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13136 Canada - Agreement on Air Transport Preclearance


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13136

 

 

AVIATION

Preclearance

 

 


Agreement Between the
UNITED STATES OF AMERICA
and CANADA

 


Signed at Toronto January 18, 2001

with

Annexes

and

Agreed Minute

 

 

 

 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

CANADA

Aviation: Preclearance

Agreement signed at Toronto January 18, 2001;
Entered into force May 2, 2003.
With annexes.
And agreed minute.

AGREEMENT
ON AIR TRANSPORT PRECLEARANCE
BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF CANADA
The GOVERNMENT OF THE UNITED STATES OF AMERICA and the
GOVERNMENT OF CANADA, hereinafter "the Parties",
CONSIDERING that preclearance facilitates air travel
between the two countries and is of mutual benefit to both
Parties;
CONSIDERING that preclearance should be continued (and
established) for eligible flights at various locations in
Canada and the United States, where the facilities and
other conditions are adequate to enable the Canadian and
the United States inspection agencies to carry out their
missions, with respect to the examination and inspection of
passengers and their possessions, aircraft crew, baggage
and aircraft stores entering Canada and the United States;
COGNISANT of the reciprocal nature of this Agreement;
COMMITTED to a high standard of service and fair and
equitable treatment of air carriers and passengers;
DESIRING to build upon the Air Transport Preclearance
Agreement between the Government of Canada and the
Government of the United States signed at Ottawa, May 8,
1974, as amended, and taking into account the related
exchanges of documents between the Parties since 1995,
AGREE as follows:
Article I
Definitions
For the purposes of this Agreement:
1. "Preclearance area" means the limited and operationally
contiguous part of an airport terminal designated by the
Host Party within which preclearance officers exercise
specified powers and authorities. It consists of an
area containing: the queuing area used exclusively for
preclearance purposes clearly demarcated in front of the
primary inspection area; Inspecting Party primary and
secondary examination areas; the departure lounges for
flights bound for the territory of the Inspecting Party;
connecting corridors and all designated conveyances for
precleared passengers used for the transportation of
passengers between sterile areas of terminals or from
the terminal to the departing aircraft (e.g. buses).
When travellers cannot board a departing aircraft by
means of a connecting corridor or designated conveyance,
the preclearance area shall also include a clearly
demarcated area leading to that aircraft for the period
of time during which boarding takes place;
2. "Host Party" means the Party from whose territory
passengers and goods destined to the territory of the
other Party are precleared;
3. "Air industry" means scheduled and charter air carriers
and airport authorities;
4. "Intransit preclearance area" means all or part of a
preclearance area that is used for intransit
preclearance;
5. "Inspecting Party" means the Party responsible to
preclear passengers and goods destined to its territory
on the territory of the other Party;
6. "Preclearance officer" means an officer designated by
the Inspecting Party to carry out preclearance;
7. "Preclearance" means the procedure of conducting in the
territory of one Party, examination and inspection
required for entry/admission into the territory of the
other Party;
8. "Goods" includes, inter alia, personal effects, wares of
any description, means of transport, animals and plants
and their products, and any document in any form, but
excludes currencies and monetary instruments;
9. "Preclearance facility" means the physical inspection
infrastructure including offices and administrative
areas, as well as equipment, required for processing
passengers and their goods;
10."Intransit preclearance" means the preclearance of
passengers and their goods coming from third countries
who do not enter formally the Host Party's territory;
11."Inspection agency" means any agency of one Party
responsible for the preclearance of passengers and their
goods in the territory of the other Party;
12."Host Party Officer" means any person authorized by the
Host Party's law to conduct a search;
13."Law enforcement officer" means, for the Government of
Canada, Canadian peace officers who are authorized to
carry weapons and make arrests as well as members of the
Royal Canadian Mounted Police; and, for the Government
of the United States, U.S. federal, state and local law
enforcement officers;
14."Eligible flight" means a commercial flight of any size
aircraft, scheduled or passenger charter, including
ferry flights. Private aircraft flights, air taxi-type
operations and state aircraft flights are not included;
15."Post-clearance" means clearance of passengers and goods
in the territory of the Inspecting Party.
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Article II
Preclearance Area and The Laws Applicable
1. The Host Party, before designating a preclearance
area, shall consult with the participating air industry in
order to seek their recommendations on the precise location
of preclearance and intransit preclearance areas.
2. The Host Party shall consult with the Inspecting Party
with respect to the designation of the preclearance area.
3. In view of the fact that the law of the Host Party
applies in the preclearance area and that preclearance
officers of the Inspecting Party must also administer the
Inspecting Party's laws, referred to in paragraph 6,
preclearance shall be carried out in a manner consistent
with the laws and constitutions of both Parties.
4. Only persons who are travellers en route to the
Inspecting Party's territory or any person or category of
persons designated or authorized by the Host Party in
consultation with the Inspecting Party shall enter a
preclearance area.
5. Every traveller who enters a preclearance area shall
be required to report to a preclearance officer without
delay, to report goods in his/her possession or goods that
form part of their baggage and to present these goods as
required.
6. The Inspecting Party may conduct preclearance
operations/activities at preclearance areas in the airports
of the Host Party in order to assure that persons and goods
entering the territory of the Inspecting Party conform to
its laws concerning customs, immigration, public health,
food inspection and plant and animal health as these laws
apply to preclearance to the extent they are not considered
criminal.
7. The Inspecting Party shall have the right to refuse
admission of persons and goods destined to its territory.
8. The Inspecting Party shall be authorized to administer
its civil fines and monetary penalties on travellers except
when the Host Party institutes penal proceedings with
respect to the same act or omission.
9. Goods that are required as evidence of an offence
proceeding to a resolution in a court of the Host Party, as
well as those which are required by law to be dealt with in
accordance with the Host Party law, shall be retained by
the Host Party to be dealt with in accordance with its laws
and international agreements between the Parties.
10. Nothing in this Agreement affects the rights of the
Inspecting Party to enforce its civil and criminal laws in
its own territory.
11. The Parties shall establish mutually acceptable
standard operating procedures concerning preclearance.
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12. Nothing in this Agreement affects the rights and
obligations of the parties under other international
agreements.
13. Activities under this Agreement are subject to the
availability of appropriated funds.
14. The Parties shall implement this Agreement in a non-
discriminatory and transparent manner consistent with the
provisions of this Agreement.
Article III
Preclearance Locations
1. United States preclearance shall be continued at
airports where preclearance is conducted on the date of
entry into force of this Agreement, as indicated in Annex
IV. Other U.S. and Canadian preclearance may be
established at airports in Annex IV in accordance with the
criteria below.
2. Each Party shall take account of the following criteria
when considering establishing preclearance, including at
multi-terminal complexes:
(a) the airport authority requests preclearance;
(b) the airport authority attests that funding
(consistent with the terms of Article IX Cost of
Preclearance) is available for construction, operation
and maintenance of the preclearance facility. The
facility must be acceptable to the Inspecting Party.
The requirements of the Inspecting Party shall be in
accordance with its applicable inspection guidelines,
unless clear reasons exist for modification. Where the
Inspecting Party is the United States, the U.S.
Department of Transportation Airport Federal Inspection
Facilities Guidelines shall apply. Those facilities
used by officers of the Host Party are subject to
approval by the Host Party;
(c) the airport authority and participating airlines
agree that sufficient trans-border traffic exists to
make feasible the efficient operation of a preclearance
facility, taking into account available inspection
technologies and procedures.
3. In developing or modifying its inspection facility
requirements, the Inspecting Party shall consider the views
of the Host Country airlines and airport authorities. For
the United States, these shall be expressed through Host
Country representation on the U.S. Department of
Transportation Federal Inspection Facilitation Committee.
4. Where modifications to preclearance facilities are
essential to achieve compliance with requirements of one or
both of the Parties, the requesting Party shall consult
with the airport authority and establish a reasonable time
frame for compliance by the airport authority.
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5. Intransit preclearance shall be implemented as set out
in Annex I.
6. A decision to terminate services at an existing
location shall be a joint decision by written agreement of
the Parties based upon a sustained and substantial decrease,
in traffic and after consultation with airport authorities
and air carriers.
7. Addition of preclearance at a new location shall be by
written agreement of the Parties.
8. Preclearance at any airport shall be contingent upon:
(a) the airport authority providing the high standard
of security in the preclearance area as set forth in
Annex II for preclearance personnel of the Inspecting
Party;
(b) the airport authority taking all appropriate steps
to protect the preclearance area and facility and the
contents therein including official archives and
documents maintained and used by the inspection
agencies against any intrusion or damage and to prevent
any disturbance of the peace on the premises;
(c) the airport authority ensuring that it has an
airport security program that maintains the sterility
of the preclearance area and restricts access to the
preclearance area to authorized personnel only. A
local consultative mechanism to address security
concerns within the preclearance area shall be
established at each airport with participation from the
Inspecting Party. In determining who may have access
to the preclearance area, the airport authority shall
consult regularly with the appropriate local personnel
of the Inspecting Party and give full consideration to
the views expressed;
(d) the airport authority establishing, implementing
and maintaining a plan for coordinating air carrier
requests for preclearance of flights with appropriate
personnel of the Inspecting Party at least 60 days in
advance of the requested preclearance operations in
accordance with Annex V.
9. If an airport authority fails to meet these conditions
and the Inspecting Party considers that as a result its
operations are at risk, that Party may request immediate
consultations. Failure to reach a satisfactory resolution
within 15 days may result in the Inspecting Party
suspending the operation under discussion. When justified
by an emergency, the Inspecting Party can take interim
action prior to the expiry of 15 days.
Article IV
Host Party's Obligations
1. Where preclearance is conducted in the territory of the
Host Party, the Host Party shall permit the Inspecting
Party:
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(a) to carry out, within the preclearance area,
preclearance of travellers, their baggage, goods in
their possession or goods that form part of their
baggage destined to the territory of the Inspecting
Party;
(b) to inspect aircraft and aircraft stores destined to
the territory of the Inspecting Party;
(c) to determine the procedures under which the
inspections will be carried out and the utilisation of
human resources.
2. The Host Party shall ensure appropriate law enforcement
assistance to the Inspecting Party's preclearance officers
in accordance with this Article and Annex II.
3. Only the Host Party shall have the authority to conduct
strip (body) searches and more intrusive searches.
4. Within the preclearance area, the Host Party shall:
(a) authorize the Inspecting Party's preclearance
officers to conduct frisk searches (pat downs) of
travellers for preclearance purposes, and, in
situations of danger to human life and safety, of any
person entering the preclearance area;
(b) authorize the Inspecting Party's preclearance
officers to detain travellers or persons referred to in
subsection (a) of this paragraph for transfer to the
appropriate authorities of the Host Party;
(c) authorize the presence of a preclearance officer
from the Inspecting Party while a Host Party officer is
conducting a strip (body) search. A preclearance
officer shall not be permitted to observe a strip
(body) search being performed on a member of the
opposite sex. If no preclearance officer of the same
sex is available, the preclearance officer may
authorize any suitable person of the same sex to
observe the search;
(d) authorize the Inspecting Party's preclearance
officers who act on reasonable grounds to use as much
force as is necessary to perform their preclearance
duties under the Agreement. The preclearance officer
may not use force that is intended or is likely to
cause death or cause grievous bodily harm, unless the
officer believes on reasonable grounds that it is
necessary for self-preservation or the preservation of
anyone in the preclearance area from death or grievous
harm.
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5. (a) Within the preclearance area in Canada:
(i) a preclearance officer shall be required to
inform a traveller of his or her right to be taken
before a senior officer before performing a frisk
search (pat down), unless the officer suspects on
reasonable grounds that the person is carrying
something that would present a danger to human life or
safety. The senior officer may direct the traveller to
be searched only if that senior officer suspects on
reasonable grounds that such a search is necessary;
(ii) a preclearance officer shall perform a frisk
search (pat down) of a traveller of the opposite sex
only if the officer suspects on reasonable grounds that
the person is carrying something that would present a
danger to human life or safety. If no officer of the
same sex as that of the traveller is available, the
preclearance officer may authorize any suitable person
of the same sex as that of the traveller to perform the
search.
(b) Within the preclearance area in the United States,
and consistent with Article 11(3), a preclearance
officer shall conduct a frisk search (pat down) in
accordance with the law and regulations in force in the
United States and Canada.
6. The Host Party shall authorize preclearance officers of
the Inspecting Party to examine and, in the preclearance
area, seize, and detain goods and cause their forfeiture.
Subject to further agreement between the Parties, currency
and monetary instruments are not among goods that can be
seized or forfeited.
7. The Host Party shall retain and control goods for which
the possession, import, export or handling is prohibited
under the Host Party laws.
8. Outside a preclearance area, the Host Party shall
authorize preclearance officers:
(a) to examine an aircraft that is subject to
preclearance, including goods, currency and monetary
instruments that are in, or that are to be loaded onto,
that aircraft;
(b) after completion of the examination, to request
that a traveller or goods be sent to a preclearance
area to ensure compliance with the requirements of the
Inspecting Party;
(c) to request that a Host Party law enforcement
officer escort the traveller and their goods to the
preclearance area if a traveller refuses to return to
the preclearance area.
9. The Host Party shall provide training as necessary for
preclearance officers on its laws and regulations which
pertain to preclearance.
7
Article V
Inspecting Party's Obligations and Authorities
1. On the territory of the Host Party, the Inspecting
Party shall:
(a) provide a high level of service to the travelling
public and efficient preclearance operations;
(b) provide a sufficient number of preclearance
officers, supported by technologies, to carry out with
reasonable speed and efficiency preclearance of
travellers and their goods, crew, baggage and aircraft
stores on eligible flights of carriers to which
preclearance has been extended;
(c) give consideration to using flexible practices and
operating procedures, which may improve the efficiency
of preclearance or address temporary disruptions;
(d) make best efforts to secure resources if additional
staff and other resources are required to operate
preclearance approved by both Parties;
(e) consider requests from air carriers and airports to
improve their operational efficiency through flexible
procedures that meet the controls and sterility
standards established by the Inspecting Party and are
consistent with the efficient use of preclearance
personnel and resources; and
(f) give notice 90 days in advance of reductions in
service to the appropriate airport authorities and to
the Host Party.
2. The provisions set forth in Annex V shall be applied in
determining the flights for which preclearance is
authorized by the Inspecting Party.
3. The Inspecting Party has the right:
(a) in any case where required under its law, to deny
preclearance to flights;
(b) to require post-clearance as it deems necessary of
any aircraft, passenger or passengers and their goods
on any flight that has been precleared. Any flight
that is diverted or required to be post-cleared shall
be given preferential treatment for the purposes of
post-clearance inspection;
(c) to preclear eligible flights only if passengers can
be routed through the designated preclearance area;
(d) to decline to conduct preclearance on any air
carrier until that air carrier has satisfied the
Inspecting Party that it is permitted to deny carriage
to anyone failing to submit to a preclearance
inspection and to anyone who, having submitted to such
inspection, is found ineligible by inspection agencies
to board a precleared flight; and
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(e) to deny intransit privileges to any air carrier,
which would not otherwise be authorized by its civil
aviation authorities to fly to its territory.
4. A preclearance officer may order anyone found in a
preclearance area to report to the officer or leave the
area.
5. A preclearance officer shall also have the right to
refuse to preclear travellers and their goods if the
travellers do not satisfy the preclearance officer that
they can be admitted or that their goods can be imported to
the Inspecting Party's territory.
6. At any stage of the preclearance process, the
Inspecting Party shall permit travellers to leave the
preclearance area unless the traveller is detained.
7. The Inspecting Party shall:
(a) dispose of goods, that neither Party or passenger
retains, in accordance with the procedures established
by the Host Party;
(b) detain and transfer to the Host Party without delay
any goods which the Host Party has made known
explicitly to the Inspecting Party that the import,
export, possession or handling of is illegal in the
Host Party's territory;
(c) make goods that are forfeit to the Inspecting Party
during preclearance subject to appeal procedures in the
territory of the Inspecting Party.
8. A preclearance officer may examine currency and
monetary instruments that are found in a preclearance area.
9. The Inspecting Party shall not detain the traveller
within the preclearance area for more than a reasonable
time as necessary for an appropriate Host Party Officer to
take custody of the traveller if further proceedings are
required.
10. The Inspecting Party shall not be responsible for costs
associated with travellers obtaining advice from legal
counsel.
11. In a preclearance area, the Inspecting Party shall
ensure that information provided by the Host Party, e.g.,
signage, brochures and/or other communication materials
outlining the rights and obligations of travellers, is
readily available.
Article VI
Intransit Advance Passenger Information
1. The provision of advance passenger information under
this Agreement is required for intransit preclearance
purposes only for any person travelling by aircraft to the
Inspecting Party's territory and whose travel route
provides for arrival in the Host Party's territory in an
intransit area and shall be limited to the elements set out
in Annex III.
9
2. Both Parties shall take all reasonable steps to ensure
that such data under their control shall be protected from
loss, misuse, unauthorized access, or disclosure.
3. A preclearance officer shall use advance passenger
information for intransit preclearance only for the purpose
of border security screening.
4. A preclearance officer shall destroy specified
passenger information within 24 hours after the officer
obtains it, unless the information is reasonably required
for the administration or enforcement of the laws of one or
the other Party.
5. Such information transferred by the air carriers to the
preclearance officer and retained beyond 24 hours may be
made available, upon request, to the person to whom it
pertains.
6. Advance Passenger Information System (APIS) data
elements listed in Annex III shall be transmitted, if so
required by the Inspecting Party, by the air carrier with a
minimum sufficiency rate to a preclearance officer in order
to obtain intransit preclearance for its passengers. The
non-transmission of elements of information listed in Annex
III for a particular flight that would otherwise be
normally provided, may give grounds to the Inspecting Party
to suspend the intransit preclearance process for that
flight.
7. Occasional failure to provide any particular item(s) of
Passenger Name Record information shall not be considered
grounds for denial of intransit preclearance. However,
consistent failure to provide the same element(s) of
information will subject the carrier to suspension from the
intransit preclearance program.
8. Subject to the foregoing, new participants shall be
required to provide all data elements of Annex III.
Article VII
Role of Airport Authorities
Where preclearance exists in the territory of a Party, that
Party shall ensure that:
(a) the airport authority permits the installation and
operation by the Inspecting Party of such communications
and other modern inspection aids as are required;
(b) the airport authority ensures that preclearance and
intransit preclearance areas will be clearly demarcated;
(c) the airport authority ensures that there will be no
public access to the area designated as "preclearance area"
by allowing only travellers destined for the Inspecting
Party's territory and authorized personnel to enter this
area;
10
(d) the airport authority posts signs and makes available
information regarding the rights and obligations of
travellers in a preclearance area;
(e) the airport authorities provide adequate facilities
for the operation of intransit preclearance.
Article VIII
Participation of Air Carriers
1. The Inspecting Party shall permit each air carrier the
option to use preclearance or post-clearance for flights
subject to the following conditions:
(a) If an air carrier applies for preclearance, it
shall use the procedures for all of its flights on a
given route unless the Inspecting Party agrees
otherwise. For limited adjustments to seasonal
schedules in accordance with Annex V (1), the
Inspecting Party shall consider 30 days notice of
schedule changes given to the appropriate agency of the
Inspecting Party as sufficient at locations where other
routes or carriers are being precleared. The
Inspecting Party retains the discretion for further
reasonable delay before compliance in order to obtain
or reduce personnel or facilities required by the
anticipated changes in service or for shorter delay if
resources permit;
(b) An air carrier desiring to withdraw entirely from
preclearance at any location must give notice 90 days
in advance to both Parties. However, if neither Party
objects, the air carrier may withdraw sooner. To
withdraw from preclearance only in respect to one or
more eligible routes, the Inspecting Party may require
reasonable notice be given to the inspection agencies.
2. The Host Party, after having agreed to an intransit
passenger facility at any airport, shall ensure that the
airport makes available the intransit process to all
carriers that have agreed to participate in the program.
3. Passenger charter flights shall not be eligible for
intransit preclearance except with respect to those
passenger charter flights that are engaged in commercial
passenger traffic in the territory of the Host Party (i.e.
those making more than a technical stop).
4. Cargo services shall not be eligible under this
Agreement.
5. A Party shall notify the other Party as to whether it
requires, for intransit preclearance purposes, advance
passenger information from air carriers. If the Inspecting
Party requires such information, the Host Party shall take
such steps as are necessary so that air carriers are
authorized to send advance passenger information as
specified in Annex III.
11
Article IX
Cost of Preclearance
1. The cost of preclearance services shall be allocated in
accordance with the following principles:
(a) Neither Party shall be responsible for additional
cost attributable to preclearance facilities;
(b) The Inspecting Party shall be responsible for
normal cost of its inspection personnel and may charge
appropriate inspection user fees.
2. For user fee purposes, third country passengers in
transit to the Inspecting Party territory shall be treated
as having arrived from the country of the last port of
embarkation. They shall therefore be subject to user fees
normally applied by the Inspecting Party for the services
in the territory of the Inspecting Party.
Article X
Authorities and Protection of Preclearance Officers
1. A preclearance officer shall enjoy immunity from the
civil and administrative jurisdiction of the Host Party
with respect to acts performed or omitted to be performed
in the course of his/her official duties.
2. The Host Party may request the removal of a
preclearance officer who abuses his/her official position.
3. It shall be a defence to criminal actions brought
against a preclearance officer that his/her actions were
authorized by this agreement, based upon reasonable grounds
and, where applicable, executed with reasonable force.
4. A civil action in respect of anything that is, or is
purported to be, done or omitted to be done within the
scope of his/her duties by a preclearance officer may be
brought against the United States to the extent the United
States is not immune under the State Immunity Act.
Defences available under Canadian or provincial law,
including procedural and substantive defences, remain
available to the United States.
5. A civil action in respect of anything that is, or is
purported to be, done or omitted to be done within the
scope of his/her duties by a preclearance officer may be
brought against Canada to the extent Canada is not immune
under the Foreign Sovereign Immunities Act. Defences
available under U.S. federal and state law, including
procedural and substantive defences, remain available to
Canada.
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Article XI
Benefits to Preclearance Officers
1. Each Party shall provide to the preclearance officers
of the other Party at airports in the Host Party territory
an employment authorization exclusively for preclearance
officers to assist in identifying them as agents of the
Inspecting Party and an identification card to preclearance
officers and accompanying family dependents. Bearers of
this documentation shall be distinguished as employees of
the Inspecting Party assigned to duty in the Host Party
territory under the terms of this Agreement.
2. Bearer(s) of this documentation in paragraph 1 above,
for the duration of their assignment in the Host Party
territory, shall be granted tax-free and duty-free benefits
with respect to the payment of federal excise duties and
taxes, and customs duties on goods for personal
consumption, in reasonable quantities brought into the Host
Party territory.
3. Family dependents of preclearance officers shall be
exempted from employment and education authorization fees.
Article XII
Consultations
1. Local airport mechanisms shall be used to address local
issues. Issues which cannot be resolved at the local level
shall be referred to the Preclearance Consultative Group.
2. The Parties shall establish a Preclearance Consultative
Group consisting of representatives of the federal
governments of both Parties. The Preclearance Consultative
Group shall meet on a regular basis, at least annually, to
review any issues related to this Agreement.
(a) The Preclearance Consultative Group shall conduct
a joint review of the intransit preclearance program
six months after the entry into force of this
Agreement and at least every two years thereafter.
This joint review may consider, among other issues,
concrete options for addressing the challenges of
accommodation, security and sterility, and any
problems in implementing the Agreement;
(b) Other interested groups, including the air
industry, may attend portions of the Preclearance
Consultative Group meetings by consensus of the
Parties;
(c) The Preclearance Consultative Group shall commence
consultations within 30 days of the receipt of the
request unless otherwise agreed between the members;
(d) Where the Preclearance Consultative Group fails to
resolve a matter within 30 days from commencement of
consultations unless otherwise agreed between the
Parties, the affected Party may request a meeting of
the Parties.
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3. At any time, either Party may request consultations
regarding any portion of this Agreement. Such requests may
include but not be limited to changes in domestic law or
any other matter a Party considers will affect the
interpretation, application or implementation of this
Agreement.
(a) On matters which the requesting Party states to be
urgent, such consultations between the Parties shall
commence within 15 days of the date of the request, or
in accordance with Article III paragraph 9, or as
agreed between the Parties;
(b) Consultations on other issues shall commence
within 30 days of the request unless otherwise agreed
between the Parties.
4. The Parties agree that if a court or tribunal should
order that any preclearance activity or operation be
contrary to the laws or Constitution of either Party, the
Parties shall consult on how to proceed.
5. Both parties agree to exchange appropriate statistical
information including that which can be used as part of the
joint review process.
6. As appropriate, either Party may engage the services of
an independent contractor to conduct surveys regarding
preclearance in the departure lounge. The result of the
survey will be provided to both Parties.
Article XIII
Entry into Force
1. This Agreement shall enter into force upon an exchange
of notes following the completion of all necessary internal
procedures of the Parties. The Annexes constitute an
integral part of this Agreement.
2. This Agreement and its Annexes may be amended by
written agreement of the Parties. Upon entry into force,
this Agreement shall supersede the Agreement between the
Government of the United States of America and the
Government of Canada on Air Transport Preclearance, signed
at Ottawa, May 8, 1974, as amended.
3. This Agreement shall continue in force unless
terminated by either Party giving one year's notice in
writing to the other Party.
14
IN WITNESS WHEREOF, the undersigned, duly authorized by
their respective Governments, have signed this Agreement.
DONE in two originals at Toronto , this 18th day of
January, 2001, in the English and French languages, all
texts being equally authentic.
FOR THE GOVERNMENT OF THE
UNITED STATES of AMERICA:
FOR THE GOVERNMENT of CANADA:
15
Annex I
Intransit Preclearance Program
1. U.S. intransit preclearance operations shall:
(a) be implemented in Vancouver, Toronto, Terminals 2
and 3, and in Montreal's Dorval Airport;
(b) be implemented at Calgary Airport on or after
January 1, 2001 upon notification by the airport
authorities that the facilities are ready for
implementation of intransit preclearance.
2. Other Canadian airports with current U.S. preclearance
programs (e.g. Edmonton, Winnipeg and Ottawa) subsequently
shall be eligible for intransit preclearance. If the U.S.
Inspection agencies and the local airport authorities find
that the commitment of additional staff and other resources
needed to open new intransit preclearance facilities at
these airports is disproportionate to expected traffic
volumes, they shall make a recommendation to both Parties
who shall decide how to proceed.
3. Sympathetic consideration will be given to other
requests for intransit preclearance services from U.S. and
Canadian airports, if they obtain preclearance.
16
Annex II
Security Arrangements
1. Both Parties agree that at any preclearance site it is
essential, for the security of their personnel and the
preclearance operations, to have a high standard of
security including the presence of armed law enforcement
officers during hours of operation. In the case of
preclearance facilities located on Canada's territory, the
following provisions shall apply:
(a) Canada shall ensure a high standard of security
for U.S. preclearance personnel, including the
continuous presence of armed Canadian law enforcement
officers during hours of operation at U.S.
preclearance facilities processing over one million
passengers per year. The continuous Canadian armed
law enforcement presence standard shall apply to U.S.
preclearance facilities at Vancouver and Montreal and
the terminals at Toronto. Future airports to benefit
from preclearance shall meet the above standard unless
both Parties mutually agree on a different standard.
(b) In regard to smaller Canadian airports, the United
States agrees to accept a more flexible standard
requiring both a timely armed response and recurring
armed patrols during non peak hours. Specifically, for
Canadian airports/terminals where U.S. Preclearance
facilities process less than one million passengers per
year, upon entry into force of the Preclearance Act,
Canada shall ensure a standard which includes the
continuous armed presence only during peak hours, as
determined jointly by the U.S. Inspection agencies and
the airport authorities. During non peak hours the
standard shall include:
(i) armed law enforcement patrols through the
preclearance area every 15-30 minutes; and
(ii) an armed response time less than three
minutes to emergency calls from the U.S.
Inspection agencies. If there is any dispute
about what constitutes an emergency, the U.S.
Inspection agencies and the airport authorities
shall consult to resolve this promptly. It is
understood that the responsible armed law
enforcement officer will be stationed at the
airport.
(c) In the case of Edmonton and Winnipeg Airports, a
continuous armed presence shall be provided for a
single daily peak period not exceeding 3 1/2 hours. It
is understood that at these airports current peak
hours do not exceed 3 1/2 consecutive hours. If there
are significant changes to these peak hours, the U.S.
Inspection agencies and the airport authorities shall
consult.
17
(d) In the case of Ottawa Airport, a continuous armed
presence shall be provided for a single daily peak
period not exceeding 3 1/2 hours. At other peak times at
Ottawa, armed law enforcement patrols shall be
conducted through the preclearance area every 10-15
minutes. If there are significant changes to these
peak hours, the U.S. Inspection agencies and the
airport authorities shall consult.
(e) The Canadian armed law enforcement presence may be
met by co-location of Canadian armed law enforcement
officers within preclearance areas if:
(i) the co-located officers are responsible for
responding to emergency calls from preclearance
personnel;
(ii) an armed officer is present in the office or
the preclearance area during all preclearance
facility hours of operation, except possibly
during emergencies;
(iii) the armed officer has a clear view of the
preclearance area from his/her office; and
(iv) an armed officer makes frequent patrols
(every 15-30 minutes) through the preclearance
area.
2. In the case of preclearance facilities located on the
United States' territory, the United States shall ensure a
high standard of security for Canadian preclearance
personnel, including the presence of armed U.S. law
enforcement officers during hours of operation at these
preclearance facilities. The specific provisions applicable
for each location shall be determined after consultations
prior to the establishment of a preclearance facility but
shall not in any way be less than those stipulated above.
18
Annex III
Intransit Advance Passenger Information
Both Parties agree that intransit advance passenger
information will be limited to the following data elements:
Advance Passenger Information System (APIS) DATA:
Passenger's name
Date of birth
Citizenship/nationality/document-issuing country
Gender
Passport number/document number
Passenger Name Record (PNR) DATA:
Reservation date
Go show (no reservation)
Travel Agency/Agent
Date of issue of ticket
Exchange ticket
Ticketing time/Pre-departure
Ticket number
One-way tickets
Open ticket
Originating city/country
Itinerary cities
Carrier (latest segment)
Carrier (all segments)
Flight number
Destination
Date of travel
Seat assignment
Number of checked bags
Baggage tag number
Class of service
Seating preference
Record locator number
Phone numbers
Addresses
Form of payment
Paid by another
Gaps in itinerary
Routing information
Electronic ticket information
19
Annex IV
Preclearance Locations
1. Those airports at which preclearance exists are
indicated by an asterisk. Either Party will give early
consideration for preclearance at additional airports listed
below or any other airports in accordance with the standards
established in Article III.
2. In the United States:
Boston Los Angeles
Chicago Miami
Cleveland Newark
Dallas/Ft. Worth New York
Denver San Francisco
Honolulu Tampa
Houston
3. In Canada:
Calgary* Quebec
Edmonton* Toronto*
Halifax Vancouver*
London Victoria
Montreal* Winnipeg*
Ottawa*
20
Annex V
Coordination of Preclearance Services
Recognizing the intent of the Air Transport Agreement
between the Government of the United States of America and
the Government of Canada signed at Ottawa, February 24, 1995
to promote a thriving aviation market between the two
countries, to enhance access to the Parties' respective
cities and to promote transborder air services to the
fullest extent possible;
Recognizing the development of the transborder market since
the signing of that Agreement;
Recognizing that the Inspecting Party's inspection agencies
face resource constraints that may affect their ability to
meet all carrier requests for additional preclearance
services;
The Parties agree that:
1. Consistent with Article III (8)(d), for preclearance
purposes, airport authorities and air carriers shall
coordinate with the Inspecting Party with respect to air
carriers' proposed seasonal schedules and new flights, no
less than 60 days in advance of their implementation. For
subsequent limited adjustments to seasonal schedules,
Article VIII (1)(a) shall apply.
2. The Inspecting Party shall endeavor to accommodate all
requests for preclearance when such requests are made in the
timeframes specified in paragraph (1) above and shall work
with airport authorities and air carriers to accommodate new
flights and changes in flight schedules.
3. Any request for preclearance not resolved at the local
level shall be referred to the Preclearance Consultative
Group.
4. The Inspecting Party shall have the right to determine
on a case by case basis whether to provide preclearance to
any irregular and ad hoc flights during mutually agreed upon
normal hours of operation when there has been insufficient
coordination with the Inspecting Party's inspection
agencies.
5. The Inspecting Party shall have the right to determine
on a case by case basis whether to provide preclearance to
flights outside mutually agreed upon normal hours of
operation.
21
AGREED MINUTE
CONCERNING
THE AGREEMENT ON AIR TRANSPORT PRECLEARANCE
Recognizing that, in order to receive intransit preclearance, air
carriers must meet the requirements of paragraphs (6) and (7) of
Article VI, and provide all elements of data listed in Annex III, and
that air carriers will use their best efforts to meet these
requirements,
It is understood that APIS data is required for every flight. The
non-transmission of APIS elements at the required sufficiency rate
may result in a local operational decision by a supervisory
preclearance officer to require that passengers from that particular
flight report to the Host Party's inspection agencies upon arrival.
The United States and Canada understand that air carriers may
initially face technical problems that keep them from consistently
providing all of the required elements of PNR information. The
Inspecting Party will be flexible in providing air carriers a
reasonable period of time to develop solutions to these technical
problems so that they can comply with these requirements. The
occasional failure to provide particular items of PNR information
will not be grounds for denial of intransit preclearance. The
Inspecting Party shall not suspend an air carrier from the intransit
preclearance program due to a failure to consistently provide the
same elements of such information without formal thirty days notice
to the carrier and the Host Party. If requested, the Inspecting
Party will engage in consultations during this thirty-day period. An
air carrier taking acceptable remedial action during this thirty-day
period will not be suspended from the program. If suspended, an air
carrier will not be reinstated in the program until it satisfies the
Inspecting Party that it can comply with these requirements.

Dated: January 18, 2001
For the Government of the
United States of America
Dated:
January 18, 2001
For the Government of Canada



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