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Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America [2003] CATSer 12 (2 May 2003)

E103842

AGREEMENT ON AIR TRANSPORT PRECLEARANCE BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA, 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.

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.

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 transborder 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.

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:

(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.

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 II (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.

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

(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.

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;

(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 (I), 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.

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.

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.

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 Canada and the Government of the United States of America 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.



IN WITNESS WHEREOF, the undersigned, duly authorized by their respective Governments, have signed this Agreement.

DONE in two originals at Toronto, this 18^th day of January 2001, in the English and French languages, all texts being equally authentic.

David Collenette

FOR THE GOVERNMENT OF CANADA

Gordon D. Giffin

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA

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.

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 ½ hours. It is understood that at these airports current peak hours do not exceed 3 ½ consecutive hours. If there are significant changes to these peak hours, the U.S. Inspection agencies and the airport authorities shall consult.

(d) In the case of Ottawa Airport, a continuous armed presence shall be provided for a single daily peak period not exceeding 3 ½ 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.

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

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
Chicago
Cleveland
Dallas/Ft. Worth
Denver
Honolulu
Houston
Los Angeles
Miami
Newark
New York
San Francisco
Tampa

3. In Canada:

Calgary*
Edmonton*
Halifax
London
Montreal*
Ottawa*
Quebec
Toronto*
Vancouver*
Victoria
Winnipeg*

ANNEX V

Coordination of Preclearance Services

Recognizing the intent of the Air Transport Agreement between the Government of Canada and the Government of the United States of America 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 (l)(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.

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.

CANADA AND THE UNITED STATES 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.

David Collenette

FOR THE GOVERNMENT OF CANADA

Gordon D. Giffin

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA

Dated: January 18, 2001