DHS and State Dept Issue Proposed Rule on the Western Hemisphere Travel Initiative for Land and Sea Travel (Part II - Final)

Comments must be submitted on or before August 27, 2007.

(The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), as amended, provides that upon full implementation of the WHTI, U.S. citizens and certain classes of nonimmigrant aliens may enter the U.S. only with passports or such alternative documents as the Secretary of Homeland Security designates as satisfactorily establishing identity and citizenship.

DHS states that this proposed rule is the second phase of the WHTI plan to implement these requirements. The first phase of WHTI, which was implemented on January 23, 2007, affected air travel.¹)

This is Part II, the final part of a two-part series of summaries on the WHTI proposed rule for land and sea travel, and highlights proposed time frames for implementation of certain practices, as well as documents proposed to be required for western hemisphere travelers. (See ITT's Online Archives or 06/26/07 news, 07062635, for Part I.)

DHS Intends to End Practice of Accepting Oral Declarations January 31, 2008

According to the proposed rule, it is the intention of DHS to end the routine practice of accepting oral declarations alone starting January 31, 2008. U.S. Customs and Border Protection will retain 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.

Beginning January 31, 2008, DHS will expect the satisfactory evidence of U.S. or Canadian citizenship to include either of the following documents or groups of documents: (1) A document specified in the proposed rule as WHTI-compliant for that individual's entry (see list below); or (2) a government-issued photo identification document presented with a birth certificate.

(The proposed rule also states that CBP will act according to the proposed procedures for U.S. and Canadian citizen children beginning January 31, 2008².)

Full Land and Sea Phase of WHTI Implementation Expected in Summer 2008

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 WHTI³. The implementation date will be determined based on a number of factors, including the progress of actions undertaken by DHS to implement the WHTI requirements and the availability of WHTI compliant documents for all affected countries.

DHS and the State Department expect the date of full WHTI implementation to be in the summer of 2008. The precise implementation date will be published in the final rule or will be separately published, with at least 60 days notice, in the Federal Register.

Proposed WHTI Compliant Documents for Western Hemisphere Travelers

The proposed rule proposes new documentation requirements for U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the U.S. by land from Canada and Mexico, or by sea from within the Western Hemisphere.

U.S. citizens. Under the proposed rule, most U.S. citizens entering the U.S. at all sea or land ports-of-entry would be required to have either:

a U.S. passport;

a U.S. passport card⁴;

a trusted traveler card (NEXUS, Free and Secure Trade (FAST), or Secure Electronic Network for Travelers Rapid Inspection (SENTRI));

a valid Merchant Mariner Document (MMD) when traveling in conjunction with official maritime business; or

a valid U.S. Military identification card when traveling on official orders or permit.

Canadian citizens. Canadian citizens entering the U.S. at sea and land ports-of-entry would be required to present (in addition to any applicable visa requirements):

a passport issued by the Government of Canada;

a valid trusted traveler program card issued by the Canadian Border Services Agency (CBSA) or DHS (FAST, NEXUS, or SENTRI); or

alternative Canadian citizenship and identity documents hereafter proposed by Canada and accepted by DHS and the State Department.

Additionally, Canadian citizens in the NEXUS program who arrive by pleasure vessel from Canada would be permitted to present a NEXUS membership card in lieu of a passport along the northern border under the auspices of the remote inspection system for pleasure vessels, such as the Outlying Area Reporting System (OARS).

Citizens of Bermuda. 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 U.S. at all sea or land ports-of-entry, including travel from within the Western Hemisphere.

Mexican nationals. 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 U.S., or (2) a valid Form DSP-150, B-1/B-2 laser visa Border Crossing Card (BCC) when seeking admission to the U.S. at land ports-of-entry or arriving by pleasure vessel or by ferry from Mexico.

Proposed Alternative Documents for Specific Groups of Travelers

According to the proposed rule, the departments believe that there are certain special circumstances for specific groups of travelers that warrant permitting use of other documents. For these specific groups of travelers, within these limited circumstances, the Secretary of Homeland Security proposes certain delineated documents be accepted for travel, including U.S. citizen cruise ship passengers, U.S. and Canadian citizen children, lawful permanent U.S. residents, alien members of the U.S. armed forces, members of NATO armed forces, etc. (See proposed rule for a complete list of proposed alternative documents for specific groups.)

¹DHS and the State Department recently announced that U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda who have applied for but not yet received passports can nevertheless temporarily enter and depart from the U.S. by air with a government issued photo identification and State Department official proof of application for a passport through Sept. 30, 2007. (See ITT's Online Archives or 06/11/07 news, 07061120, for BP summary of this announcement.)

²The proposed rule outlines proposed document requirements for U.S. and Canadian citizen children under the age of 16 and for U.S. and Canadian citizen children under age 19 who are traveling with certain school groups, religious groups, etc.

³According to DHS sources, full implementation means that all document requirements to be established under WHTI for land and sea travel will be implemented for Mexico and Bermuda, in addition to those to be implemented for the U.S. and Canada on January 31, 2008.

⁴The State Department issued a proposed rule on October 17, 2006 to establish a U.S. passport card that would be a secure citizenship and identity document that carries most of the rights and privileges of a traditional U.S. passport, but with validity limited to international travel by land and sea between the U.S. and Canada, Mexico, the Caribbean or Bermuda. (See ITT's Online Archives or 11/02/06 and 12/21/06 news, 06110210 and 06122130, for BP summary of the State Department proposed rule and extension of the comment period, respectively.)

(See ITT's Online Archives or 11/29/06 news, 06112915, for BP summary of the CBP/State Dept. final rule implementing WHTI for air travel effective January 23, 2007.

See ITT's Online Archives or 01/22/07 news, 07012215, for BP summary of passport requirements for WHTI air travel.

See ITT's Online Archives or 09/09/05 news, 05090920, for BP summary of the advance notice of proposed rulemaking on WHTI.)

DHS/State proposed rule (D/N USCBP 2007-0061, FR Pub 06/26/07), available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-3104.pdf

DHS Fact Sheet (dated 06/20/07) available at http://www.cbp.gov/linkhandler/cgov/travel/alerts/whti_land_sea/whti_ls_fact.ctt/whti_ls_fact.pdf

BP Note

DHS previously issued a notice of availability of a draft Programmatic Environmental Assessment (PEA) for WHTI at land and sea ports of entry. The draft PEA documents a review of the potential environmental impacts (from changes to technology and operations) of meeting the requirements for standardized, secure travel documents under WHTI. (DHS notice, D/N USCBP-2007-0060, FR Pub 06/25/07, available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-12274.pdf)