed rule, DHS and
DOS propose that U.S. citizen Merchant
Mariners may present a valid MMD
when arriving in the United States at sea
or land ports-of-entry when traveling in
conjunction with official maritime
business. It should be noted that the
U.S. Coast Guard has proposed to phaseout the MMD over the next five years
and streamline all existing Merchant
Mariner credentials.35 DHS and DOS
propose to accept the MMD as long as
it is an unexpired document.36
United States citizen Merchant
Mariners serving on U.S. flag vessels are
eligible for no-fee U.S. passports upon
presentation of a letter from the
employer and an MMD, in addition to
the standard evidence of citizenship and
identity.
5. U.S. Military Identification Card
Citizens of the United States currently
are not required to possess a valid
passport to enter or depart the United
States when traveling as a member of
the Armed Forces of the United States
on active duty under 22 CFR 53.2(d).
Because the military identification card
is issued to U.S. citizens of the Armed
Forces and because U.S. citizen
members of the U.S. military traveling
under military orders are, without
exception, entitled to be admitted to the
United States, the Secretary of
Homeland Security proposes to
determine that a military identification
card when traveling under official
orders or permit of the U.S. Armed
Forces would be an acceptable form of
alternative documentation when
presented upon arrival at air, sea, and
land ports-of-entry.
Allowing members of the U.S. Armed
Forces to cross the U.S. borders without
the need to present a passport is
necessary to meet the operational
requirements of the Armed Forces. In
fact, pursuant to Section 284 of the
INA,37 alien members of the U.S. Armed
35 See 71 FR 29462 (May 22, 2006) and 72 FR
3605 (Jan. 25, 2007).
36 On April 24, 2007, the U.S. Coast Guard
published an interim final rule amending Coast
Guard regulations to allow for the issuance of
MMDs to certain non-resident aliens for service in
the stewards departments of U.S.-flag large
passenger vessels endorsed for coastwise trade. See
72 FR 20278. However, only U.S. citizens may use
the MMD in lieu of a passport under this proposed
rule.
37 See 8 U.S.C. 1354.

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Forces entering under official orders
and presenting military identification
specifically are not required to present
a passport and visa.38 Imposing a
passport requirement on U.S. citizens
who are members of the U.S. Armed
Forces when there is no such
requirement for alien members, would
not be a desired result of the WHTI
rulemaking.
Travel document requirements for
spouses and dependents of U.S. citizen
members of the U.S. Armed Forces, as
well as Department of Defense
contractors and civilian employees, will
be subject to the same document
requirements applicable to other arrivals
at sea and land ports-of-entry otherwise
specified in this NPRM.
B. Canadian Citizens and Citizens of
Bermuda Arriving by Sea or Land
1. Canadians
Canadian citizens entering the United
States at sea and land ports-of-entry
would be required to present, in
addition to any applicable visa
requirements: 39
1. A passport issued by the
Government of Canada; 40
2. A valid trusted traveler program
card issued by CBSA or DHS as
discussed above in Section III.C.1.c, e.g.,
FAST, NEXUS, or SENTRI 41; or
3. Alternative Canadian citizenship
and identity documents hereafter
proposed by Canada and accepted by
DHS and DOS.
Additionally, Canadian citizens in the
NEXUS program who arrive by pleasure
vessel from Canada would be permitted
to present a NEXUS membership card in
lieu of a passport along the northern
border under the auspices of the remote
inspection system for pleasure vessels,
such as the Outlying Area Reporting
System (OARS).42 Currently, as NEXUS
members, Canadian recreational boaters
38 See

8 CFR 235.1(c).
8 CFR 212.1(h), (l), and (m) and 22 CFR
41.2(k) and (m).
40 Foreign passports remain an acceptable border
crossing document under section 7209 of the
IRTPA.
41 Canadian citizens who demonstrate a need may
enroll in the SENTRI program and currently may
use the SENTRI card in lieu of a passport. To enroll
in SENTRI, a Canadian participant must present a
valid passport and a valid visa, if required, when
applying for SENTRI membership. Other foreign
participants in the SENTRI program must present
a valid passport and a valid visa, if required, when
seeking admission to the United States, in addition
to the SENTRI card. This proposed rule does not
alter the passport and visa requirements for other
foreign enrollees in SENTRI (i.e., other than
Canadian foreign enrollees). Currently, Canadian
citizens can show a SENTRI, NEXUS, or FAST card
for entry into the United States only at designated
lanes at designated land border ports-of-entry.
42 Permanent residents of Canada must also carry
a valid passport and valid visa, if required.
39 See

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can report their arrival to CBP by
telephone.43 Otherwise, these pleasure
vessel travelers would be required to
report in person to a port-of-entry in
order to enter the United States.44
Both DHS and DOS have engaged
with the Government of Canada and
various provinces in discussions of
alternative documents that could be
considered for border crossing use at
land and sea ports of entry under this
rule. For instance, one Canadian office,
Indians and Northern Affairs Canada, is
in the process of issuing a card to
registered Indians. This alternative
document and any other alternative
identity and citizenship document
issued by the Government of Canada
will be considered, as appropriate, in
the course of this rulemaking. While we
are not in a position to propose a
complete list of alternative Canadian
documents we will continue to engage
in discussions of alternatives and
welcome comments suggesting
alternative Canadian documents.
In fact, various Canadian provinces
have indicated their interest or intention
in pursuing pilots of enhanced driver’s
licenses similar to the Washington State
and DHS pilot (described below).
Because documents accepted for border
crossing under WHTI must denote
citizenship, the participation of the
Government of Canada in
determinations of citizenship on behalf
of its citizens, and recognition of this
determination, is a strong consideration
by the United States in the acceptance
of documents by Canadian citizens.
Therefore, at this time, DHS and DOS
are not proposing to accept documents
from Canadian citizens other than those
described above. We will, however,
consider other documents, as described
above and in Section IV.D., as
appropriate.
2. Bermudians

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Under this proposed rule, all
Bermudian citizens would be required
to present a passport issued by the
Government of Bermuda or the United
Kingdom when seeking admission to the
United States at all sea or land ports-ofentry, including travel from within the
Western Hemisphere.
43 Remote pleasure vessel inspection locations are
only located on the northern border.
44 See 8 CFR 235.1(g). Canadian holders of a
Canadian Border Boat Landing Permit (Form I–68)
would be required to possess a passport, passport
card, or other document specified in this NPRM
when arriving in the United States in combination
with the Form I–68 and would be required to show
this documentation when applying for or renewing
the Form I–68.

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C. Mexican Nationals Arriving by Sea or
Land
Under this proposed rule, all Mexican
nationals would be required to present
either (1) A passport issued by the
Government of Mexico and a visa when
seeking admission to the United States,
or (2) a valid Form DSP–150, B–1/B–2
laser visa Border Crossing Card (BCC)
when seeking admission to the United
States at land ports-of-entry or arriving
by pleasure vessel or by ferry from
Mexico.
For purposes of this rule, a pleasure
vessel is defined as a vessel that is used
exclusively for recreational or personal
purposes and not to transport
passengers or property for hire. A ferry
is defined as any vessel: (1) Operating
on a pre-determined fixed schedule; (2)
providing transportation only between
places that are no more than 300 miles
apart; and (3) transporting passengers,
vehicles, and/or railroad cars. We note
that ferries are subject to land bordertype entry processing on arrival from, or
departure to, a foreign port or place.
Arrivals aboard all vessels other than
ferries and pleasure vessels would be
treated as sea arrivals.45
1. Border Crossing Card (BCC)
DOS issues BCCs to Mexican
nationals who come to the United States
on a regular basis. Since 1998, every
new BCC contains a biometric identifier,
such as a fingerprint, and a machinereadable zone (MRZ). In order to obtain
a new BCC, a Mexican traveler must
have a passport. Because the BCC is a
B–1/B–2 visa, the State Department
issuance process is nearly identical to
that of other visas, with the attendant
background checks and interviews
necessary for security purposes.
Mexican nationals who hold a BCC
will be allowed to use their BCC for
entry at the land border and when
arriving by ferry or pleasure vessel in
lieu of a passport for travel within 25
miles of the border with Mexico (75
miles for the Tucson, Arizona region)
and no longer than a 30-day stay in the
United States. For travel outside of these
geographical limits or a stay over 30
days, under the proposed rule, Mexican
45 For example, commercial vessels would be
treated as arrivals at sea ports-of-entry. A
commercial vessel is any civilian vessel being used
to transport persons or property for compensation
or hire to or from any port or place. A charter vessel
that is leased or contracted to transport persons or
property for compensation or hire to or from any
port or place would be considered an arrival by sea
under this rule. Arrivals by travelers on fishing
vessels, research or seismic vessels, other servicetype vessels (such as salvage, cable layers, etc.), or
humanitarian service vessels (such as rescue vessels
or hospital ships) would all be considered as
arrivals by sea.

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nationals possessing a BCC would also
be required to obtain a Form I–94 from
CBP at the POE, as is currently the
practice.46 The BCC would not be
permitted in lieu of a passport for
commercial or other sea arrivals in the
United States.
2. Trusted Traveler Program Use
We propose continuing the current
practice that Mexican nationals may not
use the FAST or SENTRI card in lieu of
a passport or BCC. These participants,
however, would continue to benefit
from expedited border processing.
Mexican nationals applying for the
FAST program on the southern border
and applying for the SENTRI program
must present a valid passport and valid
visa or valid laser visa/BCC when
applying to CBP for membership. CBP
then reviews the applications and issues
the cards.
3. Elimination of Passport Waiver to
Obtain Documents at Mexican
Consulate in United States
Mexican nationals who enter the
United States from Mexico solely to
apply for a Mexican passport or other
‘‘official Mexican document’’ at a
Mexican consulate in the United States
located directly adjacent to a land portof-entry currently are not required to
present a valid passport. This type of
entry generally occurs at land borders.47
There is no basis under section 7209, as
amended, to exempt Mexican nationals
coming to the United States to apply for
a passport from the general
requirements of WHTI. This proposed
rule would eliminate this exception to
the passport requirement for Mexican
nationals. Under the proposed rule, all
Mexican nationals will be required to
have a passport with a visa or a BCC to
enter the United States.
D. Other Approved Documents
DHS and DOS remain committed to
considering travel documents developed
by the various U.S. States and the
Governments of Canada and Mexico in
the future that would denote identity
and citizenship and would also satisfy
section 7209 of IRTPA.
Under this proposed rule, DHS
proposes to consider as appropriate,
documents such as State driver’s
licenses that satisfy the WHTI
46 See 8 CFR 212.1(c)(1)(i); also 22 CFR 41.2 (g).
If Mexicans are only traveling within a certain
geographic area along the United States’ border
with Mexico: usually up to 25 miles from the border
but within 75 miles under the exception for Tucson,
Arizona, they do not need to obtain a form I–94. If
they travel outside of that geographic area, they
must obtain an I–94 from CBP at the port-of-entry.
8 CFR 235.1(h)(1).
47 See 8 CFR 212.1(c)(1)(ii).

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requirements by denoting identity and
citizenship. These documents could be
from a State, tribe, band, province,
territory, or foreign government if
developed in accordance with pilot
program agreements between those
entities and DHS. In addition to
denoting identity and citizenship, these
documents will have compatible
technology, security criteria, and
respond to CBP’s operational concerns.
These documents would be
announced and updated by publishing a
notice in the Federal Register. A list of
such programs and documents would
also be maintained on the CBP Web site.
It is anticipated that the Secretary of
Homeland Security would designate
successful pilot program documents that
satisfy section 7209 and the technology,
security, and operational concerns
discussed above as documents
acceptable for travel under section 7209.
At the completion of a successful pilot,
the Department would designate a
document by rulemaking.
For example, the State of Washington
(Washington) has begun a voluntary
program to develop an ‘‘enhanced
driver’s license’’ and identification card
that would denote identity and
citizenship. On March 23, 2007, the
Secretary of Homeland Security and the
Governor of Washington signed a
Memorandum of Agreement to develop,
issue, test and evaluate an enhanced
driver’s license and identification card
with facilitative technology to be used
for border crossing purposes.48
On March 9, 2007, DHS published in
the Federal Register an NPRM
concerning minimum standards for
State-issued driver’s licenses and
identification cards that can be accepted
for official purposes in accordance with
the REAL ID Act.49 DHS encourages
States interested in developing driver’s
licenses that will meet both the REAL ID
and WHTI requirements to work closely
with DHS to that end.

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E. Timing of Changes and Effective Date
for Final Rule
1. Satisfactory Evidence of Citizenship
Reducing the well-known
vulnerability posed by those who might
illegally purport to be U.S. or foreign
citizens trying to enter the U.S. by land
or sea on a mere oral declaration is
imperative. As we move towards WHTI
implementation, it is the intention of
DHS to end the routine practice of
accepting oral declarations alone
starting January 31, 2008. CBP will
retain its discretionary authority to
48 For

more information on this pilot program, see
http://www.dhs.gov.
49 See REAL ID NPRM at 72 FR 10819.

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request additional documentation when
warranted and to make individual
exceptions in extraordinary
circumstances when oral declarations
alone or with other alternative
documents may be accepted. Beginning
January 31, 2008, DHS will expect the
satisfactory evidence of U.S. or
Canadian citizenship to include either
of the following documents or groups of
documents: (1) A document specified in
this NPRM as WHTI-compliant for that
individual’s entry; or (2) a governmentissued photo identification document
presented with a birth certificate.50 CBP
will also act according to the procedures
for children outlined in Sections V.B.1.
and V.B.2 beginning January 31, 2008.
2. Implementation and Effective Date of
Final Rule
At a date to be determined by the
Secretary of Homeland Security, in
consultation with the Secretary of State,
the Departments will implement the full
requirements of the land and sea phase
of WHTI. The implementation date will
be determined based on a number of
factors, including the progress of actions
undertaken by the Department of
Homeland Security to implement the
WHTI requirements and the availability
of WHTI compliant documents on both
sides of the border.
DHS and DOS expect the date of full
WHTI implementation to be in the
summer of 2008. The precise
implementation date will be published
in the Final Rule or will separately be
published, with at least 60 days notice,
in the Federal Register.
V. Special Rules for Specific Groups of
Travelers Permitted To Use Other
Alternative Documents
Even though DHS and DOS have
presented generally applicable
document requirements above, in
reviewing the security and travel
considerations for the sea and land
environments, the Departments believe
there are certain special circumstances
for specific groups of travelers that
warrant permitting use of other
documents. For these specific groups of
travelers, within these limited
circumstances, the Secretary of
Homeland Security proposes that the
delineated documents be accepted for
travel as discussed.
There are other groups of travelers
that fall outside the scope of section
7209 and are therefore not subject to
these requirements. The documents
permitted for these populations under
50 For U.S. citizens, a government-issued photo
identification combined with a Consular Report of
Birth Abroad or a Certificate of Naturalization could
also be presented.

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the foregoing special circumstances are
also explained below.
A. U.S. Citizen Cruise Ship Passengers
Because of the nature of round trip
cruise ship travel, DHS has determined
that when U.S. citizens depart from and
reenter the United States on board the
same cruise ship, they pose a low
security risk in contrast to cruise ship
passengers who embark in foreign ports.
Although round trip cruises may stop
in foreign ports (e.g., some east coast
cruises stop in the Caribbean and some
cruises in the Pacific Northwest may
include land excursions in Canada),
there are reasons why U.S. citizens
aboard these cruises pose a low security
risk. First, on round trip cruises,
passengers who depart from the United
States would have their documents
checked both when they depart from the
United States and when they return to
the United States. Under current
Advanced Passenger Information
System (APIS) requirements,51 the
cruise lines are required to check the
accuracy of the travel documents for all
departing passengers. The passenger
information is transmitted to CBP well
before the return of the cruise ship.
While on the voyage, the cruise lines
also check the identity of passengers as
they return to the ship at various ports
of call along the voyage. CBP has
worked with the cruise lines to establish
proper security protocols for these
voyages and will continue to work with
the cruise lines on security protocols in
the future.
When the cruise ships return to the
United States, CBP officers examine the
documents of the incoming passengers
as they would for other cruise
passengers. Because of the advanced
passenger information supplied to CBP
upon departure and because of CBP’s
ability to check this passenger data
against the information supplied by
passengers upon return to the United
States, the security risks associated with
allowing U.S. citizens to use the
documents described below are low.
Accordingly, and in response to
public comments, DHS and DOS
propose the following alternative
document requirement for U.S. cruise
ship passengers. For purposes of the
proposed rule, a cruise ship is defined
as a passenger vessel over 100 gross
tons, carrying more than 12 passengers
for hire, making a voyage lasting more
than 24 hours any part of which is on
the high seas, and for which passengers
51 See 19 CFR 4.7b (vessel arrivals) and 19 CFR
4.64 (vessel departures).

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are embarked or disembarked in the
United States or its territories.52
U.S. cruise ship passengers traveling
within the Western Hemisphere would
be permitted to present a government
issued photo identification document in
combination with either (1) An original
or a certified copy of a birth certificate,
(2) a Consular Report of Birth Abroad
issued by DOS, or (3) a Certificate of
Naturalization issued by U.S.
Citizenship and Immigration Services
(USCIS), when returning to the United
States, under certain conditions:
• The passengers must board the
cruise ship at a port or place within the
United States; and
• The passengers must return on the
same ship to the same U.S. port or place
from where they originally departed.
All passengers arriving on a cruise
ship that originated at a foreign port or
place would have to present travel
documents that comply with applicable
document requirements otherwise
specified in this NPRM when arriving in
the United States. For voyages where
the cruise ship originated in the United
States, if any new passengers board the
ship at a foreign port or place, the new
passengers would have to present travel
documents that comply with applicable
document requirements otherwise
specified in this NPRM when arriving in
the United States. U.S. citizen cruise
ship passengers that would fall under
this alternative document requirement
are reminded to carry appropriate travel
documentation to enter any foreign
countries or stops on the cruise.

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B. U.S. and Canadian Citizen Children
The U.S. government currently
requires all children arriving from
countries outside the Western
Hemisphere to present a passport when
entering the United States. Currently,
children (like adults) from the United
States, Canada, and Bermuda are not
required to present a passport when
entering the United States from
contiguous territory or adjacent islands
by sea or land, excluding Cuba. Mexican
children are currently required to
present either a passport and visa or
BCC upon arrival in the United States,
as discussed above.
DHS and DOS considered extending
this passport requirement to all U.S. and
Canadian children entering the United
States by sea or land from within the
Western Hemisphere as well; however,
many public comments have expressed
a desire for an exception to be made for
these children traveling across
52 For this proposed rule, DHS proposes to adopt
the definition of a cruise ship used by the U.S.
Coast Guard. See 33 CFR 101.105.

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international borders, primarily in the
land environment.
Because DHS and DOS believe that
these children traveling in the sea and
land environments pose a low security
risk, DHS, in consultation with DOS,
proposes the procedures below.
Mexican children are currently
required to present either a passport and
visa or BCC upon arrival in the United
States, as discussed above. DHS and
DOS do not propose to change the
current document requirements for
Mexican children entering the United
States because Mexican children must
now present either a passport and visa
or BCC upon arrival in the United States
from contiguous territory. As discussed
above, IRTPA directs DHS to implement
a plan to require documents for citizens
for whom the general passport
requirements have previously been
waived, not to eliminate document
requirements currently in place.
1. Children Under Age 16
Under the proposed rule, all U.S.
citizen children under the age of 16
would be permitted to present either (1)
An original or a certified copy of a birth
certificate; (2) a Consular Report of Birth
Abroad issued by DOS; or (3) a
Certificate of Naturalization issued by
USCIS at all sea and land ports-of-entry
when arriving from contiguous territory.
Canadian citizen children under the age
of 16 would be permitted to present an
original or a certified copy of a birth
certificate at all sea and land ports-ofentry when arriving from contiguous
territory.
DHS and DOS have determined that
16 is the most appropriate age to begin
the requirement to present a passport,
passport card (for U.S. citizens), or other
approved document because at that age
most states begin issuing photo
identification to children, such as a
driver’s license, and at that point, the
child would consequently, have a
known and established identity that
could be readily accessed by border
security and law enforcement
personnel. CBP officers at the border
could more easily determine if the
traveler was wanted for a federal crime,
or if the person had been listed as
missing in a Federal database. Also, age
16 is the age that DOS begins to issue
adult passports, valid for 10 years
instead of 5 years for children. DHS and
DOS also recognize that it is difficult for
the majority of children under 16 to
obtain a form of government-issued
photo identification other than a
passport or passport card. U.S. and
Canadian children age 16 and over who
arrive from contiguous territory would
be subject to the WHTI document

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requirements specified below or
otherwise specified in this NPRM.
In order to facilitate law enforcement
functions, DHS and DOS recommend
that those attempting to enter the United
States with children under the age of 16
have verbal or written evidence of
parental consent for the child to travel
internationally. For example, both
parents or legal guardians, or one parent
or guardian with sole custody, may
provide written consent for a child’s
international travel with an adult who is
not that child’s parent or guardian.
2. Groups of Children Under Age 19
In Section 546 of the DHS
Appropriations Act of 2007, Congress
expressed an interest that an alternative
procedure be developed for groups of
children traveling across an
international border under adult
supervision with parental consent.
Under this proposed rule, U.S. and
Canadian citizen children under age 19,
who are traveling with public or private
school groups, religious groups, social
or cultural organizations, or teams
associated with youth sport
organizations that arrive at U.S. sea or
land ports-of-entry from contiguous
territory, would be permitted to present
either (1) An original or a certified copy
of a birth certificate; (2) a Consular
Report of Birth Abroad issued by DOS;
or (3) a Certificate of Naturalization
issued by USCIS, when the groups are
under the supervision of an adult
affiliated with the organization
(including a parent of one of the
accompanied children who is only
affiliated with the organization for
purposes of a particular trip) and when
all the children have parental or legal
guardian consent to travel. For purposes
of this alternative procedure, an adult
would be considered to be a person age
19 or older, and a group would consist
of two or more people.
The group, organization, or team
would be required to contact CBP upon
crossing the border at the port-of-entry
where it will cross and provide on
organizational letterhead: (1) The name
of the group, organization or team and
the name of the supervising adult; (2) a
list of the children on the trip; (3) for
each child, the primary address,
primary phone number, date of birth,
place of birth, and name of at least one
parent or legal guardian; and (4) the
signature of the supervising adult
certifying that he or she has obtained
parental or legal guardian consent for
each participating child. The group,
organization, or team would be able to
demonstrate parental or legal guardian
consent by having the adult leading the
group sign and certify in writing that he

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or she has obtained parental or legal
guardian consent for each participating
child.
For Canadian children, in addition to
the information indicated above, a trip
itinerary, including the stated purpose
of the trip, the location of the
destination, and the length of stay
would be required.
As it is structured, we believe most of
the groups utilizing this alternative
procedure would be high school groups
or groups containing children aged 16 to
18. Based on experience, there is little,
if any, risk of child trafficking or
parental abduction in the group travel
context. To avoid delays upon arrival at
a port-of-entry, CBP would recommend
that the group, organization, or team
provide this information well in
advance of arrival, and would
recommend that each participant
traveling on an original or certified copy
of a birth certificate, Consular Report of
Birth Abroad, or Certificate of
Naturalization carry a government or
school issued photo identification
document, if available. Travelers with
the group who are age 19 and over
would be subject to the generally
applicable travel document
requirements specified in 8 CFR parts
211, 212 or 235 and 22 CFR parts 41 or
53.

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3. Alternative Approach for Children;
Parental Consent
DOS and DHS also seek comments
regarding approaches to ensuring proper
documentation to address concerns
about child abduction, parental
kidnapping, and trafficking in children
across U.S. borders.
DOS’s Office to Monitor and Combat
Trafficking in Persons estimates that
approximately half the victims of
trafficking who enter the United States
are minors. At any one time, there are
approximately 700 open cases of
parental child abduction across the
United States borders with Canada and
Mexico.
In light of concerns about the safety
of children, the American public
supported changes in passport
processing beginning in 1999 to require
evidence of parental consent. Currently,
DOS requires the execution of a
passport application by both parents or
legal guardian(s) before the passport
agent or passport acceptance agent as a
precondition to the issuance of a
passport to a child under 14. On March
7, 2007, DOS published for public
comment a rule proposing to require the
execution of a passport application by
both parents or legal guardian(s) for a
passport application pertaining to a

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minor under the age of 16.53
Furthermore, parents are making use of
the DOS Children’s Passport Issuance
Alert System. Under this system, DOS
notifies a parent or court ordered legal
guardian, when requested, before
issuing a U.S. passport for his or her
child.
DOS and DHS are soliciting
comments on whether a traditional
passport or a passport card should be
required for any child under 16 entering
the United States not in a group without
his/her parents. DOS and DHS are also
soliciting comments on what would be
the advantages and disadvantages to
requiring a traditional passport or a
passport card, and not allowing child
travelers in such circumstances to rely
upon a birth certificate, Consular Record
of Birth Abroad, or Certificate of
Naturalization.
C. Lawful Permanent Residents of the
United States
Section 7209 of IRTPA does not apply
to Lawful Permanent Residents (LPRs),
because LPRs are immigrant aliens
exempted from the requirement to
present a passport under section 211(b)
of the INA. LPRs will continue to be
able to enter the United States upon
presentation of a valid Form I–551,
Permanent Resident Card 54 or other
evidence of permanent resident status.55
We note that DHS published a notice
of proposed rulemaking in the Federal
Register on July 27, 2006, that proposes
to collect and verify the identity of LPRs
arriving at air and sea ports-of-entry, or
requiring secondary inspection at land
ports-of-entry, through US–VISIT.56
CBP Trusted Traveler program members
(FAST, SENTRI or NEXUS) who are
LPRs must always carry their Form
I–551 cards in addition to their
membership card.
D. Alien Members of the U.S. Armed
Forces
Pursuant to Section 284 of the INA,57
alien members of the U.S. Armed Forces
entering under official orders presenting
military identification are not required
to present a passport and visa.58
Because this statutory exemption does
not fall within the scope of section 7209
of IRTPA, under this proposed rule,
alien members of the U.S. Armed Forces
traveling under orders would continue
to be exempt from the requirement to
present a passport when arriving in the
53 See

72 FR 10095.
Section 211(b) of the INA, 8 U.S.C. 1181(b).
55 See 8 CFR 211.1.
56 See 71 FR 42605.
57 See 8 U.S.C. 1354.
58 See 8 CFR 235.1(c).
54 See

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United States at sea and land ports-ofentry. Accordingly, under this NPRM,
alien members of the U.S. Armed Forces
traveling under official orders or permit
of the Armed Forces would be permitted
to present those orders and a military
identification card in lieu of a passport
when entering the United States at air,
sea, and land ports-of-entry. However,
spouses and dependents of military
members are not covered by the
exemption set forth in section 284 of the
INA.59 Under this proposed rule,
spouses and dependents of these alien
military members, unless they are LPRs,
will be subject to the same document
requirements as other sea and land
border arrivals otherwise specified in
this NPRM or the INA.
E. Members of NATO Armed Forces
Pursuant to Article III of the
Agreement Between the Parties to the
North Atlantic Treaty Regarding the
Status of Their Forces, June 19, 1951,60
North Atlantic Treaty Organization
(NATO) military personnel on official
duty are normally exempt from passport
and visa regulations and immigration
inspection on entering and leaving the
territory of a NATO party, but, if asked,
must present a personal identification
card issued by their NATO party of
nationality and official orders from an
appropriate agency of that country or
from NATO.61 Because their exemption
from the passport requirement is based
on the NATO Status of Forces
Agreement rather than a waiver under
section 212(d)(4)(B), they are not subject
to section 7209 of IRTPA. Therefore,
notwithstanding this proposed rule,
NATO military personnel would not be
subject to the requirement to present a
passport when arriving in the United
States at sea and land ports-of-entry.
F. American Indian Card Holders From
Kickapoo Band of Texas and Tribe of
Oklahoma
U.S. Citizenship and Immigration
Services (USCIS) issues American
Indian Cards (Form I–872) to members
of the Kickapoo Band of Texas and
Tribe of Oklahoma to document their
status. The American Indian Card is
issued pursuant to the Texas Band of
59 See

8 U.S.C. 1354.
Between the Parties to the North
Atlantic Treaty Regarding the Status of Their
Forces, June 19, 1951, [1953, pt.2] 4 U.S.T. 1792,
T.I.A.S. No. 2846 (effective Aug. 23, 1953). NATO
member countries are: Belgium, Bulgaria, Canada,
the Czech Republic, Denmark, Estonia, France,
Germany, Greece, Hungary, Iceland, Italy, Latvia,
Lithuania, Luxembourg, the Netherlands, Norway,
Poland, Portugal, Romania, Slovakia, Slovenia,
Spain, Turkey, the United Kingdom of Great Britain
and Northern Ireland, and the United States.
61 See 8 CFR 235.1(c).
60 Agreement

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Federal Register / Vol. 72, No. 122 / Tuesday, June 26, 2007 / Proposed Rules
Kickapoo Act of 1983 (TBKA), 25 U.S.C.
1300b–13. There are two versions of the
American Indian Card: (1) For
Kickapoos who opted to become U.S.
citizens under the TBKA (the filing
deadline for this benefit closed in 1989)
and (2) for Kickapoos who opted not to
become U.S. citizens, but instead were
afforded ‘‘pass/repass’’ status.
We note that by Federal law, all of the
Kickapoo Indians described above,
whether or not they are U.S. citizens,
may ‘‘pass the borders’’ between Mexico
and the United States,62 which has
historically applied to land border
crossings. We propose to continue the
current practice of allowing U.S. citizen
and Mexican national Kickapoo Indians
to enter and exit the United States using
their American Indian Cards, issued by
USCIS, as an alternative to the
traditional passport or passport card at
all sea and land border ports-of-entry.
Under the proposed rule, U.S. citizen
members of the Kickapoo Band of Texas
and Tribe of Oklahoma would be
permitted to present the Form I–872
American Indian Card in lieu of a
passport or passport card at all sea and
land ports of entry when arriving from
contiguous territory or adjacent islands.
Mexican national members of the
Kickapoo Band of Texas and Tribe of
Oklahoma would be permitted to
present the I–872 in lieu of either a
passport and visa or BCC at sea and land
ports-of-entry when arriving from
contiguous territory or adjacent islands.

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G. Members of United States Native
American Tribes
IRTPA expressly applies to all United
States citizens. Federal statutes apply to
Native Americans born in the United
States 63 absent some clear indication
that Congress did not intend the statute
to apply.64 However, the United States
has a special relationship, founded in
the Constitution, with its Native
American tribes.65 This relationship
permits special rules for Native
American members of federally
recognized United States tribes.66
Comments on the ANPRM and
consultations with United States Native
62 See Texas Band of Kickapoo Act, Pub. L. 97–
429, 96 Stat. 2269 (1983).
63 In 1924, Congress conferred United States
citizenship on all Native Americans born in the
United States. Act of June 2, 1924, ch. 233, 43 Stat.
253, codified as INA § 301(b), 8 U.S.C. 1401(b).
64 See Federal Power Commission v. Tuscarora
Indian Nation, 362 U.S. 99, 120 (1960); Taylor v.
Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d
1032, 1034–1035 (11th Cir. 2001).
65 See Constitution, I, § 8, cl.3; Cherokee Nation
v. Georgia, 30 U.S. 1, 17 (1831); Worcester v.
Georgia, 31 U.S. 515, 561 (1832); U.S. v. Sandoval,
231 U.S. 28, 46–47 (1913).
66 Morton v. Mancari, 417 U.S. 535, 551–55.

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American tribes have emphasized the
particular impact which a new
document requirement may have on
Native Americans belonging to United
States tribes who continue to cross the
land borders for traditional historic,
religious, and other cultural purposes. A
number of border tribes are particularly
concerned that their members will be
required to obtain a passport card or
other alternative document to maintain
contact with ethnically related
communities, including, for some tribes,
members who live on traditional land in
Mexico or Canada.
1. Proposed Acceptance of Satisfactory
Tribal Enrollment Documents at
Traditional Border Crossing Points for
Tribes Who Continue Traditional Land
Border Crossings
DHS and DOS do not propose to
accept any particular tribal enrollment
documents as part of this NPRM. DHS
and DOS do propose, however, to
consider such documents for the final
rule as discussed below. Documents that
may be found acceptable and so
designated in the final rule must
establish the identity and citizenship of
members of United States tribes. DHS
and DOS propose to accept such tribal
enrollment documents only if members
of the issuing tribe continue to cross the
land border of the United States for a
historic, religious or other cultural
purpose.67 The tribal enrollment card
must be satisfactory to CBP, may only be
used at that tribe’s traditional border
crossing points and will only be
accepted so long as that tribe cooperates
with the verification and validation of
the document. These tribes must also
cooperate with CBP on the enhancement
of their documents in the future as a
condition for the continued acceptance
of the document.
DHS and DOS invite comments from
those United States tribes that enroll
members who continue to cross the
border for a traditional purpose. Any
tribe that wishes to propose its tribal
enrollment card as an acceptable
alternative document at one or more
traditional border crossing points
should submit comments supporting
67 From our consultations with Native American
communities, DHS understands that members of a
number of federally recognized tribes maintain
contact with ethnically related people across our
land border. For example, the Kumeyaay of
California, Tohono O’odham of Arizona, Kickapoo
of Texas, Oklahoma and Kansas, and
Haudenosaunee or Six Nations of the New York
State area maintain contact with ethnically related
people on the other side of border. We also have
been told that the three Kickapoo bands in the
United States all lay their dead to rest in a
traditional cemetery in Mexico. Traditional border
crossings may continue for these and similar
historic, religious and cultural purposes.

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acceptance of its tribal enrollment card
as an alternative for its members. All
such comments should explain fully
why the proposed tribal enrollment card
should be an acceptable alternative
document for its members.
Each comment should explain the
traditional border crossings of that tribe
by:
a. Specifically identifying the
federally recognized tribe;
b. Indicating the traditional
destination or destinations across the
border that are visited by members of
the tribe;
c. Explaining in detail the purpose or
purposes of all such travel;
d. Relating all such travel to
traditional ethnic, religious, cultural or
other activities of the tribe;
e. Indicating the frequency of the
travel; and
f. Specifying the border crossing point
or points which are generally utilized to
travel to each destination.
If the cross-border travel is
reciprocated by a tribe, community, or
band from Canada or Mexico, the
United States tribe should also fully
explain the connection with Canadian
or Mexican Native Americans including
a complete description of all such travel
into the United States by individuals
from the related Native American
community.
The record of the rulemaking will
need to detail the enrollment
qualifications employed by each United
States tribe in order to propose the
acceptance of the tribe’s enrollment
document. All qualifications for
membership in any such tribe should be
fully described in the comments as well
as whether, and in what circumstances,
spouses, children or others may be
‘‘adopted’’ into the tribe. In addition,
each tribe should indicate the relevant
categories of information from its
enrollment records that support the
acceptance of its tribal enrollment
document as an acceptable citizenship
and identity document. Such comments
should explain and document the
reliability of each tribe’s records. For
that reason, tribes interested in pursuing
this option should indicate the
information that it is willing to make
available to CBP from tribal enrollment
records. At a minimum, CBP will need
to verify the names, residences, and
birthplaces of enrolled tribal members,
the identity of the parents of enrolled
tribal members who were not born in
the United States, and the procedures
followed by each tribe to document all
such information contained in its
enrollment records.
DHS and DOS also welcome
comments concerning the determination

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of which cards are satisfactory as well
as information concerning the specific
features of each tribal enrollment card
used by tribal members who continue to
cross the land border for a traditional
purpose. All biometric and other
security features on each card should be
described in full in the comments and
a life size image of both sides of a
sample card should be submitted for the
record with each set of comments.
Comments must also include a
description of the issuance process used
by the tribe to physically issue the tribal
enrollment document. DHS and DOS are
particularly interested in the materials
and techniques used to ensure that the
tribal enrollment document cannot be
obtained improperly. This description
must also include a description of the
physical security features utilized to
ensure that documents are not issued to
individuals who are not qualified to
receive such documents.
A tribe that issues an acceptable tribal
enrollment document may be asked to
regularly provide CBP with an
electronic copy of current relevant
information from its tribal enrollment
roles for purposes of verifying and
validating tribal enrollment documents.
Comments should indicate whether the
tribe is willing and able to provide this
information on an ongoing basis.
DHS and DOS are also sensitive to the
privacy of tribal enrollment records not
related to the establishment of identity
and citizenship such as alternative tribal
names. Comments explaining specific
privacy and other concerns related to
the sharing of tribal enrollment
information are particularly encouraged.
Each tribe which proposes a tribal
enrollment card as an alternative border
crossing document should indicate
whether the tribe is willing to cooperate
with CBP on the enhancement of the
document in the future.
Tribes will only have the opportunity
to participate in the shaping of the
standards for tribal documents through
this rulemaking. Therefore any tribe that
is considering submitting the
information outlined above must do so
through this rulemaking process, as
outlined in this NPRM.
2. Possible Alternative Treatment of
United States Native Americans
DHS and DOS are also considering
alternative approaches and invite
comments on the following approaches:
• Make no special provision for U.S.
Native Americans because they have an
equal opportunity to obtain the same
documents that are available to all other
U.S. citizens.
• Consider broader issuance of the
American Indian Card now issued to

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members of the federally recognized
Kickapoo Tribes or a similar card.
• Accept tribal enrollment cards from
tribes whose members continue
traditional border crossings without any
limitation on the border crossing point
or points where each such tribal
enrollment card is accepted.
• Accept all tribal enrollment cards
from all federally recognized Native
American tribes at some or all border
crossing points.
DHS and DOS specifically request
comments on these alternatives and
suggestions for any other alternatives for
U.S. Native Americans.
H. Canadian Indians
Section 289 of the INA 68 refers to the
‘‘right’’ of Native Americans born in
Canada to ‘‘pass the borders of the
United States,’’ provided they possess at
least 50 percent of Native American
blood. Under this proposed rule,
Canadian members of First Nations or
‘‘bands’’ would be permitted to enter the
United States at traditional border
crossing points with tribal membership
documents subject to the same
conditions applicable to United States
Native Americans. Canadian First
Nations or bands who seek to have their
tribal enrollment cards accepted for
border crossing purposes should submit
comments for the record which contain
the information requested in subsection
G for comparable federally recognized
U.S. tribes.
As previously noted, the new Indian
and Northern Affairs Canada card may
also be accepted as satisfactory evidence
of the citizenship and identity of
registered Canadian Indians.
I. Sea Travel From Territories Subject to
the Jurisdiction of the United States
As we stated in the Air Rule, for
purposes of the passport requirement of
section 215(c) of the INA,69 the term
‘‘United States’’ includes all territory
and waters, continental or insular,
subject to the jurisdiction of the United
States. The United States, for purposes
of section 215 of the INA and section
7209 of the IRTPA, includes Guam,
Puerto Rico, the U.S. Virgin Islands,
American Samoa, Swains Island, and
the Commonwealth of the Northern
Mariana Islands.70 Because section
7209, applies only to persons traveling
between the United States and foreign
countries, these requirements to carry
specified documents will not apply to
United States citizens and nationals
who travel directly between parts of the
68 See

8 U.S.C. 1359.
8 U.S.C. 1185(c).
70 See 8 CFR 215.1(e) and 22 CFR 50.1.
69 See

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United States, as defined in section
215(c) of the INA, without touching at
a foreign port or place.
J. Outer Continental Shelf Employees
In response to comments received to
the ANPRM and Air/Sea NPRM, DHS
and DOS are clarifying that offshore
workers who work aboard Mobile
Offshore Drilling Units (MODUs)
attached to the United States Outer
Continental Shelf (OCS), and who travel
to and from MODUs, would not need to
possess a passport or other designated
document to re-enter the United States
if they do not enter a foreign port or
place. Upon return to the United States
from a MODU, such an individual
would not be considered an applicant
for admission for inspection purposes
under 8 CFR 235.1. Therefore, this
individual would not need to possess a
passport or other designated document
when returning to the United States.
However, an individual who travels to
a MODU from outside of the United
States and, therefore, has not been
previously inspected and admitted to
the United States, would be required to
possess a passport and visa, if required,
or other designated document when
arriving at the U.S. port-of-entry.
DHS and DOS note that for
immigration purposes offshore
employees on MODUs underway, which
are not considered attached, would not
need to present a passport or other
designated document for re-entry to the
United States mainland or other
territory if they do not enter a foreign
port or place during transit. However,
an individual who travels to a MODU
from outside the United States OCS and,
therefore, has not been previously
inspected and admitted to the United
States, would be required to possess a
passport and visa or other designated
document when arriving at the United
States port-of-entry by sea.
K. International Boundary and Water
Commission Employees
Alien direct and indirect employees
of the International Boundary and Water
Commission (IBWC) are not required to
present a passport and visa when
seeking admission to the United States
temporarily in connection with their
employment.71 Instead, these employees
usually present IBWC identification
cards. The exemption is pursuant to
treaty and thus not affected by IRPTA.
Accordingly, there is no substantive
71 Article 20 of the 1944 Treaty Between the
United States and Mexico (regarding division of
boundary water and the functions of International
Boundary and Water Commission), TS 922, Bevan
1166, 59 Stat. 1219; 8 CFR 212.1(c)(5).

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change to the rule regarding alien
employees of the IBWC.
U.S. citizen direct and indirect
employees of the IBWC who enter the
United States from Mexico in
connection with their IBWC
employment would continue to be able
to present an IBWC identification card.

L. Individual Cases of Passport Waivers
The passport requirement may be
waived for U.S. citizens in certain
individual cases on a case-by-case
basis.72 A waiver may be granted in the
case of an emergency, such as
individuals in need of emergency
medical treatment, fire fighters
responding to a call, emergency workers
responding to a natural disaster, Medi-

35101

vac (land and air ambulance) cases, sick
or injured crewmembers, and shipwreck
or plane crash survivors. A waiver may
also be granted in other cases of
humanitarian or national interest.73
M. Summary of Document Requirements
The following chart summarizes the
acceptable documents for sea and land
arrivals from the Western Hemisphere
under WHTI.

Group/population

Acceptable document(s)

Land

Ferry

Pleasure vessel

All Travelers (U.S., Can.,
Mex., Berm.) at all sea
and land POEs.
U.S. Citizens at all sea
and land POEs when
arriving from Canada,
Mexico, the Caribbean,
and Bermuda.
Trusted Traveler Members
at all sea and land
POEs when arriving
from contiguous territory
or adjacent islands.
U.S. Citizen Merchant
Mariner on official mariner business at all sea
and land POEs.
Mexican Nationals arriving
from Mexico.
Lawful Permanent Residents (LPRs) at all land
and sea POE.

Valid Passport (and valid
visa, if necessary for
foreign travelers).
Valid Passport card ........

Yes ...................

Yes ...................

Yes ...................

Yes.

Yes ...................

Yes ...................

Yes ...................

Yes.

Trusted Traveler Cards
(NEXUS, FAST,
SENTRI).

Yes* ..................

Yes* ..................

Yes* ..................

Yes.*

U.S. Merchant Mariners
Document (MMD).

Yes ...................

Yes ...................

Yes ...................

Yes.

Border Crossing Card
(BCC).
I–551; I–688 with proper
stamp; I–327; I–571; I–
512; other evidence of
permanent resident
status.
Government-issued photo
ID and certified copy of
birth certificate.

Yes** ................

Yes** ................

Yes** ................

No.

Yes ...................

Yes ...................

Yes ...................

Yes.

N/A ....................

N/A ...................

N/A ...................

Yes—for round trip voyages
that originate in U.S.

Certified copy of birth
certificate (governmentissued photo ID recommended, but not or
required).

Yes ...................

Yes ...................

Yes ...................

Yes.

Certified copy of birth
certificate and parental/
guardian consent (government-issued photo
ID recommended, but
not required.).

Yes ...................

Yes ...................

Yes ...................

Yes.

Military ID and Official
Orders.

Yes ...................

Yes ...................

Yes ...................

Yes.

Military ID and Official
Orders.

Yes ...................

Yes ...................

Yes ...................

Yes.

U.S. Citizen Cruise Ship
Passengers on round
trip voyages that begin
and end in the same
U.S. port.
U.S. and Canadian Citizen Children Under 16
at all sea and land
POEs when arriving
from contiguous territory
or adjacent islands.
U.S. and Canadian Citizen Children—Groups
of Children Under Age
19, under adult supervision with parental/
guardian consent at all
sea and land POEs
when arriving from contiguous territory or adjacent islands.
U.S. Citizen/Alien Members of U.S. Armed
Forces traveling under
official orders or permit
at all air, sea and land
POEs.
Members of NATO Armed
Forces at all sea and
land POEs.

72 See

22 CFR 53.2.

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73 See

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Group/population

Acceptable document(s)

Land

Ferry

Pleasure vessel

U.S. and Mexican Kickapoo at all sea and land
POEs when arriving
from contiguous territory
and adjacent islands.

Form I–872 American Indian Card.

Yes ...................

Yes ...................

Yes ...................

Sea (all other vessels)
Yes.

* Approved for Mexican national members traveling with passport and visa or BCC.
** In conjunction with a valid I–94 for travel outside the 25- or 75-mile geographic limits of the BCC.

VI. Section-by-Section Discussion of
Proposed Amendments
Based on the discussion above, the
following changes are necessary to the
regulations.
8 CFR 212.0
This amendment would add a new
section 212.0 that would define the
terms ‘‘adjacent islands’’, ‘‘cruise ship’’,
‘‘ferry’’, ‘‘pleasure vessel’’, and ‘‘United
States’’ for purposes of § 212.1 and
§ 235.1 of this subchapter of title 8.
8 CFR 212.1
The amendments to this section
would revise paragraphs (a)(1) and (a)(2)
to add a requirement that Canadians and
citizens of the British Overseas Territory
of Bermuda present a passport when
seeking admission to the United States
at sea or land ports-of-entry, except in
certain enumerated circumstances. The
amendment designates acceptable
alternative documents for trusted
traveler program (NEXUS, FAST, or
SENTRI) members; children under age
16; and children under age 19 traveling
in groups.
In addition, the amendments to this
section would revise paragraph (c)(1) by
deleting the current paragraph (c)(1)(ii),
which provides a passport exception to
Mexican nationals obtaining a passport
at Mexican consulates in the United
States. The amendment would add a
new paragraph (c)(1)(ii), allowing
alternative documentation to be
presented by Mexican national
Kickapoo holders of a Form I–872
American Indian Card.

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8 CFR 235.1
The amendment to this section would
revise paragraph (b) to provide that
certain categories of United States
citizens may present alternative
documentation in lieu of a passport
when they enter the United States. The
revised paragraph (b) would list the
acceptable documentation for each
category of U.S. citizen when they enter
the United States at sea or land portsof-entry: a passport; a passport card; a
trusted traveler card (NEXUS, FAST, or
SENTRI); an unexpired MMD for
merchant mariners traveling in

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conjunction with official maritime
business.
The amendments would designate
acceptable alternative documents to the
passport for: U.S. citizen members of the
Armed Forces of the United States;
cruise ship passengers on cruises that
originate and return to the United
States; children under age 16; children
under to age 19 traveling in groups; and
U.S. citizen direct and indirect
employees of the International
Boundary and Water Commission
traveling in connection with
Commission employment with proper
identification.
The amendments to this section also
remove the current paragraph (d) and
add a new paragraph (d), which
provides that the Secretary of Homeland
Security may designate certain
documents or combinations of
documents as sufficient to denote
identity and citizenship for certain
approved pilot programs effective upon
publishing notice in the Federal
Register.
22 CFR Part 41
The amendments to this part would
add definitions in a new section
numbered 41.0, delete section 41.1(b)
and revise sections 41.2(a), (b), and (g).
These sections currently provide
passport exceptions for Canadian
citizens and citizens of the British
Overseas Territory of Bermuda. In the
amendments, new language is proposed
that would require a passport when
seeking admission to the United States
at sea or land ports-of-entry from
contiguous territory within the Western
Hemisphere, except in certain
enumerated circumstances. The
amendments propose the deletion of
section 41.2(b) and the reservation of
that subsection for future rulemaking.
The visa exception for certain Native
Americans born in Canada is moved to
revised section 41.2(a). As outlined in
the preamble, the proposed rule would
consider designation of a satisfactory
alternative document for Canadian
Native Americans belonging to a First
Nation, tribe, or band whose members
continue traditional border crossings.
The proposed amendment would add
passport exceptions for trusted traveler

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program (NEXUS, FAST, or SENTRI)
members; children under age 16; and
children under age 19 traveling in
groups.
The amendments to 22 CFR 41.2(g)
would eliminate the passport exceptions
for Mexican nationals obtaining a
passport at Mexican consulates in the
United States and would add a passport
exception for Mexican national
Kickapoo holders of a Form I–872
American Indian Card.
22 CFR 53.2
The proposed amendments to this
section would add additional categories
of United States citizens who may
present alternative documentation in
lieu of a passport when traveling by
land and sea. Specifically, the
amendments would add passport
exceptions for: U.S. citizen members of
the Armed Forces of the United States;
children under age 16; and children
under age 19 traveling in groups.
VII. Regulatory Analyses
A. Executive Order 12866: Regulatory
Planning and Review
This rule is considered to be an
economically significant regulatory
action under Executive Order 12866
because it may result in the expenditure
of over $100 million in any one year.
Accordingly, this proposed rule has
been reviewed by the Office of
Management and Budget (OMB). The
following summary presents the costs
and benefits of the proposed rule plus
a range of alternatives considered. (The
‘‘Regulatory Assessment’’ can be found
in the docket for this rulemaking:
http://www.regulations.gov; see also
http://www.cbp.gov). There are two
documents: one document examines the
impacts of WHTI in the cruise ship
environment; the second document
examines the impacts on border
crossings by land, ferry, and pleasure
vessels. Comments regarding both of the
analyses and the underlying
assumptions are encouraged and may be
submitted by any of the methods
described under the ADDRESSES section
of this document.
The regulatory assessments
summarized here consider U.S. travelers
entering the United States via land

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ports-of-entry on the northern and
southern borders (including arrivals by
ferry and pleasure boat) as well as
certain cruise ship passengers. The
impacts to the public due to the
requirement to obtain the necessary
documentation for air travel were
considered in a previous analysis
examining the implementation of WHTI
in the air environment (the Regulatory
Assessment for the November 2006
Final Rule for implementation of WHTI
in the air environment can be found at
http://www.regulations.gov; document
number USCBP–2006–0097–0108). If
travelers have already purchased a
passport for travel in the air
environment, they would not need to
purchase a passport for travel in the
land or sea environments. We do not
attempt to estimate with any precision
the number of travelers who travel in
more than one environment, and,
therefore, may have already obtained a
passport due to the air rule and will not
incur any burden due to this
rulemaking. To the extent that the three
traveling populations overlap in the air,
land, and sea environments, we have
potentially overestimated the direct
costs of the proposed rule presented
here.
The period of analysis is 2005–2014
(10 years). We calculate costs beginning
in 2005 because although the full suite
of WHTI rules is not yet in place, DOS
has already seen a dramatic increase in
passport applications since the WHTI
plan was announced in early 2005. We
account for those passports obtained
prior to full implementation to more
accurately estimate the economic
impacts of the rule as well as to
incorporate the fairly sizable percentage
of travelers that currently hold passports
in anticipation of the new requirements.
In addition to the traditional passport
book, the Secretary of Homeland
Security is designating the passport
card, CBP trusted traveler cards
(NEXUS, SENTRI, FAST), the Merchant
Mariner Document, and specified
documents from a DHS-approved WHTI
pilot program as generally acceptable
travel documents for U.S. citizens to
enter the United States at land and sea
ports-of-entry. Because DHS and DOS
believe that children under the age of 16
pose a low security threat in the sea and
land environments, U.S. children may
present a certified copy of a birth
certificate in lieu of the designated
documents. Additionally, DHS and DOS
have determined that exempting certain
cruise passengers from a passport
requirement is the best approach to
balance security and travel efficiency
considerations in the cruise ship
environment. To meet the cruise

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exemptions, a passenger must board the
cruise ship at a port or place within the
United States and the passenger must
return on the same ship to the same U.S.
port or place from where he or she
originally departed.
For the summary of the analysis
presented here, CBP assumes that only
the passport, trusted traveler cards, and
the MMD are available in the first years
of the analysis (recalling that the period
of analysis begins in 2005 when
passport cards and pilot-program
documents were not yet available). CBP
also assumes that most children under
16 will not obtain a passport or passport
card but will instead use alternative
documentation (birth certificates). The
estimates reflect that CBP trusted
traveler cards would be accepted at land
and sea ports-of-entry. Finally, CBP
assumes that most of the U.S. cruise
passenger population will present
alternative documentation (governmentissued photo ID and certified copy of
birth certificate) because they meet the
waiver criteria proposed.
To estimate the costs of the rule, we
follow this general analytical
framework—
• Determine the number of U.S.
travelers that will be covered.
• Determine how many already hold
acceptable documents.
• Determine how many will opt to
obtain passports or passport cards, and
estimate their lost ‘‘consumer surplus.’’
• Determine how many will forgo
travel instead of obtaining passports or
passport cards, and estimate their lost
‘‘consumer surplus.’’
We estimate covered land travelers
using multiple sources, including:
Crossing data from the Bureau of
Transportation Statistics (BTS, 2004
data), a study of passport demand
conducted by DOS,74 and a host of
regional studies conducted by State and
local governments and academic
research centers.
Other than the DOS passport demand
study, no source exists to our
knowledge that has estimated the total
number of land entrants nationwide.
Researchers almost always count or
estimate crossings, not crossers and
focus on a region or locality, not an
entire border. Building on the work
conducted for the DOS passport study,
we distilled approximately 300 million
annual crossings into the number of
frequent (defined as at least once a
year), infrequent (once every 3 years),
and rare (once every 10 years) ‘‘unique
74 A Study to Determine the Inaugural and
Annual Demand for U.S. Passports by U.S. Citizens
Living in and Traveling to Canada, Mexico and the
Caribbean (U.S. State Department, Prepared by
Bearing Point Oct. 2005).

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35103

U.S. adult travelers.’’ We then estimate
the number of travelers without the
documentation this rulemaking
proposes to be required and estimate the
cost to obtain such documents. The fee
for the passport varies depending on the
age of the applicant, whether or not the
applicant is renewing a passport,
whether or not the applicant is
requesting expedited service, and
whether or not the applicant obtains a
passport or a passport card.
Additionally, we consider the amount of
time required to obtain the document
and the value of that time. To estimate
the value of an applicant’s time in the
land environment, we conducted new
research that builds on existing
estimates from the Department of
Transportation.75 To estimate the value
of an applicant’s time in the sea
environment, we use estimates for air
travelers’ value of time (recall that air
and sea travelers share very similar
characteristics) from the Federal
Aviation Administration (FAA, 2005
data). We use the 2005 DOS passport
demand study and CBP statistics on the
trusted traveler programs to estimate
how many unique U.S. travelers already
hold acceptable documents.
We estimate covered cruise
passengers using data from the Maritime
Administration (MARAD, 2006 data)
and itineraries available on the cruise
line Web sites (for 2007). The
overwhelming majority of Western
Hemisphere cruise passengers—92
percent—would fall under the proposed
cruise-passenger waiver. Passengers not
covered by the waiver fall into four
trade markets—Alaska (72 percent),
Trans-Panama Canal (16 percent), U.S.
Pacific Coast (8 percent), and Canada/
New England (4 percent). We estimate
that these passengers will have to obtain
a passport rather than one of the other
acceptable documents because these
travelers will likely have an
international flight as part of their cruise
vacation, and only the passport is a
globally accepted travel document. We
use a comment to the August 2006
NPRM for implementation of WHTI in
the air and sea environments (71 FR
46155) from the International Council of
Cruise Lines to estimate how many
unique U.S. cruise travelers already
hold acceptable documentation;
however, we will continue to study this
issue.
75 U.S. Department of Transportation,
Departmental Guidance for the Valuation of Travel
Time in Economic Analysis (Memorandum from
F.E. Kruesi) (April 1997); and U.S. Department of
Transportation. Revised Departmental Guidance,
Valuation of Travel Time in Economic Analysis
(Memorandum from E.H. Frankel) (February 2003).

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Based on CBP’s analysis,
approximately 3.2 million U.S. travelers
are affected by the proposed rule in the
first year of analysis (2005). Of these,
approximately 2.9 million enter through
a land-border crossing (via privately
owned vehicle, commercial truck, bus,
train, on foot) and ferry and recreational
boat landing sites. An estimated 0.3
million are cruise passengers that do not
meet the waiver criteria in the NPRM
(note that over 90 percent of U.S. cruise
passengers are expected to meet the
proposed waiver criteria). CBP estimates
that the traveling public acquired
approximately 3.2 million passports in
the first year of the analysis, in the
anticipation of the passport
requirements, at a direct cost of $417
million. These estimates are
summarized in Table A.

TABLE A.—FIRST-YEAR ESTIMATES
(2005) FOR U.S. ADULT TRAVELERS
[All estimates in millions]
Affected Travelers:
Land/ferry/pleasure boat crossers ..........................................
Cruise passengers ....................
Total .......................................
Passports demanded:
Land/ferry/pleasure boat crossers ..........................................
Cruise passengers ....................

2.9
0.3
3.2
2.7
0.3

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 gray
rectangle, and is calculated as (P2¥P1)
* Q2. In other words, the lost consumer
surplus of travelers willing to buy the

TABLE A.—FIRST-YEAR ESTIMATES their implied value for access to these
(2005) FOR U.S. ADULT TRAV- countries is less than the cost of
obtaining a passport card.
ELERS—Continued
[All estimates in millions]
Total .......................................
Total cost of passports:
Land-border crossers ................
Cruise passengers ....................

3.0
$370.7
45.8

Total .......................................

$416.5

To estimate potential forgone travel in
the land environment, we derive
traveler demand curves for access to
Mexico and Canada based on survey
responses collected in the DOS passport
study. We estimate that when the rule
is implemented, the number of unique
U.S. travelers to Mexico who are
frequent travelers decreases by 6.5
percent, the unique U.S. travelers who
are infrequent travelers decreases by 7.3
percent, and the unique U.S. travelers
who are rare travelers decreases by 17.8
percent. The number of U.S. travelers
visiting Canada who are frequent
travelers decreases by 3.7 percent, the
unique U.S. travelers who are infrequent
travelers decreases by 10.7 percent, and
the unique U.S. travelers who are rare
travelers decreases by 10.9 percent.
These estimates account for the use of
a passport card for those travelers who
choose to obtain one. For unique
travelers deciding to forgo future visits,

passport or passport card is simply the
cost (P2¥P1) of the passport or passport
card. Travelers whose willingness to
pay for access to these countries is less
than the price of the passport or
passport card will experience a loss
equal to the area of the light gray
triangle, calculated as 1⁄2 * (Q1¥Q2) *
(P2¥P1).

To estimate potential forgone travel in
the relatively small number of cruises
affected in the sea environment, we use
a study from Coleman, Meyer, and
Scheffman (2003), which described the
Federal Trade Commission investigation
into potential impacts of two cruise-line
mergers and estimated a demand
elasticity for cruise travel. We estimate
that the number of travelers decreases
by 24.4 percent, 13.4 percent, 7.0
percent, and 5.6 percent for travelers on
short (1 to 5 nights), medium (6 to 8
nights), long (9 to 17 nights), and very
long cruises (over 17 nights) once the
rule is implemented.
We then estimate total losses in
consumer surplus. The first figure below
represents U.S. travelers’ willingness to
pay (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.

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. Tenyear costs are $3.3 billion at the 3
percent discount rate and $2.8 billion at
7 percent, as shown in Table B.
Annualized costs are $384 million at 3
percent and $406 million at 7 percent.

[2005–2014, in $Millions]
Year
2005 .......................................................................................................................................
2006 .......................................................................................................................................

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3%
discount rate

Cost

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$436
173

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$436
168

7%
discount rate
$435
163

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TABLE B.—TOTAL COSTS FOR U.S. TRAVELERS OVER THE PERIOD OF ANALYSIS

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TABLE B.—TOTAL COSTS FOR U.S. TRAVELERS OVER THE PERIOD OF ANALYSIS—Continued
[2005–2014, in $Millions]
Year

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2007
2008
2009
2010
2011
2012
2013
2014

3%
discount rate

Cost

7%
discount rate

.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................
.......................................................................................................................................

405
603
476
386
297
291
276
361

381
552
423
333
249
236
218
277

357
498
368
280
202
184
163
198

Total ................................................................................................................................

..........................

$3,272

$2,848

The primary analysis for land
summarized here assumes a constant
number of border crossers over the
period of analysis; in the complete
Regulatory Assessment, we also
consider scenarios where the number of
border crossers both increases and
decreases over the period of analysis. It
is worth noting that border crossings
have been mostly decreasing at both the
northern and southern borders since
1999. The analysis for sea travel
assumes a 6 percent annual increase in
passenger counts over the period of
analysis as the Western Hemisphere
cruise industry continues to experience
growth.
Finally, we conduct a formal
uncertainty (Monte Carlo) analysis to
test our assumptions in the land
environment. We first conducted a
preliminary sensitivity analysis to
identify the variables that have the most
significant effect on consumer welfare
losses. We found that the frequency of
travel (frequent, infrequent, rare),
crossings at multiple ports-of-entry,
future annual affected individuals, and
the amount of time spent applying for
documentation were the most sensitive
variables in the analysis. The variables
that did not appear to have an impact
on consumer losses were the estimated
number of crossings by Lawful
Permanent Residents (LPRs) or Native
Americans and estimated future timing
with which travelers will apply for
acceptable documentation. After we
conducted our formal Monte Carlo we
found that our most sensitive
assumptions are: the projected crossing
growth rate, the frequency of travel, and
the number of new unique travelers that
enter the population annually. The
results of the Monte Carlo analysis are
presented in Table C. Note that these
estimates do not include the
government costs of implementation,
estimated at an annualized cost of $100
million (3 percent discount rate, 10
years), because we have no basis for

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assigning uncertainty parameters for
government costs.

TABLE C.—SUMMARY OF KEY CHARACTERISTICS OF PROBABILITY DISTRIBUTIONS OF TOTAL WELFARE
LOSSES IN THE LAND ENVIRONMENT
(2005–2014, IN $BILLIONS), 3 PERCENT DISCOUNT RATE
Statistic

Value

Trials .....................................
Mean .....................................
Median ..................................
Std Dev .................................
Variance ................................
5th Percentile ........................
95th Percentile ......................
Point Estimate ......................

10,000
$2.1
$2.1
$0.5
2.8E+08
$1.4
$3.1
$2.2

We then consider the secondary
impacts of forgone travel in the land and
sea environments. Forgone travel will
result in gains and losses in the United
States, Canada, and Mexico. For this
analysis, we made the simplifying
assumption that if U.S. citizens forgo
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 U.S., but a gain to
Canada and Mexico. Please note that
‘‘gains’’ and ‘‘losses’’ in this analysis
cannot readily be compared to the costs
and benefits of the rulemaking, 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

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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 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

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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 BCC), 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, 2008 AND SUBSEQUENT YEARS
[$Millions]
2008:
Spending
Spending
Spending
Spending

by
by
by
by

U.S. travelers who forgo travel to Mexico ..................................................................................................................
Mexican travelers who forgo travel to the United States ...........................................................................................
U.S. travelers who forgo travel to Canada .................................................................................................................
Canadian travelers who forgo travel to United States ................................................................................................

+$440
0
+170
¥200

Net .............................................................................................................................................................................................
Subsequent years (annual):
Spending by U.S. travelers who forgo travel to Mexico ..................................................................................................................
Spending by Mexican travelers who forgo travel to United States ..................................................................................................
Spending by U.S. travelers who forgo travel to Canada .................................................................................................................
Spending by Canadian travelers who forgo travel to United States ................................................................................................

$410
+$310
0
+120
¥200

Net .............................................................................................................................................................................................

$230

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 our case studies
but one, forgone border crossings
attributable to WHTI have a less-than-1percent 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

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San Diego .....................................................................
Pima, Santa Cruz .........................................................
Hidalgo, Cameron .........................................................
Presidio .........................................................................
Niagara, Erie .................................................................
Washington ...................................................................
Macomb, Wayne, Oakland ...........................................
Whatcom .......................................................................

As shown, we anticipate very small
net positive changes in the southernborder 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

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California .......................................................................
Arizona ..........................................................................
Texas ............................................................................
Texas ............................................................................
New York ......................................................................
Maine ............................................................................
Michigan .......................................................................
Washington ...................................................................

may spend it outside the region, and
thus outside the model.
As this is one of the first
comprehensive attempts by DHS to
develop a model to estimate localized
cross-border economic impacts due to a
rulemaking, we explicitly seek comment
on this proposed analysis. Specifically,
we may not have captured all of the
changes in local expenditures that may
be attributable to the proposed
rulemaking. For example, U.S. citizens
purchasing documentation required for
travel to Canada or Mexico will not have
that money available for other
consumption. Similarly, Canadian
travelers may spend less in the United
States on travel to compensate for the
costs of acquiring documentation.

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+0.03
+0.03
+0.22
+0.55
¥0.06
¥0.61
¥0.01
¥0.21

Employment
+0.03
+0.03
+0.19
+0.62
¥0.12
¥1.41
¥0.01
¥0.53

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

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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 the figure below are for
the cost estimates presented above and
casualty costs based on willingness-topay estimates and a $3 million value of
a statistical life (VSL). These results
show that a decrease in perceived risk
leads to a smaller annualized loss and
a greater critical risk reduction, and an
increase in perceived risk leads to a
greater annualized loss and a smaller
critical risk reduction. The total range in
critical risk reduction is a factor of four
and ranges from 6.6 to 26 percent, with
a critical risk reduction of 13 percent
required for the standard risk scenario.

The critical risk reduction for all risk
levels considered and multiple injury
and fatality estimates are presented in
Table F. As shown, critical risk
reduction ranges from 3.5 percent (high

risk, quality-of-life, VSL $6 million) to
35 percent (low risk, cost-of-injury, no
VSL). Note that because the annualized
costs of the rulemaking are very similar
at the 7 percent discount rate, the

critical risk reduction estimates
presented in Table F would not change
appreciably at the 7 percent rate.

TABLE F.—CRITICAL RISK REDUCTION FOR THE PROPOSED RULE
[Standard risk scenario, 3 percent discount rate]
Critical risk reduction (%)

Cost of injury (fatality = $1.1m) .............................................................................................................
Willingness to pay (VSL = $3m) ............................................................................................................
Quality of life (VSL = $3m) ....................................................................................................................
Willingness to pay (VSL = $6m) ............................................................................................................
Quality of life (VSL = $6m) ....................................................................................................................

In addition to the methodology used
to value casualties, several other key

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factors affect the critical risk reduction
estimate. These factors include: The

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Standard
35
26
22
18
14

17
13
11
8.8
6.9

uncertainty in the risk estimate
produced by the RMS model; the

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8.7
6.6
5.6
4.4
3.5

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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 lesstangible components of losses that the
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.
Alternatives to the Proposed Rule
CBP considered the following
alternatives to the NPRM—
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, CBP trusted
traveler document, MMD, or a specified
document from a DHS-approved WHTI
pilot program upon return to the United
States from countries in the Western
Hemisphere.
Calculations of costs for the
alternatives can be found in the two
Regulatory Assessments for the NPRM.
Alternative 1: Require All U.S. Travelers
(Including Children) to Present a Valid
Passport Book
This alternative would require all U.S.
citizens, including minors under 16 and
all cruise passengers, to present a valid
passport book. The passport card, CBP
trusted traveler documents, the MMD,
and documents from DHS-approved
pilot programs would not be accepted.
This would be a more stringent
alternative, and it was rejected as
potentially too costly and burdensome
for low-risk populations of travelers.
While the traditional 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 burdensome 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 certified copy
of a birth certificate when arriving in the
United States at all land and sea portsof-entry from within the Western
Hemisphere. Additionally, DHS and
CBP have developed an alternative
procedure for children traveling in
groups. DHS and DOS have also
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.
Alternative 2: Require All U.S.
Ttravelers (Including All Cchildren) to
Present a Valid Passport Book, Passport
Card, or Other Approved Document
The second alternative is similar to
the proposed rule, though it includes
children and does not exempt cruise
passengers. It is again more stringent
than the proposed rule. 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).
Table G presents a comparison of the
costs of the proposed rule and the
alternatives considered.

TABLE G.—COMPARISON OF REGULATORY ALTERNATIVES
[In $Millions]
10-year cost
(7%)

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Alternative

Cost
compared to
proposed rule

Proposed rule ...............................................................
1. Passport book only for all U.S. travelers .................

$2,848
5,254

n/a
+$2,406

2. Passport book, passport card, and other designated documents for all U.S. travelers.

5,448

+2,600

It is important to note that for
scenarios where the passport card is
acceptable (the proposed 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 cost

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Reason rejected

Cost of a passport considered too high for citizens in
border communities; low-risk traveling populations
(certain cruise passengers, children under 16) unduly burdened.
Low-risk traveling populations (certain cruise passengers, children under 16) unduly burdened.

more over 10 years than alternatives
allowing only the passport, which can
be processed with existing readers that
scan the passport’s MRZ. Providing
waivers for minors and most cruise
passengers results in notable cost
savings over 10 years (about $2.5 billion
depending on the documents
considered).
The passport card is designed
specifically to address the needs and
travel patterns of those who live in landborder communities and frequently
cross the border in their day-to-day
activities. The passport card is intended

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not only to enhance security efforts for
international land and sea travel
between the U.S. and Canada, Mexico,
the Caribbean, or Bermuda, but is also
intended to assist DHS in expediting the
movement of legitimate travel within
the Western Hemisphere.
In particular, the land border presents
complex operational challenges, in that
a tremendous amount of traffic must be
processed in a short amount of time.
There are often several passengers in a
vehicle, and multiple vehicles arriving
at one time at each land border port-ofentry. Many of the people encountered

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crossing at the land border ports-ofentry are frequent crossers. However,
CBP does not receive advance
information on these land border
travelers. For these reasons, the
Department of State, in consultation
with DHS, agreed to develop a
technology-based solution.
The data printed on the face of the
passport card will be the same as that
currently shown on the data page of the
U.S. passport—bearer’s facial image, full
name, date and place of birth, passport
card number, dates of validity and
issuing authority. The reverse side of
the passport card will carry a machinereadable zone (MRZ) and notation that
the card is valid only for international
land and sea travel between the U.S.
and Canada, Mexico, the Caribbean, or
Bermuda. In addition, each passport
card will utilize Radio Frequency (RF)
technology to store and transmit only a
unique reference number that will serve
as a link to information safeguarded in
a secure database managed by CBP. This
reference number will be assigned by
Department of State at the time the
passport card is issued and no personal
or biographic information will be stored
or transmitted using Radio Frequency
(RF) technology. Presenting the passport
card will allow the linked information
to be retrieved from the secure DHS
database to allow the CBP officer to
compare the citizen presenting him or
herself for entry into the United States
with the original issuance record to
ensure that it is the same person. This
database could include additional
information, for example, information
about the bearer’s membership in one of
CBP’s trusted traveler programs
(NEXUS, SENTRI, or FAST).
After reviewing a number of options
to provide the CBP officer with
appropriate personal information to
facilitate the processing of travelers,

DOS and DHS believe that the most
promising technology is RF technology.
This technology utilizes a passive chip
deriving its power from the reader that
communicates with it. We focused on
RF vicinity read (GEN 2) technology.
RF vicinity read technology conforms
to International Standards Organization
(ISO) 18000 6–C specifications. Vicinity
read technology would allow the
passport card data to be read at a
distance of up to 20 feet from the reader.
The vicinity read chip would contain
only a unique reference number that
will serve as a link to information
safeguarded in a secure database
managed by CBP. In addition to having
commercial applications, vicinity-read
technology is currently being used in a
number of DHS programs.
Operationally, it has similarities to CBP
land border international trusted
traveler programs, and DHS’s pilot
electronic I–94 program currently in
place at several land border crossings in
that it will only store and transmit a
unique reference number and no
personal or biographic information.
Vicinity read technology is similar to
that used in highway toll systems
throughout the U.S. From an operational
sense, this technology would allow
passengers approaching a land crossing
in vehicles to present the passport card
to the reader easily from within the
vehicle and these readers could process
information from up to eight cards at
one time. In addition, the use of vicinity
technology would provide information
to border security personnel further in
advance of a traveler’s arrival at an
inspection booth, facilitate a faster
processing of individuals, and provide
more opportunities to leverage existing
technologies.
DHS selected RF vicinity read
technology for its border management
system. To ensure compatibility and

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interoperability with the DHS border
management system, and to secure
significant travel facilitation advantages,
DOS proposed to produce the passport
card utilizing RF vicinity read
technology (see 71 FR 60928 for DOS’s
proposed rule, which contains a more
detailed discussion of the advantages
and disadvantages of different
technology choices). The selection of
vicinity read technology for the passport
card was made in an effort to ensure a
seamless operational environment with
DHS, and provide the infrastructure
support to strengthen our national
security at U.S. land borders. DOS
proposed to produce the card and
deliver them with a thin protective
sleeve, designed to protect the card from
unauthorized access. The card could be
stored in the sleeve and removed only
when needed.
In addition to the State Department’s
proposed rule referenced above, please
see the DHS Land border analysis
document for a more detailed
discussion of both the deployment and
other costs of the proposed form of the
passport card, and the advantages to the
border management system provided by
the RF vicinity read technology.
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 $406
million annualized (7 percent discount
rate) and approximately $384 million
annualized (3 percent discount rate).
Non-quantified benefits are enhanced
security and efficiency.

ACCOUNTING STATEMENT: CLASSIFICATION OF EXPENDITURES, 2005—2014
[2005 dollars]
3% Discount rate

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Costs:
Annualized monetized costs .......................
Annualized quantified, but un-monetized
costs.
Qualitative (un-quantified) costs ..................
Benefits:
Annualized monetized benefits ...................
Annualized, quantified, but un-monetized
benefits.
Qualitative (un-quantified) benefits .............

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7% Discount rate

$384 million ......................................................
None .................................................................

$406 million.
None.

Indirect costs to the travel and tourism industry.

Indirect costs to the travel and tourism industry.

None quantified ................................................
None quantified ................................................

None quantified.
None quantified.

Enhanced security and efficiency ....................

Enhanced security and efficiency.

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B. Regulatory Flexibility Act

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CBP has prepared this section to
examine the impacts of the proposed
rule on small entities as required by the
Regulatory Flexibility Act (RFA).76 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).
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 analysis.77 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.78 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 proposed 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.’’ 79
As described in the Regulatory
Assessment for this rulemaking, CBP
could not quantify the indirect impacts
of the proposed 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
proposed 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.
76 See

5 U.S.C. 601–612.
Small Business Administration, Office of
Advocacy, A Guide for Government Agencies: How
to Comply with the Regulatory Flexibility Act, May
2003.
78 See id. at 69.
79 See id. at 20.
77 See

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Small businesses may be indirectly
affected by the proposed 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.
The cost to such businesses would be
only $128 for a first-time passport
applicant, or $195 if expedited service
were requested, and would only be
incurred if the individual needed a
passport. We believe such an expense
would not rise to the level of being a
‘‘significant economic impact.’’ We
welcome comments on our
assumptions. The most helpful
comments are those that can provide
specific information or examples of a
direct impact on small entities. If we do
not receive comments that demonstrate
that the rule causes small entities to
incur direct costs, we may certify that
this action does not have a significant
economic impact on a substantial
number of small entities during the final
rule.
The complete analysis of impacts to
small entities for this proposed
rulemaking is available on the CBP Web
site at: http://www.regulations.gov; see
also http://www.cbp.gov. Comments
regarding the analysis and the
underlying assumptions are encouraged
and may be submitted by any of the
methods described under the ADDRESSES
section of this document.
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,

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or on the distribution of power and
responsibilities among the various
levels of government.’’ DHS and DOS
have analyzed the proposed rule in
accordance 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 proposed
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 with which
this rule would interfere. For these
reasons, this proposed rule would 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 proposal would not impose a
significant cost or uniquely affect small
governments. The proposal does have
an effect on the private sector of $100
million or more in any one year. This

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impact is discussed under the Executive
Order 12866 discussion.
E. National Environmental Policy Act of
1969
DHS and CBP, in consultation with
DOS, the Environmental Protection
Agency and the General Services
Administration have been reviewing 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) is being prepared that
examines, 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 proposed rule and its
implementation. The PEA will serve as
the basis for the determination whether
the proposed rule and its
implementation will have a significant
impact on the quality of the human
environment such that it will require
further analysis under NEPA.
A Notice of Availability will be
published in the Federal Register, and
the PEA will be available for viewing
and comments on http://
www.regulations.gov. The Notice of
Availability will also be published in
newspapers, and copies placed in
public libraries, in certain border areas.
Additionally, copies of the PEA will be
posted on the CBP Web site at http://
www.cbp.gov. The Notice of Availability
will provide details on how the public
may provide comments on the PEA. In
addition, copies may be obtained by
writing to: U.S. Customs and Border
Protection, 1300 Pennsylvania Avenue,
NW., Room 5.4C, Attn: WHTI
Environmental Assessment,
Washington, DC 20229.
F. Paperwork Reduction Act

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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
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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 treaties and 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 OMBapproved 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 proposed passport cards would use
the same application forms (DS–11 and
DS–82). First time applicants must use
the DS–11. The rule would not create
any new collection of information
requiring OMB approval under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507). It would result in an
increase in the number of persons filing
the DS–11, 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.
Comments should be submitted within
the time frame that comments are due
regarding the substance of the proposal.

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35111

Comments are invited on: (a) Whether
the collection is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(b) the accuracy of the agency’s estimate
of the burden of the collection of the
information; (c) ways to enhance the
quality, utility, and clarity of the
information to be collected; (d) ways to
minimize the burden of the collection of
information on respondents, including
through the use of automated collection
techniques or other forms of information
technology; and (e) estimates of capital
or startup costs and costs of operations,
maintenance, and purchases of services
to provide information.
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
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 a certified 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 certification of
Naturalization or a Consular Report of
Birth Abroad.
When crossing the border at the portof-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 signature of the supervising adult
certifying that he or she has obtained
parental or legal guardian consent for
each child.

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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 certified copy of a birth certificate,
Consular Report of Birth Abroad, or
Certificate of Naturalization, 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 would be
eligible for this alternative procedure so
that the children would not be required
to present a passport.
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. Comments
should be submitted within the time
frame that comments are due regarding
the substance of the proposal.
Comments are invited on: (a) Whether
the collection is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(b) the accuracy of the agency’s estimate
of the burden of the collection of the
information; (c) ways to enhance the
quality, utility, and clarity of the
information to be collected; (d) ways to
minimize the burden of the collection of
information on respondents, including
through the use of automated collection
techniques or other forms of information
technology; and (e) estimates of capital
or startup costs and costs of operations,
maintenance, and purchases of services
to provide information.
G. Privacy Statement
A Privacy Impact Assessment (PIA) is
being posted to the DHS Web site in
conjunction with the publication of this

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proposed rule in the Federal Register.
The changes proposed in this 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 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 exception for submitting passport
information from U.S. citizens traveling
within the Western Hemisphere, DOS
and CBP are requiring these individuals
to comply with the general requirement
to submit passport information when
traveling to and from the United States.

Title 8—Aliens and Nationality
PART 212—DOCUMENTARY
REQUIREMENTS; NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN
INADMISSIBLE ALIENS; PAROLE
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).

2. A new section 212.0 is added to
read as follows:
§ 212.0

Definitions.

22 CFR Part 41

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

Aliens, Nonimmigrants, Passports and
visas.

§ 212.1 Documentary requirements for
nonimmigrants.

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 53
Passports and visas, Travel
restrictions.
Proposed Amendments to the
Regulations
For the reasons stated above, DHS and
DOS propose to amend 8 CFR parts 212
and 235 and 22 CFR parts 41 and 53 as
set forth below.

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*
*
*
*
(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:

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(i) NEXUS Program. A Canadian
citizen who is traveling as a participant
in the NEXUS program 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 sea or land port-of-entry, 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. 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 sea or land 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 sea or land port-ofentry prior to entering the United States
from contiguous territory or adjacent
islands.
(iv) 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 certified copy of his or her birth
certificate when arriving in the United
States from contiguous territory at sea or
land 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
certified copy of his or her birth
certificate when arriving in the United
States from contiguous territory at sea or
land 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

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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)(iv)(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-ofentry, 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.
(ii) Is applying for admission from
contiguous territory or adjacent islands
at a sea or land port-of-entry, if the
national is a member of the Texas Band
of Kickapoo who is in possession of a
Form I–872 American Indian Card.
*
*
*
*
*

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35113

PART 235—INSPECTION OF PERSONS
APPLYING FOR ADMISSION
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).

5. Section 235.1 is amended by:
a. Revising paragraph (b); and
b. Revising paragraph (d).
The revised text reads as follows:
§ 235.1

Scope of Examination.

*

*
*
*
*
(b) U.S. Citizens. A person claiming
United States citizenship must establish
that fact to the examining officer’s
satisfaction and must present a 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 citizen, he or she shall
thereafter be inspected as an alien. A
United States citizen must present a
valid unexpired traditional passport
upon entering the United States, unless
he or she presents one of the following
documents:
(1) Passport Card. A United States
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 Canada, Mexico, the
Caribbean or Bermuda at sea or land
ports-of-entry.
(2) Merchant Mariner Document. A
United States citizen who holds a
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
United States 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 sea or land
port-of-entry prior to entering the

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United States from contiguous territory
or adjacent islands. A United States
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
United States citizen traveling entirely
within the Western Hemisphere is
permitted to present a governmentissued photo identification document in
combination with either an original or a
certified 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 before 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 same cruise ship to
the same United States port or place
from where he or she originally
departed.
(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 is permitted to
present the Form I–872 card prior to
entering the United States at a land or
sea port-of-entry.
(7) 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 meets the
applicable requirements described
below.
(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 certified 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 sea or land ports-of-entry.
(ii) Groups of Children Under Age 19.
A United States 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 certified 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 sea or land ports-of-entry, when the
group, organization, or team is under
the supervision of an adult affiliated

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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)(7)(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) Pilot Programs; alternate
requirements. For purposes of
conducting a test program or procedure
designed to evaluate the effectiveness of
technology or operational procedures
regarding the suitability of travel
documents that denote citizenship and
identity, the Secretary of Homeland
Security may enter into a voluntary
pilot program agreement with a State,
tribe, province, territory, or foreign
government. The Secretary of Homeland
Security may, by publication of a notice
in the Federal Register, designate as an
acceptable document for travel into the
United States from elsewhere in the
Western Hemisphere, on a temporary
basis, a valid and lawfully obtained
document from a State, tribe, province,
territory, or foreign government
developed in accordance with a
voluntary pilot program agreement
between that entity and the Department
of Homeland Security. If a pilot program
document is announced in such a
notice, United States citizens or foreign
nationals may present these accepted
pilot program documents in lieu of a
passport upon entering or seeking
admission to the United States
according to the terms announced in the
pilot program agreements. A list of such
programs and documents are available

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on the Customs and Border Protection
Web site.
*
*
*
*
*
Title 22—Foreign Relations
PART 41—VISAS: DOCUMENTATION
OF NONIMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY ACT
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).

Subpart A—Passport and Visas Not
Required for Certain Nonimmigrants
2. A new section 41.0 is added to read
as follows:
§ 41.0

Definitions.

For purposes 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; and
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)).
§ 41.1

[Amended]

3. Section 41.1 is amended by
removing and reserving paragraph (b).
4. Section 41.2 is amended by revising
the introductory text and paragraphs (a),
(b), and (g)(1), and adding a paragraph
(g)(5) to read as follows:
§ 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 INA as
amended a passport and/or visa is not

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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
classification 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 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 portof-entry, 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. 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 sea
or land 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
sea or land port-of-entry prior to
entering the United States from
contiguous territory or adjacent islands.
(4) 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 applicable requirements
described below.
(i) Children Under Age 16. A
Canadian citizen who is under the age
of 16 is permitted to present an original
or certified copy of his or her birth
certificate when arriving in the United
States from contiguous territory at sea or
land 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

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private school group, religious group,
social or cultural organization, or team
associated with a youth sport
organization may present an original or
certified copy of his or her birth
certificate when applying for admission
to the United States from contiguous
territory at all sea and land ports-ofentry, 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)(4)(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 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.
(5) Pilot Programs. A Canadian citizen
who is traveling as a participant in a
pilot program approved by the Secretary
of Homeland Security pursuant to 8 CFR
235.1(d) may present an acceptable
alternative document specified for that
pilot program when entering the United
States from contiguous territory or
adjacent islands at a land or sea port-ofentry, 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. A
Canadian citizen who enters the United
States by pleasure vessel from Canada
under the remote inspection system may
also present an acceptable pilot program
document if the Canadian citizen is
participating in a pilot program which
specifically provides that the acceptable

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pilot program document may be
presented for remote entry.
*
*
*
*
*
(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-ofentry, 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.
*
*
*
*
*
(5) 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
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
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. 30, 2003).

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

Exceptions.

(a) U.S. citizens are not required to
bear U.S. passports when traveling
directly between parts of the United
States as defined in § 50.1 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

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(2) When traveling entirely within the
Western Hemisphere on a cruise ship,
when the U.S. citizen boards the cruise
ship at a port or place within the United
States, and, returns on 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 certified
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; 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 sea or land port-ofentry. 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 sea or land 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 sea or land port-ofentry;
(iv) 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

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contiguous territory or adjacent islands,
Native American holders of American
Indian Cards (Form I–872) issued by
United States Citizenship and
Immigration Services (USCIS) may
present those cards.
(6) 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.
(7) 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
(8) 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 because there is an unforeseen
emergency; or
(9) 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.
(10) 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 certified 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 sea or land portsof-entry.
(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

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school group, religious group, social or
cultural organization, or team associated
with a youth sport organization may
present either an original or certified
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
providing certifying in the writing
submitted in paragraph (b)(10)(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.
Michael Chertoff,
Secretary of Homeland Security, Department
of Homeland Security.
Dated: June 19, 2007.
Henrietta Fore,
Under Secretary of State for Management,
Department of State.
[FR Doc. 07–3104 Filed 6–21–07; 2:11 pm]
BILLING CODE 9111–14–P

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