Documents Required for Travelers Arriving in the United States at Air and Sea Ports-of-Entry From Within the Western Hemisphere, 46155-46174 [06-6854]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• DEPARTMENT OF STATE
• Bureau of Customs and Border Protection
• Customs and Border Protection Bureau

[Federal Register Volume 71, Number 155 (Friday, August 11, 2006)]
[Proposed Rules]
[Pages 46155-46174]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6854]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

8 CFR Parts 212 and 235

[USCBP 2006-0097]
RIN 1651-AA66

DEPARTMENT OF STATE

22 CFR Parts 41 and 53

RIN 1400-AC10


Documents Required for Travelers Arriving in the United States at 
Air and Sea Ports-of-Entry From Within the Western Hemisphere

AGENCY: Bureau of Customs and Border Protection, Department of Homeland 
Security; Bureau of Consular Affairs, Department of State.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Intelligence Reform and Terrorism Prevention Act of 2004 
provides that by January 1, 2008, United States citizens and 
nonimmigrant aliens may enter the United States only with passports or 
such alternative documents as the Secretary of Homeland Security may 
designate as satisfactorily establishing identity and citizenship. This 
notice of proposed rulemaking (NPRM) is the first phase of a joint 
Department of Homeland Security and Department of State plan to 
implement these new requirements. This NPRM proposes that, beginning 
January 8, 2007, United States citizens and nonimmigrant aliens from 
Canada, Bermuda, and Mexico entering the United States at air ports-of-
entry and most sea ports-of-entry, with certain limited exceptions, 
will generally be required to present a valid passport. This NPRM does 
not propose to change the requirements for United States citizens and 
nonimmigrant aliens from Canada, Bermuda, and Mexico entering the 
United States at land border ports-of-entry and certain types of 
arrivals by sea (ferries and pleasure vessels) which will be addressed 
in a separate, future rulemaking.

DATES: Written comments must be submitted on or before September 25, 
2006.

ADDRESSES: Comments, identified by docket number USCBP 2006-0097, must 
be submitted by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Comments by mail are to be addressed to the Bureau 
of Customs and Border Protection, Office of Regulations and Rulings, 
Border Security Regulations Branch, 1300 Pennsylvania Avenue, NW., 
Washington, DC 20229. Submitted comments by mail may be inspected at 
the Bureau of Customs and Border Protection at 799 9th Street, NW., 
Washington, DC. To inspect comments, please call (202) 572-8768 to 
arrange for an appointment.
    Instructions: All submissions must include the agency name and 
docket number USCBP 2006-0097. All comments will be posted without 
change to https://www.regulations.gov, including any personal 
information sent with each comment. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Participation in Rulemaking Process'' heading 
of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
submitted comments, go to https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Department of Homeland Security: 
Robert Rawls, Office of Field Operations, Bureau of Customs and Border 
Protection, 1300 Pennsylvania Avenue, NW., Room 5.4-D, Washington, DC 
20229, telephone number (202) 344-2847.
    Department of State: Consuelo Pachon, Office of Passport Policy, 
Planning and Advisory Services, Bureau of Consular Affairs, telephone 
number (202) 663-2662.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background
    A. Current Entry Requirements for United States Citizens 
Arriving by Air or Sea
    B. Current Entry Requirements for Nonimmigrant Aliens Arriving 
by Air or Sea
    1. Canadian Citizens and Citizens of the British Overseas 
Territory of Bermuda
    2. Mexican Citizens
    C. Intelligence Reform and Terrorism Prevention Act of 2004
    D. Advance Notice of Proposed Rulemaking
    1. Passport as Only Acceptable Document for WHTI Air-and-Sea 
Arrivals
    2. Alternative Forms of Identification
    3. One Implementation Date of January 1, 2008
    4. Effective Communications Plan
    5. Passport Exemption for Children Under the Age of 16
    6. Reduce Cost of Passports or Institute Pricing Incentives
    7. Bilateral or Multilateral Process
    8. Native Americans
    9. Mobile Offshore Drilling Units Working on the United States 
Outer Continental Shelf
    10. Passengers Traveling by Ferry
    11. Military Personnel
III. Proposed Requirements for United States Citizens and 
Nonimmigrant Aliens Traveling by Air and Sea to the United States
    A. Passports for Air and Sea Arrivals
    B. Exceptions to the Passport Proposal
    1. Pleasure Vessels

[[Page 46156]]

2. Passengers Arriving by Ferry
3. Members of the United States Armed Forces
C. Other Documents Deemed Acceptable To Denote Citizenship and 
Identity
1. Merchant Mariner Document
2. Nexus Air Program Membership Card
D. Impact of This Rulemaking on Specific Groups and Populations
1. Charter and Commercial Vessels
2. Aviation Passengers and Crew
3. Lawful Permanent Residents
4. Mexican Citizens
5. Children Under the Age of 16
6. Alien Members of the United States Armed Forces
7. Members of NATO Armed Forces
8. Native Americans Born in Canada
9. Native Americans Born in the United States
10. American Indian Card Holders From Kickapoo Band of Texas and 
Tribe of Oklahoma
11. Travel From Territories Subject to the Jurisdiction of the 
United States
12. Outer Continental Shelf Employees
13. International Boundary and Water Commission Employees
E. Section-by-Section Discussion of Proposed Amendments
IV. 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

Abbreviations and Terms Used in This Document

ANPRM--Advance Notice of Proposed Rulemaking
APIS--Advance Passenger Information System
BCC--Form DSP-150, B-1/B-2 Visa and Border Crossing Card
CBP--Bureau of Customs and Border Protection
DHS--Department of Homeland Security
DMV--Department of Motor Vehicles
DOS--Department of State
FAST--Free and Secure Trade
IBWC--International Boundary and Water Commission
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRTPA--Intelligence Reform and Terrorism Prevention Act of 2004
LPR--Lawful Permanent Resident
MMD--Merchant Mariner Document
MODU--Mobile Offshore Drilling Unit
NATO--North Atlantic Treaty Organization
NPRM--Notice of Proposed Rulemaking
OCS--Outer Continental Shelf
OTTI--Office of Travel & Tourism Industries
SENTRI--Secure Electronic Network for Travelers Rapid Inspection
TSA--Transportation Security Administration
TWIC--Transportation Worker Identification Card
US-VISIT--United States Visitor and Immigrant Status Indicator 
Technology Program
WHTI--Western Hemisphere Travel Initiative

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. The Department of Homeland Security (DHS) and the 
Department of State (DOS) also invite comments that relate to the 
economic or environmental effects or the federalism implications that 
might result from this proposed rule. Comments that will provide the 
most assistance to DHS and DOS in developing these procedures will 
reference a specific portion of the proposed rule, explain the reason 
for any recommended change, and include data, information, or authority 
that support such recommended change. See ADDRESSES above for 
information on how to submit comments.

II. Background

A. Current Entry Requirements for United States Citizens Arriving by 
Air or Sea

    In general, under federal law it is ``unlawful for any citizen of 
the United States to depart from or enter * * * the United States 
unless he bears a valid United States passport.'' \1\ However, the 
statutory passport requirement has not been applied to United States 
citizens when departing from or entering into the United States from 
within the Western Hemisphere other than from Cuba.\2\ Currently, a 
United States citizen entering the United States from within the 
Western Hemisphere, other than from Cuba, is inspected at an air or sea 
port-of-entry by a DHS Bureau of Customs and Border Protection (CBP) 
officer.\3\ To lawfully enter the United States, a person need only 
satisfy the CBP officer of his or her United States citizenship.\4\ In 
addition to assessing the verbal declaration and examining the 
documentation the person submits, the CBP officer may ask for 
additional identification and evidence of citizenship until the officer 
is satisfied that the person is a United States citizen.
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    \1\ Section 215(b) of the Immigration and Nationality Act (INA), 
8 U.S.C. 1185(b).
    \2\ 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).
    \3\ United States citizens entering the United States at land 
border ports-of-entry from within the Western Hemisphere are also 
inspected by a CBP officer. However, such travelers are outside the 
scope of this proposed rulemaking and will be addressed in a 
separate, future rulemaking.
    \4\ 8 CFR 235.1(b).
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    As a result of this procedure, United States citizens arriving at 
air or sea ports-of-entry from within the Western Hemisphere currently 
produce a variety of documents to establish their citizenship and right 
to enter the United States. A driver's license issued by a state motor 
vehicle administration or other competent state government authority is 
a common form of identity document now accepted by CBP at the border 
even though such documents do not denote citizenship. Citizenship 
documents currently accepted at ports-of-entry generally include birth 
certificates issued by a United States jurisdiction, Consular Reports 
of Birth Abroad, Certificates of Naturalization, and Certificates of 
Citizenship.

B. Current Entry Requirements for Nonimmigrant Aliens Arriving by Air 
or Sea

    Currently, each nonimmigrant alien arriving in the United States 
must present to the CBP officer at the port-of-entry a valid unexpired 
passport issued by his or her country of citizenship and, if required, 
a valid unexpired visa issued by a United States embassy or consulate 
abroad.\5\ Nonimmigrant aliens entering the United States must also 
satisfy any other applicable entry requirements (e.g., United States 
Visitor and Immigrant Status Indicator Technology Program (US-VISIT)). 
For nonimmigrant aliens arriving in the United States, the only current 
general exceptions to the passport requirement apply to the admission 
of (1) citizens of Canada and Bermuda arriving from anywhere in the 
Western Hemisphere and (2) Mexican nationals with a Border Crossing 
Card (BCC) arriving from contiguous territory.
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    \5\ Section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 
1182(a)(7)(B)(i).
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1. Canadian Citizens and Citizens of the British Overseas Territory of 
Bermuda
    In most cases, Canadian citizens and citizens of the British 
Overseas Territory of Bermuda (Bermuda) currently are not required to 
present a valid passport and visa when entering the United States as 
nonimmigrant visitors from countries in the Western Hemisphere.\6\ 
Nevertheless, these travelers are currently required to satisfy the 
inspecting CBP officer of their identity and citizenship at the time of 
their application for admission. Entering aliens may present any 
evidence of identity and citizenship in their possession. Individuals 
who

[[Page 46157]]

initially fail to satisfy the examining CBP officer may then be 
required to provide further identification and evidence of citizenship 
such as a birth certificate, passport, or citizenship card.
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    \6\ 8 CFR 212.1(a)(1)(Canadian citizens) and 8 CFR 
212.1(a)(2)(Citizens of Bermuda). See also 22 CFR 41.2.
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2. Mexican Citizens
    Mexican citizens arriving in the United States at ports-of-entry 
who possess a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC) 
are currently admitted without presenting a valid passport if they are 
coming from contiguous territory.\7\ A BCC is a machine-readable, 
biometric card, issued by the Department of State, Bureau of Consular 
Affairs. The use of a BCC without a passport is atypical in the air/sea 
environment, but it continues to be permitted. Although the use of a 
BCC is much more common in the land environment, this NPRM deals solely 
with arrivals at air and sea ports-of-entry.
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    \7\ 8 CFR 212.1(c)(1)(i). See also 22 CFR 41.2(g). If they 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(f)(1).
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C. Intelligence Reform and Terrorism Prevention Act of 2004

    This NPRM is the first phase of the joint DHS and DOS 
implementation of section 7209 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (IRTPA), Pub. L. 108-458, 118 Stat. 3638 (Dec. 
17, 2004). Section 7209 of IRTPA requires that the Secretary of 
Homeland Security, in consultation with the Secretary of State, develop 
and implement a plan to require travelers entering the United States to 
present a passport, other document, or combination of documents, that 
are ``deemed by the Secretary of Homeland Security to be sufficient to 
denote identity and citizenship.'' Section 7209 expressly limits the 
waiver of documentation requirements for United States citizens under 
section 215(b) of the Immigration and Nationality Act (INA) \8\ and 
eliminates the waiver of documentation requirements for categories of 
individuals for whom documentation requirements have previously been 
waived (citizens of Canada, Mexico, and Bermuda) under section 
212(d)(4)(B) of the INA.\9\ United States citizens and nonimmigrant 
aliens from Canada, Mexico, and Bermuda will be required to comply with 
the new document requirements of section 7209.\10\ IRTPA requires that 
the Secretary of Homeland Security, in consultation with the Secretary 
of State, develop and implement the plan by January 1, 2008.
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    \8\ 8 U.S.C. 1185(b).
    \9\ 8 U.S.C. 1182(d)(4)(B).
    \10\ Section 7209 does not apply to Lawful Permanent Residents, 
who will continue to be able to enter the United States upon 
presentation of a valid Form I-551, Alien Registration Card, or 
other valid evidence of permanent resident status. Section 211(b) of 
the INA, 8 U.S.C. 1181(b). It also does not apply to alien members 
of United States Armed Forces traveling under official orders. 
Section 284 of INA, 8 U.S.C. 1354. Additionally, section 7209 does 
not apply to nonimmigrant aliens from anywhere other than Canada, 
Mexico, or Bermuda. See section 212(d)(4)(B) of the INA, 8 U.S.C. 
1182(d)(4)(B) and 8 C.F.R. 212.1.
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    Section 7209 limits the Secretaries' respective authorities \11\ to 
waive generally applicable documentation requirements by providing 
that, after the complete implementation of the plan, neither the 
Secretary of State nor the Secretary of Homeland Security may exercise 
the authority of section 212(d)(4)(B) of the INA \12\ to waive the 
passport requirement on the basis of reciprocity for nonimmigrant 
aliens who are nationals of foreign contiguous territory or adjacent 
islands. In addition, section 7209 of IRTPA provides that the President 
may exercise the authority of section 215(b) of the INA \13\ to waive 
the new documentation requirements for United States citizens departing 
from or entering the United States only in three specific 
circumstances: (1) When the Secretary of Homeland Security determines 
that ``alternative documentation'' different from what is required 
under section 7209 is sufficient to denote citizenship and identity; 
(2) in an individual case of an unforeseen emergency; or (3) in an 
individual case based on ``humanitarian or national interest reasons.'' 
\14\
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    \11\ See section 212(d)(4)(B) of the INA, 8 U.S.C. 
1182(d)(4)(B), and section 215(b) of the INA, 8 U.S.C. 1185(b).
    \12\ 8 U.S.C. 1182(d)(4)(B).
    \13\ 8 U.S.C. 1185(b).
    \14\ Section 7209(c)(2) of IRTPA.
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    United States citizens and nonimmigrant aliens, who currently are 
not required to have passports pursuant to sections 215(b) and 
212(d)(4)(B) of the INA \15\ respectively, would be required to present 
a passport or other identity and citizenship document deemed sufficient 
by the Secretary of Homeland Security when entering the United States 
from countries within the Western Hemisphere. The principal groups 
affected by this provision of IRTPA are United States citizens, 
Canadian citizens, citizens of Bermuda, and Mexican citizens holding 
BCC cards. These groups of individuals are currently exempt from the 
general passport requirement when entering the United States from 
within the Western Hemisphere.\16\
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    \15\ 8 U.S.C. 1185(b) and 8 U.S.C. 1182(d)(4)(B).
    \16\ Section 212(d)(4)(B) of the INA, 8 U.S.C. 1182(d)(4)(B) and 
section 215(b) of the INA, 8 U.S.C. 1185(b).
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D. Advance Notice of Proposed Rulemaking

    On September 1, 2005, DHS and DOS published in the Federal Register 
(70 FR 52037) 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. The DHS and DOS plan to 
implement section 7209 is also known as the Western Hemisphere Travel 
Initiative (WHTI). As stated in the ANPRM, DHS and DOS proposed to 
develop a plan that would require citizens of the United States, 
Canada, Bermuda, and Mexico to possess a passport or other acceptable 
secure document to enter the United States from within the Western 
Hemisphere by January 1, 2008. The ANPRM invited comments on the 
possible means of implementation and specifically invited comments on 
what documents, other than passports, should be accepted as sufficient 
under section 7209.
    The ANPRM announced that DHS and DOS anticipated implementing the 
documentation requirements of section 7209 in two stages. The first 
stage would affect travelers entering the United States at air and sea 
ports-of-entry beginning January 1, 2007. The second stage would 
address travelers arriving at land border ports-of-entry beginning 
January 1, 2008. The two-stage approach is intended to ensure an 
orderly transition, provide affected persons with adequate notice to 
obtain necessary documents, and ensure that adequate resources are 
available to issue additional passports or other authorized documents.
    In the ANPRM, DHS and DOS sought public comment to assist the 
Secretary of Homeland Security to make a final determination of which 
document or combination of documents other than valid passports will be 
accepted at ports-of-entry to satisfy section 7209. DHS and DOS also 
solicited public comments regarding the economic impact of implementing 
section 7209, the costs anticipated to be incurred by United States 
citizens and others as a result of new document requirements, potential 
benefits of the rulemaking, alternative methods of complying with the 
legislation, and the proposed stages for implementation. In addition to 
receiving written comments, DHS and

[[Page 46158]]

DOS representatives attended over 30 public sessions and town hall 
meetings throughout the country and met with community leaders and 
stakeholders to discuss the initiative.
    DHS and DOS received 2,062 written comments in response to the 
ANPRM. The majority of the comments (1,910) addressed only potential 
changes to the documentation requirements at land border ports-of-
entry. One hundred and fifty-two comments addressed changes to the 
documentation requirements for persons arriving at air or sea ports-of-
entry. Comments were received from a wide range of United States and 
Canadian sources including: private citizens; businesses and 
associations; local, state, federal, and tribal governments; and 
members of the United States Congress and Canadian Parliament.
    Some of the comments pertaining to arrivals at air and sea ports-
of-entry were also applicable to land border crossings and will 
therefore be addressed in both this rulemaking and a separate, future 
rulemaking specific to land border crossings. As this proposed rule 
deals only with changes to arrivals at air and sea ports-of-entry, the 
comments received regarding only land border crossings will not be 
addressed here.
    A general discussion of the comments relevant to this rulemaking 
follows. Complete responses to the comments from both the ANPRM and 
this NPRM regarding air and sea travel will be presented in the final 
rule.
1. Passport as Only Acceptable Document for WHTI Air-and-Sea Arrivals
    Forty commenters contended that DHS should accept only a valid 
passport to satisfy documentary requirements for air and sea arrivals 
beginning January 1, 2007. Thirty-six of the 40 comments were submitted 
by United States citizens and four comments were submitted by 
associations or businesses located in the United States. Eight 
commenters recommended that the implementation of a ``passport only'' 
requirement should not be delayed. Among the reasons for supporting a 
``passport only'' requirement, commenters expressed the need to enhance 
border security, prevent document forgeries, and simplify document 
review for CBP officers by utilizing one standardized document.
    One hundred and twelve commenters opposed any proposal that would 
require a valid passport to satisfy the documentation requirements for 
air and sea arrivals, but supported the goal of improving border 
security.
    Thirty-two comments stated that a ``passport only'' requirement 
would significantly impede travel and tourism either by causing lengthy 
delays at the border or by preventing individuals who did not possess a 
passport from traveling. Some of these comments asserted that requiring 
passports could essentially prevent travelers from making spontaneous 
decisions to travel by air or sea within the Western Hemisphere.
    Thirty-four comments contended that due to the cost of a passport, 
a passport only requirement would be an unreasonable financial burden 
for many families. Citing the $97 cost of an initial adult passport and 
the $82 cost of a child's passport, several commenters asserted that 
the costs are multiplied for a family traveling together. Thirty-nine 
comments contended that a ``passport only'' requirement would have a 
significant negative economic impact on businesses and local economies. 
Many of these commenters provided quantitative and qualitative 
information to illustrate their proffered economic impact.
    In addition, five commenters raised the concern that the demand for 
passports could exceed the passport processing capacity of DOS.
2. Alternative Forms of Identification
    Eighty-one commenters submitted recommendations about the types of 
alternate documentation that could satisfy the requirements of section 
7209 of IRTPA. Many of these commenters noted that section 7209 of 
IRTPA provides that a passport substitute could be another document or 
combination of documents that sufficiently denote identity and 
citizenship. Fifty-nine commenters asserted that DHS should identify 
acceptable alternative documents that would be more convenient, 
affordable and easier to obtain than a passport. Many of these 
commenters noted that DHS has not identified other low-cost and easily 
obtainable documents in lieu of a passport. Several commenters also 
recommended that any new document should be small enough to carry in a 
wallet as opposed to the current booklet-style passport.
    Ten commenters recommended that DHS continue to accept a state-
issued driver's license and an original birth certificate as evidence 
of identity and citizenship. Numerous commenters asserted that a 
driver's license combined with a birth certificate is the best-known 
and most generally accepted combination of documents that denote 
identity and citizenship. Several commenters reasoned that since these 
documents are sufficient to establish nationality and identity for the 
purpose of obtaining a passport, they should be acceptable at the 
border as well.
    One commenter recommended that the current NEXUS Air program \17\ 
should be expanded to additional Canadian airports. Another commenter 
noted that acquiring a NEXUS Air card requires a lengthy processing 
time of approximately 6 to 8 weeks for the individual to become 
enrolled.
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    \17\ NEXUS Air is an airport border clearance pilot project 
implemented at one airport in Vancouver, Canada by CBP and the 
Canada Border Services Agency, pursuant to the Shared Border Accord 
and Smart Border Declaration between the United States and Canada. 
The NEXUS Air alternative inspection program allows pre-screened, 
low-risk travelers to be processed more efficiently by United States 
and Canadian border officials.
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3. One Implementation Date of January 1, 2008
    Fifty-seven comments recommended that DHS and DOS delay the first 
stage of implementation for air and sea travelers by changing the 
implementation date from January 1, 2007, to January 1, 2008, or an 
unspecified later date. Many of these commenters asserted that the 
January 1, 2007, implementation date for air and sea travel does not 
allow adequate time for the traveling public and industry to prepare 
for the new regulations.
    Some commenters expressed concern that a phased-in approach would 
unnecessarily discriminate against one mode of travel in favor of 
another because those traveling by air and sea will be subject to more 
stringent documentation requirements than those traveling by land 
during 2007. Several comments asserted that there is no basis for 
treating travelers who arrive by air or sea any differently from those 
who travel over land borders.
    One commenter argued that the statutory deadline for implementation 
is January 1, 2008, and that IRTPA does not require implementation to 
be phased-in prior to that date. Several comments suggested that one 
implementation date would be less confusing to the traveling public and 
allow more time to educate the public about the new requirements and 
for proper consideration of alternative secure documents other than a 
passport.
    Finally, a few commenters recommended delaying the implementation 
date of January 1, 2007, for air and sea travelers by at least one 
week, until after the holiday travel season.
4. Effective Communications Plan
    Thirty-eight commenters recommended that DHS and DOS work

[[Page 46159]]

with the travel industry to launch an effective communications campaign 
to inform and educate the traveling public about any new documentation 
requirements. According to several commenters, some Canadian and United 
States citizens mistakenly believe that a ``passport only'' requirement 
is already in effect. One commenter noted that due to confusion around 
the implementation phase-in dates, many members of the public believe 
that the first phase-in period will apply to all persons traveling to 
the United States whether or not they travel by air, sea or land. 
Another commenter suggested that educating the public about changes to 
the documentation requirements is best accomplished by beginning 
outreach and public relations efforts far in advance of any new 
requirement.
5. Passport Exemption for Children Under the Age of 16
    Thirty-one commenters recommended that children under the age of 16 
should be exempt from a passport requirement and instead be able to use 
a citizenship document such as a birth certificate. Several commenters 
asserted that very few children possess passports so that for children 
under the age of 16 from both Canada and the United States, the current 
documentation requirements should be maintained.
6. Reduce Cost of Passports or Institute Pricing Incentives
    Eleven commenters recommended that passports should be either less 
expensive or pricing incentives should be introduced for United States 
citizens who are obtaining a passport for the first time in advance of 
the implementation deadline. One commenter asserted that financial 
incentives would encourage United States citizens to obtain a first-
time passport or renew an existing passport. Several commenters 
specifically requested that passport costs be reduced for children less 
than 16 years of age, students, senior citizens, and families. One 
commenter recommended that the federal government provide a financial 
subsidy or discount the cost of passports for low-income earners, 
welfare recipients, and families with more than two children.
7. Bilateral or Multilateral Process
    Three commenters recommended that the implementation of new 
documentation requirements should be a collaborative, multilateral 
process with a United States-Canadian partnership and a United States-
Mexican partnership. Commenters recommended that the United States and 
Canadian governments work together to explore acceptable forms of 
documents in lieu of a passport for Canadian citizens. Certain 
commenters noted that if the United States unilaterally develops a new 
form of alternative document for entry into the United States, there 
would be no guarantee that the Canadian and Mexican governments would 
accept the new form of documentation as an entry document. These 
commenters suggested that the United States Government should not act 
unilaterally because of the potential negative effects that this 
rulemaking might have on the economy, and international relations, 
including a negative public reaction.
8. Native Americans
    Three commenters opposed any regulation that would require Native 
Americans traveling from Canada into the United States to carry and 
produce a United States or Canadian passport as identification. These 
commenters asserted that such a requirement would infringe upon the 
treaty rights of indigenous peoples living within the United States and 
Canada to travel freely across the border on the basis of their 
membership in a particular Native American tribe or nation.
9. Mobile Offshore Drilling Units Working on the United States Outer 
Continental Shelf
    Three commenters recommended that offshore workers of United States 
citizenship working aboard Mobile Offshore Drilling Units (MODUs) on 
the United States Outer Continental Shelf (OCS) be specifically 
excluded from any new documentation requirements when traveling between 
the United States and MODUs.
10. Passengers Traveling by Ferry
    Eight commenters raised concerns that the new documentation 
requirements might create long waits and substantial disruption at 
ferry terminals, resulting in a decrease in ferry traffic. Some of 
these commenters recommended that any change to the documentation 
requirements for ferry passengers should be postponed until the 
implementation of any new documentation requirements at land border 
ports-of-entry.
11. Military Personnel
    Two commenters recommended that fees for passports, including fees 
for expedited processing, be eliminated for active duty military 
personnel and their dependents.

III. Proposed Requirements for United States Citizens and Nonimmigrant 
Aliens Traveling by Air and Sea to the United States

    This NPRM proposes that, with some exceptions, United States 
citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico 
traveling into the United States by air and sea from Western Hemisphere 
countries, be required to show a passport. This NPRM does not propose 
changes to the documentation requirements at land border ports-of-
entry.
    This passport requirement would apply to most air and sea travel, 
including commercial air travel and commercial sea travel (including 
cruise ships). There are two categories of travel and one category of 
traveler, discussed in more detail below, which would not be subject to 
the passport requirement proposed here. First, this proposal would not 
apply to pleasure vessels used exclusively for pleasure and which are 
not for the transportation of persons or property for compensation or 
hire. Second, this proposal would not apply to travel by ferry. 
Finally, this proposal would not apply to United States citizen members 
of the Armed Forces on active duty.
    This NPRM also proposes to designate two documents, in addition to 
the passport, as sufficient to denote identity and citizenship under 
section 7209, and acceptable for air and sea travel. The first document 
is the Merchant Mariner Document (MMD) or ``z-card'' issued by the 
United States Coast Guard (Coast Guard) to Merchant Mariners. The 
second document is the NEXUS Air card when used with a NEXUS Air kiosk. 
Finally, this proposal would not apply to United States citizen members 
of the Armed Forces on active duty.

A. Passports for Air and Sea Arrivals

    After reviewing the comments received and taking them into 
consideration, DHS and DOS jointly propose that, beginning January 8, 
2007, most United States citizens and nonimmigrant aliens from Canada, 
Bermuda, and Mexico entering the United States at air or sea ports-of-
entry from Western Hemisphere countries will be required to present a 
valid passport. DHS and DOS note that in response to comments, the 
originally proposed implementation date of January 1, 2007, for air and 
sea travelers is being delayed until January 8, 2007, to better 
accommodate the holiday travel season. The Departments do not believe 
that there will be an adverse effect on national security by delaying 
the implementation of this rule by one

[[Page 46160]]

week. Persons traveling prior to the effective date of the final rule 
implementing the air and sea stages of WHTI should plan to depart from 
the United States with documents sufficient to meet requirements that 
will be in place when they return.
    This proposed rule would implement Congress' direction in IRTPA by 
eliminating the passport waiver for United States citizens,\18\ who 
enter the United States at air and sea ports-of-entry when traveling 
between the United States and any country, territory, or island 
adjacent thereto in North, South or Central America.\19\ In addition, 
this proposed rule would eliminate the passport waiver for nonimmigrant 
aliens who are Canadian citizens, citizens of Bermuda, and Mexican 
nationals entering the United States at air and sea ports-of-entry from 
any country, territory, or island adjacent thereto in North, South or 
Central America.\20\
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    \18\ In addition to affecting U.S. citizens who currently leave 
and enter the United States without a passport for travel within the 
Western Hemisphere, section 7209 requires the elimination of the 
exception to the U.S. passport requirement for U.S. citizen children 
under the age of 12 included in the foreign parent's passport and 
for U.S. citizens under age 21 who are members of the household of 
an official or employee of a foreign government or the United 
Nations and in possession of or included in a foreign passport. See 
22 CFR 53.2 (e) and (f).
    \19\ See 22 CFR 53.2(b).
    \20\ See 8 CFR 212.1 and 22 CFR 41.2.
---------------------------------------------------------------------------

    As required by IRTPA, both DHS and DOS reviewed a variety of 
options for implementing the WHTI requirements, and jointly decided to 
phase-in the documentation requirement based upon risk management and 
operational considerations. As the ANPRM discussed, this phased 
approach is essential because a staggered implementation at air and sea 
ports-of-entry one year before the statutory deadline will enhance 
security requirements using existing infrastructure while allowing the 
Departments time to acquire and develop resources to meet the increased 
demand for the largest sector, the land border crossings.
    Requiring travelers to carry and produce passports for the air and 
sea environments has multiple security and operational benefits. WHTI 
will reduce the vulnerabilities identified in the final report of the 
National Commission on Terrorist Attacks Upon the United States (9/11 
Commission). WHTI is intended not only to enhance security efforts at 
our Nation's borders, but also to expedite the movement of legitimate 
travel within the Western Hemisphere.
    As the report of the 9/11 Commission observed, travel documents are 
as valuable as weapons to terrorists, and the passport is regarded as 
the most secure travel identity document in the world. After a review 
of current international travel documents and the available 
alternatives, DHS and DOS believe that the passport is the most 
reliable travel document to optimize safety and efficiency in the air 
and sea environments.
    Standardizing documentation requirements for all air and sea 
travelers entering the United States will enhance our national security 
and secure and streamline the entry process into the United States. A 
passport requirement for the majority of travelers would allow border 
security officials to quickly, efficiently, accurately, and reliably 
review documentation, identify persons of concern to national security, 
and determine eligibility for entry of legitimate travelers without 
disrupting the critically important movement of people and goods across 
our air and sea borders. Implementing standardized travel documents 
(i.e., passports) for citizens of the United States, Canada, Bermuda, 
and Mexico entering the United States at air and sea ports-of-entry 
would also reduce confusion for the airline industry and make the entry 
process more efficient for CBP officers and the public alike since the 
majority of travelers traveling internationally to or from an airport 
or seaport would require the passport as a travel document, regardless 
of destination.
    The 9/11 Commission noted that the current exemptions to the 
passport requirement are a weak link in our layered approach to 
security that can no longer be ignored. Cognizant of this concern and 
the realities of the modern world, DHS and DOS agree that any 
acceptable alternative documents must establish the identity and 
citizenship of the bearer in a way that can be electronically verified 
and must include significant security features.
    Passports incorporate a host of security features not normally 
found or available on other documents such as birth certificates and 
driver's licenses. 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 
United States passport. The document authentication features include 
digitized photographs, embossed seals, watermarks, ultraviolet and 
fluorescent light verification features, security laminations, micro-
printing, and holograms. A United States passport is a document that is 
adjudicated by trained DOS experts and issued to persons who have 
documented their United States identity and 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 (for example, those 
subject to outstanding federal warrants for arrest are not eligible for 
a U.S. passport). Finally, CBP Officers can verify and authenticate a 
U.S. passport through connectivity with the DOS passport database, 
allowing a real-time check on the validity of the passport. The 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.
    Requiring passports for most air and sea travel would allow CBP 
officers to more efficiently process these travelers because there is a 
standard document to review which contains features that allow for 
quick reading of the relevant information. Reducing the number of 
acceptable travel documents would eliminate the need to examine a host 
of distinct and sometimes illegible, birth certificates and other 
documents--over 8,000 types may be presented today. By requiring most 
air and sea passengers to possess a passport, CBP officers would reduce 
the time and effort used to manually enter passenger information into 
the computer system on arrival because the officer can quickly scan the 
machine-readable zone of the passport to process the information using 
standard passport readers used for all machine readable passports 
worldwide. It is difficult to precisely determine the improved 
efficiencies resulting from limiting the acceptable documents at air 
and sea environments. Based on information from CBP field operations, 
CBP estimates that presenting secure and machine-readable documentation 
may typically save CBP officers from 5 to 30 seconds per air and sea 
passenger processed. This could result in an annual cost savings of 
$2.5 million to $15.0 million.\21\
---------------------------------------------------------------------------

    \21\ This is based on the estimated time savings (5 to 30 
seconds) multiplied by the number of new passengers with a passport 
(5,905,462; from Chapter 2 of the Regulatory Assessment) multiplied 
by the hourly cost of a CBP officer. The annual base salary for a 
GS-11/1 (in 2005) is $45,239. This is multiplied by a load factor of 
1.4 to account for fringe benefits and locality pay, for an annual 
salary of $63,335. This is divided by 2,080 hours to reach an hourly 
rate of $30.45.
    (5,905,462 travelers)(5 seconds)($30.45/hour) = $2,497,463
    (5,905,462 travelers)(30 seconds)($30.45/hour) = $14,984,778.

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[[Page 46161]]

    Protecting the national security is a fundamental mission of DHS. 
Initiating the first phase for all air and most sea travelers by 
January 8, 2007, will remedy significant vulnerabilities identified by 
the 9/11 Commission associated with the millions of travelers who enter 
the United States through air and sea ports-of-entry. This improvement 
will utilize the existing operational capabilities of both Departments 
without unduly burdening the traveling public. Phasing in the air and 
sea travel prior to land border crossings will provide near term border 
security benefits with regard to a significant number of arriving 
passengers without significant investment in new port-of-entry 
infrastructure. DHS estimates that CBP will be able to facilitate the 
processing of arriving passengers more efficiently when all arriving 
air and sea passengers carry and produce passports, MMD, or NEXUS Air 
card, instead of the broad range of documents now presented by arriving 
United States citizens and citizens of Canada, Bermuda, and Mexico.
    CBP estimates that approximately 21 million United States citizens 
travel to Canada, Mexico, and the Caribbean annually, and that 
approximately six million of those air and sea travelers do not possess 
a passport (see section IV below, regarding the Regulatory Analyses). 
Airports and seaports currently have the personnel and equipment to 
inspect incoming passengers who carry passports, so the major 
operational requirement of the final rule resulting from this NPRM is 
for DOS to expand passport production capacity to meet passport demand. 
DOS is already expanding passport production capacity to meet the 
additional demand for passports and will be able to meet a significant 
increase in demand from the more than 10 million passports produced in 
fiscal year 2005. DOS reports an estimated 25 percent increase in 
passport applications so far in fiscal year 2006. DOS has increased 
passport production capacity with an aim towards processing 16 million 
passports in fiscal year 2007 and 19 million passports in fiscal year 
2008.

B. Exceptions to the Passport Proposal

    DHS and DOS do not propose any change in the requirements for 
travel by pleasure vessel and ferry at this time. The Departments also 
propose to postpone any change in the requirements for United States 
citizen members of the United States Armed Forces also discussed below.
1. Passengers Arriving by Pleasure Vessel
    For purposes of this proposed rule, a pleasure vessel will be 
defined as a vessel that is used exclusively for recreational or 
personal purposes and not to transport passengers or property for hire. 
A day sailer or bareboat charter that is rented without a captain or 
crew and is used for recreational or personal purposes would be 
considered a pleasure vessel. This rule would not propose changes to 
the documentation requirements for United States citizens and 
nonimmigrant aliens from Canada, Bermuda, and Mexico who are aboard 
pleasure vessels arriving in the United States from a foreign port or 
place from within the Western Hemisphere.
    Pleasure vessel arrivals are treated similarly to land border 
crossings rather than like commercial vessel arrivals. These pleasure 
vessel passengers, who are frequent, short duration travelers, are 
similar to land border crossers and will be addressed in the WHTI 
second phase rulemaking. This will allow for more consistent processing 
of these travelers and the use of land border based inspection systems 
including registered/trusted traveler programs. Many of the pleasure 
vessel crossings are similar to bridge crossings because they are 
crossings of a short expanse of river or other waterway and are 
relatively short in duration.
2. Passengers Arriving by Ferry
    For purposes of this proposed rule, a ferry is defined as any 
vessel: (1) Operating on a pre-determined fixed schedule; (2) providing 
transportation only between places that are no more than 300 miles 
apart; and (3) transporting passengers, vehicles, and/or railroad cars. 
Since ferries will be subject to land border type entry processing on 
arrival from or departure to a foreign port or place, DHS and DOS 
propose that ferries be exempt from the new requirements of this 
rulemaking. Ferries will be addressed in the second phase rulemaking. 
Thus, current documentation requirements for ferry passengers will not 
change at this time.
3. Members of the United States Armed Forces
    When this rule is promulgated, all active duty members of the 
United States Armed Forces regardless of citizenship will be exempt 
from the requirement to present a valid passport when entering the 
United States. Currently, under 22 CFR 53.2(d), citizens of the United 
States are not required to possess a valid passport to enter or depart 
the United States when traveling as a member of the Armed Forces of the 
United States on active duty.\22\ Under this proposed rule, travel 
document requirements for United States citizens who are members of the 
United States Armed Forces would not change from the current 
requirements. Future changes, if any, to the current documentation 
requirements will be addressed during the second phase of the WHTI 
rulemaking process.
---------------------------------------------------------------------------

    \22\ For a discussion regarding the documentation requirements 
for alien members of the United States Armed Forces, see section 
III.D.6. of this document.
---------------------------------------------------------------------------

    Spouses and dependents of these military members would be required 
to present a passport or other document or combination of documents 
sufficient to denote identity and citizenship as discussed below, and a 
valid visa, if required, when entering the United States at air or sea 
ports-of-entry.

C. Other Documents Deemed Acceptable To Denote Citizenship and Identity

    This NPRM also proposes to designate two documents, in addition to 
the passport, as sufficient to denote identity and citizenship under 
section 7209, and acceptable for air and sea travel. IRTPA gives the 
Secretary of Homeland Security the authority to determine what 
documents other than the passport are sufficient to denote identity and 
citizenship for all travel into the United States by United States 
citizens and citizens of Canada, Mexico, and Bermuda.\23\ Accordingly, 
the Merchant Mariner Document (MMD) when used in conjunction with 
maritime business, and the NEXUS Air card when used at a designated 
kiosk, are proposed as acceptable for air and sea travel into the 
United States from within the Western Hemisphere.
---------------------------------------------------------------------------

    \23\ Section 7209(b)(1) of IRTPA.
---------------------------------------------------------------------------

1. Merchant Mariner Document
    Currently, an MMD or ``z-card'' is accepted for United States 
citizen crewmembers in lieu of a passport.\24\ To obtain an MMD, United 
States citizen Merchant Mariners must provide proof of their 
citizenship, must provide proof of their identity and must undergo an 
application process that includes a fingerprint background check 
submitted to the Federal Bureau of Investigation, a National Driver 
Register check, and a drug test from an authorized official that 
administers a drug testing program.
---------------------------------------------------------------------------

    \24\ See 22 CFR 53.2(c).
---------------------------------------------------------------------------

    The Secretary of Homeland Security proposes that an MMD when used 
in

[[Page 46162]]

conjunction with maritime business would be sufficient to denote 
identity and citizenship when presented upon arrival at an air or sea 
port-of-entry. Accordingly, under this proposed rule, United States 
citizens who possess an MMD would continue to be exempt from the 
requirement to present a passport when arriving in the United States at 
air or sea ports-of-entry. However, the Coast Guard has proposed to 
phase-out the MMD over the next five years and streamline all existing 
Merchant Mariner credentials.\25\ DHS proposes to accept the MMD as 
long as it is an unexpired document. We also note that United States 
citizen Merchant Marines serving on U.S. flag vessels are eligible for 
no fee U.S. passports upon presentation of a letter from the employer 
and an MMD, in addition to the standard evidence of citizenship and 
identity.
---------------------------------------------------------------------------

    \25\ 71 FR 29462 (May 22, 2006).
---------------------------------------------------------------------------

2. NEXUS Air Program Membership Card
    NEXUS Air is an airport border clearance pilot project implemented 
by CBP and the Canada Border Services Agency, pursuant to the Shared 
Border Accord and Smart Border Declaration between the United States 
and Canada. The NEXUS Air program is an alternative inspection program 
designed to facilitate the entry formalities by registered users which 
allows pre-screened, low-risk travelers to be processed more 
efficiently by United States and Canadian border officials.
    Enrollment in the program is limited to citizens of the United 
States and Canada, Lawful Permanent Residents (LPRs) of the United 
States, and permanent residents of Canada. To enroll in the NEXUS Air 
program, a participant must provide acceptable proof of citizenship or 
permanent resident status in Canada or the United States. United States 
citizens must provide an original birth certificate, along with a 
government-issued photo identification, a valid passport, or a 
certificate of naturalization. Canadian citizens must provide an 
original birth certificate, along with a government-issued photo 
identification, a valid passport, citizenship certificate with photo 
identification, or a citizenship card.
    LPRs of the United States must provide evidence of citizenship and 
of permanent resident status to enroll in NEXUS Air. Because the scope 
of section 7209 of IRTPA does not include LPRs, membership in Nexus Air 
does not change their document requirements. Therefore, LPRs of the 
United States, whether or not participating in the NEXUS Air program, 
will continue to be required to present a valid Form I-551, Alien 
Registration Card, or other valid evidence of permanent resident status 
to enter the United States. Canadian permanent residents must provide 
an original birth certificate, along with a government-issued photo 
identification, a valid passport (and visa if applicable), and proof of 
permanent resident status when applying for NEXUS Air enrollment.
    An extensive background check against law enforcement databases and 
terrorist indices, including fingerprint checks, as well as a personal 
interview with a CBP officer is required of each applicant. Each NEXUS 
Air membership card has physical security features including digital 
photographs of the participant's face. When a participant uses a NEXUS 
Air kiosk, he or she is prompted to look into a camera, which then 
biometrically verifies membership in NEXUS Air by taking a picture of 
the participant's iris and matching it to the image stored in the 
database.
    The Secretary of Homeland Security proposes that a NEXUS Air 
membership card would be a document sufficient to denote identity and 
citizenship for United States citizens, Canadian citizens, and 
permanent residents of Canada when arriving in the United States as a 
NEXUS Air program participant and when using a NEXUS Air kiosk at 
designated airports.
    LPRs of the United States, whether or not participating in the 
NEXUS Air program, will continue to be required to present a valid Form 
I-551, Alien Registration Card, or other valid evidence of permanent 
resident status to enter the United States.

D. Impact of This Rulemaking on Specific Groups and Populations

1. Charter and Commercial Vessels
    Under this proposed rule, a commercial vessel will be defined as 
any civilian vessel being used to transport persons or property for 
compensation or hire to or from any port or place including all cruise 
ships. A charter vessel, that is leased or contracted to transport 
persons or property for compensation or hire to or from any port or 
place, would be considered a commercial vessel. In contrast, a day 
sailer or bareboat charter that is rented without a captain or crew and 
is used for recreational or personal purposes would be considered a 
pleasure vessel as described above in section III.B.1. Under this 
proposed rule, commercial vessels will be treated as arrivals at sea 
ports-of-entry under this proposed rule. Passengers and crew aboard 
commercial vessels will need to possess a valid passport when arriving 
in the United States from a foreign port or place.
    Under applicable immigration law, sailing from a United States port 
into international waters, without a call at a foreign port, and 
returning to the United States, does not constitute a ``departure'' 
from the United States and, consequently, is not an ``entry'' into the 
United States that requires a passport under section 215(b) of the 
INA.\26\ Therefore, passports will not be required for persons 
(including commercial fishermen) onboard a vessel that sails from a 
United States port and returns without calling at a foreign port or 
place as the vessel is not considered to have departed the United 
States. Therefore, commercial fishermen would not be required to 
possess a passport unless they call at a foreign port or place.
---------------------------------------------------------------------------

    \26\ 8 U.S.C. 1185(b).
---------------------------------------------------------------------------

2. Aviation Passengers and Crew
    Under this proposed rule, all aviation passengers and crew, 
including commercial flights and general aviation flights (i.e., 
private planes), who arrive at air ports-of-entry in the United States 
from countries within the Western Hemisphere will be required to 
possess a valid passport beginning January 8, 2007. The only exceptions 
to this requirement would be for United States citizens who are members 
of the United States Armed Forces traveling on active duty and 
travelers who possess either an MMD or NEXUS Air card, as described 
above.
3. Lawful Permanent Residents
    Section 7209 of IRTPA applies to documentation requirements waived 
under section 212(d)(4)(B) of the INA27,\27\ which applies to 
nonimmigrant aliens, and section 215(b) of the INA,\28\ which applies 
to United States citizens. LPRs are exempt from the requirement to 
present a passport when arriving in the United States under Section 211 
of the INA \29\--section 7209 does not apply to LPRs. LPRs will 
continue to be able to enter the United States upon presentation of a 
valid Form I-551, Alien Registration Card, or other valid evidence of 
permanent resident status.\30\ Form I-551 is a secure, fully 
adjudicated document that can be verified and authenticated

[[Page 46163]]

by CBP at ports-of-entry. DHS published a notice of proposed rulemaking 
in the Federal Register on July 27, 2006, that proposes to collect and 
verify the identity of LPRs arriving at air and sea ports-of-entry, or 
requiring secondary inspection at land ports of entry, through US-
VISIT.\31\
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    \27\ 8 U.S.C. 1182(d)(4)(B).
    \28\ 8 U.S.C. 1185(b).
    \29\ 8 U.S.C. 1181.
    \30\ See section 211(b) of the INA, 8 U.S.C. 1181(b).
    \31\ See 71 FR 42605.
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4. Mexican Citizens
    Currently, Mexican citizens traveling to the United States for 
business or pleasure who are in possession of a BCC may be admitted, 
subject to certain limitations,\32\ without presenting a valid passport 
when coming from a contiguous territory.\33\ IRTPA, however, does not 
exempt Mexican citizens who possess a BCC from providing a passport or 
other document designated by DHS upon arrival in the United States. By 
this rulemaking, Mexican citizens, whether in possession of a BCC or 
not, would be required to present a valid passport when entering the 
United States by air or commercial sea vessel, except by ferry or 
pleasure vessel.
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    \32\ See 8 CFR 235.1(f).
    \33\ 8 CFR 212.1(c)(1)(i). Also, Mexican citizens 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 have not been required to present a valid passport. 
This type of entry generally occurs at land borders. Land border 
entry for this purpose will be addressed in a separate, future 
rulemaking regarding documentation requirements at land border 
ports-of-entry. See 8 CFR 212.1(c)(1)(ii).
---------------------------------------------------------------------------

    This requirement for Mexican BCC holders is consistent with the 
requirements that are imposed on both other aliens and United States 
citizens.
5. Children Under the Age of 16
    The United States government currently requires children under the 
age of 16 arriving from countries outside the Western Hemisphere to 
provide a passport when entering the United States. IRTPA does not 
contain an exemption from providing a passport or other document 
designated by DHS for children under the age of 16 when entering the 
United States from Western Hemisphere countries. Consequently, as there 
is no other statutory exemption, children under the age of 16 arriving 
from Western Hemisphere countries would be required to present a 
passport when entering the United States by air or commercial sea 
vessel, except by ferry or pleasure vessel.
6. Alien Members of the United States Armed Forces
    Pursuant to section 284 of the INA ,\34\ alien members of the 
United States Armed Forces entering under official orders presenting 
military identification are not required to present a passport and 
visa.\35\ Because this statutory exemption does not fall within the 
scope of section 7209 of IRTPA, under this proposed rule alien members 
of the United States Armed Forces traveling on orders would continue to 
be exempt from the requirement to present a passport when arriving in 
the United States at air or sea ports-of-entry. Accordingly, under this 
NPRM, these individuals would continue to be required to present a 
military identification card and official orders. However, spouses and 
dependents of military members are not covered by the exemption set 
forth in section 284 of the INA.\36\ Under the proposed regulation they 
would continue to be required to present a passport (and visa if 
required) when entering the United States at air or sea ports-of-entry 
even when returning from travel in the Western Hemisphere.
---------------------------------------------------------------------------

    \34\ 8 U.S.C. 1354.
    \35\ See also 8 CFR 235.1(c).
    \36\ 8 U.S.C. 1354.
---------------------------------------------------------------------------

7. Members of NATO Armed Forces
    Pursuant to Article III of the Agreement Between the Parties to the 
North Atlantic Treaty Regarding the Status of Their Forces, June 19, 
1951,\37\ North Atlantic Treaty Organization (NATO) military personnel 
on official duty are normally exempt from passport and visa regulations 
and immigration inspection on entering and leaving the territory of a 
NATO party, but if asked must present a personal I.D. card issued by 
their NATO party of nationality and official orders from an appropriate 
agency of that country or from NATO.\38\ Because their exemption from 
the passport requirement is based on the NATO Status of Forces 
Agreement rather than a waiver under section 212(d)(4)(B) of the INA 
,\39\ they are not subject to section 7209 of IRTPA. Therefore, 
notwithstanding this proposed rule, NATO military personnel would not 
be subject to the requirement to present a passport when arriving in 
the United States at air or sea ports-of-entry.
---------------------------------------------------------------------------

    \37\ Agreement Between the Parties to the North Atlantic Treaty 
Regarding the Status of Their Forces, June 19, 1951, [1953, pt.2] 4 
U.S.T. 1792, T.I.A.S. No. 2846 (effective Aug. 23, 1953). NATO 
member countries are: Belgium, Bulgaria, Canada, the Czech Republic, 
Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, 
Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, 
Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, the United 
Kingdom of Great Britain and Northern Ireland, and the United 
States.
    \38\ See also 8 CFR 235.1(c).
    \39\ 8 U.S.C. 1182(d)(4)(B).
-----------