Official Comment of the Government of Canada: Notice of Proposed Rulemaking for the Implementation of the Western Hemisphere Travel Initiative at Land and Sea Ports of Entry
Summary
The Government of Canada supports the security objectives underlying the Western Hemisphere Travel Initiative (WHTI). We believe it can-and must-be implemented in a manner which does not needlessly disrupt legitimate tourism and travel, or undermine the historic and unique economic and social relationship between our two countries. We believe that our shared purpose must be to ensure the continuing efficient flow of legitimate trade and travel across our shared border which has benefited both our countries and our people. Canada is encouraged by the Notice of Proposed Rulemaking's (NPRM's) proposed phased approach to implementation, but recommends that any final rulemaking include a more explicit acceptance of alternative WHTI-compliant documents and include a phase-in of document requirements extended beyond the summer of 2008 to allow sufficient time for Canadians and Americans to acquire the necessary documents, and to allow for the assessment, development and distribution of alternative documents. The Government of Canada also feels that a clear and consistent communications strategy is required to avoid confusion among travellers and potential border congestion and delays. There is also a need for a more detailed analysis of the economic impact of WHTI implementation at land and sea ports of entry.
Comment
The Government of Canada appreciates this opportunity to provide official comments on the Proposed Rule for Documents Required for Travellers Departing From or Arriving in the United States at Sea and Land Ports-of-Entry from within the Western Hemisphere (Department of Homeland Security, U.S. Customs and Border Protection docket number USCBP 2007-0061).
Canada and the United States have a unique relationship characterized by common values, close community and border ties, integrated economic relationships, and a commitment to shared security and prosperity. As a consequence, the Government of Canada shares with the Government of the United States a fundamental commitment to the security of North America. Canada understands the security objectives underlying the WHTI. Indeed, the Government of Canada has put in place measures, both domestically and internationally, to address and mitigate the threats to the security of Canada and Canadians, including the threat posed by terrorism. Since 2001, Canada has invested over US$10 billion to ensure Canadian and by extension, North American, security, including through initiatives such as expanded bi-national integrated border enforcement teams along our shared land and freshwater borders, improved aviation, cargo, and supply chain security, and increased emergency preparedness and cooperation. From the bilateral Smart Border Declaration and Action Plan (2001) and continuing with the Security and Prosperity Partnership (2005), Canada has worked cooperatively with the U.S. to improve border security while at the same time ensuring the continuing flow of legitimate goods and travellers across our borders. We continue to do so. Our commitment to the cooperative management of our shared border has enhanced security and brought tremendous economic benefits for both nations.
The principal concern for the Government of Canada is how and when the WHTI will be implemented. We are concerned about avoiding confusion among travellers and border congestion due to delays in processing that would negatively affect legitimate tourism, travel and trade. This concern is shared by governments, border communities, the travelling public and businesses on both sides of the border. Legitimate travel and trade between our two countries is enormous: in 2006 there was almost 160 million cross-border visits (two-way) and US$710 billion in two-way trade in goods and services, which amounted to US$1.9 billion per day. The implementation of the WHTI for air travellers resulted in unprecedented demands on the passport offices of both countries, and disrupted the travel plans of many Canadians and Americans, even though the majority of air travellers already carried passports. Implementation of the WHTI at land and sea ports of entry will be considerably more complex since far fewer travellers across the land and sea borders currently carry passports.
The Government of Canada stands ready to work with the Government of the United States on how the WHTI could best be implemented at our shared border, in particular with respect to three key areas:
- alternative documents to passports (in particular the use of commonly held documents that our citizens already possess, and which could be enhanced to satisfy WHTI requirements);
- the timelines to phase-in proposed new document requirements (including the establishment of benchmarks that would help to determine implementation time-lines, such as document availability, necessary supporting infrastructure, public awareness, etc); and
- communications to the travelling public to avoid confusion and disrupted travel.
The Government of Canada appreciates the consultations that have taken place between our senior officials in recent months to discuss our questions, concerns and suggestions. We believe that these discussions reflect the spirit of shared border management and have been productive for both governments to date, and we look forward to furthering these consultations in the coming weeks and months.
The Government of Canada notes that it is proposed that Canadian citizens entering the U.S. at land and sea ports of entry would be required to present a passport, a valid trusted traveller program card issued by CBSA, such as the FAST or NEXUS cards, or alternative Canadian citizenship and identity documents that may be proposed by Canada and accepted by the U.S. Departments of Homeland Security and State. We believe it will be important to consider alternative documents, including both existing commonly held documents, as well as enhanced commonly held documents.
A) Alternative Documents
We welcome the readiness of the Departments of Homeland Security and State to consider alternative documents to the passport, FAST and NEXUS cards for entry into the U.S. by land or sea ports of entry. The Government of Canada believes that it is in our mutual interest to use the flexibility that exists in the underlying WHTI legislation, which requires "a passport or other document or combination of documents, deemed ... to be sufficient to denote identity and citizenship..." The Government of Canada is interested in exploring the use of alternative documents to the passport, which could be used either on their own, or in combination with other documents. We are also interested in exploring the enhancement of commonly held documents to meet WHTI requirements. We believe that the convenience of such alternative documents for our citizens could help to sustain the ongoing, extensive human linkages across our borders and also could help to alleviate pressures on document-issuing agencies by distributing the demand.
a) Certified Birth Certificates for Minors
The Government of Canada particularly welcomes the proposal to exempt minors from the requirement to present a passport and instead, to accept a certified birth certificate for children 15 and under, as well as for children 18 and under when travelling with parental consent in supervised groups. We share the assessment that children pose a low security risk, and that this will facilitate the significant cross-border youth linkages through sports, cultural, and religious activities that young people in both our countries currently enjoy. It will also make a cross-border family vacation to visit Disneyland in the U.S., or Niagara Falls or Banff in Canada, more affordable. We propose that exemptions also be made for senior citizens based on their low security risk and significant cross-border linkages, and recognizing that they may have limited financial resources.
b) Certificates of Indian Status
We appreciate the specific invitation to Canadian First Nations groups or bands to submit comments regarding the Proposed Rulemaking. The Assembly of First Nations and other aboriginal organizations have recommended to us that Certificates of Indian Status (CIS), which are issued by the Government of Canada, be considered acceptable for WHTI purposes. The Government of Canada endorses this recommendation and asks that the CIS be accepted for cross-border travel. Canada's Department of Indian Affairs and Northern Development is currently developing a new secure CIS to be introduced in 2008, which has been presented to the U.S. Department of Homeland Security.
c) Canadian Seafarer's Identity Document
We note that the U.S. Merchant Mariner Document (MMD) will be accepted for U.S. citizen Merchant Mariners, in lieu of a passport. Similarly, the Government of Canada recommends that the modernized Canadian Seafarer's Identity Document (SID), issued by Transport Canada, be accepted for entry into the US by both land and sea.
d) Enhanced Driver's Licence
A number of U.S. states and Canadian provinces and territories have expressed interest in WHTI-compliant driver's licences. An enhanced driver's license pilot project is at the planning stage in Washington State, as is one in the Province of British Columbia. We also note with interest that DHS has agreed to launch projects with the states of Vermont and Arizona, and we understand that discussions are ongoing with other states. For its part, the Government of Canada is actively engaging with Canadian provinces and territories regarding the development of enhanced driver's licences to meet WHTI requirements. However, in order to ensure that the investments of time and resources by states, provinces and territories that choose to develop enhanced driver's licences are worthwhile, the final rule must state that such enhanced driver's licences, which satisfy WHTI requirements regarding identity and citizenship, will be accepted for entry to the U.S. at land and sea ports of entry.
The development, production and distribution of alternative WHTI-compliant documents, such as enhanced driver's licences will take time. Canada remains concerned that the proposed timeline for full implementation of WHTI requirements, which is as early as summer 2008, does not allow sufficient time to assess the feasibility of such alternative documents to the passport, let alone the time to produce and distribute them. If implementation proceeds before a decision can be taken on the feasibility of such documents and before they are available, citizens will be compelled to obtain passports, or the FAST and NEXUS cards. Under these circumstances, the incentive for governments to develop WHTI-compliant documents would be significantly diminished. Further, consideration would need to be given to phasing in any alternative documents over the natural renewal cycle for those documents to avoid unmanageable spikes in demand. These are among the reasons why we believe the phase-in period beginning in January 2008 should be extended beyond the summer of 2008.
e) Passport Cards
The decision by the Government of the United States to develop and issue a passport card will help mitigate some of the impacts of WHTI implementation. For its part, the Government of Canada is assessing the technical and financial feasibility of possible comparable passport card options, as well as other options described in this section. In this regard, Canada welcomes as much information as possible on the technology and procurement specifications of the U.S. PASScard.
f) NEXUS and FAST Cards
With respect to the NEXUS and FAST programs, the Government of Canada is pleased with the strong working relationship we have developed with the Government of the United States while cooperating on these bilateral initiatives which simplify border crossings while enhancing security. While we understand that NEXUS and FAST cards will be accepted as WHTI-compliant, we would seek early written assurances that they will also be recognized for entry in non-dedicated lanes, and that the FAST card be recognized for WHTI purposes even if shipments are not FAST designated, such as less-than-load (LTL) shipments in non-FAST dedicated commercial lanes, as well as in all non-commercial lanes.
We note that the first FAST cards issued will begin to require renewal in January 2008. This will present an administrative challenge for our respective border agencies which will be compounded by the likely spike in new demand for FAST cards with the implementation of the WHTI at land and sea ports of entry. Truck drivers who do not already have FAST cards have passport possession rates below those of the general population. They will need to obtain WHTI-compliant documents.
We believe that these factors, which will affect our respective trucking and transportation sectors, which play such a key role in the US$1.9 billion in daily cross-border trade between our countries, will need to be taken fully into consideration when evaluating the time frame for full WHTI implementation.
g) Emergency Responders
The Government of Canada recommends that the Department of Homeland Security establish protocols for the travel of medical, firefighting and other emergency service providers between Canada and the United States. In times of emergency, all levels of government in Canada and the United States have cooperated in the interests of their citizens. As emergency service providers may not always carry WHTI-compliant documents, protocols for emergency situations should be established. This concern also extends to patients in medical evacuation cases. There have been cases, since the implementation of WHTI requirements for air travellers, when family members of the evacuated patients were refused boarding to the U.S. because they did not have a passport. Concerns about the health and well-being of patients who were thereby denied the support of family at such a critical time have been raised by health providers on both sides of the border. Canada believes that an alternative procedure for the transfer of medical patients is specifically required for all modes of travel between Canada and the United States.
Recommendations
We recommend that:
- it be clearly stated in the final rule that enhanced driver's licences, which satisfy WHTI requirements regarding identity and citizenship, will be accepted for entry to the US at land and sea ports of entry;
- the Canadian Certificate of Indian Status be accepted for entry to the U.S. at land and sea ports of entry;
- the Canadian Seafarer's Identity Document also be accepted for entry to the U.S. at land and sea ports of entry;
- that seniors be permitted entry to the U.S. using government-issued photo identification with proof of citizenship; and
- that protocols be developed to facilitate the cross-border travel of emergency workers and medical evacuation cases.
B) Phase-In of New Requirements
The Government of Canada is pleased that it is proposed that new WHTI-compliant document requirements be phased in. We believe that the proposal to begin the first phase of implementation on January 31, 2008 is achievable. At this time, at a minimum, government-issued photo identification (such as a driver's licence), together with proof of citizenship (such as a birth certificate) would be accepted at land and sea ports of entry to the U.S. However, we do not believe that full implementation, when only WHTI-compliant documents (such as the passport, NEXUS and FAST cards) will be accepted, can be achieved as early as summer of 2008, as is proposed.
We note that the Proposed Rule states that the date for full implementation "will be determined based on a number of factors, including the progress of actions undertaken by the Department of Homeland Security to implement the WHTI requirements and the availability of WHTI-compliant documents on both sides of the border". The Government of Canada believes that key benchmarks relating to document availability and the installation of required infrastructure, among other things, must be developed based on a careful assessment of data and other considerations, in order to determine the timeline for full implementation.
Both our countries experienced unprecedented demand for passports when the WHTI was implemented for air travellers on January 23, 2007. This resulted in serious challenges for the passport agencies in both our countries, as well as in the disruption of travel plans for many Canadians and Americans alike. Implementation of the WHTI at land and sea border crossings will be considerably more complex. Ninety percent of air travellers possessed a passport before WHTI was implemented at air ports of entry. However, the land border accounts for more than 85 percent of cross-border visits, and less than 60 percent of those crossing the land border currently possess passports. The introduction of new document requirements at land and water borders will be an entirely different order of magnitude than the air mode. The proposed target for full implementation in summer 2008 is only 12 months away. Canada does not believe that this provides enough time to ensure that all our citizens who need them will be able to obtain the required passport, NEXUS or FAST card, or one of the other acceptable secure documents.
A significant number of citizens in both countries still do not have passports (44 percent of Canadians have passports, while only 30 percent of Americans do). Other acceptable documents, such as NEXUS and FAST cards, are not widely held by the general public. One established alternative to the passport-the proposed U.S. passport card intended for U.S citizens primarily in border states and communities-is not yet publicly available. The passport card is not expected to be issued prior to spring 2008, and will not be in wide circulation by summer 2008. Canada remains concerned about a full implementation of the WHTI that would not allow sufficient time for U.S. citizens to apply for and acquire a passport card or other WHTI-compliant documents.
The Government of Canada believes that key benchmarks need to be met before full implementation can begin, including benchmarks related to document availability and installation of the required infrastructure. We believe that this is consistent with requirements by Congress for certifications with respect to the proposed passport card and document readers. Canadian officials have discussed with their U.S. counterparts specific suggestions as to the kinds of benchmarks or thresholds we believe need to be met before WHTI requirements can be fully and efficiently implemented. Canada would be pleased to continue these discussions, in order to develop feasible benchmarks based on data and a full analysis of other factors affecting the availability of documents and infrastructure.
Recommendations
We recommend that:
- the phase-in period which would begin in January 2008 be extended beyond summer 2008, consistent with U.S. legislation, to provide sufficient time to enable Canadians and Americans to obtain the documents that will be necessary, as well as to provide the time to assess the feasibility of, and to develop and distribute as appropriate, alternative WHTI-compliant documents;
- specified combinations of government-issued photo identification with proof of citizenship continue to be accepted during this phase-in period to cross the land border;
- full implementation of WHTI requirements only occur when satisfactory amounts of compliant documents are available and accessible; and
- Canada and the U.S. develop appropriate benchmarks or thresholds to determine when a critical mass of Canadians and Americans has the required documents.
C) Communications
Communications is a critical element of WHTI implementation. Confusion among the travelling public will result in disrupted travel plans and lost business. Given the surges in demand for passport services in both Canada and the U.S. and the resulting backlogs-widely reported by media on both sides of the border-it is essential that we provide clear and timely communications to the travelling public so that the new requirements are understood and our citizens are able to prepare for their implementation.
We have heard from various stakeholders in Canada, particularly in the travel and tourism sector, who have indicated the need for clear and consistent communications on WHTI requirements to address any confusion or uncertainty that could deter both Canadians and Americans from cross-border travel. The Government of Canada is currently implementing a broad outreach strategy to ensure that Canadian citizens are fully informed of the documentation that will be required to enter the United States, and when. We will continue these efforts. We have appreciated opportunities to confer with U.S. officials on our respective communications approaches and look forward to continuing these consultations to ensure that citizens of both countries are aware of the new document requirements and to provide clear information on the timelines for the phased-in approach to implementation.
Recommendations
We recommend that:
- Canada and the United States work together to ensure timely, consistent and clear messages to our respective citizens regarding plans for the implementation of the WHTI in order to minimize public confusion.
- the Department of Homeland Security and the Department of State, before the launch of the first phase of WHTI implementation at land and sea ports of entry, have in place clear instructions to their field and port officials with respect to all of the documents that will be accepted as WHTI-compliant and share those instructions with their Canadian counterpart agencies.
D) Regulatory Assessment
The Government of Canada has serious reservations concerning the regulatory assessment and, in particular, questions the projected positive overall impact on U.S. expenditure flows. We believe that certain of the assumptions underlying the analysis may be too narrow, and that more information is required before projected impacts can be satisfactorily demonstrated. Our analysis suggests that economic impacts for both countries would be negative and concentrated in certain sectors and locations, depending on how flexibly new document requirements are implemented, how they are supported at the borders and the time frames for their implementation. A more detailed analysis of these concerns is provided in the ANNEX, which can be found at the end of these comments.
Conclusion
The Government of Canada would like to thank the Government of the United States for this opportunity to participate in this rulemaking process. We look forward to continuing our close and mutually beneficial cooperation with our U.S. counterparts on border security and facilitation, and to developing a viable implementation plan, most particularly with an extended phase-in period that will permit the distribution of necessary documents to all those who will need them, as well as the assessment and development of alternative documents. In this way, we would intend to minimize adverse effects for travellers, business and our economies.
Land and Sea Comment - Annex (Regulatory Assessment)
This Annex is not intended as an exhaustive analysis of the Regulatory Assessment for WHTI implementation at land and water borders. It is intended, rather, to point out some key areas and questions where the Government of Canada feels that wider analysis of potential impacts needs to be carried out.
The Canada-U.S. border is the interface of the largest trading relationship in the world, with two-way trade in goods and services reaching US$710 billion in 2006. In the United States, 7.1 million jobs depend on that dynamic economic relationship. Some 35,000 trucks cross the border each day. Thirty-four percent of our cross-border shipments are intra-firm transactions, strong evidence that our economies are highly integrated rather than competitors in each other's marketplace. Our border communities are also interlinked. The number of entries recorded by the Canada Border Services Agency (83.5 million1), combined with the total number of entries from Canada recorded by the U.S. Bureau of Transportation (74 million2), provides the number of two-way cross border visits between Canada and the U.S. in 2006 (157.5 million). As a result, new entry requirements - if not implemented in a measured and prudent way - have the potential to disrupt the health of not just the travel and tourism sectors but also our combined economic competitive advantage in a very sophisticated global marketplace.
1 U.S. residents, non-U.S. residents (via the U.S.), Canadian residents returning, Canadians returning from the U.S. via the U.S., U.S. crews, Canadian crews, commercial trucks.
2 Personal vehicles (passengers), bus (passengers), pedestrians, train (passengers), commercial trucks (estimate).
We note that the Regulatory Assessment focuses on the estimated cost to U.S. citizens of obtaining passports or other WHTI-compliant documents, the costs in providing these documents, and the net impact to the U.S. economy of foregone travel, both by U.S. citizens foregoing trips to Canada and Mexico, as well as foregone travel by Canadians and Mexicans to the U.S. The Government of Canada is concerned (supported by some research and surveys in this area) that certain of the assumptions underlying the analysis may be too narrow, and that more information is required before projected impacts can be satisfactorily demonstrated.
In particular, we have serious reservations regarding the Regulatory Assessment's assertion that the net impact of foregone travel (by U.S., Canadian, and Mexican travellers) would result in a net positive impact for U.S. suppliers (Table D, p.70). A 2006 Conference Board of Canada Report indicates that from 2005 to 2010, WHTI implementation could reduce Canadian visits to the U.S. by 7.4 million, representing a cumulative loss of some C$2 billion. Key community and tourism stakeholders on both sides of the border are also fearful of negative impacts.
More generally, the analysis states that: "Other than the DOS passport demand study, no source exists to our knowledge that has estimated the total number of land entrants nationwide. Researchers almost always count or estimate crossings, not crossers and focus on a region or locality, not an entire border" (p.62).
While the Government of Canada agrees that existing cross-border movement of people figures comprise numbers of visits annually (as opposed to how many visits by each visitor), there are nevertheless strong statistical indicators which suggest that the full range of potential WHTI impacts could be much larger than is projected in the analysis, which is itself admittedly based on incomplete information. These impacts would depend, of course, on how flexibly new document requirements are implemented, how they are supported at the border (necessary infrastructure, personnel, technology) and according to what time frames.
Uncertainty about new entry requirements tends to drive business costs up, making North American business less competitive in a global marketplace. Integrated manufacturing sectors depend on "just in time" logistics within the whole North American platform in automotive and other critical sectors. The Conference Board of Canada has shown that border concerns are forcing these companies to adopt a "just in case" approach that reduces efficiencies and increases costs for both American and Canadian firms. A "just-in-case" approach also adds to border and near border congestion, complicating security arrangements for, and imposing additional costs on, American and Canadian trucking firms faced already with driver shortages and rising fuel costs. These are the firms shipping US$1.9 billion of trade each day. Thirty-four percent of this trade is intra-firm, much of which comprises inputs for a highly integrated manufacturing base in a very competitive global marketplace. Fully one-third of the membership in U.S. Customs and Border Protection's C TPAT program are Canadian companies which have made the investments to secure their supply chain against tampering or intrusion. Delays due to traveller confusion at the border can lead to longer lines for commercial traffic. As many industry representatives have stated in recent months, "an idling or parked truck is itself a security risk".
According the U.S. Travel Industry Association of America, 95 percent of U.S. tourism and travel industries comprise small businesses. These businesses include accommodations, travel agencies, dining services, retail shopping, tour operators, and hired transportation. In addition, any reduction in business revenues resulting from a significant loss of Canadian travellers to the U.S. would also impact travel revenues collected by local and state governments, including in those regions in the U.S. beyond border states which attract a large proportion of Canadian travellers, for example "snow bird" states such as Florida, Arizona and California.
According to Statistics Canada, which by formal arrangement exchanges travel and tourism data with the U.S. Department of Commerce, Canadians made some 40.1 million visits to the U.S. in 2006 (some 85 percent by land and 3 percent by sea), and spent US$11.6 billion. Moreover, our preliminary research using financial sector data, suggests there is good reason to believe that these official estimates may also be seriously underestimating actual spending by Canadians in the U.S. (as opposed to post facto surveys which depend solely on estimated spending provided by travellers), and that the figure is in the much higher range of over US$19 billion. We assume that the same would be true of spending by U.S. visitors in Canada. Moreover, given concentrations of visits in particular areas, including popular destinations in border regions, presumably the impacts of foregone travel will be felt much more strongly in certain locales, and in travel and tourism sectors such as small businesses that service same-day automobile travellers.
Of Canadian visits to the U.S., 23.4 million-over half-were registered as same-day visits by automobile (up 5.3 percent over 2005). Many of these trips are "spontaneous" and would be affected by the requirement to obtain required documents in advance. As a result, there is a need to better understand how many of these visitors can be defined as "frequent" (defined as at least once a year), "infrequent" (once every three years), and "rare" (once every 10 years)-using the terminology employed by the regulatory assessment-and how many in each category (representing X number of visits) would choose to forego travel in the face of new document requirements at the border. We would also underscore here that U.S. border communities and regions would suffer a disproportionate fiscal burden from a drop of same-day travel from Canada.
In an April 11, 2007, announcement by the U.S. Department of Commerce, Office of Travel and Tourism, it is noted that while international visitor spending by many European countries declined in 2006, significant spending increases from countries such as Canada (up by 16 percent according to DOC), "helped propel the travel and tourism industry into record-breaking territory, ... surpassing the record previously set in 2000". Canadian visits to the U.S. are an important part of this success, and factors that could negatively impact such growth need to be better understood.
While passport possession rates in both countries have climbed over the past year, we would underline that, in spite of extraordinary efforts by our respective passport agencies, most of our citizens still do not have a passport (44 percent of Canadians have passports, while only 30 percent of Americans do). Given the projected time frame for full WHTI implementation (summer 2008), there is strong reason to assume that significant numbers of cross-border travellers-in particular "spontaneous" travellers or those who travel infrequently or rarely (but who may nevertheless make up a significant number on an annualized basis)-will not have required documents in time. Beyond the detrimental effect this could have on tourism, there are potential reductions in commercial events such as conventions, expositions and conferences. Major events are frequently planned a year or more in advance. Uncertainties about travel documentation will jeopardize both the venue and the event for a wide range of U.S. stakeholder groups across many industrial and commercial sectors.
Recommendation
The Government of Canada strongly recommends that a much broader analysis be done to better understand potential impacts of full implementation of WHTI requirements by summer 2008. Such analysis would include a better understanding of "visits versus visitor" composition, passport possession rates, spending, as well as characteristics and motivations of travellers (e.g. "last minute"). Canada also recommends a stronger analysis of the impacts that full implementation, according to the proposed time frame, would have on U.S. and Canadian economic sectors, particularly the manufacturing, transportation and service sectors, which rely on a well managed and an efficient border to remain competitive.
