August 16, 2006

WHTI Update:  U.S. Issues Notice of Proposed Rulemaking on Air and Sea Travel

What’s New

On August 11, 2006, the U.S. Department of Homeland Security’s Bureau of Customs and Border Protection, and the Department of State’s Bureau of Consular Affairs published in the U.S. Federal Register (available at www.regulations.gov) a notice of proposed rulemaking (NPRM) regarding implementation of the Western Hemisphere Travel Initiative for air and sea travel.  

The notice does not propose any changes in the requirements for travellers entering the United States via its land border.  These will be addressed in a separate rulemaking.

Proposed Rulemaking Details

Reflecting the belief of the Departments of Homeland Security and State that the passport is the most reliable travel document to optimize safety and efficiency in the air and sea environments, the NPRM proposes that, with some exceptions, U.S. citizens and non-immigrant aliens from Canada, Bermuda and Mexico travelling to the United States by air and sea from Western Hemisphere countries be required to show a passport.

This passport requirement would take effect on January 8, 2007, one week later than the originally proposed implementation date of January 1, 2007.  The NPRM maintains that this delay would “better accommodate the holiday travel season” while not having an adverse effect on national security.

It would apply to most air and sea travel, including commercial air travel and commercial sea travel, e.g. charter vessels and cruise ships, with the following exceptions:

• Pleasure vessels used exclusively for recreational or personal purposes and not to transport passengers or property for hire;
  
• Travel by ferry (A ferry is defined, for purposes of this proposed rule, as any vessel operating on a predetermined fixed schedule, providing transportation between places that are no more than 300 miles apart, and transporting passengers, vehicles and/or railroad cars. Ferries will be subject to land border-type entry processing on arrival or departure); and
  
• Travel by U.S. citizen members of the Armed Forces on active duty.

The NPRM also proposes to designate two documents in addition to a passport as acceptable for air and sea travel:

• Merchant Mariner Document (MMC) issued by the U.S. Coast Guard to merchant mariners; and
  
• NEXUS Air card (when used with a NEXUS Air kiosk).

It should be noted that the NPRM is not proposing an exemption for children under the age of 16 years, who will be required to present a passport or other document designated by the Department of Homeland Security when entering the United States from Western Hemisphere countries.

Other Notes

The NPRM contains a Regulatory Analyses section which looks at the impacts of the proposed rulemaking regarding air and sea travel under various regulations.

For example, the WHTI is considered to be an “economically significant regulatory action” under Executive Order 12866 because it may result in the expenditure of over $100 million in any given year.  Therefore, the proposed rule was reviewed by the Office of Management and Budget and the results of the review are summarized in the notice. 

It is noteworthy that the Departments of Homeland and Security and State expect that “foreign businesses whose services are consumed largely outside the United States […] will be primarily impacted.  If domestic travel is substituted for international travel, domestic industries in those areas would gain.”  They acknowledge, however, that “United States travel and tourism could also be indirectly affected by the proposed rule if fewer Canadian, Mexican BCC holders and Bermudan travelers visit the United States […] ”   Given their estimate, based on their Regulatory Assessment, that 96% of U.S. travellers and 99% of Canadian travellers will obtain passports and continue travelling, the gains and losses are expected to be “marginal” in either case.

The NPRM also points out that the Departments of Homeland Security and State evaluated and rejected, on the basis of cost and other considerations, the following five alternatives to the proposed rulemaking covering air and sea travel:

• Maintaining the status quo.  This was rejected because of the statutory requirement that, by January 1, 2008, U.S. citizens and non-immigrant aliens may enter the United States only upon presentation of a passport or designated alternative;

• Requiring U.S. travellers to present a state-issued photo ID and proof of citizenship upon return to the United States from other Western Hemisphere countries. Rejected on the basis that this alternative is similar to the status quo and that there is no standard format for these documents, which lack security features;

• Allowing U.S. citizens who possess a valid Transportation Worker Identification Card (TWIC) to use it as a travel document in the air and sea environments.  Rejected because of the technology requirements and the costs associated with installing card readers, and the potential for increased delays at ports of entry;

• Allowing Mexican citizens to present their Border Crossing Cards (BCCs) in lieu of a passport; and

• Developing and designating a low-cost People Access Security Service (PASS) card as an acceptable document for U.S. citizens.  Rejected on the grounds that it cannot be developed and implemented by January 8, 2007, and that it is intended to be a limited-use document and will not meet all international standards for passports and other official travel documents.  The NPRM points out that the PASS card is being designed “to benefit those citizens in border communities who regularly cross the northern and southern borders every day and where such travel is an integral part of their daily lives.”

What’s Next

The NPRM invited stakeholders to submit written comments by September 25, 2006.  The Tourism Industry Association of Canada will prepare a submission that takes into account input from the binational Passport Coalition that it leads. The coalition will meet August 24, 2006 to formulate coordinated next steps. 

Individual tourism businesses and other organizations are also encouraged to participate in the consultation.  The notice makes it clear that providing specific information or examples that demonstrate the impact of the proposed rule on “small entities” under the U.S. Regulatory Flexibility Act would be helpful during the final rulemaking, expected in late fall 2006.

Background

At present, U.S. citizens arriving at U.S. air or sea ports-of-entry from within the Western Hemisphere can present a variety of documents, including driver’s licences and birth certificates, to establish their citizenship and right to enter the United States.  In most cases, citizens of Canada and Bermuda are not required to present a valid passport when entering the U.S. as non-immigrant aliens from countries in the Western Hemisphere, and may present other proof of identity and citizenship instead.

Under the WHTI, which implements Section 7209 of the U.S. Intelligence Reform and Terrorism Prevention Act of 2004, all travellers entering the United States as of January 1, 2008, will have to present a passport or alternative documents establishing identity and citizenship designated by the Secretary of Homeland Security.

The NPRM summarized the public comments submitted in response to the advance notice of proposed rulemaking published in the Federal Register of September 1, 2005, by the Departments of Homeland Security and State.  Many of these supported the recommendations set forth in TIAC’s October 2005 written submission, including the development of alternative forms of identification, a single implementation of January 1, 2008, for all modes of travel, an exemption for children under the age of 16, and an effective communications plan.