CBP and State Dept Propose Rule for Western Hemisphere "Passport" Travel Initiative (First Stage for Air Travel, Most Sea Travel)

Written comments on this proposed rule are due by September 25, 2006.

Travel Initiative Would be Implemented in Two Stages

FirstStage (Air, Most Sea). This proposed rule would cover the first stage of this travel initiative for U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico, and would affect air travel and most sea travel. This first stage is scheduled to begin on January 8, 2007.

Second Stage (Land, etc,). According to a Department of Homeland Security (DHS) press release, the second stage of this travel initiative would be implemented by a second proposed rule, published at a later date, and would affect U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the U.S. through a land border crossing beginning January 1, 2008. The land border rule will also address document requirements for ferry passengers, U.S. citizen members of the armed forces on active duty, and for vessels used exclusively for pleasure and not for transportation of persons or property for compensation or hire.

Impact of First Stage Requirements on Certain Groups and Populations

According to CBP and State, the proposed rule would impact the following groups and populations (partial list):

Charter and commercial vessels. Commercial vessels (including cruise ships) would be treated as arrivals at sea ports-of-entry. Passengers and crew aboard charter and commercial vessels would need to possess a valid passport when arriving in the U.S. from a foreign port or place. In addition, CBP and the State note that commercial fishermen would not be required to possess a passport unless they call at a foreign port or place.

Aviation passengers and crew. Aviation passengers and crew, including commercial flights and general aviation flights (i.e., private planes), who arrive at air ports-of-entry in the U.S. from countries within the Western Hemisphere would be required to possess a valid passport.

Lawful permanent residents. Lawful permanent residents would continue to be able to enter the U.S. upon presentation of a valid Form I-551, Alien Registration Card, or other valid evidence of permanent resident status. (Form I-551 is a secure, fully adjudicated document that can be verified and authenticated by CBP at ports-of-entry.)

Mexican citizens. Mexican citizens, whether in possession of a Border Crossing Card (BCC) or not, would be required to present a valid passport when entering the U.S. by air or commercial sea vessel, except by ferry or pleasure vessel.

Children under the age of 16. Children under the age of 16 arriving from Western Hemisphere countries would be required to present a passport when entering the U.S. by air or commercial sea vessel, except by ferry or pleasure vessel.

Native Americans born in Canada and the U.S. Native Americans born in Canada would be required to present a valid passport when entering the U.S. by air and commercial sea vessel, except by ferry or pleasure vessel. In addition, Native Americans born in the U.S. would be required to present a valid passport when entering the U.S. by air and commercial sea vessel, except by ferry or pleasure vessel.

(See CBP and State's proposed rule for additional groups or populations impacted by the proposed rule including alien members of the U.S. armed forces, members of NATO armed forces, outer continental shelf employees, etc.)

Merchant Mariner Document, NEXUS Air Card Could Be Used Instead of Passport

According to CBP and State, the proposed rule also proposes to designate two documents, in addition to the passport, as sufficient to denote identity and citizenship, and acceptable for air and sea travel. The first document is the Merchant Mariner Document (MMD) or "z-card" issued by the U.S. Coast Guard to Merchant Mariners. The second document is the NEXUS Air card when used with a NEXUS Air kiosk.

Certain Proposed Exceptions

CBP and State note that passengers arriving to the U.S. by pleasure vessel or by ferry, as well as U.S. citizen members of the Armed Forces on active duty, would be excepted from this proposed rule. (See above for anticipated coverage under the second stage of implementation.)

(The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) mandated that the U.S. Secretaries of Homeland Security and State develop and implement a plan to require U.S. citizens and foreign nationals to present a passport or other secure document when entering the U.S. from within the Western Hemisphere. See ITT's Online Archives or 3/17/05 news, 05031720, for Part III of a series of BP summaries highlighting other aspects of the IRTPA, with links to earlier installments. See ITT's Online Archives or 09/09/05 news, 05090920, for BP summary of CBP and the State's advanced notice of proposed rulemaking (ANPR), on the WHTI.)

- written comments must be submitted by September 25, 2006

CBP/State Proposed Rule on WHTI (D/N USCBP 2006-0097, FR Pub 08/11/06), available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-6854.pdf

DHS press release on WHTI (dated 08/11/06) available at http://www.dhs.gov/dhspublic/display?content=5797