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Law and the border : U.S. passport initiative could impact trade

The U.S. Department of State and the Department of Homeland Security have jointly announced the "Western Hemisphere Travel Initiative," by which all travellers to and from the Americas, the Caribbean...

The U.S. Department of State and the Department of Homeland Security have jointly announced the “Western Hemisphere Travel Initiative,” by which all travellers to and from the Americas, the Caribbean and Bermuda will be required to present their passports or another approved travel document to enter the U.S.

The Initiative applies to all travellers, including U.S. and Canadian citizens, and was implemented out of concern that potential terrorists could enter the U.S. via the border countries of Canada and Mexico with only drivers’ licences, which are easily forged.

The plan will be rolled out in phases, as follows:

* Dec. 31, 2005 – Apply the requirement to all travel (air/sea) to or from the Caribbean, Bermuda, Central and South America.

* Dec. 31, 2006 – Apply the requirement to all air and sea travel to or from Mexico and Canada.

* Dec. 31, 2007 – Apply the requirement to all air, sea and land border crossings.

This eliminates the long-standing passport exemption for Canadian citizens and is the first time that Canadian and American citizens will need a passport to enter the U.S. at land border crossings or from departure points within the Western Hemisphere.

Although the final regulation has not been issued, the U.S. Department of State has indicated the likelihood that travellers may be permitted to use approved documents other than a passport to enter the U.S. at land border crossings.

These travel documents include: the Border Crossing Card (“BCC”) for Mexican citizens; the SENTRI card for U.S. citizens crossing at certain land ports of entry on the southern border; the NEXUS card for Canadian and U.S. citizens crossing at certain land ports of entry at the northern border; and the FAST program cards for Canadian, Mexican and U.S. motor carriers. These documents have security features and require pre-screening and background checks to establish citizenship, identity and admissibility of the card bearer.

The Departments of State and Homeland Security will not issue a final rule until later this year. It is unclear whether the new passport rule will spur the Canadian government to require passports from U.S. citizens entering Canada, but Canadian Parliament is said to be weighing that possibility.

Of course, under the new rule U.S. citizens will already need a passport to return to the U.S., so this requirement would merely be a border inspection tool for entry into Canada, and not an additional documentary burden for U.S. citizens.

The last phase of the program has sparked concerns among those who rely on a thriving regional border economy – the fear that people will stop driving across the border to shop, have dinner, or attend sporting events, or that trucks carrying goods over the border will be subject to delays.

Currently, the Department of Homeland Security processes more than 1 million people a day at U.S. borders. Members of Congress from border states such as New York have requested further consideration of the impact of the rule.

President Bush has also announced his opposition to the idea, and has urged the decision-makers to assess the costs and benefits of the program. The northern border of the U.S. experiences a tremendous bilateral flow of international trade, tourism and recreation, and relies on the fragile basic assumption that there are no significant barriers in terms of time, inconvenience or expense to impair that flow.

News reports have cited passport application fees in both countries of close to $100 per person.

That cost would make it prohibitive for some families to obtain passports for all family members.

For others, the processing time for passport applications would make it impossible for individuals without passports to take emergency or unanticipated trips.

In both cases, the net effect on cross-border travel and commerce would be negative.

The proposed rule may have little effect on the transportation industry, because the FAST system is already designed to achieve the same border security goals as the broader passport initiative.

But that does not help drivers and other motor carrier personnel, and their families, who routinely cross the border for other reasons.

U.S. Congress has struggled for many years to come up with a solution for the U.S. – Canada border that contains the proper balance of border security and free flow of commerce.

Government and industry groups from both sides of the border have scrapped other proposals in the past because of strong opposition. We shall see if this is yet another idea that is abandoned because it fails to hit the mark.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.

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