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SUBSCRIBE The leading Copyright |
[Federal Register: April 3, 2008 (Volume 73, Number 65)]
[Rules and Regulations]
[Page 18383-18420]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ap08-19]
[[Page 18383]]
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Part III
Department of Homeland Security
Department of State
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8 CFR Parts 212 and 235
22 Parts 41 and 53
Documents Required for Travelers Departing From or Arriving in the
United States at Sea and Land Ports-of-Entry From Within the Western
Hemisphere; Designation of an Enhanced Driver's License and Identity
Document Issued by the State of Washington as a Travel Document Under
the Western Hemisphere Travel Institute; Final Rule and Notice
[[Page 18384]]
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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 Ports-of-Entry From Within the
Western Hemisphere
AGENCIES: U.S. Customs and Border Protection, Department of Homeland
Security; Bureau of Consular Affairs, Department of State.
ACTION: Final rule.
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SUMMARY: This rule finalizes the second phase of a joint Department of
Homeland Security and Department of State plan, known as the Western
Hemisphere Travel Initiative, to implement new documentation
requirements for U.S. citizens and certain nonimmigrant aliens entering
the United States. This final rule details the documents U.S.
citizens\1\ and nonimmigrant citizens of Canada, Bermuda, and Mexico
will be required to present when entering the United States from within
the Western Hemisphere at sea and land ports-of-entry.
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\1\ ``U.S. citizens'' as used in this rule refers to both U.S.
citizens and U.S. non-citizen nationals.
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DATES: This final rule is effective on June 1, 2009.
FOR FURTHER INFORMATION CONTACT:
Department of Homeland Security: Colleen Manaher, WHTI, Office of Field
Operations, U.S. Customs and Border Protection, 1300 Pennsylvania
Avenue, NW., Room 5.4-D, Washington, DC 20229, telephone number (202)
344-1220.
Department of State: Consuelo Pachon, Office of Passport Policy,
Planning and Advisory Services, Bureau of Consular Affairs, telephone
number (202) 663-2662.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Documentation Requirements for Arrivals at Sea and Land
Ports-of-Entry Prior to This Rule
1. U.S. Citizens
2. Nonimmigrant Aliens From Canada and the British Overseas
Territory of Bermuda
3. Mexican Nationals
B. Statutory and Regulatory History
1. Intelligence Reform and Terrorism Prevention Act
2. Advance Notice of Proposed Rulemaking
3. Rules for Air Travel From Within the Western Hemisphere
4. Amendments to Section 7209 of IRTPA
5. Other Relevant Legislation
6. Passport Cards
7. Certifications to Congress
II. Documentation at the Border
III. Summary of Document Requirements in the Proposed Rule
IV. Discussion of Comments
A. General
B. Implementation
1. General
2. Timeline
3. Security/Operational Considerations
4. Technology
5. Cruise Ships
6. MODUs/OCS
C. Passports
1. General
2. Cost of Passports
3. Obtaining Passports
4. DOS Issuance Capacity
5. Passport Cards
D. Alternative Documents
1. General
2. Driver's License and Birth Certificate
3. Trusted Traveler Documents
4. Children/Groups of Children/Alternative Approaches/Parental
Consent
5. State Enhanced Driver's License Projects
6. Mexican/Canadian/Bermudian Documents
7. REAL ID Driver's Licenses
E. Native Americans and Canadian Indians
F. Outside the Scope of This Rulemaking
1. General
2. Air Rule
3. IBWC
4. Lawful Permanent Residents
5. Dual Nationals
G. Public Relations
1. General
2. Outreach
H. Regulatory Analyses
1. Regulatory Assessment
2. Regulatory Flexibility Act
V. Final Document Requirements
A. U.S. Citizens Arriving by Sea or Land
B. Canadian Citizens and Citizens of Bermuda Arriving by Sea or
Land
C. Mexican Nationals Arriving by Sea or Land
D. State Enhanced Driver's Licenses and Identification Documents
E. Future Documents
VI. Special Rules for Specific Populations
A. U.S. Citizen Cruise Ship Passengers
B. U.S. and Canadian Citizen Children
1. Children Under Age 16
2. Children Under Age 19 Traveling in Groups
C. American Indian Card Holders from Kickapoo Band of Texas and
Tribe of Oklahoma
D. Members of United States Native American Tribes
E. Canadian Indians
F. Individual Passport Waivers
G. Summary of Document Requirements
VII. Regulatory Analyses
A. Executive Order 12866: Regulatory Planning and Review
B. Regulatory Flexibility Act
C. Executive Order 13132: Federalism
D. Executive Order 12988: Civil Justice Reform
E. Unfunded Mandates Reform Act Assessment
F. Paperwork Reduction Act
G. Privacy Statement
List of Subjects
Amendments to the Regulations
Abbreviations and Terms Used in This Document
ANPRM--Advance Notice of Proposed Rulemaking
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--U.S. Customs and Border Protection
CBSA--Canada Border Services Agency
DHS--Department of Homeland Security
DOS--Department of State
FAST--Free and Secure Trade
FBI--Federal Bureau of Investigation
IBWC--International Boundary and Water Commission
INA--Immigration and Nationality Act
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
MMD--Merchant Mariner Document
MODU--Mobile Offshore Drilling Unit
MRZ--Machine Readable Zone
NATO--North Atlantic Treaty Organization
NEPA--National Environmental Policy Act of 1969
NPRM--Notice of Proposed Rulemaking
OARS--Outlying Area Reporting System
OCS--Outer Continental Shelf
PEA--Programmatic Environmental Assessment
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
TBKA--Texas Band of Kickapoo Act
UMRA--Unfunded Mandates Reform Act
USCIS--U.S. Citizenship and Immigration Services
US-VISIT--United States Visitor and Immigrant Status Indicator
Technology Program
WHTI--Western Hemisphere Travel Initiative
I. Background
For a detailed discussion of the document requirements for
travelers entering the United States from within the Western Hemisphere
before January 31, 2008, the statutory and regulatory histories through
June 26, 2007, and the applicability of the rule related to specific
groups, please see the NPRM published at 72 FR 35088. For the document
requirements which went into effect on January 31, 2008, please see the
Notice ``Oral Declarations No Longer Satisfactory as Evidence of
Citizenship and Identity'' which was published in the Federal Register
on December 21, 2007, at 72 FR 72744.
[[Page 18385]]
A. Documentation Requirements for Arrivals at Land and Sea Ports-of-
Entry Prior to the Effective Date of This Rule
The following is an overview of the documentation requirements for
citizens of the United States, Canada, British Overseas Territory of
Bermuda (Bermuda), and Mexico who enter the United States at sea and
land ports-of-entry prior to the effective date of this rule.
1. U.S. Citizens
Generally, U.S. citizens must possess a valid U.S. passport to
depart from or enter the United States.\2\ However, U.S. citizens who
depart from or enter the United States by land or sea from within the
Western Hemisphere other than from Cuba have historically been exempt
from this passport requirement.\3\ U.S. citizens have always been
required to satisfy the inspecting officers of their identity and
citizenship.\4\ Since January 31, 2008, U.S. citizens ages 19 and older
have been asked to present documents proving citizenship, such as a
birth certificate, and government-issued documents proving identity,
such as a driver's license, when entering the United States through
land and sea ports-of-entry. Children under the age of 19 have only
been asked to present proof of citizenship, such as a birth
certificate.\5\
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\2\ Section 215(b) of the Immigration and Nationality Act (INA),
8 U.S.C. 1185(b).
\3\ See 22 CFR 53.2(b), which waived the passport requirement
pursuant to section 215(b) of the INA, 8 U.S.C. 1185(b).
\4\ In lieu of a passport, travelers claiming U.S. citizenship
long have been permitted to enter on an oral declaration or to
present a variety of documents to establish their identity and
citizenship and right to enter the United States as requested by the
CBP officer. A driver's license issued by a state motor vehicle
administration or other competent state government authority is a
common form of identity document. Citizenship documents generally
include birth certificates issued by a United States jurisdiction,
Consular Reports of Birth Abroad, Certificates of Naturalization,
and Certificates of Citizenship.
\5\ 72 FR 72744.
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2. Nonimmigrant Aliens From Canada and the British Overseas Territory
of Bermuda
Each nonimmigrant alien arriving in the United States must present
a valid unexpired passport issued by his or her country of nationality
and, if required, a valid unexpired visa issued by a U.S. embassy or
consulate abroad.\6\ Nonimmigrant aliens entering the United States
must also satisfy any other applicable admission requirements (e.g.,
United States Visitor and Immigrant Status Indicator Technology Program
(US-VISIT)). However, the passport requirement is currently waived for
most citizens of Canada and Bermuda when entering the United States as
nonimmigrant visitors from countries in the Western Hemisphere at land
or sea ports-of-entry.\7\ These travelers have been required to satisfy
the inspecting CBP officer of their identities and citizenship at the
time of their applications for admission. Since January 31, 2008, these
nonimmigrant aliens also have been asked to present document proving
citizenship, such as a birth certificate, and government-issued
documents proving identity, such as a driver's license, when entering
the United States through land and sea ports-of-entry.\8\
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\6\ Section 212(a)(7)(B)(i) of the INA, 8 U.S.C.
1182(a)(7)(B)(i).
\7\ 8 CFR 212.1(a)(1) (Canadian citizens) and 8 CFR 212.1(a)(2)
(Citizens of Bermuda). See also 22 CFR 41.2.
\8\ 72 FR 72744.
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3. Mexican Nationals
Mexican nationals are generally required to present a valid
unexpired passport and visa when entering the United States. However,
Mexican nationals arriving in the United States at land and sea ports-
of-entry who possess a Form DSP-150, B-1/B-2 Visa and Border Crossing
Card (BCC) \9\ currently may be admitted without presenting a valid
passport if they are coming by land or sea from contiguous
territory.\10\
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\9\ A BCC is a machine-readable, biometric card, issued by the
Department of State, Bureau of Consular Affairs.
\10\ 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g).
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B. Statutory and Regulatory History
This final rule sets forth the second phase of a joint Department
of Homeland Security (DHS) and Department of State (DOS) plan, known as
the Western Hemisphere Travel Initiative (WHTI), to implement section
7209 of the Intelligence Reform and Terrorism Prevention Act of 2004,
as amended (IRTPA) on June 1, 2009.\11\ A brief discussion of IRTPA,
amendments to IRTPA, and related regulatory efforts follows. For a more
detailed description of these efforts through June 26, 2007, please
refer to the NPRM at 72 FR 35088.
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\11\ Pub. L. 108-458, as amended, 118 Stat. 3638 (Dec. 17,
2004).
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1. Intelligence Reform and Terrorism Prevention Act
On December 17, 2004, the President signed IRTPA into law.\12\
IRTPA mandates that the Secretary of Homeland Security, in consultation
with the Secretary of State, develop and implement a plan to require
travelers for whom the President had waived the passport requirement to
present a passport or other document, or combination of documents, that
are ``deemed by the Secretary of Homeland Security to be sufficient to
denote identity and citizenship'' when entering the United States. WHTI
thus requires U.S. citizens and nonimmigrant aliens from Canada,
Mexico, and Bermuda to comply with the new documentation requirements.
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\12\ Pub. L. 108-458, 118 Stat. 3638 (Dec. 17, 2004).
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2. Advance Notice of Proposed Rulemaking
On September 1, 2005, DHS and DOS published in the Federal Register
an advance notice of proposed rulemaking (ANPRM) that announced that
DHS and DOS were planning to amend their respective regulations to
implement section 7209 of IRTPA. For further information, please see
the ANPRM document that was published in the Federal Register on
September 1, 2005, at 70 FR 52037. Comments to the ANPRM related to
arrivals at sea and land ports-of-entry are addressed in this final
rule.
3. Rules for Air Travel From Within the Western Hemisphere
On August 11, 2006, DHS and DOS published an NPRM for air and sea
arrivals. The NPRM proposed that, subject to certain narrow exceptions,
beginning January 2007, all U.S. citizens and nonimmigrant aliens,
including those from Canada, Bermuda, and Mexico, entering the United
States by air and sea would be required to present a valid passport or
NEXUS Air card; U.S. citizens would also be permitted to present a
Merchant Mariner Document (MMD). The NPRM provided that the
requirements would not apply to members of the United States Armed
Forces. For a detailed discussion of what was proposed for air and sea
arrivals, please see the NPRM at 71 FR 41655 (hereinafter, Air and Sea
NPRM).
The final rule for travelers entering or departing the United
States at air ports-of-entry (hereinafter, Air Final Rule) was
published in the Federal Register on November 24, 2006. Beginning
January 23, 2007,\13\ U.S. citizens and nonimmigrant aliens from
Canada, Bermuda, and Mexico entering and departing the United States at
air ports-of-entry, which now includes from within the Western
Hemisphere, are generally required to bear a valid passport. The main
exceptions to this requirement are for U.S. citizens who present a
valid, unexpired MMD
[[Page 18386]]
traveling in conjunction with maritime business and U.S. and Canadian
citizens who present a NEXUS Air card for use at a NEXUS Air kiosk.\14\
The Air Rule made no changes to the requirements for members of the
United States Armed Forces. Please see the Air Final Rule at 71 FR
68412 for a full discussion of documentation requirements in the air
environment.
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\13\ DHS and DOS determined that delaying the effective date of
the Air Rule to January 23, 2007, was appropriate for air travel
because of operational considerations and available resources. See
id.
\14\ The Air Rule did not change the requirements for lawful
permanent residents. Lawful Permanent Residents of the United States
continue to need to carry their I-551 cards and permanent residents
of Canada continue to be required to present a passport and a visa,
if necessary, as they did before the rule came into effect.
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In the Air Final Rule, DHS and DOS deferred a final decision on the
document requirements for arrivals by sea until the second phase.
Complete responses to the comments relating to sea travel that were
submitted in response to the Air and Sea NPRM are presented in this
final rule.
4. Amendments to Section 7209 of IRTPA
On October 4, 2006, the President signed into law the Department of
Homeland Security Appropriations Act of 2007 (DHS Appropriations Act of
2007).\15\ Section 546 of the DHS Appropriations Act of 2007 amended
section 7209 of IRTPA by stressing the need for DHS and DOS to
expeditiously implement the WHTI requirements no later than the earlier
of two dates, June 1, 2009, or three months after the Secretaries of
Homeland Security and State certify that certain criteria have been
met. The section required ``expeditious[]'' action and stated that
requirements must be satisfied by the ``earlier'' of the dates
identified.\16\ Congress also expressed an interest in having the
requirements for sea and land implemented at the same time and having
alternative procedures for groups of children traveling under adult
supervision.\17\ However, on December 26, 2007, the President signed
into law the Department of Homeland Security Appropriations Act of 2008
(``Omnibus Bill'', Pub. L. 110-161) which amended section 7209(b)(1) of
IRTPA to require that WHTI ``may not be implemented earlier than the
date that is the later of 3 months after the Secretary of State and the
Secretary of Homeland Security make the certification required in
subparagraph (B) or June 1, 2009.'' (Section 545, Omnibus Bill).
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\15\ Pub. L. 109-295, 120 Stat. 1355 (Oct. 4, 2006).
\16\ Id. at 546. See Congressional Record, 109th Cong., 2nd
sess., September 29, 2006 at H7964.
\17\ Id.
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5. Other Relevant Legislation
On August 4, 2007, the President signed into law the Implementing
Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act
of 2007).\18\ Section 723 of the 9/11 Commission Act of 2007 called on
the Secretary of Homeland Security to begin to develop pilot programs
with states to develop state-issued secure documents that would denote
identity and citizenship. Section 724 of the 9/11 Commission Act of
2007 called on the Secretary of State to examine the feasibility of
lowering the execution fee for the proposed passport card.
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\18\ Pub. L. 110-53, 121 Stat. 266 (Aug. 4, 2007).
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6. Passport Cards
On October 17, 2006, to meet the documentation requirements of WHTI
and to facilitate the frequent travel of persons living in border
communities, DOS, in consultation with DHS, proposed to develop a card-
format passport for international travel by U.S. citizens through land
and sea ports-of-entry between the United States and Canada, Mexico, or
the Caribbean and Bermuda.\19\ The passport card will contain security
features similar to the traditional passport book. The passport card
will be particularly useful for citizens in border communities who
regularly cross the border and will be considerably less expensive than
a traditional passport. The validity period for the passport card will
be the same as for the traditional passport--ten years for adults and
five years for minors under age 16. The final rule on the passport card
was published on December 31, 2007 at 72 FR 74169.
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\19\ 71 FR 60928.
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7. Certifications to Congress
In Section 546 of the DHS Appropriations Act of 2007, Congress
called for DHS and DOS to make certain certifications before completing
the implementation of the WHTI plan. The Departments have been working
toward making these certifications since October 2006. In Section 723
of the 9/11 Commission Act, Congress required the submission of a
report to the appropriate congressional committees regarding the state
enhanced driver's license pilot program required by a separate
provision of the Act.
Congress has asked for the following certifications:
1. National Institute of Standards and Technology (NIST)
Certification. Acquire NIST certification for the passport card
concerning security standards and best practices for protection of
personal identification documents.
On May 1, 2007, NIST certified that the proposed card architecture
of the passport card meets or exceeds the relevant standard and best
practices, as specified in the statute.
2. Technology Sharing. Certify that passport card technology has
been shared with Canada and Mexico.
DHS and DOS continue to share information and meet regularly with
both Mexican and Canadian officials regarding the radio frequency
identification (RFID) technology for the passport card.
3. Postal Service Fee Agreement. Certify that an agreement has been
reached and reported to Congress on the fee collected by the U.S.
Postal Service for acceptance agent services.
DOS and the Postal Service have memorialized their agreement on the
fees for the passport card set by DOS, including the execution fee
which the Postal Service retains.
4. Groups of Children. Certify that an alternative procedure has
been developed for border crossings by groups of children.
The final rule contains an alternative procedure for groups of
children traveling across an international border under adult
supervision with parental consent as proposed in the land and sea NPRM.
5. Infrastructure. Certify that the necessary passport card
infrastructure has been installed and employees have been trained.
WHTI is a significant operational change in a series of changes
that are aimed at transforming the land border management system. DHS
will utilize the technology currently in place at all ports-of-entry to
read any travel document with a machine-readable zone, including
passports and the new passport card. CBP Officers have been trained in
use of this infrastructure. In addition, CBP will deploy an integrated
RFID technical infrastructure to support advanced identity verification
in incremental deployment phases. CBP Officers receive ongoing training
on WHTI policies and procedures and that will continue as we approach
full WHTI implementation, including technology deployment, technology
capability, and documentary requirements. CBP will develop training
requirements and plans, perform the required training, provide on-site
training support and monitor its effectiveness through assessment and
ongoing support. Initial training was completed in January 2008.
[[Page 18387]]
6. Passport Card Issuance. Certify that the passport card is
available to U.S. citizens.
DOS has developed an ambitious and aggressive schedule to develop
the passport card and is making progress toward that goal. DOS issued
the final rule on December 31, 2007. DOS has accepted applications for
the passport card since February 1, 2008, and expects to issue cards in
spring 2008.
7. Common Land and Sea Implementation. Certify to one
implementation date.
The final rule provides for one implementation date for land and
sea travel.
8. State Enhanced Driver's License Projects. Certify to agreement
for at least one voluntary program with a state to test a state-issued
enhanced driver's license and identification document.
On March 23, 2007, the Secretary of Homeland Security and the
Governor of Washington signed a Memorandum of Agreement to develop,
issue, test, and evaluate an enhanced driver's license and
identification card with facilitative technology to be used for border
crossing purposes. On September 26, 2007, the Secretary of Homeland
Security and the Governor of Vermont signed a similar Memorandum of
Agreement for an enhanced driver's license and identification card to
be used for border crossing purposes; on October 27, 2007, the
Secretary and the Governor of New York also signed a Memorandum of
Agreement. On December 6, 2007, the Secretary of Homeland Security and
the Governor of Arizona also signed a similar Memorandum of Agreement
to develop, issue, test, and evaluate an enhanced driver's license and
identification card.\20\
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\20\ For more information on these enhanced driver's license
projects, see http://www.dhs.gov.
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The Departments have worked very closely to update the appropriate
congressional committees on the status of these certifications and will
continue to do so until final certifications are made. DOS and DHS
believe that these certifications will be made well in advance of the
June 1, 2009, deadline for implementation. In the unlikely event that
the Departments are unable to complete all the necessary certifications
by June 1, 2009, the Departments will provide notice to the public and
amend the date(s) for compliance with the document requirements for
land and sea border crossings as necessary.
II. Documentation at the Border
In the Land and Sea NPRM, the Departments announced that, separate
from WHTI implementation, beginning January 31, 2008, CBP would begin
requesting documents that help establish identity and citizenship from
all U.S. and Canadian citizens entering the United States. This
announcement was made to reduce the well-known vulnerability posed by
those who might illegally purport to be U.S. or foreign citizens trying
to enter the U.S. by land or sea on a mere oral declaration. A person
claiming U.S. citizenship must establish that fact to the examining CBP
Officer's satisfaction, including by presenting documentation as
necessary. Historically, a U.S. citizen has had to present a U.S.
passport only if such passport is required under the provisions of 22
CFR part 53. Since January 31, 2008, DHS has expected the evidence of
U.S., Bermudian, or Canadian citizenship to include either of the
following documents or groups of documents: (1) Document specified in
CBP's regulations as WHTI-compliant for that individual's entry; or (2)
a government-issued photo identification document presented with proof
of citizenship, such as a birth certificate. CBP retains its
discretionary authority to request additional documentation when
warranted and to make individual exceptions in extraordinary
circumstances when oral declarations alone or with other alternative
documents may be accepted.
As of January 31, 2008, CBP has required proof of citizenship, such
as a birth certificate or other similar documentation as noted in the
final rule for U.S. and Canadian children under age 19.
III. Summary of Document Requirements in the Proposed Rule
In the June 26, 2007, NPRM, the Departments proposed new
documentation requirements for U.S. citizens and nonimmigrant aliens
from Canada, Bermuda, and Mexico entering the United States by land
from Canada and Mexico, or by sea \21\ from within the Western
Hemisphere. The proposed document requirements are summarized below;
for a full discussion of the proposed requirements, please refer to the
NPRM at 72 FR 35088 (hereinafter Land and Sea NPRM).
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\21\ In some circumstances under this rule, it is important to
distinguish between types of sea travel. Those circumstances are so
noted in the discussion of the final requirements.
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The Departments proposed that most U.S. citizens entering the
United States at all sea or land ports-of-entry would be required to
present either: (1) A U.S. passport book; (2) a U.S. passport card; (3)
a valid trusted traveler card (NEXUS, FAST, or SENTRI); (4) a valid MMD
when traveling in conjunction with official maritime business; or (5) a
valid U.S. Military identification card when traveling on official
orders or permit.
The Departments proposed that Canadian citizens entering the United
States at sea and land ports-of-entry would be required to present, in
addition to a visa, if required: \22\
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\22\ See 8 CFR 212.1(h), (l), and (m) and 22 CFR 41.2(k) and
(m).
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1. A passport issued by the Government of Canada; or
2. A valid trusted traveler program card issued by the Canada
Border Services Agency (CBSA) or DHS, e.g. FAST, NEXUS, or SENTRI.\23\
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\23\ Canadian citizens who demonstrate a need may enroll in the
SENTRI program and currently may use the SENTRI card in lieu of a
passport. To enroll in SENTRI, a Canadian participant must present a
valid passport and a valid visa, if required. Other foreign
participants in the SENTRI program must present a valid passport and
a valid visa, if required, when seeking admission to the United
States, in addition to the SENTRI Card. The proposed rule did not
alter the passport and visa requirements for other foreign enrollees
in SENTRI (i.e., other than Canadian foreign enrollees).
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In the Land and Sea NPRM, DHS and DOS also noted that they had
engaged with the Government of Canada in discussions of alternative
documents that could be considered for border crossing use at land and
sea ports-of-entry under the proposed rule. DHS and DOS pledged
continued engagement in discussions of alternatives and welcomed
comments suggesting alternative Canadian documents.
Under the proposed rule, all Bermudian citizens would be required
to present a passport issued by the Government of Bermuda or the United
Kingdom when seeking admission to the United States at all sea or land
ports-of-entry, including travel from within the Western Hemisphere.
In the Land and Sea NPRM, the Departments proposed that all Mexican
nationals would be required to present either: (1) A passport issued by
the Government of Mexico and a visa when seeking admission to the
United States or (2) a valid Form DSP-150, B-1/B-2 visa Border Crossing
Card (BCC) when seeking admission to the United States at land ports-
of-entry or arriving by pleasure vessel or by ferry from Mexico. The
Departments proposed that BCCs alone would no longer be acceptable by a
Mexican national to enter the United States from Canada; instead, a
Mexican national would need to present a passport and visa when
entering the United States from Canada.
The Departments proposed that Mexican nationals who hold BCCs would
be allowed to use their BCCs for
[[Page 18388]]
entry at the land border from Mexico and, when arriving by ferry or
pleasure vessel from Mexico. For travel outside of certain geographical
limits or for a stay over 30 days, Mexican nationals who entered the
United States from Mexico possessing a BCC would also be required to
obtain a Form I-94 from CBP as is currently the practice.\24\ The BCC
would not be permitted in lieu of a passport for commercial or other
sea arrivals in the United States.
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\24\ See 8 CFR 212.1(c)(1)(i); also 22 CFR 41.2(g). If Mexicans
are only traveling within a certain geographic area along the United
States' border with Mexico; usually up to 25 miles from the border
but within 75 miles under the exception for Tucson, Arizona, they do
not need to obtain a form I-94. If they travel outside of that
geographic area, they must obtain an I-94 from CBP at the port-of-
entry. 8 CFR 235.1(h)(1).
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The Departments also proposed continuing the current practice that
Mexican nationals may not use the FAST or SENTRI card in lieu of a
passport or BCC. Mexican national FAST and SENTRI participants,
however, would continue to benefit from expedited border processing.
The Departments also proposed to eliminate the exception to the
passport requirement for Mexican nationals who enter the United States
from Mexico solely to apply for a Mexican passport or other ``official
Mexican document'' at a Mexican consulate in the United States located
directly adjacent to a land port-of-entry and who currently are not
required to present a valid passport. This type of entry generally
occurs at land borders.\25\
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\25\ See 8 CFR 212.1(c)(1)(ii).
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In the Land and Sea NPRM, DHS and DOS encouraged U.S. states to
consider participation in enhanced driver's license pilot programs and
the Government of Canada to propose acceptable WHTI-compliant documents
that it would issue to its citizens. DHS proposed to consider, as
appropriate, documents such as driver's licenses that satisfy WHTI
requirements by denoting identity and citizenship. These documents
could be from a state, tribe, band, province, territory, or foreign
government if developed in accordance with enhanced driver's license
project agreements between those entities and DHS. In addition to
denoting identity and citizenship, these documents will have compatible
technology, security criteria, and respond to CBP's operational
concerns.
On January 29, 2008, DHS published in the Federal Register a final
rule concerning minimum standards for state-issued driver's licenses
and identification cards that can be accepted for official purposes in
accordance with the REAL ID Act.\26\ In the January 29, 2008 rule, DHS
indicated its intent to work with states interested in developing
driver's licenses that will meet both the REAL ID and WHTI
requirements.
---------------------------------------------------------------------------
\26\ See REAL ID Final Rule at 73 FR 5272.
---------------------------------------------------------------------------
In the Land and Sea NPRM, the Departments also proposed special
circumstances for specific groups of travelers permitting other
documents:
U.S. citizens on cruise ship voyages that originate and
end in the United States may carry government-issued photo
identification (IDs) and birth certificates, consular reports of birth
abroad or certificates of naturalization;
U.S. and Canadian citizen children under age 16 and
children age 16 to 18 traveling in groups may carry originals or
certified copies of birth certificates; U.S. citizen children may also
carry consular reports of birth abroad or certificates of
naturalization;
Members of the Kickapoo Band of Texas and Tribe of
Oklahoma may carry the Form I-872, American Indian Card;
The Land and Sea NPRM indicated that document requirements for
Lawful Permanent Residents (LPRs) of the United States, employees of
the International Boundary and Water Commission (IBWC) between the
United States and Mexico, workers on the Outer Continental Shelf (OCS),
active duty alien members of the U.S. Armed Forces, and members of
NATO-Member Armed Forces would remain unchanged.
The Departments also outlined certain approaches with regard to
Native Americans and Canadian Indians, as well as alternative
approaches to children and requested comments on the proposed
alternatives for inclusion in this final rule. A discussion of those
approaches and the comments received follows in the comment response
section.
IV. Discussion of Comments
In the ANPRM, the Air and Sea NPRM, and Land and Sea NPRM, DHS and
DOS sought public comment to assist the Secretary of Homeland Security
to make a final determination concerning which document, or combination
of documents, other than valid passports, would be accepted at sea and
land ports-of-entry.
DHS and DOS received 2,062 written comments in response to the
ANPRM and over 1,350 written comments in response to the Land and Sea
NPRM. The Departments also received several comments to the August 11,
2006, Air and Sea NPRM that addressed sea or land travel or the WHTI
plan generally, which have been included and addressed in these comment
responses. The majority of the comments (1,910 from the ANPRM)
addressed only potential changes to the documentation requirements at
land border ports-of-entry. One hundred and fifty-two comments from the
ANPRM addressed changes to the documentation requirements for persons
arriving at air or sea ports-of-entry. Comments in response to both the
ANPRM and the Land and Sea NPRM were received from a wide range of
sources including: Private citizens; businesses and associations;
local, state, federal, and tribal governments; members of the United
States Congress; and foreign government officials.
The comments received in response to the ANPRM and the Land and Sea
NPRM regarding arrivals by land and sea are addressed in this
rulemaking. A summary of the comments from the ANPRM, the Air and Sea
NPRM, and the Land and Sea NPRM follows with complete responses to the
comments.
A. General
DHS and DOS received thirty-nine comments to the Land and Sea NPRM
expressing general agreement with the proposed requirements.
DHS and DOS received several comments to the August 11, 2006, Air
and Sea NPRM for implementation of WHTI in the air and sea environments
that opposed any requirements for land-border crossings. DHS and DOS
received thirty comments to the Land and Sea NPRM expressing general
disagreement with the proposed rule. One commenter requested more
stringent document requirements than proposed.
B. Implementation
1. General
Comment: One commenter to the Land and Sea NPRM noted that a U.S.
citizen cannot be denied entry to the United States.
Response: U.S. citizens cannot be denied entry to the United
States; however, the documents that this rule requires are designed to
establish citizenship and identity. Travelers without WHTI-compliant
documents who claim U.S. citizenship will undergo additional inspection
and processing until the inspecting officer is satisfied that the
traveler is a U.S. citizen, which could lead to lengthy delays.
Comment: Two commenters to the Land and Sea NPRM expressed concern
that the manner by which DHS is certifying itself as being ready to
implement WHTI does not allow
[[Page 18389]]
Congress to exercise the necessary oversight of the WHTI program.
Response: DOS and DHS disagree. The Departments are in the process
of taking the necessary steps to be able to make all certifications to
Congress as required by statute. WHTI is a significant operational
change in a series of changes that are aimed at transforming the land
border management system. DHS will utilize the technology currently in
place at all ports-of-entry to read any travel document with a machine-
readable zone, including passports and the new passport card. CBP
Officers have been trained in use of this infrastructure. In addition,
CBP will deploy an integrated RFID technical infrastructure to support
advanced identity verification in incremental deployment phases. CBP
Officers receive ongoing training on WHTI policies and procedures and
that will continue as we approach full WHTI implementation, including
technology deployment, technology capability, and documentary
requirements. CBP will develop training requirements and plans, perform
the required training, provide on-site training support and monitor its
effectiveness through assessment and ongoing support, with initial
training having been completed in January 2008.
The Departments have worked very closely to update the appropriate
congressional committees on the status of the certifications and will
continue to do so until final certifications are made. Moreover, the
National Institute of Standards and Technology (NIST) certified on May
1, 2007, that the architecture of the passport card meets or exceeds
the relevant standard and the best practices for protection of personal
identification documents as specified in the statute. DOS and DHS are
on track to make all certifications well in advance of the June 1, 2009
implementation date.
Comment: Approximately two hundred commenters to the Land and Sea
NPRM requested that the Departments commit sufficient resources to
fully implement WHTI, including technology, staffing, funding,
training, and marketing.
Response: DOS and DHS are fully committed to providing the
necessary resources to implement WHTI, including technology, staffing,
funding, training, and outreach to the traveling public.
Comment: Several commenters raised concerns about requiring
passports or other forms of documentation during emergency situations.
One commenter stated that the passport waiver for U.S. citizens during
unforeseen emergencies or for humanitarian or national interest reasons
should also extend to Canadian and Mexican citizens. One commenter to
the Land and Sea NPRM requested that DHS consult with local emergency
responders so that WHTI does not compromise their ability to protect
American and Canadian communities.
Response: Pursuant to IRTPA, this final rule provides for
situations in which documentation requirements may be waived for U.S.
citizens on a case-by-case basis for unforeseen emergencies or
``humanitarian or national interest reasons.'' Similarly, CBP has
authority to temporarily admit non-immigrant aliens into the United
States on a temporary basis in case of a medical or other emergency,
which is not changed by this final rule. Finally, local emergency
responders routinely consult with local CBP offices regarding entry
procedures into the United States during emergency situations.
Comment: One commenter stated that the Land and Sea NPRM would be
contrary to U.S. obligations under international human rights law, free
trade agreements, and U.S. statutes, including the International
Covenant on Civil and Political Rights, the Charter of the Organization
of American States, the North American Free Trade Agreement (NAFTA),
and the NAFTA Implementation Act because the rules restrict free
movement of people in the Western Hemisphere.
Response: DHS and DOS are not denying U.S. or non-U.S. citizens the
ability to travel to and from the United States by requiring an
appropriate document for admission. Pursuant to 8 U.S.C. 1182(a)(7)(A)
and 1185, DHS and DOS have authority to require sufficient proof of
identity and citizenship via presentation of a passport or alternative
document when seeking entry to the United States. By requiring a valid
passport or other alternative document for entry to the United States
from within the Western Hemisphere, DHS and DOS are eliminating a
historical exemption of the requirement that all U.S. citizens and
other travelers must posses a passport to enter the country.
2. Timeline
Comment: DHS and DOS received one hundred and ten comments to the
ANPRM regarding the timeline for implementation of WHTI. Ten of the
ANPRM commenters believed that WHTI should be implemented sooner than
proposed. Nine of these commenters approved of the timelines proposed,
and ninety-four commenters believed that the timeline should be
extended.
Several comments to the Air and Sea NPRM and to the Land and Sea
NPRM asked for an extended implementation timeline. One commenter
stated that WHTI in the land and sea environments should be implemented
as soon as possible. A few commenters urged that the Departments give
the public ample opportunity to prepare for the final implementation.
Twenty-four commenters recommended delaying implementation until pilot
projects and field trials had been completed. Two hundred and six
commenters recommended that DHS should set a clear implementation date
of June 2009.
Six commenters requested a flexible and phased implementation
approach for WHTI. Thirty-six commenters recommended ensuring that
there is a critical mass of WHTI-compliant documentation (i.e.,
passports, NEXUS, FAST, and enhanced driver's licenses) in circulation
prior to WHTI implementation at land and sea ports-of-entry. One
commenter to the Land and Sea NPRM requested that key benchmarks
relating to document availability and installation of required
infrastructure be developed to determine the timeline for full
implementation.
Response: Since the publication of the NPRM, Congress has amended
section 7209 by the 200 Omnibus Bill, to prohibit WHTI from being
implemented before June 1, 2009, at the earliest. DHS and DOS will
transition toward WHTI secure document requirements over the next 16
months, with implementation on June 1, 2009. This allows ample time for
the public to prepare for the change.
Comment: Two commenters stated that ending oral declarations on
January 31, 2008, without a plan would cause substantial delays at
ports-of-entry and suggested a single implementation date of 2009
rather than a phased implementation. Three commenters were concerned
about how the elimination of the practice of accepting oral
declarations of citizenship and how processing of travelers without
documents in the transition phase will impact the flow of traffic at
busy border crossings.
Response: In the Land and Sea NPRM, the Departments announced that,
separate from WHTI implementation, beginning January 31, 2008, CBP
would begin requesting documents that evidence identity and citizenship
from all U.S. and Canadian citizens entering the United States at land
and sea ports-of-entry. This change was made to reduce the well-known
vulnerability posed by those who might illegally purport to be U.S. or
foreign citizens trying to enter the United States by land
[[Page 18390]]
or sea on a mere oral declaration. As of January 31, 2008, a person
claiming U.S. citizenship must establish that fact to the examining CBP
Officer's satisfaction, generally through the presentation of a birth
certificate and government-issued photo identification. CBP retains its
discretionary authority to request additional documentation when
warranted and to make individual exceptions in extraordinary
circumstances when oral declarations alone or with other alternative
documents may be accepted.
CBP has relied on its operational experience in processing
travelers entering the United States by land to ensure that the
elimination of oral declarations is implemented in a manner that will
minimize delays while achieving the security benefit underlying WHTI.
The changes that took place January 31, 2008, have gone smoothly.
Compliance rates are high and continue to increase. There have been no
increases in wait times attributable to the end of accepting oral
declarations alone at the border.
Comment: One commenter to the Land and Sea NPRM stated that WHTI
implementation should be delayed until a study underway at the
Government Accountability Office (GAO) is completed. Another commenter
called upon DHS to conduct a more comprehensive economic impact
analysis before the proposed rule is promulgated.
Response: The Departments welcome congressional oversight and have
cooperated with several GAO engagements that have directly or
indirectly touched on WHTI. The Departments intend to fully implement
WHTI on June 1, 2009, the earliest possible date, which the Departments
believe is in the best interests of national security. Additionally,
the Departments are providing ample time for robust communication
efforts to and preparation by the traveling public. While the
Departments will consider the findings of these GAO engagements with
regard to WHTI implementation, it is not necessary, nor would it be
appropriate, to delay implementation of WHTI until any particular GAO
report is completed. Moreover, CBP has also conducted a robust economic
analysis of the proposed rule, as detailed in the Land and Sea NPRM and
elsewhere in this document, in accordance with applicable laws,
regulations, and policies.
3. Security and Other Operational Considerations
Comment: DHS and DOS received approximately thirty-five comments to
the ANPRM stating that the implementation of WHTI at the land borders
would result in travel delays at the ports-of-entry. Ten commenters to
the Land and Sea NPRM recommended that the ``border crossing agencies''
implement a plan to anticipate and mitigate longer waits at key border
crossings.
Response: DHS has analyzed the potential for travel delays at the
ports-of-entry in the document ``Western Hemisphere Travel Initiative
in the Land and Sea Environments: Programmatic Environmental
Assessment.'' The public was invited to comment on this analysis. DHS
has concluded that implementation of WHTI in the land environment will
not have an adverse impact on wait times. By using documents that
contain an MRZ or employ RFID technology, the Departments anticipate
that wait times will decrease. The final Programmatic Environmental
Assessment is available at http://www.cbp.gov.
4. Technology
Comment: Eight commenters to the Land and Sea NPRM stated that WHTI
should not be implemented until RFID technology has been deployed.
These commenters also stated that RFID technology should be deployed at
all land-border crossings. Six hundred and thirty-eight commenters
stated that appropriate infrastructure and personnel should be in place
for a program of this magnitude.
Response: DHS is committed to ensuring that infrastructure and
fully trained personnel are in place to successfully implement WHTI in
the land environment. DHS believes that deploying new RFID technology
at certain land ports-of-entry, in combination with existing
technology, is the most cost-effective way to enhance security while
ensuring the efficient flow of trade and travelers. DHS believes that
RFID deployment to low-volume land-border ports-of-entry in the near
future is unnecessary given the current traffic volumes.
Comment: Two commenters to the Land and Sea NPRM stated that DHS
and DOS should reconsider the use of vicinity RFID technology in the
passport card because of the substantial privacy and security risks.
Four commenters stated that the implementation of WHTI should protect
the personal privacy of travelers.
Response: Based on experience to date with the use of RFID
technology, DHS is confident that existing and future vicinity RFID-
enabled documents can be used at the border in a manner that safeguards
personal privacy. RFID technology is currently used as part of existing
trusted traveler programs. The RFID chip contained in the passport card
issued by DOS will not contain any personal information. The vicinity
RFID technology to be deployed would act as a pointer to a secure CBP
database and does not transmit personal information. The information is
presented to CBP officers as the traveler pulls up to an inspection
booth, thus facilitating faster processing of the individual.
5. Cruise Ships
Comment: Four commenters to the Land and Sea NPRM stated their
appreciation that passports will not be required for those cruise
passengers departing and returning to the United States. One commenter
disagreed with the proposed alternative document requirement for
certain U.S. citizen cruise ship passengers.
Response: DHS and DOS appreciate these comments, and have decided
to adopt in the final rule the NPRM provision addressing U.S. citizens
on round-trip cruises. Thus, U.S. citizens traveling entirely within
the Western Hemisphere may present a government-issued photo ID along
with an original or a copy of a birth certificate instead of a document
designated in this final rule if they: (1) Board a cruise ship at a
port or place within the United States and (2) return to the same U.S.
port or place from where they originally departed. In addition, DHS and
DOS added a new provision that clarifies that U.S. citizens under the
age of 16 are required to present either an original or a copy of his
or her birth certificate without having to provide a photo ID.
Regarding the comment opposing alternative document requirements
for cruise ship passengers, because of the nature of round trip cruise
ship travel, DHS has determined that when U.S. citizens depart from and
reenter the United States on board the same cruise ship, they pose a
low security risk in contrast to cruise ship passengers who embark in
foreign ports. Therefore, under certain conditions, U.S. citizen cruise
ship passengers traveling within the Western Hemisphere will be
permitted to present alternative documentation as described in section
V.A. of this document.
6. MODUs/OCS
Comment: One commenter to the Land and Sea NPRM supported the
clarification on document requirements for workers returning to and
from Mobile Offshore Drilling Units (MODUs) within the United States
Outer Continental Shelf (OCS).
[[Page 18391]]
Response: DHS and DOS appreciate this comment. DHS and DOS
clarified in the Land and Sea NPRM that offshore workers who work
aboard Mobile Offshore Drilling Units (MODUs) attached to the United
States Outer Continental Shelf (OCS), and who travel to and from MODUs,
would not need to possess a passport or other designated document to
re-enter the United States if they do not enter a foreign port or
place. Upon return to the United States from a MODU, such an individual
would not be considered an applicant for admission for inspection
purposes under 8 CFR 235.1. Therefore, this individual would not need
to possess a passport or other designated document when returning to
the United States. DHS and DOS note that, for immigration purposes,
offshore employees on MODUs underway, which are not considered attached
to the OCS, would not need to present a passport or other designated
document for re-entry to the United States mainland or other territory
if they do not enter a foreign port or place during transit. However,
an individual who travels to a MODU directly from a foreign port or
place and, therefore, has not been previously inspected and admitted to
the United States, would be required to possess a passport or other
designated document when arriving at the United States port-of-entry by
sea.
C. Passports
1. General
Comment: Thirty-one commenters to the Land and Sea NPRM stated that
increasing the number of documents in circulation will increase the
number of documents that are lost, stolen or misplaced, and thus
individuals in these circumstances will need expedited replacement. One
commenter to the Land and Sea NPRM expressed concern about how to enter
the United States if his passport had been lost or stolen.
Response: U.S. citizens whose passports are lost or stolen can
apply for replacements and request expedited service if necessary.
Individuals who are abroad and have an urgent need to travel are
generally issued a one-year, limited validity passport that will enable
them to continue their trips. That passport will be replaced within the
year for no additional fee either domestically or abroad. Individuals
who are within the United States and have an urgent need to travel may
pay a fee for expedited processing as defined in 22 CFR 51.56.
Comment: One commenter to the Land and Sea NRPM raised concerns
about the security of U.S. and foreign passports, stating that
passports are easily falsified or altered. One commenter stated that
passports can be intercepted in the mail and falsified.
Response: A primary purpose of the passport has always been to
establish citizenship and identity. It has been used to facilitate
travel to foreign countries by displaying any appropriate visas or
entry/exit stamps. Passports are globally interoperable, consistent
with worldwide standards, and usable regardless of the international
destination of the traveler. As such, we recognize that false passports
are valuable assets for dangerous people. We take precautionary
measures to verify passports and share information with international
partners regarding lost and stolen passports.
U.S. passports incorporate a host of security features. These
security features include, but are not limited to, rigorous
adjudication standards and document security features. The adjudication
standards establish the individual's citizenship and identity and
ensure that the individual meets the qualifications for a U.S.
passport. The document authentication features include digitized
photographs, embossed seals, watermarks, ultraviolet and fluorescent
light verification features, security laminations, micro-printing, and
holograms.
An application for a U.S. passport is adjudicated by trained DOS
experts and issued to persons who have documented their identity and
United States citizenship by birth, naturalization or derivation.
Applications are subject to additional Federal government checks to
ensure the applicants are eligible to receive a U.S. passport under
applicable standards.
U.S. passports are delivered by priority mail with delivery
confirmation providing proof of receipt at the addressee's zip code.
Mail carriers are instructed to scan the Priority Mail piece at the
time it is delivered to the address indicated on the envelope. Priority
Mail envelopes also help protect the passport from loss or theft. The
envelopes are sturdy and less likely to become damaged or unsealed
during mail processing.
Foreign passports accepted for admission to the United States must
meet the standards set out in the International Civil Aviation
Organization (ICAO) 9303, and a CBP inspecting officer verifies and
authenticates such passports presented for admission to the United
States.
2. Cost of Passports
Comment: In response to the Air and Sea NPRM and Land and Sea NPRM,
DHS and DOS received many comments stating that passports are too
expensive for routine cross-border visits and that the cost of the
passport book should be reduced or eliminated. Several commenters
requested that DOS offer lower rates for families, the elderly, and
children under 18. One commenter was concerned about the eventual cost
of the passport card. One commenter stated that the cost of the
passport card should be reasonable and it should remain less expensive
than a passport. One commenter to the Land and Sea NPRM requested a no-
cost passport card for travelers who cross international borders at
unique geographical locations. One commenter urged the State Department
to provide expedited passport service to truck drivers at no additional
charge. Five commenters to the Land and Sea NPRM suggested that U.S.
passport fees be waived for Indian tribal members. One commenter stated
that the cost of obtaining a passport would cause people not to travel,
negatively affecting commerce.
Response: Title 22 of the United States Code mandates that DOS
charge a fee for each passport application and a fee for executing each
application, where applicable. The law and implementing regulations
provide for certain exemptions from passport fees, but the law does not
provide DOS the discretion to create additional exemptions or a reduced
fee category based on the personal circumstances of the individual.
Children do benefit from a lower application fee but it reflects the
reduced validity period of the passport rather than a concession based
on age. Please see the passport card final rule () for more information
on the cost structure of the passport card. See 72 FR 74169.
3. Obtaining Passports
Comment: DHS and DOS received seven comments to the Land and Sea
NPRM asking why a birth certificate had to be submitted with the
passport application or an old passport had to be submitted along with
a renewal application, thus potentially leaving travelers without a
passport or a birth certificate to use for international travel.
Response: To prevent fraud, original birth certificates must be
examined by passport examiners who are trained in fraud detection
before they are returned to the applicant. For the same reason, a
person is not permitted to hold two valid passports of the same type
except on DOS authorization. DOS physically cancels current passports
when it issues new passports, therefore, current or old passports have
to be submitted during the renewal process. If a passport is
[[Page 18392]]
needed for urgent travel, the traveler can request expedited service.
4. DOS Issuance Capacity
Comment: DHS and DOS received one hundred eighty-four comments to
the Land and Sea NPRM that expressed concern that DOS would not be able
to timely process the increased numbers of passport applications that
will result from implementation of the rule. One commenter stated that
standard applications should be processed in six weeks and expedited
applications in one week. One commenter stated that with the increase
of passport applications, adjudicators within DOS are not given enough
time to thoroughly check them. One commenter stated that the wait time
in applying for the passport card should be less than thirty days.
Response: Prior to the implementation of the first phase of WHTI in
January 2007, DHS and DOS conducted a successful campaign to alert the
traveling public and stakeholders in the private sector to the new
document requirements implemented in the air phase, particularly in the
aviation and travel and tourism industries.
DOS has taken numerous measures in response to the increased demand
resulting from the implementation of WHTI. DOS has created hundreds of
new positions and is currently producing more than 1.6 million
passports per month. DOS anticipates increasing passport issuance to
500,000 documents a week. DOS is also planning to open additional
passport facilities around the country. Through these efforts, DOS
expects to be able to meet the increased demand resulting from the
implementation of WHTI in the land and sea environments.
5. Passport Cards
Comment: DHS and DOS received four comments to the Air and Sea NPRM
for implementation of WHTI in the air and sea environments requesting
that the passport card be designated as an acceptable document in the
air environment. Two commenters to the Land and Sea NPRM did not
support the issuance of passport cards because the cards cannot be used
for international travel beyond Canada, Mexico, the Caribbean, or
Bermuda.
Response: The passport card is intended as a lower cost means of
establishing identity and nationality for U.S. citizens in two limited
situations--for U.S. citizens crossing U.S. land borders and traveling
by sea between the United States, Canada, Mexico, the Caribbean, or
Bermuda. The passport card is not designed to be a globally
interoperable travel document as defined by the International Civil
Aviation Organization (ICAO). In fact, designating the card format
passport for wider use, including by air travelers, would inadvertently
undercut the broad-based international effort to strengthen civil
aviation security and travel document specifications to address the
post 9/11 threat environment because it would not meet all the
international standards for passports and other official travel
documents. Moreover, in its consideration of the 2007 Appropriations
Act for the Department of Homeland Security, Congress, while allowing
for the use of the passport card by citizens traveling by sea between
the United States, Canada, Mexico, the Caribbean, or Bermuda, did not
make parallel changes regarding international air travel.
Comment: DHS and DOS received five comments to the Land and Sea
NPRM stating that the implementation of WHTI should not take place
until the passport card is available. One commenter suggested that the
passport card should be issued in conjunction with existing state
licensing agencies with federal support. Four commenters stated that
the passport card could not possibly be designed, tested, publicized,
and be readily obtainable by the summer of 2008. One commenter stated
that the issuance of a passport card would not facilitate spontaneous
travel.
Response: As stated in the Land and Sea NPRM, in which the
Departments jointly announced the next phase of WHTI addressing entry
into U.S. land and sea ports-of-entry, DHS and DOS have considered the
operational challenges posed by the new requirements. As a result, the
Departments are taking a flexible, practical approach to land
implementation that considers a variety of factors, including the
availability of passports, passport cards, and state-issued enhanced
driver's licenses pursuant to project agreements with DHS. During this
transition period, U.S. citizens will be able to obtain the documents
necessary to satisfy WHTI.
Comment: The Government of Canada commented on the Land and Sea
NPRM and encouraged the sharing of the technological and procurement
specifications of the U.S. passport card in order to assist in the
development of comparable passport card options in other countries.
Response: DHS and DOS have engaged with the Government of Canada in
discussions of alternative documents proposed by the Canadian federal
government and several provinces that could be considered for border
crossing use at land and sea ports-of-entry. DHS and DOS have shared
technology and procurement specifications with the Government of Canada
regarding alternative travel documents and welcome continued engagement
with Canadian counterparts to implement WHTI. Alternative identity and
citizenship documents issued by the Government of Canada will be
considered in the future.
Comment: One commenter to the NPRM recommended that the card should
expire not less than ten years from the date issued.
Response: Passport cards, like passport books, will be valid for
ten years for adults and five years for children less than 16 years of
age.
D. Alternative Documents
1. General
Comment: DHS and DOS received approximately 230 comments to the
ANPRM requesting alternative documentation to the traditional passport
book. Almost half of those commenters wanted a low-cost identification
card that could be used for crossing the border. Many commenters
requested that existing CBP Trusted Traveler cards be accepted. Several
commenters asked for a clear definition of the documents that would be
acceptable under WHTI for land travel. A few commenters stated that
only the passport should be acceptable. Two commenters asked that a
Transportation Worker Identification Card (TWIC) be designated as an
acceptable document.
DHS and DOS received three comments to the Land and Sea NPRM
requesting a low-cost identification card that could be used for
crossing the border. Eleven commenters to the Land and Sea NPRM
supported the opportunity for travelers to present a variety of
government-approved identifications. Three commenters requested DHS and
DOS to further study the possibility for alternative identification
that would be accepted in place of a passport.
Response: Other acceptable documents are designated in this rule by
the Secretary of Homeland Security as sufficient to establish identity
and citizenship at land and sea ports-of-entry. For U.S. citizens,
along with the passport and lower-cost passport card, CBP Trusted
Traveler cards under the NEXUS, SENTRI, and FAST programs will be
accepted under this rule. In addition, identification cards issued to
military members of the U.S. Armed Forces will be accepted when such
[[Page 18393]]
personnel are traveling on official travel orders. Merchant Mariner
Documents (MMDs) issued by the U.S. Coast Guard to U.S. citizens will
also be accepted when traveling for official maritime business.
Canadian citizens will be able to present CBP Trusted Traveler
Cards. The Border Crossing Card (BCC) issued by DOS to Mexican
nationals will be accepted when coming from Mexico.
Documents issued as part of a DHS-approved state enhanced driver's
license project will be acceptable according to the agreement between
the individual state and DHS, or the Government of Canada and DHS.
Details on state enhanced driver's license projects will be published
as notices in the Federal Register as they are finalized.
In addition to the documents described above, DHS and DOS are
providing alternatives to the passport requirement for children under
16, children under 18 traveling in groups, Native American U.S.
citizens, Canadian Indians, and certain U.S. cruise passengers on
``closed-loop'' voyages that originate in the United States. DHS and
DOS encourage U.S. states and Canadian provinces (through the
Government of Canada) to participate in enhanced driver's license
projects.
Comment: Four commenters to the Land and Sea NPRM asked for a
definition of ``availability'' concerning documents that will be
accepted under WHTI.
Response: In the Land and Sea NPRM, the Departments stated, in the
context of implementation and the effective date of the final rule:
At a date to be determined by the Secretary of Homeland
Security, in consultation with the Secretary of State, the
Departments will implement the full requirements of the land and sea
phase of WHTI. The implementation date will be determined based on a
number of factors, including the progress of actions undertaken by
the Department of Homeland Security to implement the WHTI
requirements and the availability of WHTI compliant documents on
both sides of the border. * * * \27\
\27\ 72 FR at 35096.
In this context, ``availability'' means that WHTI-designated documents
exist and the public can obtain them. The Departments are publishing
this final rule with ample notice to the traveling public. This will
also allow sufficient time for the traveling public to obtain documents
before June 1, 2009.
Comment: Thirteen commenters to the Land and Sea NPRM asked that
the Departments include a provision in the final rule for a non-photo
identification document (e.g., fingerprint verification) for persons
who object to being photographed based on their religious beliefs.
Response: While DHS and DOS remain sensitive to the concerns of
different religious groups, the Departments must balance those concerns
against the need to secure our borders through the implementation of
the document standards required by WHTI. In particular, photographs
serve a unique and essential function and significantly minimize the
opportunities for document fraud, unlike fingerprints, by allowing an
inspecting CBP officer or any law enforcement officer to immediately
compare the picture on the document against the traveler. In order to
be consistent with international travel standards, DHS is requiring all
adult travelers to carry a government-issued photographic
identification document. Failure to do so may result in delays at the
border as officers try to determine identity and citizenship.
2. Driver's License and Birth Certificate
Comment: DHS and DOS received almost 300 comments to the ANPRM
stating that the combination of a driver's license and birth
certificate should be acceptable to denote an individual's citizenship
and identity. DOS and DHS received several comments to the Land and Sea
NPRM stating that a driver's license and birth certificate should be
acceptable to denote an individual's citizenship and identity. One
commenter stated that because Native Americans can use their tribal
identification cards, northern-border citizens should be allowed to use
their state or province-issued birth certificates and driver's
licenses. Thirty-eight commenters stated that they should be exempt
from a passport requirement due to their unique geographic location.
Two commenters requested special provisions for waiving passport
requirements for North American Indians traveling through the U.S.
border. One commenter disagreed with the cruise ship exemption for U.S.
citizens.
Response: The Departments agree that U.S. citizens may use the
combination of a driver's license and birth certificate when traveling
on ``closed loop'' cruise ship voyages, where the U.S. citizen departs
from a U.S. port or place and returns to the same U.S. port upon
completion of the voyage. Accordingly, we disagree with the commenter
advocating that the Departments not adopt a special provision for
cruise travel. DHS and DOS have determined that exempting certain
cruise passengers from a passport requirement is the best approach to
balance security and travel efficiency considerations in the cruise
ship environment. In contrast, because of the myriad government
entities that issue birth certificates and because of the greater
potential for counterfeiting or adulteration associated with general
use in the land and sea environments, the Departments have determined
that it is not prudent to permit the combination of birth certificates
and driver's licenses generally for adults when single, secure
documents are available. CBP recognizes that residents of unique
geographic locations face special challenges in that some must travel
through Canada to get from their homes in the United States to their
schools, jobs, and hospitals in other areas of the United States. CBP
has worked with many of these communities over the years to facilitate
travel. Full implementation of WHTI will not diminish CBP's ability to
utilize existing protocols and other inspection processes to admit
travelers to and from unique geographic locations. The Departments have
elected not to adopt any of the remaining comments.
Comment: DHS and DOS received several comments to the Land and Sea
NPRM stating that because the combination of a driver's license and
birth certificate is acceptable aboard a cruise ship, it should also be
acceptable documentation for land-border entries. One commenter stated
that because the land-border tourist industry has a far larger impact
on the U.S. economy than the cruise-ship industry, the land border
deserves no less protection and consideration.
Response: DHS and DOS disagree. As mentioned previously, due to the
operational environment and the security risks assessed, the
Departments have determined that U.S. citizens may use the combination
of a driver's license and birth certificate when traveling on certain
cruise-ship voyages. As detailed in the Land and Sea NPRM, the security
risks associated with designating this document combination for U.S.
citizens on round-trip cruises are low. See 72 FR 35096. DHS and DOS
have carefully considered the issues surrounding protection of our land
borders and have determined that the documents designated in this rule
for entry at land ports-of-entry reflect the best approach to balance
security and travel efficiency considerations in the land environment.
Comment: Three commenters to the Land and Sea NPRM recommended that
senior citizens be permitted entry to the United States using
government-issued photo identification with proof of citizenship based
on their low security
[[Page 18394]]
risk, significant cross-border linkages, and limited financial
resources.
Response: DHS and DOS appreciate this comment. DHS and DOS are
sensitive to the needs of senior citizens and note that DOS will be
offering a lower cost passport card as an alternative to the passport
book. Senior citizens who live in participating states or provinces may
also be eligible to obtain an enhanced driver's license.
3. Trusted Traveler Documents
Comment: Three commenters to the Land and Sea NPRM expressed
concern that the existing NEXUS card is not considered an acceptable
form of ID at the border. One commenter sought early written assurances
that NEXUS cards will be recognized as entry documents in non-dedicated
commuter lanes. One commenter stated that DHS should make it a priority
to expand both NEXUS and FAST.
Response: Existing NEXUS cards are already acceptable documents for
entry at land and sea ports-of-entry. CBP is upgrading the card format/
features and is conducting a robust training program for its personnel
at these ports of entry to ensure that CBP Officers enforce both the
current documentation procedures recognizing trusted traveler cards and
the WHTI requirements uniformly.
Comment: Twenty-six commenters to the Land and Sea NPRM requested
the expansion of the NEXUS, SENTRI, and FAST programs. Four commenters
requested that the Trusted Traveler Programs be promoted more
aggressively. Two commenters requested that the government explore
opportunities and technologies to further develop frequent border
crossing programs. Two commenters requested the expansion of the NEXUS
program to include driver's licenses. Three commenters stated it is
imperative that the phrase ``as a participant in the program'' be
interpreted broadly enough to cover situations where truck drivers are
crossing the border in a regular commercial or traveler lane for both
NEXUS and FAST.
Response: CBP is expanding the NEXUS, SENTRI, and FAST Trusted
Traveler programs to accommodate an increase in applications expected
as a result of the implementation of WHTI.
4. Children/Groups of Children/Alternative Approaches/Parental Consent
Comment: Thirty-one commenters to the ANPRM asked to allow
travelers under the age of 16 to use a birth certificate as sufficient
proof of identity and citizenship. Ninety-three commenters to the Land
and Sea NPRM supported the proposed requirements for children. Four
commenters to the Land and Sea NPRM suggested the exemption from
presenting a passport be raised to age 16 and under. One commenter
stated that it would be appropriate to exempt children under the age of
18. Sixty-eight commenters supported the provisions being made for
children traveling with their families, in groups, or with chaperones.
One commenter stated that there was concern for the treatment of
children if they have lost their documentation and were detained at the
border. One commenter asked that U.S. and Canadian children traveling
in groups for short trips should not be required to carry an original
or certified copy of a birth certificate if accompanied by a chaperone.
One commenter stated that attendance by students who are not members of
athletic teams at high school events is jeopardized by this proposal.
Response: Under this final rule, all U.S. citizen children under
the age of 16 are permitted to present at all sea and land ports-of-
entry when arriving from contiguous territory either: (1) An original
or a copy of a birth certificate; (2) a Consular Report of Birth Abroad
issued by DOS; or (3) a Certificate of Naturalization issued by U.S.
Citizenship and Immigration Services. The Departments have decided to
expand the list of documents Canadian children may present. Under the
final rule, Canadian citizen children under the age of 16 are permitted
to present an original or a copy of a birth certificate, a Canadian
Citizenship Card, or Canadian Naturalization Certificate at all sea and
land ports-of-entry when arriving from contiguous territory. The final
rule relaxes the birth certificate requirement by allowing presentation
of either an original or copy of a birth certificate, rather than an
original or a certified copy as proposed in the NPRM.
DHS and DOS have determined that age 16 is the most appropriate age
to begin the requirement to present a passport book, passport card (for
U.S. citizens), or other approved document because at that age most
states begin issuing photo identification to children, such as a
driver's license, and at that point, the child would, consequently,
have a known and established identity that could be readily accessed by
border security and law enforcement personnel. Also, age 16 is the age
at which DOS begins to issue adult passports, valid for 10 years
instead of 5 years for children. DHS and DOS also recognize that it is
difficult for the majority of children under age 16 to obtain a form of
government-issued photo identification other than a passport.
Under this final rule, U.S. citizen children under age 19, who are
traveling with public or private school groups, religious groups,
social or cultural organizations, or teams associated with youth sport
organizations that arrive at U.S. sea or land ports-of-entry from
contiguous territory, are permitted to present either: (1) An original
or a copy of a birth certificate; (2) a Consular Report of Birth Abroad
issued by DOS; or (3) a Certificate of Naturalization issued by USCIS.
Under this provision, groups of children must be under the supervision
of an adult affiliated with the organization (including a parent of one
of the accompanied children who is only affiliated with the
organization for purposes of a particular trip) and all the children
have parental or legal guardian consent to travel. Canadian citizen
children under age 19 who are traveling in groups are permitted to
present an original or a copy of a birth certificate, a Canadian
Citizenship Card, or Canadian Naturalization Certificate under the same
circumstances. For purposes of this alternative procedure, an adult
would be considered to be a person age 19 or older, and a group would
consist of two or more people.
While DHS and DOS are sensitive to the needs of school groups,
carrying an original or copy of a birth certificate represents the
minimum travel requirement a person would possess to enable us to
secure our borders through the implementation of WHTI.
Comment: Six commenters to the Land and Sea NPRM requested that
children of Mexican citizenship be included in the special requirements
for children under the age of 16 or under the age of 19 when traveling
in groups. One of these commenters questioned why Mexican children
under the age of 16 were not included under the special requirements
for children as Canadian children were.
Response: IRTPA directs DHS and DOS to implement a plan to require
documents for citizens for whom the general passport requirements have
previously been waived, not to eliminate document requirements
currently in place. All Mexican citizens, including children, are
currently required to present either a passport and visa, or a BCC upon
arrival in the United States. DHS and DOS are not changing the current
document requirements for children of Mexican citizenship entering the
United States.
[[Page 18395]]
Question From the Proposed Rule: Alternative Approach for Children;
Parental Consent
In the Land and Sea NPRM, the Departments solicited comments on
whether a traditional passport or a passport card should be required
for any child under 16 entering the United States without his/her
parents and not in a group. DOS and DHS also solicited comments on what
would be the advantages and disadvantages to requiring a traditional
passport or a passport card, and not allowing child travelers in such
circumstances to rely upon a birth certificate, Consular Record of
Birth Abroad, or Certificate of Naturalization.
Comment: Two commenters to the Land and Sea NPRM requested that a
child under the age of 16 who is traveling with only one parent not be
required to have a letter of consent to travel from the other parent.
One commenter stated that there needs to be a solution concerning a
child traveling across the border with an extended family member who is
not the parent.
Response:: While the Departments take seriously the issue of child
abduction, the final rule does not require a passport or passport card
for children or evidence of parental consent for the child to cross the
international border. Parents are strongly encouraged to check the
requirements of the governments of Mexico and Canada for child
travelers as well as review the guidance on the DOS and DHS Web sites
when planning international travel for their children.
Under this final rule, a U.S. citizen who is under the age of 16 is
permitted to present either an original or a copy of his or her birth
certificate, a Consular Report of Birth Abroad issued by DOS, or a
Certificate of Naturalization issued by USCIS when entering the United
States from contiguous territory at sea or land ports-of-entry.
Based upon a review of the alternative approach for children and
the parental consent questions asked in the Land and Sea NPRM and the
comments received in response, DHS and DOS are not implementing any
additional requirements regarding children or evidence of parental
consent to travel other than those proposed in the Land Sea NPRM, which
are adopted in this final rule. The Departments note that obtaining a
passport book or card or other document with an MRZ or RFID technology
may result in faster processing at the border.
5. State Enhanced Driver's License Projects
Comment: DHS and DOS received two comments to the Air and Sea NPRM
stating that the best solution to increasing security at our borders is
one that incorporates improved technology in existing documentation,
such as a driver's license. Thirty commenters to the Land and Sea NPRM
stated that WHTI should not be implemented until all state or
provincial enhanced driver's license pilot programs are in place. Six
Canadian provinces urged DHS to explicitly recognize their proposed
enhanced driver's license in the final rule. Twelve commenters
supported proposed state pilot programs. One hundred-eight commenters
recommended that DHS recognize an enhanced driver's license denoting
identity and citizenship for entry by both Canadian and American
citizens. One commenter stated that programs for producing an enhanced
driver's license need more time for development and distribution prior
to the summer of 2008. Eleven commenters recommended completing an
enhanced driver's license pilot project prior to implementation of
WHTI. Fifty-six commenters to the Land and Sea NPRM requested financial
and technical assistance from the Federal government so that states
could produce enhanced driver's licenses.
Response: DHS encourages U.S. states and Canadian provinces acting
through the Canadian Government to undertake enhanced driver's license
projects. In a separate notice published concurrently in the Federal
Register with this final rule, DHS will designate the Washington State
enhanced driver's license as acceptable and notes that additional such
documents will be added by notice. DHS will consider documents such as
U.S. state and Canadian provincial enhanced driver's licenses that
satisfy the WHTI requirements by denoting identity and citizenship
undertaken pursuant to agreements with DHS. These documents also will
have compatible facilitative technology and must meet minimum standards
of issuance to meet CBP's operational needs. As noted above, the State
of Washington has begun a voluntary program to develop an enhanced
driver's license and identification card that would denote identity and
citizenship. On March 23, 2007, the Secretary of Homeland Security and
the Governor of Washington signed a Memorandum of Agreement to develop,
issue, test, and evaluate an enhanced driver's license and
identification card with facilitative technology to be used for border
crossing purposes. Under this final rule, U.S. citizens arriving from
contiguous territory and adjacent islands may present the enhanced
driver's license and identification card issued by the State of
Washington at land and sea ports-of-entry.
To establish an EDL program, each entity individually enters into
agreement with DHS based on specific factors such as the entity's level
of interest, funding, technology, and other development and
implementation factors. As each EDL program is specific to each entity,
DHS does not intend to delay the implementation of WHTI until all
potential state and provincial enhanced driver's license projects are
operational. However, DHS will continue to welcome states and provinces
interested in implementing EDL programs--even those that start after
WHTI implementation.
Comment: Two commenters recommended a meeting with all state
driver's license directors by January 2008 before the completion of the
Washington State pilot program.
Response: DHS appreciates this comment and remains committed to
working on a continuing basis with and coordinating efforts among
states interested in developing, testing, and implementing pilot
programs for enhanced driver's licenses. DHS encourages states
interested in developing enhanced driver's licenses to work closely
with DHS to that end.
6. Mexican/Canadian/Bermudian Documents
Comment: Two commenters to the Land and Sea NPRM mistakenly
believed that DHS had accepted Canadian provincial driver's licenses
under the proposed rule. Eleven commenters appreciated DHS's acceptance
of alternative Canadian citizenship and identity documents. Four
commenters urged DHS and DOS to work with border states and Canadian
provinces toward acceptable upgrades of existing documents. In its
comments to the Land and Sea NPRM, the Government of Canada noted that
DHS and DOS would accept the U.S. Merchant Mariner Document (MMD) as a
WHTI-compliant document for U.S. citizens traveling on official
maritime business and requested that the modernized Canadian Seafarer's
Identity Document (SID) issued by Canada also be recognized by DHS and
DOS as a WHTI-compliant document at sea and land ports-of-entry.
Response: While DHS appreciates these comments, DHS is not
designating the provincial driver's license or the Canadian Seafarer's
Identity Document
[[Page 18396]]
as acceptable documents in this final rule. As stated in the Land and
Sea NPRM, DHS and DOS have engaged with the Government of Canada and
various provinces in discussions of alternative documents that could be
considered for border crossing use at land and sea ports-of-entry under
this rule. DHS and DOS will continue working with the Canadian
government to explore potential alternative documents in the future.
The Departments clarify that the MMD is being phased out and is not a
document that will be accepted in the long term.
7. REAL ID Driver's Licenses
Comment: Four commenters to the Land and Sea NPRM asked for
clarification whether enhanced driver's licenses issued as part of a
state pilot program under WHTI would comply with the REAL ID
requirements as well. Two commenters cautioned against the action of
implementing WHTI using the requirements of REAL ID due to concerns
regarding privacy, costs, a complicated verification system, and the
issues of federalism. One commenter stated that DHS must definitively
declare that WHTI-compliant driver's licenses meet the improved
driver's license requirements of the REAL ID Act.
Response: DHS has worked to align REAL ID and EDL requirements.
EDLs are being developed consistent with the requirements of REAL ID
and, as such, can be used for official purposes such as accessing a
Federal facility, boarding Federally-regulated commercial aircraft, and
entering nuclear power plants. While the REAL ID requirements include
proof of legal status in the U.S., the EDL will require that the
cardholder be a U.S. citizen. In addition, the EDL will also include
technologies that facilitate electronic verification and travel at
ports-of-entry. DHS is extremely cognizant of the need to protect
privacy, and as such institutes best practices with regard to the
collection and use of personal data for all of its programs.
8. IBWC
Comment: DHS and DOS received one comment to the Air and Sea NPRM
for implementation of WHTI in the air and sea environments requesting
that International Boundary and Water Commission (IBWC) identification
be acceptable for land and sea travel. DHS and DOS received one comment
to the Land and Sea NPRM requesting that IBWC identification be
acceptable for land and sea travel. The comment also noted several
improvements in the security of IBWC identification documents.
Response: The Departments appreciate this comment. As stated in the
Land and Sea NPRM, U.S. citizens and Mexican national direct and
indirect employees of the IBWC crossing the United States-Mexico border
may continue to use their IBWC cards while on official business under
this final rule.
E. U.S. Native Americans and Canadian Indians
1. Proposed Rule
In the Land and Sea NPRM, the Departments sought comments on what
Native American tribal documents could be designated as acceptable in
the final rule. The Departments specified general criteria for
acceptable Native American documents to meet. To satisfy Section 7209
of IRTPA, the documents must establish the identity and citizenship of
each individual. In the Land and Sea NPRM, DHS and DOS proposed to
accept tribal enrollment documents only if members of the issuing tribe
continue to cross the land border of the United States for a historic,
religious or other cultural purpose. It was also proposed that the
tribal enrollment card must be satisfactory to CBP, may only be used at
that tribe's traditional border crossing points and will only be
accepted so long as that tribe cooperates with the verification and
validation of the document. Tribes were also obligated to cooperate
with CBP on the enhancement of their documents in the future as a
condition for the acceptance of the document.
DHS and DOS specifically invited comments from those United States
tribes with members who continue to cross the border for a traditional
purpose. The Departments sought comments from any tribe wishing to
propose its tribal enrollment card as an acceptable alternative
document. The Land and Sea NPRM asked that such comments include
detailed information about traditional border crossings and the
locations of those crossings. The Departments also requested
information about the enrollment qualifications employed by each such
U.S. tribe. A detailed description of the information sought by the
Departments is provided in the Land and Sea NPRM. See 72 FR at 35099-
35100.
DHS and DOS also stated that they were considering alternative
approaches and invited comments on these alternative approaches for
U.S. Native Americans:
Make no special provision for U.S. Native Americans
because they have an equal opportunity to obtain the same documents
that are available to all other U.S. citizens.
Consider broader issuance of the American Indian Card now
issued to members of the federally recognized Kickapoo Tribes or a
similar card.
Accept tribal enrollment cards from tribes whose members
continue traditional border crossings without any limitation on the
border crossing point or points where each such tribal enrollment card
is accepted.
Accept all tribal enrollment cards from all federally
recognized Native American tribes at some or all border crossing
points.
The Land and Sea NPRM proposed that, for Canadian Indians:
Canadian members of First Nations or ``bands'' would be
permitted to enter the United States at traditional border crossing
points with tribal membership documents subject to the same
conditions applicable to United States Native Americans. Canadian
First Nations or bands who seek to have their tribal enrollment
cards accepted for border crossing purposes should submit comments
for the record which contain the information requested * * *for
comparable federally recognized U.S. tribes.\28\
---------------------------------------------------------------------------
\28\ 72 FR at 35100.
The Land and Sea NPRM also proposed acceptance of the new document
to be issued by the Canadian Department of Indian Affairs and Northern
Development (hereinafter ``INAC Card'')
2. Summary of Comments
Many tribes and bands commented on the NPRM asking that the
Departments include their tribal enrollment cards or other tribal
documents as acceptable documents under WHTI. These commenters also
proposed that all tribal cards issued by U.S. tribes should be
accepted.
Several Canadian First Nations commented on the Land and Sea NPRM
to propose that their tribal enrollment cards or other tribal documents
be designated as acceptable documents. These commenters also proposed
that all such band cards for Canadian Indians be accepted. Commenters
suggested that, in the alternative, the Departments should accept the
proposed, revised INAC card as an acceptable alternative document.
3. Final Rule--U.S. Native Americans
As stated in the Land and Sea NPRM, the United States has a special
relationship, founded in the Constitution, with its Native American
tribes.\29\ This relationship allows the
[[Page 18397]]
federal government, where appropriate, to designate Native American
members of federally recognized U.S. tribes for special treatment.\30\
Comments throughout the rulemaking process and consultations with
U.S. Native American tribes have emphasized the particular impact which
a new document requirement may have on Native Americans belonging to
U.S. tribes who continue to cross the land borders for traditional
historic, religious, and other cultural purposes. Several of these
tribes are concerned that their members will be required to obtain a
passport, passport card, or alternative document to maintain contact
with ethnically related communities, including, for some tribes,
members who live on traditional land in Mexico or Canada.
---------------------------------------------------------------------------
\29\ See Constitution, I, Sec. section 8, cl.3; Cherokee Nation
v Georgia, 30 U.S. 1, 17 (1831); Worcester v Georgia, 31 U.S. 515,
561 (1832); U.S. v Sandoval, 231 U.S. 28, 46-47 (1913).
\30\ Morton v. Mancari, 417 U.S. 535, 551-55.
---------------------------------------------------------------------------
Based on the record of this rulemaking proceeding, the Departments
have adopted an alternative approach from the Land and Sea NPRM for
U.S. Native Americans. DHS will work with tribes recognized by the
United States government if each tribe (1) Continues to have strong
cultural, historic, and religious cross-border ties; and (2) is willing
to improve the security of the tribal enrollment documents in the
future. Accordingly, paragraph (e) in 8 CFR 235.1 has been revised to
capture this change.
As stated in the proposed rule, acceptance of a tribal enrollment
document would be contingent upon: (1) The tribe satisfactorily
establishing identity and citizenship in connection with the use of its
document; (2) the tribe providing CBP with access to appropriate parts
of its tribal enrollment records; and (3) the tribe agreeing to improve
the security of its tribal documents in cooperation with CBP.
4. Final Rule--Canadian Indians
As requested by Congress, DHS has consulted with the Government of
Canada regarding several alternative documents, including a proposed
more secure INAC Card. It is anticipated that this new INAC card will
be issued by the Canadian Department of Indian Affairs and Northern
Development, Director of Land and Trust Services (LTS). DHS proposes to
accept this document for Canadian Indians if and when it is available
in connection with features and procedures to satisfactorily evidence
identity and citizenship.
LTS is responsible for determining the status of all Canadian
Indians under Canada's Indian Act of 1876 for purposes of entitlements.
Since 1951, the Canadian Government has maintained Indian Registration
Lists, which confirm the heritage of each individual for entitlement
purposes. Through this long-standing registration process, Canada has
formally conferred ``registered'' Indian status on individuals. Only
registered Canadian Indians can apply for the LTS issued ``status''
card i.e., the INAC card.
LTS currently issues an INAC card with some security features such
as a photograph of the document holder. The Government of Canada
proposes to issue a new INAC card that would comply with international
document security standards agreed by the Governments of Canada and the
United States as part of the Security and Prosperity Partnership (SPP).
When the document is issued in accordance with the SPP 1.1.3 security
standard it is expected to include a machine-readable zone (MRZ).
It is anticipated that Canada will begin to issue the new INAC
cards beginning in 2008. DHS continues to have discussions with the
Government of Canada about how to ensure that DHS and CBP will have the
capability to electronically validate and verify the identity and
citizenship of INAC card holders. Permanent designation of the INAC as
an acceptable travel document by the Secretary of Homeland Security
will be conditioned on the satisfactory establishment of a process to
achieve this validation.
If designated by the Secretary of Homeland Security, the proposed
new INAC card will also be accepted as satisfactory evidence of the
citizenship and identity of registered Canadian Indians.
In light of the decision to accept an appropriate document issued
by the Government of Canada to those recognized by that government as
Canadian Indians, the Departments have decided not to accept the
multitude of documents issued by the many Canadian First Nations.
5. Specific Comments Objecting to any Document Requirement
Comments: CBP received approximately one hundred comments to the
ANPRM and several commenters to the Land and Sea NPRM opposing any
regulations that would require Native Americans or Canadian Indians
traveling to and from the United States to carry and produce a U.S. or
Canadian passport upon entry. These commenters asserted that such a
requirement would infringe upon an asserted ``right'' of indigenous
peoples living within the United States and Canada to travel freely
across the border. Twenty-two tribes and their representatives
commented to the Land and Sea NPRM that WHTI infringed upon an asserted
``right'' to unrestricted passage across the U.S.-Canadian border
granted under the Jay Treaty and other treaties. DHS and DOS received
one comment to the Air and Sea NPRM for implementation of WHTI in the
air and sea environments similarly stating that Native Americans should
not have any restrictions on travel across the borders of the United
States. Two commenters stated that assurance was needed that document
requirements would not obstruct or discourage them from obtaining those
documents or inhibiting the movement of their people. One commenter to
the Land and Sea NPRM observed that while Native Americans are eligible
to obtain passports as Canadian or U.S. citizens, many choose not to
because they perceive it as a threat to their sovereign status. One
commenter is concerned that such documents are required to denote
citizenship and identity and many believe that accepting citizenship
from the U.S. or Canada would undermine the federal government's treaty
obligations. Six individuals and one tribe commented that the rule
would have a negative impact on Native Americans' ability to maintain
familial ties and exercise religious and cultural practices across
international borders. One tribe commented that international crossings
were based on proximity to water. One tribe commented that the
Departments' attempts to fit border crossing needs into a box are
simply unrealistic.
Response: The INA requires the inspection of all applicants for
admission, with the purpose of verifying identity and citizenship. The
Jay Treaty of 1794 and other treaties do not prevent the Departments
from requiring documentary evidence of identity and citizenship from
Native Americans and Canadian Indians.
Congress, through the enactment of Section 7209 of IRTPA,
specifically mandated that the Departments develop a plan to require
documentary evidence of identity and citizenship at the borders.
Section 289 of the INA \31\ refers to the ``right'' of ``American
Indians'' born in Canada to ``pass the borders of the United States,''
provided they possess at least 50 percent of Native American blood.
Section 289, however, benefits individuals who establish their
identity, their Canadian citizenship, and that they are ``American
Indians.''
---------------------------------------------------------------------------
\31\ See 8 U.S.C. 1359.
---------------------------------------------------------------------------
DHS and DOS have proposed to accept certain tribal documents as an
[[Page 18398]]
appropriate accommodation to U.S. Native Americans.
6. Specific Native American and Canadian Indian Comments Directed to
the Rulemaking Process
Comment: Ten commenters to the Land and Sea NPRM requested that DHS
and DOS meet with their tribal governments. One tribe and one
individual commented that DHS and DOS have failed to adequately consult
with federally recognized Indian tribes on the implementation of this
rule in accordance with the law and consequently requested that the
entire Land and Sea NPRM be retracted until proper ``government-to-
government'' consultations can take place. One tribe expressed concerns
that the Land and Sea NPRM would be the ``only opportunity'' for tribal
governments to engage in dialogue regarding the proposed regulation.
One commenter encouraged DHS to continue the open dialogue with tribal
governments along the international borders and to view tribal
governments as an asset for protecting and providing security for the
international borders.
Response: Throughout the rulemaking process, DHS has met with
Native Americans to discuss the WHTI document requirements and tribal
concerns. Moreover, DHS specifically solicited comments from Native
Americans in an August 6, 2007, letter to all federally recognized
tribes. Comment procedures outlined in the Land and Sea NPRM provided
Native Americans with the opportunity to provide information about
their tribal enrollment documents. The Departments received comments
from numerous tribes, and these comments were fully considered in the
decision to issue this final rule.
Comment: Two tribes requested an extension of the comment period
for the Land and Sea NPRM to be able to study the options available to
them.
Response: We have carefully considered the comments and determined
that it is not advisable to reopen the comment period for the Land and
Sea NPRM. Section 7209 of IRTPA, as amended, calls on the Departments
to act expeditiously to implement WHTI. The Departments believe that
the expeditious issuance of this Final Rule best advances our national
security. Throughout the entire WHTI rulemaking process, DHS has met
with Native Americans and Canadian Indians to discuss the WHTI document
requirements and tribal concerns. DHS specifically solicited comments
from Native Americans in an August 6, 2007, letter to all federally
recognized tribes. As stated above, the Departments received comments
from numerous tribes, and these comments were fully considered and are
addressed in this final rule. Delaying issuance of the final rule would
delay notice to the public and consequently the time available for
travelers to obtain designated documentation. For these reasons, DHS
and DOS did not reopen the comment period for the Land and Sea NPRM.
7. Comments on the Acceptance of Tribal Documents
Comment: Twenty-six tribes, along with three individuals, commented
that members should be allowed to use their existing tribal cards at
any crossing point. One tribe commented that an independent pilot
project is underway for a secure identification document that can be
used by that tribe. Seven commenters welcomed the proposal to accept
tribal enrollment documents as long as those documents are approved by
DHS. Many commenters recommended using tribal documents as an
alternative to the passport. Several commenters encouraged DHS to
continue working with indigenous peoples to provide a mechanism for
border crossing that is as streamlined as possible. One tribe's comment
requested that Native Americans be granted the same privileges as U.S.
Merchant Mariners if the Departments decide that requiring passports is
the only option for entry documents. One commenter requested broader
issuance of the American Indian Card now issued to members of the
federally recognized Kickapoo Tribe or a similar card. Two commenters
requested that existing Canadian Certificates of Indian Status (CIS) be
accepted as a WHTI-compliant document for entry into the United States.
One commenter urges that secure indigenous, tribal or CIS Identity
Cards for the purposes of entry into and from the U.S. and Canada be
established within the provisions of WHTI. One tribe requested the
acceptance of Canadian First Nations' tribal IDs at all border
crossings. One tribe argued that their tribal enrollment records were
sufficient to prove citizenship and objected to any notion that state-
issued birth certificates were superior to their tribal records. One
tribe commented that they support the comments by other tribal
governments to develop a national tribal ID card for identification
purposes for crossing international borders. One tribe did not
understand the reluctance of DHS to accept tribal membership documents
as sufficient evidence of identity and citizenship to support the right |
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