Update on Final Rule Implementing Western Hemisphere "Passport" Travel Initiative for Air Travel Effective January 23, 2007

(The preamble to the proposed rule only referred to travelers entering the U.S. However, the preamble to the final rule states that if an individual must present a passport upon entry, then that individual will also need to bear one upon exit.)

WHTI to be Implemented in Two Stages

FirstStage (air only, all sea to be implemented in second stage). In their August 2006 proposed rule, CBP and State had stated that the 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 sea travel (other than by ferry or pleasure vessel). (See ITT's Online Archives or 08/15/06 news, 06081525, for BP summary of the proposed rule.)

CBP and State note that the final rule differs from the proposed rule by only finalizing new documentation requirements for travelers arriving in the U.S. by air.

Second Stage (land, sea, etc,). CBP and State add that requirements for U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico departing from or entering the U.S. at land and sea ports-of-entry will be addressed in a separate, future rulemaking.

Those Impacted by WHTI Passport Requirement for Air Travel

According to CBP and State, under this final rule, beginning January 23, 2007, U.S. citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the U.S. at air ports-of-entry will generally be required to present a valid passport. Accordingly, 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 U.S. from countries within the Western Hemisphere will be required to possess a valid passport beginning January 23, 2007. (See below for exceptions.)

(DHS' FAQ on this final rule explains that, under this final rule, Mexican citizens, just like U.S., Canadian and Bermudan citizens, will be required to present a passport for air travel. The Border Crossing Card (BCC), while currently serving in lieu of a passport and visa for land border crossings within the border region, may also be used as a visitor's visa. However, due to the unique circumstances of air travel, it was felt that the additional presentation of a passport was necessary.)

Exceptions to the WHTI Passport Requirement for Air Travel

CBP and State note that the only exceptions to the WHTI passport requirements for air travel would be for:

All active duty members of the U.S. Armed forces, regardless of citizenship;

Travelers entering from or departing to a foreign port or place within the Western Hemisphere, excluding Cuba, by land or by sea;

Travelers who present a Merchant Mariner Document (MMD)¹ or "z-card" traveling in conjunction with maritime business;

Travelers who present a NEXUS Air card² used at a NEXUS Air kiosk;

U.S. citizens that bear another document, or combination of documents, that the Secretary of Homeland Security has determined to be sufficient to denote identity and citizenship;

When the U.S. citizen is employed directly or indirectly on the construction, operation, or maintenance of works undertaken in accordance with the treaty concluded on February 3, 1944, between the U.S. and Mexico regarding the functions of the International Boundary and Water Commission (IBWC), or other related agreements provided that the U.S. citizen bears an official identification card issued by the IBWC;

When the Department of State waives, pursuant to Executive Order 13323, the requirement with respect to the U.S. citizen because there is an unforeseen emergency, or for humanitarian or national interest reasons; and

U.S. citizens and nationals who travel directly between parts of the U.S., which includes Guam, Puerto Rico, the U.S. Virgin Islands, American Samoa, Swains Island, and the Commonwealth of the Northern Mariana Islands, without touching at a foreign port or place.

¹ A MMD is issued by the U.S. Coast Guard to Merchant Mariners.

² Nexus Air card enrollment is limited to citizens and lawful permanent residents of the U.S. and Canada.

(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.)

See ITT's Online Archives or 11/29/06 news, 06112915, for earlier BP summary of this final rule.

CBP/State Final Rule on WHTI (D/N USCBP 2006-0097, FR Pub 11/24/06), available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-9402.pdf

CBP FAQ (available in English and Spanish), Document on New Requirements for Air Travelers, Regulatory Assessment for the Final Rule, Important Change in International Travel Requirements Document, etc. (all posted in 11/06) available at http://www.cbp.gov/xp/cgov/travel/vacation/whti/

DHS press release on WHTI (dated 11/22/06) available at http://www.dhs.gov/xnews/releases/pr_1164209628449.shtm

DHS FAQ on WHTI (dated 11/22/06) available at http://www.dhs.gov/xnews/releases/pr_1164210249468.shtm