The Sword of Damocles:
still hanging over Yachts
"It will put chartering and cruising in the Caribbean back 20 years," declared veteran yachtsman Don Street upon learning that ten Eastern Caribbean countries had passed legislation which would require yachts to comply with the Advance Passenger Information System (APIS) when traveling between island states.
The system, in its strictest version, requires the masters of "ALL air and sea carriers" to register on a website, fill out a detailed form (which asks for information such as passengers' names, nationalities and passport numbers, and the vessel or aircraft's dates and times - in hours and minutes - of departure and arrival), then submit the form on-line, as an e-mail attachment or by fax several hours before arrival in a port of entry. It is currently used in many parts of the world by commercial and private aircraft and large ships when crossing national borders.
The Caribbean Economic Community, CARICOM, began officially requiring compliance with APIS in February of this year. Submissions are to be made according to a strict timetable related to times of departure and/or arrival, with different advance times depending on whether you are arriving in, departing from, or traveling within CARICOM space. CARICOM member states that have passed legislation requiring APIS compliance are Jamaica, Antigua & Barbuda, St. Kitts & Nevis, Dominica, Barbados, St. Lucia, St. Vincent & the Grenadines, Grenada, Trinidad & Tobago and Guyana.
Street's dire warning came during the same late-October week in which Chairman of the Caribbean Tourism Organization, Allen Chastanet, said that he wants regional tourism ministers and marketers to aim to make the Caribbean "the premier tourist destination in the world." Yacht tourism is recognized as being the second most economically important form of tourism in the Eastern Caribbean, behind hotels but ahead of cruise ships.
According to an informational publication titled One Team, One Space, One Caribbean published by CARICOM's Implementation Agency for Crime and Security (IMPACS), IMPACS was made responsible for the implementation of APIS in this area. In this respect, IMPACS pursued the offer of technical assistance from the Government of the United States of America regarding the establishment and operation of the APIS by engaging in negotiations for the Operational Protocol to the Memorandum of Intent between CARICOM member states and the Government of the United States. The MOI was concluded in October 2006 at the Third Meeting of the CARICOM Council of Ministers responsible for National Security and Law Enforcement. Details of the type and level of cooperation were to be articulated in the Operational Protocol.
IMPACS wrote: "During the planning stage and in the course of negotiating the Protocol, it became evident that implementation of the APIS would not be as straightforward as it appeared on the surface Airlines operating out of Canada, the United Kingdom and Europe were particularly concerned over compliance with their national legislation and the effect the APIS, configured as proposed by the United States, might have on their operations."
At that time the US and the European Union were engaged in discussions for a new API agreement, so CARICOM's negotiations with the US were put on hold so as to ensure uniformity with the provisions of any US/EU agreement. The IMPACS brochure says that due to time constraints related to the Cricket World Cup 2007 matches that were held in various Caribbean islands earlier this year, "a parallel system owned, operated and controlled by CARICOM was established, pending the conclusion of negotiations for the Operational Protocol."
At the beginning of 2007, the ten CARICOM countries concerned each passed its own national legislation requiring APIS compliance. Although the Joint Regional Communications Centre (JRCC), which is the implementing arm of APIS for IMPACS, and its main point of contact, has always insisted that all ten countries should have been applying this legislation to yachts since February 2007, only two - Antigua & Barbuda and St. Vincent & the Grenadines - have ever done so, and briefly at that.
But a law "sleeping" on the books can be enforced at any time. As the high season nears, alarm over the damage that active enforcement by any or all ten countries would cause to regional yacht tourism recently launched stakeholders into action.
CMA Meets with JRCC
A meeting was held on October 8th in the conference room of Power Boats marina in Trinidad, organized by the Caribbean Marine Association (CMA) in response to discussions held between the CMA and the JRCC. The CMA is an umbrella body bringing together representatives of national recreational marine trades associations throughout the Caribbean. In attendance were a top-level three-person delegation from the JRCC, representatives of marine trades associations from a number of Caribbean nations, other CMA members, personnel from Immigration in Trinidad & Tobago, and other stakeholders.
In his welcoming address, CMA President Keats Compton possibly understated the case when he noted that "the peculiarities of our industry may not [be] fully considered" when measures such as APIS are conceptualized. This was underscored by John Duffy, President of the Antigua & Barbuda Marine Association, who asserted that there had been no prior consultation or introductory process involving APIS in regard to yachts: "The first I heard about it was when I started getting complaints from yachtsmen and marinas." Commander Louis Baptiste, Director o
f the JRCC, responded that the JRCC had attempted to inform the yachting community about APIS, but apologized for obviously not having done enough.
Commander Baptiste told the yachting stakeholders that JRCC's mission is "to provide effective functional support to regional border security systems and law enforcement operations thereby enhancing the strength and security of our borders." He noted "some of the misconceptions surrounding APIS", emphasizing that its purpose was anti-crime in general, not just anti-terrorism. "This is not just another cog in the wheel of bureaucracy," he said. "APIS is not just additional paperwork imposed on tourism; it must be viewed as an integral part of regional security. The Caribbean's maritime borders are our Achilles' heels."
Commander Baptiste said that the JRCC has asked all CARICOM member states to provide lists of "individuals of concern", and that the JRCC has access to Interpol's database on terrorists, criminals, missing children, human smugglers, lists of lost and stolen travel documents, etcetera. "APIS must not be viewed in isolation," he said. "Please view this in a wider context: it is part of a security package. Its intent is to find any 'individuals of concern', not just terrorists."
John Duffy then outlined some of the real-life challenges that yachtsmen and Immigration officials had been faced with while attempting to comply with APIS. He compared the difficulty for yachts clearing into a country requiring APIS as compared with one that doesn't: "An Antiguan friend of mine decided to sail to St. Barts for the weekend. It took him two and a quarter hours to check out of Antigua and an hour and three quarters to check back in. By contrast, he checked into St. Barts in ten minutes; he was given a three-day visa and checked out at the same time."
As noted by stakeholder Jane Peake, under the regulations as currently written, visiting yachtspeople are the only type of tourists in the Caribbean singled out as having to submit their own Advance Passenger Information; the airlines do it for those arriving by air, and the cruise ship companies take care of it for their passengers.
Duffy concluded: "Our wealthiest tourists tend to be those who come on yachts yet we put as many obstacles in their way as possible APIS cannot, and I must emphasize this, cannot be allowed to continue in its present form. APIS must be changed before the season starts in November or, at the very least, Immigration officers must be instructed to apply the 100-ton limit [as specified in Antigua & Barbuda's relevant Act]. If nothing is done it won't be the 2007/2008 season which will suffer, it will be the subsequent seasons when yachts stop coming to the Caribbean, fed up with the over-riding and massive bureaucracy."
CMA Director Donald Stollmeyer told the meeting that the CMA recommends that APIS in its present form should be suspended for yachts pending a properly organized, in-depth analysis of the manner in which the yachting industry operates. Based on the information gathered, informed choices can then be made to address the needs of the yachting community/industry and, at the same time, satisfy the reasonable anti-crime/terrorism requirements of the JRCC.
Would Easier be Better?
It is our understanding that the API data currently asked for were culled from the "WCO/ICAO/IATA Guidelines on Advance Passenger Information", and this is the maximum set of API data that could be required by border control authorities.
A cruiser writes: "After reading the Compass article about APIS in the October issue, I went on line to see if I can figure out how to submit the required information. After nearly four hours I managed to build and save one record as a test. It says I left the USA from NPT in 2002 en-route to New Zealand AKL arriving in 2009."
One of the JRCC's stated goals is "to implement scalable technical solutions." In response to complaints raised at the CMA meeting about difficulties encountered with the website and form, JRCC Compliance Officer Wayne Beckles said that JRCC is willing to make changes to make the form more user-friendly and to improve the website.
But even if the form and website are made more user-friendly, can this sub-region's yacht tourism survive another round of form-filling every time a border is crossed? The Eastern Caribbean is a unique cruising destination in that the majority of islands of any size, and often just a few miles apart, are independent nations. Some other sailing destinations have recently begun to require Advanced Passenger Information, notably Australia and Fiji, but once a yacht enters Australian or Fijian waters it is likely to remain cruising in those large geographical areas for periods of weeks or months, not days.
As CARICOM is working toward a Single Market and Economy, could yachting tourists not comply with APIS only when entering and leaving CARICOM as a single space? Moreover, could we work towards every CARICOM country acknowledging the entry procedures accepted by the first CARICOM country into which a yacht enters?
In addition to the necessity of the form being streamlined, if it is ever to be used by yachts, the process as currently required must also be changed radically. It is simply unworkable for the overwhelming majority of yacht skippers to submit information in the existing electronic format and in the time parameters given.
How did this situation come about? Were the CARICOM Ministers of National Security who signed last year's Memorandum of Intent briefed about the potential impact of APIS on the regional yacht tourism industry? When the relevant national legislation was debated in Parliament or discussed at Cabinet level in the individual countries, were the implications for their yacht tourism sectors fully considered?
Although many key officials are aware of APIS and concerned about its potential impact on yachting tourism, one CMA member said, "It is amazing how many people in government were unaware of it until this last couple of weeks."
A cruiser who wanted to know if he needed to file API for a certain CARICOM state said, "I phoned the administration to find out and was transferred six times, as people tried to figure out with whom I should be speaking. The last fellow said that 'they' (he wouldn't, or couldn't, tell me who 'they' were) had not decided to begin enforcing it yet."
It's a good thing enforcement has not been strict - the relevant laws provide subsections similar to Antigua & Barbuda's: "Subsection (2a): A person, being the master of a vessel bound for a port in Antigua & Barbuda, who intentionally or recklessly (a) fails to transmit the data in accordance with subsection (1); or (b) transmits incomplete or false data, commits an offence and is liable on summary conviction to a fine not exceeding EC$300,000" - more than US$100,000.
Island by Island
As this issue of Compass goes to press, the current situation to the best of our knowledge is as follows.
· Antigua & Barbuda, which had been asking yacht skippers to go to an internet café and fill out APIS forms this summer under its Immigration and Passport (Amendment) Act, 2007, has now suspended enforcement of this requirement for all yachts.
· St. Kitts and Nevis are not applying an APIS requirement at the moment and according to a correspondent have no plans to do so in the immediate future: "They think it would cause confusion among the yachts. They particularly appreciate that the 24-hour rule cannot work for them with yachts coming from non-API islands like St. Barts."
· In Dominica, "this would not be implemented any time soon," according to one official. Dominica, being located between the non-API islands of Guadeloupe and Martinique, would be especially vulnerable to the 24-hour rule.
· St. Lucia has not yet enforced its APIS legislation either, and Keats Compton, as President of the Marine Industry Association of St. Lucia, is writing to the Prime Minister and the Minister of Tourism formally requesting the suspension of St. Lucia's Immigration Act of 2007 as it applies to yachts.
· St. Vincent & the Grenadines Immigration officers asked yachts to fill out APIS forms online for a brief period in October, and one or more boats arriving from Grenada waters were reportedly turned away at Union Island because they hadn't filed API forms before leaving Grenada. However, Melodye Pompa of the Caribbean Safety & Security Net says that yachts clearing out of Union Island have not reported any mention of APIS. The issue of API for yachts is set to be the top agenda item for an October 29th meeting of SVG's Tourism Advisory Board.
· Grenada has not enforced its Immigration (Amendment) Act of 2007 in regard to yachts.
· Trinidad & Tobago's legislation requiring APIS enforcement expired on June 30th and has not been renewed.
With relatively little visiting yacht traffic, especially at this time of year, we've had no feedback from Guyana, Barbados or Jamaica.
But just as simplification of the APIS form isn't the complete solution, and an overhaul of the filing process for yachts is required, so too suspension of enforcement of the laws on the books isn't the end of the story. The laws must be amended if yachting tourism is to be protected.
A Charter Company Director Says
"The yacht charter industry is based on renting sailing vessels to competent individuals who share them with family and/or friends. The reason people do this is to enjoy freedom of movement. If this freedom is taken away from our clientele we will have no more business in the future, since our clients can enjoy this freedom in almost all other sailing areas of the world. Our industry is already very fragile due to weather impacts such as hurricanes, increasing crime rates, expensive flights to small destinations and, last but not least, bureaucracy. I hope that whoever is in charge of these new requirements is working on a suitable solution for small craft."
A Boater Says
A visiting yacht owner recently wrote to the JRCC: "The consensus of many cruisers like myself is to avoid the island states that are participating in this action. It is just another straw that is breaking the back of cruisers along with the dramatic increases in clearance and user fees. The economic impact on your community of my deciding not to cruise in your islands will be the loss of US$17,386; that is the amount I have spent in the Caribbean islands thus far this year.
"You see," he went on, "I have a choice: I can submit to your rules or I can take my yacht elsewhere. Last evening, my sailing partner and I sat down and started changing our plans to sail west from Trinidad rather than once again cruising in the Eastern Caribbean. It looks like we will spend 2008 in the offshore islands of Venezuela, the Dutch ABC islands, and next hurricane season in Cartagena, Colombia.
"But perhaps this is all much to do about nothing," he added hopefully. "Reading in the newspaper, it seems that not all islands have agreed to enforce this requirement. Perhaps there are sane heads in some governments after all."
The Way Out?
The four examples of the Immigration Acts of 2007 that we have seen are all very similar, being basically (in the words of St. Vincent & the Grenadines') "An Act to amend the Immigration Act to impose an obligation on the master of a vessel to transmit passenger data to the competent authority in advance of the arrival of the vessel"
Mercifully, the four Acts we've seen also contain an escape clause, saying that some authority such as the Cabinet, the appropriate Minister, or the Governor General may waive the requirements of the key subsections of the Act.
Antigua & Barbuda's Immigration and Passport (Amendment) Act, 2007 also specifies that it does not apply to vessels under 100 net tons, leaving out most cruising yachts and bareboats. But John Duffy points out that a 100-net-ton cut-off point is still too low. "That would apply to sailing yachts of roughly 125 foot in length and motor yachts of about 100 foot in length," he says. "With nearly 800 super-yachts currently under construction, and a super-yacht starts at 120 foot, a large percentage of the yachts visiting the Caribbean would be subject to APIS. It would be much more appropriate to consider yachts by length rather than weight: tonnage applies to commercial vessels, feet applies to luxury yachts." Length is also much more easily measured for verification than is tonnage.
As this issue of Compass goes to press, many Caribbean yachting stakeholders have been away at the Fort Lauderdale Boat Show, and government Ministers have been off island at the Annual Caribbean Tourism Organisation Conference in Puerto Rico or at a UNESCO meeting in Paris. We are cautiously optimistic that once everyone is back at their desks, there will be positive developments, even if the wheels of legislative change grind slowly.
The Way Forward
Caribbean cruising guide author Chris Doyle writes: "I fear the threat of this thing will still be around for a while. I wonder whether it would be helpful if one of the CARICOM member states' governments hosted a meeting for all the islands' relevant authorities and the yachting sector representatives, to see if there is a way we might move forward. At least, all the governments agreeing to exclude yachts below a certain length would certainly help. An extra layer of bureaucracy is the last thing we need."
Many Islands, One Sea
The IMPACS literature distributed at the Trinidad meeting tells us, "The host venue agreements for Cricket World Cup 2007 required the region to be treated as one geographical space facilitating unprecedented freedom of movement across borders by nationals of many countries the challenge, therefore, was to facilitate such movement, so important to our many tourism-based economies, while at the same time preserving the security of our region. To achieve this objective, a Common CARICOM Visa Policy was developed and a decision taken to introduce Advance Passenger and Cargo Information Systems. Nationals and other persons already enjoying legal status would benefit from free movement within the Space. Visitors would also be able to move freely after entering the first port."
This free movement within the CARICOM space during CWC 2007 included no inspection or stamping of passports (unless considered necessary for identification as a result of an alert or any other reason as determined by the relevant Immigration authority), and the use of a common entry/departure and Customs form which was all people traveling within the space were required to provide.
The Chair of the Ad Hoc Sub-Committee for CWC 2007 visited all Immigration departments within the region prior to the commencement of the Single Domestic Space, providing briefings and advice to officials at all levels. According to IMPACS, this served to reinforce the level of commitment to the process and was well received.
If this all was done for a one-time series of sporting events, which entailed considerable public expense to bring venues up to standard and brought less revenue to many host countries than expected, why can't CARICOM be made a permanent single space for yachting tourism, a sustainable activity which brings the area significant income every year, with virtually all expenses being borne by the private sector, and which, if encouraged, has growth potential?
Under the motto "Many Islands, One Sea", the CMA not only unites national organizations, but also works with other regional bodies. The CMA is a member of the Caribbean Tourism Association, and it is to be hoped that the CTO can play a part in working with the CMA and the JRCC to decrease the threat that APIS, as currently configured, presents to the yachting industry, and perhaps eventually make CARICOM a single space for yacht tourism.
At the October 8th meeting, the following statements were made:
JRCC Director, Commander Baptiste said, "We must have a balance between tourism and security."
Stakeholder Kevin Kenny said, "We have to find a way that the JRCC can get what it wants without bureaucracy damaging our yachting industry."
CMA President Keats Compton asked, "How can we work together?"
It has been suggested that the CMA prepare a proposal to be discussed at the next CARICOM heads meeting in early 2008; any information that can be provided by CMA members, other marine colleagues, CTO officials, the JRCC and other key stakeholders is most welcome at [email protected].
John Duffy says, "Hopefully, we can move forward and try to make bureaucrats understand exactly how important the yachting industry is to the Caribbean and how much it could grow if only they would allow it to do so. The best thing about APIS is that it has succeeded in getting much of the Caribbean to work together in the greater interest of the yachting industry. It has managed to get the Caribbean talking - and talking, in particular, about the free movement of yachts."
For updates on the APIS situation visit http://safetyandsecuritynet.com/NEWS.html and www.doyleguides.com/apis_regulations.htm.
When it comes to yachting in the Eastern Caribbean, we're all in the same boat. CARICOM and non-CARICOM countries, government officials and private-sector stakeholders, cruisers and charterers - the laws requiring yachts to submit APIS forms, as currently enacted, can affect us all.
Feedback can be sent to the following.
· General comments and suggestions: CMA, [email protected]
· Suggestions on improving the website (www.caricomeapis.org) and APIS form: JRCC, [email protected] (Denise Myers, Compliance Manager) or [email protected] (Wayne Beckles, Compliance Officer)
· Comments on how your experience of that country would be affected by APIS:
MINISTRIES OF TOURISM
Antigua & Barbuda - deptourism@Antigua.gov.ag
St. Kitts & Nevis - [email protected]
Dominica - [email protected]
St. Lucia - [email protected]
St. Vincent & the Grenadines - [email protected]
Grenada - [email protected]
Trinidad & Tobago - [email protected]
NATIONAL MARINE TRADES ASSOCIATIONS
Antigua & Barbuda ? [email protected]
Dominica ? [email protected]
St. Lucia ? [email protected]
St. Vincent & the Grenadines ? [email protected]
Grenada ? [email protected]
Trinidad & Tobago ? [email protected]
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