View Treaty - E105453
AGREEMENT ON LAND, RAIL, MARINE, AND 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 (the “Parties”),
COMMITTED to advancing the shared vision of the United States and Canada, as expressed in the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness, a joint declaration issued by the Prime Minister of Canada and the President of the United States on 4 February 2011, the objective of which is to enhance security and accelerate the legitimate flow of people and goods;
ACKNOWLEDGING that the Perimeter Security and Economic Competitiveness Action Plan issued by the Parties on 7 December 2011, calls for a comprehensive approach to preclearance covering all modes of cross-border trade and travel;
ACKNOWLEDGING the Beyond the Border Action Plan: Statement of Privacy Principles by the United States and Canada (“Privacy Principles”),issued on 30 May 2012, which is intended to guide the provision, receipt, and use of personal information exchanged for the purposes of Beyond the Border information-sharing arrangements and initiatives;
CONSIDERING that preclearance is of mutual benefit to the Parties insofar as it facilitates travel and trade while enhancing the security of both Parties;
COMMITTED to a high standard of service for preclearance in the land, rail, marine, and air environments at jointly determined locations where the facilities and other conditions are adequate to enable the Parties to carry out their missions with respect to the examination and inspection of goods and persons entering Canada and the United States;
DESIRING to build upon the Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America, done at Toronto on 18 January 2001;
RECOGNIZING the reciprocal nature of this Agreement;
MINDFUL of the need to respect the sovereignty of both Parties;
RECOGNIZING the sovereign right of the Host Party to prescribe criminal and civil law in its territory, to investigate any potential breaches of law, and to require preclearance officers to comply with this law;
RECOGNIZING the desire to extend privileges and immunities to preclearance officers assigned to preclearance duties pursuant to U.S. laws found at 19 U.S.C. § 1629 and 8 U.S.C. § 1103, and pursuant to Canada’s Preclearance Act, in a manner that ensures protection and accountability;
FURTHER RECOGNIZING the importance of maintaining accountability for preclearance officers who may commit crimes in the territory of the Host Party and appropriately holding accountable those preclearance officers for unlawful acts done or omitted in the performance of official duties;
AGREE as follows:
For the purposes of this Agreement:
- “cargo” means commercial goods, whether transported by a person or a carrier;
- “carrier” means a commercial operator that provides transportation of persons or goods by any conveyance for remuneration, hire, or other consideration;
- “conveyance” means a mode of transport including an aircraft; a train; a vessel including every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water; or any vehicular means of transportation. Private aircraft, private water craft, air-taxi-type operations, and state or military aircraft are not included in this definition;
- “facility operator” means the public or private entity responsible for the management or operation of a facility, including a terminal operator;
- “goods” includes personal effects, cargo, wares of any description, merchandise, baggage, conveyances and their stores, animals and plants and their products, and documents in any form and currencies and monetary instruments;
- “Host Party” means the Party of the territory in which preclearance is conducted;
- “Host Party officer” means a Host Party law enforcement officer or officer of the Host Party Inspection Agency;
- “immediate pat down search (frisk for health and safety)” means a search where physical contact is made with a person’s clothed body to determine if that person is carrying anything that would present a danger to human life, health or safety;
- “Inspecting Party” means the Party responsible for conducting preclearance;
- “Inspection Agency” means the entity responsible for carrying out responsibilities related to the entry, admission or exit of persons and goods into or out of its territory;
- “inspectional aids” means mechanical, technological (such as personal radiation devices, radiation detection portals, and large-scale imaging technology), canine, or other aids used by preclearance officers to assist in the inspection or examination of persons or goods (including conveyances), as authorized under this Agreement;
- “in transit” means persons who arrive in the territory of the Host Party with the intent to immediately transfer to a conveyance for departure out of the territory of the Host Party and goods that are not formally entered into the territory of the Host Party;
- “intrusive personal search” means a body cavity search, a monitored bowel movement, or a medical x-ray search to identify or recover material evidence;
- “law enforcement officer” means, for the Government of Canada, a Canadian police officer; and, for the Government of the United States, a U.S. federal, state, tribal, or local law enforcement officer;
- “partial body search” means the removal of clothing and a visual inspection of a person’s unclothed or partially unclothed body;
- “pat down search (frisk for evidence/goods)” means a search where physical contact is made with a person’s clothed body for material evidence and/or merchandise (including contraband) hidden on a person’s body;
- “post-clearance” means clearance of persons and goods at a port of entry in the territory of the Inspecting Party;
- “preclearance” means the procedure by which the Inspecting Party conducts in the territory of the Host Party any examination, search and inspection for the purpose of ensuring that the admission of persons and entry of goods into the territory of the Inspecting Party conform to the Inspecting Party’s laws concerning customs, immigration, agriculture, public health and safety and other requirements relating to that entry and admission;
- “preclearance area” means an area designated in accordance with Article III and within which the Inspecting Party may conduct preclearance in the territory of the Host Party;
- “preclearance perimeter” means a demarcated, reasonable area around the conveyance designated in accordance with Article III within which preclearance officers may exercise authorities to the extent authorized in accordance with Article VI;
- “preclearance facility” means the physical inspection infrastructure, including offices, administrative areas, and equipment, required for preclearance processing of persons and goods;
- “preclearance location” means a location established in accordance with Article III;
- “preclearance officer” means an official designated by the Inspecting Party to carry out preclearance;
- “pre-inspection” means the procedure whereby the United States conducts in Canada inspection of travelers destined to the United States to ensure compliance with U.S. immigration laws in British Columbia at Vancouver (rail and marine), Sidney, Prince Rupert, and Victoria;
- “regulated items” means items subject to specific regulation under Host Party law that are issued to a preclearance officer by the Inspecting Party Inspection Agency, including:
- a firearm that is neither automatic nor of a caliber greater than .45;
- a cartridge magazine or ammunition; and
- a defensive spray;
- “transportation facility” means an airport, bus station, rail station, seaport, land port of entry or other facility linked to transportation; and
- “traveler” means any person who seeks entry or admission to the territory of the Inspecting Party or to transit through that territory.
- The Inspecting Party may conduct preclearance at preclearance areas.
- The Inspecting Party shall ensure that the preclearance officers comply with the law of the Host Party while in the territory of that Host Party. The law of the Host Party applies in the preclearance area and the preclearance perimeter. Preclearance officers shall only exercise powers and authorities permitted and provided by the Host Party pursuant to this Agreement. Given that preclearance officers must also administer the Inspecting Party’s laws in the territory of the Host Party, preclearance shall be conducted in a manner consistent with the law and constitutions of both Parties and with this Agreement, recognizing that the Parties shall apply the applicable standards set out in Article VI. The Parties acknowledge that the Inspecting Party shall not enforce the Inspecting Party’s criminal law in the territory of the Host Party through activities such as arrest or prosecution.
- The Inspecting Party shall have the right to administer its fees as well as civil fines and monetary penalties, which may be assessed in the Inspecting Party’s national currency, on travelers and carriers with respect to violations identified by the Inspecting Party in the course of conducting preclearance, except when the Host Party institutes a penal proceeding with respect to the same act or omission.
- This Agreement shall not affect the rights of the Inspecting Party to enforce its law in its own territory. This Agreement does not affect the authority of the Host Party to conduct inspections, including export examinations and post-clearance inspections, in its territory.
- This Agreement shall not prevent the Inspecting Party from entering into compliance agreements (containing penalties for noncompliance) with merchants located in the preclearance area.
- This Agreement shall not affect the rights or obligations of the Parties under other international agreements.
- Activities under this Agreement shall be subject to the availability of appropriated funds.
- This Agreement shall not create any right, benefit, or privilege for any private person or Party, unless specifically provided by this Agreement.
- Each Party shall implement this Agreement in an equitable and non-discriminatory manner that is consistent with this Agreement.
- Either Party may request that preclearance operations be established at a transportation facility.
- The Parties shall confirm their mutual concurrence regarding the establishment of preclearance operations at each specific location through an exchange of diplomatic notes.
- United States preclearance shall continue at airports in Canada where preclearance is conducted on the date of entry into force of this Agreement, subject to the terms of this Agreement. Continuation of preclearance at these airports does not require confirmation under the procedure at paragraph 2.
- Absent confirmation under paragraph 2 within 180 days from entry into force of this Agreement that the Parties shall establish preclearance operations at any facility at which pre-inspection is conducted, pre-inspection activities at that facility may be terminated by either Party. The Parties may, by a further exchange of diplomatic notes, set out the date on which the preclearance operation is to commence at that location as well as any transition periods for the application of this Agreement.
- For new preclearance locations (including locations at which pre-inspection is conducted or is being conducted pursuant to a written arrangement between the Parties), each Party may determine for itself the factors to be considered in deciding whether to establish preclearance at a new location, such as how the Inspecting Party’s technical design standards are applied at that location, the availability of resources to conduct preclearance, and the existence of a sufficient volume of travelers or cargo to make feasible and practical the operation of the preclearance facility.
- For existing preclearance locations and locations at which pre-inspection is conducted or is being conducted pursuant to a written arrangement between the Parties, consideration of the use of private or public outside resources does not apply unless jointly determined by the Parties for services provided outside of established shift hours for any irregular or ad hoc transportation by a carrier, or as otherwise decided by the Parties, taking into consideration the magnitude of the economic, national security, or efficiency returns to both countries.
- This Agreement shall not be construed to prohibit the Inspecting Party from accepting private or public outside resources to offset the cost of preclearance operations at a location (other than a location identified in paragraph 6) based on a case-by-case discussion between the Parties taking into consideration the magnitude of the economic, national security or efficiency returns to both countries, and provided that the use of private or public outside resources at a new location does not adversely affect service levels at existing locations.
- If the Host Party permits in-transit travelers or goods to proceed to the preclearance area, the Inspecting Party shall conduct preclearance as it does for other travelers or goods.
- The Host Party shall designate the preclearance area and, unless the Parties otherwise jointly determine, the Host Party shall also designate the preclearance perimeter.
- Prior to designation of a preclearance area and preclearance perimeter at a preclearance location or any re-designation of that area, the Host Party shall consult with the facility operator and the Inspecting Party regarding the area to be designated or re-designated and shall endeavour to satisfy the operational requirements of the Inspecting Party.
- The Parties shall confirm the designation or re-designation of a preclearance area and preclearance perimeter through an exchange of diplomatic notes.
- Unless otherwise jointly determined by the Parties, each designated preclearance area shall, at a minimum, include:
- For preclearance areas that process travelers:
- the conveyance destined for the territory of the Inspecting Party for a reasonable time prior to the boarding process until its departure from the transportation facility;
- the clearly demarcated queuing area used exclusively for preclearance purposes in front of the primary inspection area;
- the baggage make up area or other area where baggage or other goods destined for the territory of the Inspecting Party are stored or delivered to the Inspecting Party for inspection;
- Inspecting Party primary and secondary examination areas, including any areas used for radiation detection;
- the departure lounges for transportation bound for the territory of the Inspecting Party;
- connecting corridors and all designated conveyances used for transportation of in-transit and precleared persons and goods between areas of the transportation facility or from the transportation facility to the departing conveyance (e.g., buses). If travelers cannot board a departing conveyance by means of a connecting corridor or designated conveyance, the preclearance area shall also include a clearly demarcated area leading to that departing conveyance for the period of time during which boarding takes place;
- administrative areas occupied by the Inspecting Party; and
- subject to facility capacity, area(s) required for the Inspecting Party to conduct preclearance operations in the event of an outage or malfunction of equipment or technological tool used by the Inspecting Party to conduct preclearance but only for the time that the alternative area(s) are in use for the preclearance of travelers or goods.
- For preclearance areas that are authorized by the Inspecting Party to process cargo, the areas noted in subparagraphs (a)(i), (ii), (iv), (vii), and (viii) as well as designated warehouses where cargo destined for the territory of the Inspecting Party may be stored, staged or processed.
- For preclearance areas that process travelers:
- Cargo shall be eligible for preclearance under this Agreement only at preclearance locations authorized by the Inspecting Party to conduct preclearance of cargo, as confirmed in an exchange of diplomatic notes.
- If the security or sterility of the preclearance area or any aspect of the preclearance operation is compromised, the Inspecting Party shall have the right to suspend preclearance processing until it is resolved to the satisfaction of the Inspecting Party. The Inspecting Party shall notify the Host Party without delay of the suspension and shall resume the preclearance operation as soon as reasonably possible.
- The Inspecting Party shall provide a high level of service by:
- providing a sufficient number of preclearance officers, supported by technologies, to carry out with reasonable speed and efficiency preclearance of goods, persons, and conveyances to which preclearance is extended;
- making best efforts to secure resources if additional staff and other resources are required to conduct preclearance approved by both Parties;
- giving consideration to flexible practices and operating procedures, which may improve the efficiency of preclearance or address temporary disruptions;
- considering requests from carriers and transportation authorities to improve their operational efficiency through flexible procedures that meet the controls and sterility standards established by the Inspecting Party and that are consistent with the efficient use of preclearance personnel and resources; and
- considering requests for new preclearance services at established preclearance locations.
- The Inspecting Party shall not be required to provide preclearance outside its normal hours of operation.
- The determination whether to provide preclearance to any irregular and ad hoc transportation by a carrier during the Inspecting Party’s normal hours of operation shall be within the sole discretion of the Inspecting Party.
- The Inspecting Party, absent extraordinary circumstances, shall provide the Host Party and facility operator 90-day advance notice of a material reduction or suspension in preclearance services, but that notice is not required if there is an adjustment to the Inspecting Party’s operating hours.
- A Party may cease services at a preclearance location after consultations with the other Party, the facility operator at that location, and affected carriers. A decision to cease services at a location shall be based upon a sustained and substantial decrease in traffic over a four-year period compared to the average of the previous four years. The consultative process shall assist both Parties to understand a case of force majeure or other unanticipated circumstances surrounding the decrease in traffic and the unique interests of each Party regarding potential cessation. The Party that seeks to cease preclearance at a location shall provide written notification to the other Party one year in advance of that cessation.
- Recognizing that the Inspecting Party has its own technical design standards, the Inspecting Party shall apply its technical design standards at specific preclearance facilities, including any modifications to the existing preclearance facilities, in a manner consistent with this Agreement.
- The design of the preclearance facility conforming to the Inspecting Party standards shall be developed in consultation with the facility operator and the appropriate Host Party authorities to ensure the design does not impact Host Party operations adjacent to or contiguous with those facilities.
- The consent of each Party to the application of the Inspecting Party’s technical design standards and, if applicable, to a reasonable time frame for compliance, for each preclearance facility is required prior to the establishment of preclearance operations at that facility pursuant to Article III(2). If the technical design standards are subsequently amended or updated, the Parties shall consult regarding implementation of conforming modifications, as appropriate, in a reasonable time frame.
- If preclearance is established in the territory of the Host Party, but the transportation or preclearance facility is owned or managed by the Inspecting Party, the Inspecting Party shall consult with the appropriate Host Party authorities and be responsible for any requirements set forth in paragraph 3, to be implemented in a manner consistent with this Agreement.
- The Host Party and the Inspecting Party shall have the right to post signs and shall ensure that information is made readily available regarding the rights and obligations of any person in a preclearance area or a preclearance perimeter. The Parties shall consult to ensure that the signage, brochures, or other communication materials outlining the rights and obligations of any person in a preclearance area or a preclearance perimeter do not conflict with applicable law or this Agreement.
- The Host Party shall ensure that preclearance areas are clearly demarcated by the facility operator.
- The Inspecting Party shall have the right to use and install inspectional aids following consultation with the Host Party prior to initial deployment in each mode.
- Only persons and goods destined for the Inspecting Party’s territory and authorized persons shall be permitted to enter preclearance areas.
- At facilities owned or managed by the Host Party, the Parties shall jointly determine any other conditions required for establishment or continuation of preclearance at that facility.
- At facilities with a private facility operator, either Party may make the establishment or continuation of preclearance conditional on the facility operator providing the following:
- protection of the preclearance area and designated offices and administrative areas and the contents in those offices and areas, including the official archives and documents maintained and used by the Inspecting Party against any intrusion or damage and to prevent any disturbance of the peace on the premises;
- provision and maintenance of security measures and infrastructure that ensures the sterility of the preclearance area, and that restricts access to the preclearance area only to travelers, goods, and authorized persons for the purpose of their duty;
- opportunity for the Inspecting Party to review and approve the goods to be made available to persons, including goods to be made available for purchase, in the preclearance area;
- provision of security screening measures for preclearance prior to the entrance of a preclearance area in the air environment (except at Toronto Pearson International Airport, which must meet this requirement no later than a date to be specified in an exchange of letters prior to signature of this Agreement) and, for other environments, to the extent applicable at a facility as determined by the Parties;
- at locations where preclearance officers are permitted to carry a firearm, a timely law enforcement response to requests for assistance from the Inspecting Party, through arrangements with the police of jurisdiction, entered into in coordination with the Host Party;
- at locations where preclearance officers are not authorized under this Agreement to carry firearms, a continuous presence by armed law enforcement officers from the territory of the Host Party, during the Inspecting Party’s hours of operation at that location;
- opportunity for the Host Party, in consultation with the Inspecting Party, to review and approve through the normal certification and recertification processes, the personnel who apply for or already hold positions that will provide them with access to the preclearance area as part of their duties before the personnel receive access to the preclearance area;
- restriction of access to the preclearance area, or observation of any portion of the preclearance area not otherwise viewed by travelers subject to the preclearance process, by persons unless they have access to the preclearance area according to Article VI(1);
- provision and maintenance of a preclearance facility that applies the technical design standards of the Inspecting Party consistent with paragraph 3; and
- compliance with any other requirements jointly determined by the Parties.
If a facility operator fails to satisfy those requirements and the Inspecting Party considers that as a result its operations are at risk, the Inspecting 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. If justified by an emergency, the Inspecting Party may take interim action prior to the expiry of 15 days.
- The Inspecting Party shall approve any carrier’s request for preclearance, or to continue to provide preclearance, at a particular facility in the rail, marine, and air modes, if the carrier has maintained or remedied compliance with the requirements pertaining to carriers in accordance with this Agreement and the following conditions:
- receipt by the Inspecting Party of written notice of the carrier’s ongoing change to a transit schedule (including seasonal changes), to the volume of travelers or goods being precleared, or to the carrier’s transit plan no less than 60 days in advance of when the contemplated change is to go into effect;
- immediate notification of a temporary change to the volume of travelers or goods being precleared on a particular route, to the carrier’s transit plan, or change in the carrier’s circumstances after it departs a preclearance location (including changes to the carrier’s destination);
- use by the carrier of the procedures outlined by the Inspecting Party for all of the carrier’s transport on a given route unless the Inspecting Party consents to a change in those procedures;
- receipt by both Parties of written notice 90 days in advance, or less with the prior written consent of both Parties, of the carrier’s desire to withdraw entirely from preclearance at any location;
- receipt by the Inspecting Party of reasonable notification from the carrier of withdrawal in respect of one or more eligible routes (but short of full withdrawal) or sooner with the prior written consent by both Parties for the limited withdrawal as specified in the notice;
- confirmation that the carrier will deny carriage to any person who fails or refuses to submit to a preclearance inspection, is inadmissible to the territory of the Inspecting Party or otherwise should not be boarded on security grounds, or to goods which are not precleared or are not eligible for entry into the territory of the Inspecting Party;
- receipt of information from the carrier, including traveler and cargo manifest information, consistent with Inspecting Party requirements, at the time as the Inspecting Party may specify to facilitate preclearance of travelers and goods;
- the preclearance schedule being requested by the carrier does not adversely affect Inspecting Party operations at the requested location; and
- satisfaction of other requirements in accordance and consistent with this Agreement as jointly determined by the Parties.
- The Inspecting Party shall endeavor to accommodate all requests for preclearance that do not adversely affect the Inspecting Party operations. The Inspecting Party retains final decision- making authority with regard to operational schedules.
- The Inspecting Party shall not be responsible for any costs, including accommodation and maintenance costs, for any traveler on a carrier who is refused passage onward by the Inspecting Party and must be removed to the traveler’s point of embarkation, or to the country of which that traveler is a citizen or national, if that traveler is traveling in-transit through the territory of the Host Party.
- The Inspecting Party may refuse to preclear a conveyance if the carrier does not satisfy the Inspecting Party that it can deny carriage to any traveler or good that is on board the conveyance and that is found ineligible to enter the territory of the Inspecting Party.
- Upon receiving a request for preclearance from a carrier in the rail, marine, or air modes, the Inspecting Party shall consider the request within a reasonable time.
- Any carrier that does not undergo preclearance must proceed through a designated port of entry to enter the territory of the Inspecting Party.
Operational Obligations and Authorities
- The Parties agree that only the following persons will have access to the preclearance area:
- travelers en route to and goods destined for the Inspecting Party’s territory;
- persons who are authorized by the Host Party in the course of the normal certification and recertification process, in consultation with the Inspecting Party;
- in case of an emergency, emergency workers with simultaneous notification to preclearance officers; and
- any other person for whom access on an ad hoc basis is coordinated with the Inspecting Party in advance.
- The Inspecting Party shall have the right to deny preclearance for conveyances, goods, and persons that cannot be routed through or brought within the designated preclearance area.
- The Parties agree that a traveler who enters a preclearance area shall be required to report to a preclearance officer without delay and present goods in that traveler’s possession, including goods that form part of that traveler’s baggage or cargo, and undergo preclearance processing.
- The Inspecting Party shall have the right to deny preclearance, refuse admission, or otherwise prevent boarding on a carrier (including on security grounds), of travelers or goods destined to or transiting through its territory, consistent with the laws of the Inspecting Party.
- The Inspecting Party shall have the right to require re-inspection (in the territory of either the Host Party or the Inspecting Party) as it deems necessary of any goods or persons that are precleared.
- Preclearance officers shall have the authority to collect any information from travelers for the purpose of administering the laws of the Inspecting Party as they apply to preclearance.
- As a pre-condition to the granting of entry or admission into the territory of the Inspecting Party, the Inspecting Party may request the voluntary surrender of any good the importation of which is prohibited or regulated under Inspecting Party law.
- The Host Party shall permit preclearance officers to carry those regulated items, defensive tools, and restraint devices that officers of the Host Party Inspection Agency are permitted to carry in that operating environment. The carriage of regulated items by preclearance officers shall be subject to mutually developed written procedures necessary to ensure the safe transportation and storage of those items, to be separately set forth by the Parties. With respect to the carriage of other tools (whether regulated items, defensive tools, or restraint devices), preclearance officers may carry those items on the consent of the Host Party.
- The Host Party shall ensure that the Inspecting Party’s preclearance officers who act on reasonable grounds when in Canada, and reasonably when in the United States, may use as much force as is necessary to perform their duties in the preclearance area and the preclearance perimeter. The preclearance officer may not use force that is intended or is likely to cause death or cause grievous bodily harm, unless the officer when in the United States reasonably believes, and when in Canada has reasonable grounds to believe, that the force is necessary for self-preservation or the preservation of anyone from death or grievous harm.
- Preclearance officers of the Inspecting Party shall, for the purposes of preclearance and in the preclearance area, have the authority to:
- obtain biometric information to verify the identity of a traveler within the preclearance area, as authorized by the Inspecting Party’s laws and provided that the traveler is notified, through appropriate signage or otherwise, that the traveler may withdraw from the preclearance area if that traveler does not wish to provide the information;
- inspect, examine, search and detain goods, and seize and cause the forfeiture of goods subject to paragraphs 25 and 26;
- inspect, examine, and search travelers in accordance with paragraph 12;
- order any person found in a preclearance area to report to a preclearance officer, identify themselves and answer any questions about their purpose in the preclearance area;
- order an unauthorized person found in a preclearance area to leave the area; and
- detain and transfer without undue delay to the appropriate Host Party law enforcement officer any person that a preclearance officer believes on reasonable grounds in Canada, or reasonably suspects in the United States, to have committed an offence under Host Party law or to present a danger to human life or safety.
- The Inspecting Party shall determine the procedures under which the inspections will be carried out and the utilization of human resources.
- A preclearance officer shall, in a preclearance area, have the following authorities in relation to personal searches for preclearance purposes:
- conduct an immediate pat down search (frisk for health and safety) to determine if a person is carrying anything that would present a danger to human life, health or safety. Preclearance officers may perform an immediate pat down search (frisk for health and safety) on a member of any sex and remove anything that would present a danger to human life, health or safety;
- conduct a pat down search (frisk for evidence/goods) to locate goods which may be concealed on the traveler’s body or in the traveler’s clothing; and
- conduct a partial body search of a traveler, subject to paragraph 13.
- A partial body search under paragraph 12(c), whenever possible, shall be conducted by a Host Party Inspection Agency Officer. The Inspecting Party shall detain the traveler pending arrival of a Host Party Inspection Agency Officer and advise the Host Party Inspection Agency of the need to conduct the search. If the Host Party Inspection Agency declines the search or advises that it is unable to conduct the search without undue delay, or if a Host Party Inspection Agency Officer does not arrive within the reasonable time discussed, a preclearance officer shall be permitted to undertake the search.
- For searches carried out in accordance with paragraph 12(b) and (c), and except as provided under paragraph 15, the officer performing the search must be the same sex as the person being searched. If a Host Party Inspection Agency Officer or preclearance officer of the same sex is not available, the Host Party Inspection Agency Officer or preclearance officer shall have the right to authorize any suitable person of the same sex to perform the search.
- The actions of officers under paragraphs 12 and 13 with respect to the search of a transgender person or a transsexual shall be performed in accordance with the policies of the Party performing the search.
- The Host Party shall not impose higher standards on actions of preclearance officers under paragraphs 12 and 13 than are applicable to the same actions undertaken by officers of the Host Party Inspection Agency in the Host Party territory.
- Each Party, in accordance with its laws and policies, shall ensure that its officers document the basis for each partial body search that its officers undertake pursuant to paragraphs 12 and 13. Each Party, on a quarterly basis, shall provide the other Party with a summary of such partial body searches that its officers carry out during that period. The summary shall include an explanation of the purpose for each search, the outcome, and relevant circumstances. The Inspecting Party shall further include confirmation whether notice of the search was provided to officers of the Host Party prior to the Inspecting Party conducting the search, and whether officers of the Host Party declined to respond, or were unable to respond without undue delay. The Parties shall jointly review the implementation of partial body search authorities pursuant to paragraphs 12 to 16, as necessary, at the Preclearance Consultative Group.
- If the Host Party Inspection Agency is required by law to ensure that a person is informed of their right and given the opportunity to consult counsel in its territory, the Inspecting Party shall also be required to ensure that, in the same circumstances, a person is informed of their right and given the opportunity to consult counsel when operating in the Host Party territory.
- The Inspecting Party shall have the right to refer a person to the appropriate authorities in the territory of the Host Party for an intrusive personal search for preclearance purposes, not including a partial body search, to be conducted in a manner consistent with Host Party law.
- A preclearance officer shall, for the purposes of preclearance, border security and border integrity and in the preclearance perimeter, have the authority to:
- inspect, examine and search the exterior of a conveyance destined for the Inspecting Party territory;
- inspect, examine, search, and detain goods to be loaded onto a conveyance destined for the Inspecting Party territory;
- require that a traveler and goods destined for the Inspecting Party territory return to a preclearance area to ensure that the traveler and goods comply with the preclearance requirements of the Inspecting Party;
- require a person to identify himself or herself and answer any questions about his or her purpose in the preclearance perimeter;
- following identification, and establishment that a person is a traveler, ask questions to the person for preclearance purposes about himself or herself or his or her goods;
- conduct an immediate pat down search (frisk for health and safety) of a person in the preclearance perimeter in accordance with paragraph 12(a); and
- detain a person for the purpose of transferring that person to a Host Party law enforcement officer if the preclearance officer has reasonable grounds to believe when in Canada, or reasonably suspects when in the United States, that the person committed an offence under Host Party law.
- The Inspecting Party may request a Host Party law enforcement officer to escort any traveler, goods, or conveyance back to the preclearance area to facilitate compliance with the requirements of this Agreement.
- Subject to paragraphs 23 and 24, the Inspecting Party shall permit a traveler to withdraw from the preclearance area or the preclearance process at any time.
- Prior to a traveler’s departure from the preclearance area or the preclearance process following the traveler’s decision to withdraw, the preclearance officer, for the purpose of preserving border integrity and border security and provided that any actions undertaken do not cause an unreasonable delay to the traveler, shall be permitted to:
- require the traveler to identify him or herself and produce any relevant documentation to that effect;
- require the traveler to answer truthfully questions related to that traveler’s decision to withdraw and for identification purposes;
- record and maintain any information, including a copy of any identification documentation, obtained from the traveler after that traveler’s decision to withdraw. That information shall only be used for border integrity and border security purposes, unless otherwise authorized by law. Biometric information shall not be collected from a traveler following a request to withdraw from the preclearance area or the preclearance process unless authorized by Host Party law. If the traveler cannot produce photographic identification from which the traveler’s identity can be ascertained, the preclearance officer may obtain a photograph of the traveler for non-biometric use;
- conduct an immediate pat down search (frisk for health and safety) to the extent authorized under, and in accordance with, paragraph 12(a);
- conduct a non-intrusive inspection of a non-commercial conveyance utilizing inspectional aids which are already deployed in the preclearance area; and
- conduct a non-intrusive inspection of a commercial conveyance utilizing inspectional aids which are already deployed in the preclearance area, and to open cargo compartments of that conveyance to conduct a visual inspection of its contents.
- If a preclearance officer has reasonable grounds to suspect when in Canada, or reasonably suspects when in the United States, that the traveler wishing to withdraw has committed an offence under Host Party Law, the officer may detain the traveler and exercise all authorities under this Article for border integrity and border security purposes.
- With regard to goods that are examined, inspected, or detained by the Inspecting Party within the preclearance area or within the preclearance perimeter, the Inspecting Party shall transfer to the Host Party without delay any goods that the Host Party has made known explicitly to the Inspecting Party contravene Host Party law regarding importation, exportation, possession, or handling of goods, or that otherwise constitute evidence of an offence under Host Party law.
- If the Host Party declines to initiate an administrative or judicial action with respect to goods transferred to it under paragraph 25, the Host Party shall, absent good cause, promptly transfer the goods to the Inspecting Party, which may seize and cause the forfeiture of those goods. If the Inspecting Party declines custody of those goods, the Host Party shall dispose of the goods in accordance with the Host Party’s applicable law and policy.
- The Inspecting Party shall ensure that goods that are seized by the Inspecting Party during preclearance are subject to recourse procedures, consistent with the law of the Inspecting Party.
- The Host Party shall secure and dispose of any illicit or illicitly trafficked biological, radiological or nuclear materials, or other items that may pose a risk to public health and safety, which are detected during preclearance screening of conveyances, persons or goods, according to protocols developed with the assistance of the Inspecting Party.
- The Inspecting Party shall, in accordance with the procedures established by the Host Party, dispose of goods that are abandoned in the preclearance area, with the exception of the materials and items referred to in paragraph 28.
- The Host Party shall ensure that all in-transit travelers and goods undergo appropriate security screening in the territory of the Host Party prior to entering the preclearance area.
- The Inspecting Party shall consider providing priority queuing for the purposes of inspection in the territory of the Inspecting Party to any flight, for reasons beyond the control of the carrier, that is diverted to or post-cleared in the territory of the Inspecting Party.
- At locations where the facility is owned or managed by a Party:
- where preclearance officers are permitted to carry a firearm, the Inspecting Party, in coordination with the Host Party, shall make arrangements with the police of jurisdiction to facilitate a timely law enforcement response to requests for assistance from the Inspecting Party; and
- where preclearance officers are not authorized under this Agreement to carry firearms, the Host Party shall ensure a continuous presence by armed law enforcement officers from the territory of the Host Party, during the Inspecting Party’s hours of operation at that location.
Costs and Fees
- The Inspecting Party shall be responsible for its personnel and operations costs, including:
- salaries and benefits of its preclearance officers; and
- the purchase, inspection, and maintenance of equipment and technology necessary to meet its inspection procedures, requirements or regulations, and the personal safety equipment of its preclearance officers.
- The Inspecting Party may collect any user fees normally applied by the Inspecting Party in the territory of the Inspecting Party.
- For preclearance services performed at a facility owned or operated by a private facility operator and not by either the Inspecting Party or the Host Party, including facilities where the Host Party and Inspecting Party are co-located, a Party shall not bear the facility or maintenance costs associated with the performance of preclearance services at that location.
- Notwithstanding any other Article in this Agreement, for preclearance services performed at a facility owned or operated by the Host Party where preclearance officers are located in a facility in which Host Party officers are also located, the Inspecting Party shall bear the costs of the initial expenses necessary to begin performing preclearance services at that location. For the purposes of this Article, initial expenses are defined as those expenses necessary to allow the Inspecting Party to occupy space in the Host Party facility, including expansion and modification of physical infrastructure and information technology related improvements. After incurring the costs of all initial expenses, the Inspecting Party shall be responsible for a proportional share of facility and maintenance costs for the duration of time when the Inspecting Party performs preclearance services at the Host Party facility.
- At preclearance locations within the territory of the Host Party where the Inspecting Party performs preclearance services at facilities owned by the Inspecting Party and not by a private facility operator or the Host Party, the Inspecting Party shall bear all facility and maintenance costs for the duration of time that preclearance services are performed at that location.
- In the event that a Party’s law requires a person to have access to counsel during preclearance operations, the other Party shall not be responsible for the costs associated with that requirement. The Party whose law requires access to counsel shall only be responsible for those costs to the extent required under that Party’s law.
- The Inspecting Party shall ensure that information collected by preclearance officers during preclearance operations shall be treated in accordance with the applicable laws and policies of the Inspecting Party, including those that provide for the protection of personal data against inappropriate access, use or disclosure. The information collection activities of the Inspecting Party during preclearance operations in the territory of the Host Party are also subject to the independent review and oversight of the appropriate agencies and entities of the Inspecting Party, including those charged with the protection of privacy and civil liberties.
- Information pertaining to preclearance operations, including statistical information, and information necessary for the purpose of assisting the Host Party in the administration and enforcement of its laws, may be requested by a Party from the other Party pursuant to applicable agreements and arrangements, or as otherwise authorized pursuant to their respective domestic laws and policies. If necessary, the Parties may enter into additional information-sharing arrangements or agreements to facilitate sharing of that information, taking into account the application of the Privacy Principles, as appropriate.
- The Parties shall jointly establish standard operating procedures for resolving specified operational incidents that require a response by both Parties, such as a positive alarm from an inspectional aid.
- The Host Party shall provide training that the Parties jointly deem necessary for preclearance officers regarding Host Party law pertaining to preclearance. The Parties shall ensure that, to the extent practicable, each preclearance officer completes that training prior to deployment at a preclearance facility in the territory of the Host Party. That training must be completed no later than 60 days after the date of that deployment.
- The Inspecting Party shall ensure that the Host Party is advised of the identity of any preclearance officer assigned to the territory of the Host Party, the preclearance location to which that officer is assigned, the date of that officer’s arrival, the estimated date of that officer’s departure, and any relevant information required pursuant to Article VI(8), before the preclearance officer is deployed.
- The Host Party shall provide a preclearance officer with documentation that indicates that the preclearance officer is subject to the provisions of Article X and that the preclearance officer is entitled to carry regulated items pursuant to Article VI(8). The Host Party shall also provide appropriate documentation to a preclearance officer and any other person who enjoys the benefits of Article XI.
- The Parties shall jointly establish plans for business continuity of preclearance operations for each preclearance location.
- The Inspecting Party shall provide all reasonable assistance to the Host Party response to any act which may constitute an offence under the Host Party’s law allegedly committed by a person that is detected in the preclearance area or preclearance perimeter during preclearance. This provision does not apply to conduct by preclearance officers, which is the subject of Article X.
Protections and Accountabilities
- This Article generally recognizes the existence of shared jurisdiction between the Inspecting Party and the Host Party over any offence committed by preclearance officers while in the territory of the Host Party and establishes a framework for determining which Party has primary jurisdiction over that offence.
- Preclearance officers shall enjoy immunity from the civil and administrative jurisdiction of the Host Party with respect to an act or omission in the performance of official duties, which includes an act or omission in the course and scope of official duties.
- A civil action in respect of anything that is, or is purported to be, done or omitted in the performance of official duties by preclearance officers may be brought against the United States to the extent the United States is not immune under the Canadian State Immunity Act. Defenses available under Canadian and provincial law, including procedural and substantive defenses, shall remain available to the United States.
- A civil action in respect of anything that is, or is purported to be, done or omitted in the performance of official duties by preclearance officers may be brought against Canada to the extent Canada is not immune under the U.S. Foreign Sovereign Immunities Act. Defenses available under U.S. federal and state law, including procedural and substantive defenses, shall remain available to Canada.
- A Party shall notify the other as soon as practicable if it reasonably considers that an act or omission of one or more of its preclearance officers constitutes an offence under the law of the Host Party.
- The Host Party shall promptly notify the Inspecting Party of the arrest of any preclearance officer that occurs in the territory of the Host Party.
- The Inspecting Party shall have the right to exercise exclusive criminal and disciplinary jurisdiction over acts or omissions of a preclearance officer that are punishable by the law of the Inspecting Party but not by the law of the Host Party.
- The Host Party shall have the right to exercise exclusive criminal jurisdiction over acts or omissions of a preclearance officer that are punishable by the law of the Host Party but not by the law of the Inspecting Party.
- Except as otherwise provided in this Article, the Inspecting Party shall have the right to exercise primary criminal jurisdiction over acts or omissions of a preclearance officer in the performance of official duties. If the Inspecting Party exercises jurisdiction, the preclearance officer shall not be amenable to the jurisdiction of the Host Party in respect of those acts. In determining whether an act was done or omitted in the performance of official duties, the Inspecting Party shall consider the time the act occurred, the location where the act took place, whether the act or omission occurred while the preclearance officer was on-duty or otherwise performing official functions or services, and whether the act or omission was related to the nature of activities or otherwise facilitated activities undertaken pursuant to this Agreement.
- Notwithstanding paragraph 9, where the Inspecting Party exercises primary jurisdiction and decides not to, or is unable to, prosecute a preclearance officer, the Host Party shall have the right to exercise concurrent jurisdiction by seeking to extradite the preclearance officer, or in the event that the preclearance officer voluntarily returns to the territory of the Host Party. Before seeking to exercise jurisdiction in those cases, the Host Party shall notify the Inspecting Party which may assert its right to request consultations. The Host Party shall not seek extradition of such a preclearance officer over whom it retains jurisdiction from a third country or otherwise attempt or take action which interferes with the preclearance officer’s international travel without the consent of the Inspecting Party. This Article does not limit or otherwise affect the rights and obligations of the Parties under the Extradition Treaty between Canada and the United States of America, done at Washington on 3 December 1971, and the protocols thereto.
- The Host Party shall have the right to exercise primary criminal jurisdiction over acts or omissions of a preclearance officer that occur outside the performance of official duties, including acts or omissions that occur while the preclearance officer is commuting to or from work prior to the beginning of or following the conclusion of regular or extended work hours, and any other acts or omissions that occur outside of these hours, unless the acts or omissions are directly related to facilitating activities undertaken pursuant to this Agreement.
- Notwithstanding paragraph 9, if the Inspecting Party determines that the underlying act or omission supports a criminal charge under the Inspecting Party’s law for the specific offences of terrorism, murder, or aggravated sexual assault, the Inspecting Party shall notify the Host Party and, upon request by the Host Party, the Inspecting Party shall waive its right to exercise primary criminal jurisdiction. In order to assist the Inspecting Party in making a determination of whether an act or omission supports a criminal charge as described in this paragraph, the Host Party may provide the Inspecting Party with investigatory or other information, including whether the act or omission could constitute an offence under Host Party law. When that information is provided, the Inspecting Party shall take account of the information, as appropriate.
- At the request of the Host Party, if a case involves death, grievous bodily harm, or sexual assault involving reasonable fear of death or serious bodily injury, and if the Inspecting Party exercises its right to primary jurisdiction, the Inspecting Party shall ensure that the matter is reviewed by the appropriate prosecutorial authorities in accordance with the Inspecting Party’s domestic law, practice, and procedure.
- The Inspecting Party exercises primary jurisdiction by providing the Host Party with written notification. The written notification shall detail the basis for the exercise of primary jurisdiction. Subject to the procedures set forth in paragraphs 15 through 17 of this Article, as applicable, providing a notification that the Inspecting Party exercises primary jurisdiction shall vest primary jurisdiction with the Inspecting Party.
- If the Party possessing the right to exercise primary jurisdiction decides not to exercise its jurisdiction, it shall notify the authorities of the other Party as soon as practicable. If a Party waives the right to exercise primary jurisdiction, the other Party may exercise jurisdiction at its discretion.
- The Party possessing primary jurisdiction shall give sympathetic consideration to a request from the other Party for a waiver of its right to exercise primary jurisdiction in cases where the other Party considers that waiver to be of particular importance. Both Parties have the discretion to affirmatively request sympathetic consideration in any case, whether or not the other Party intends to exercise its right of primary jurisdiction. In considering whether to waive its right to exercise primary jurisdiction, a Party may consider factors, including: the nature and severity of the offence; the impact on any victims; whether the offence was committed solely against a preclearance officer or the Inspecting Party’s property; the nature and location of the evidence; and, if there are multiple suspects from both the Inspecting Party and the Host Party, whether the offences should be tried in the same venue in the interest of judicial economy.
- Either Party may request consultations regarding the exercise of primary jurisdiction in any particular case. That request may occur prior to or following the exercise of primary jurisdiction. If either Party requests consultations prior to the exercise of primary jurisdiction, the Parties shall consult as soon as practicable regarding the exercise of primary jurisdiction. Once a Party makes a request, consultations shall occur in accordance with this paragraph.
- On the entry into force of this Agreement, the U.S., through its Department of Homeland Security and Canada, through its Department of Public Safety, shall each designate a representative or representatives to serve as the primary point of contact for consultations. These designated representatives shall facilitate expeditious and informed consultations regarding the exercise of primary jurisdiction in a particular case. Once a request for consultation is submitted for a particular case, the Parties, through their designated representative(s), shall select a mutually acceptable time and date for the consultations.
- The consultations assist both Parties to understand the facts surrounding the exercise of primary jurisdiction and the unique interests of each Party regarding the potential exercise of jurisdiction. Further, the consultations serve as a mechanism for discussions on specific cases in which either Party may have an interest in seeking jurisdiction. Consultations serve as a forum in which to discuss facts, legal authorities, and other relevant information, as appropriate.
- Except in cases involving a request by the Host Party pursuant to paragraph 13, should either representative notify the other that it is not satisfied with the progress of the consultation for a particular case, the representatives may seek additional consultation through their diplomatic channels. The Party seeking to exercise jurisdiction shall take any recommendations made via the diplomatic consultations into account when, in its sole discretion, it makes a final determination regarding the exercise of jurisdiction.
- The Parties shall cooperate in criminal matters as follows:
- the Parties shall, consistent with their respective laws, regulations, and policies assist each other in the arrest of a preclearance officer and in the transfer of the preclearance officer to the custody of the Party that exercises primary jurisdiction in accordance with this Article.
- to the extent permitted by their respective laws and policies, and pursuant to applicable agreements and arrangements, the Parties shall fully cooperate in providing information and testimony that may be needed in any investigation and subsequent prosecution or other proceeding resulting from an alleged offence covered by this Article. Cooperation may include:
- using best efforts to facilitate a request by the other Party to provide any relevant information in the Party’s possession or control; and
- using best efforts to facilitate the availability and appearance of the preclearance officer, law enforcement officers, or witnesses for testimony relevant to any prosecution or proceeding resulting from an alleged offence covered by this Article.
- this Article does not limit or otherwise affect the rights or obligations of the Parties under other international agreements between them that govern cooperation and mutual assistance in the investigation, prosecution and suppression of crime, including the Treaty between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters, done at Quebec City on 18 March 1985.
- A preclearance officer who is tried and convicted after an exercise of jurisdiction in accordance with this Article may not be tried again for the same offence by the authorities of the other Party. A preclearance officer who is tried and acquitted by the Host Party following the exercise of jurisdiction may be prosecuted by the Inspecting Party for the same offence particularly if there is new or additional information. However, the terms set out in this paragraph do not prevent the authorities of the Inspecting Party from taking disciplinary or administrative action against a preclearance officer for any violation of rules of discipline arising from an act or omission that constitutes an offence for which that preclearance officer is tried by the Host Party.
- A Party that prosecutes an offence arising under this Agreement shall not impose or, if imposed, shall not execute the death penalty if the law of the other Party does not permit that punishment for that offence.
- The Parties or their designated representatives may enter into implementing arrangements to carry out the provisions of this Article.
- The Parties shall establish a Council chaired by senior representatives of U.S. Department of Homeland Security and Public Safety Canada. The Council shall also include senior representatives from U.S. Department of Justice, Justice Canada, U.S. Department of State, and Foreign Affairs, Trade and Development Canada. The Council shall meet on a regular basis to discuss procedural issues related to the implementation of this Article, including issues related to the exercise of primary jurisdiction, requests for waivers of primary jurisdiction, and cooperation in arrests and investigations. The Council shall report on the disposition of cases subject to this Article and may recommend best practices and provisions for inclusion into implementing arrangements to carry out this Article.
- The Host Party shall have the right to require the removal of a preclearance officer who abuses his official position from preclearance operations in the territory of the Host Party.
Benefits for Preclearance Officers, Dependents, and Support Personnel
- The Host Party shall provide Inspecting Party preclearance officers and personnel working in support of preclearance operations with employment authorizations.
- The Host Party shall provide Inspecting Party preclearance officers and personnel working in support of preclearance operations and their accompanying family dependents, for the duration of their assignment in its territory, with 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.
- The Host Party shall ensure that Inspecting Party preclearance officers and personnel working in support of preclearance operations and their accompanying family dependents are exempted from processing fees associated with a study permit or employment authorization application.
- Except for paragraph 1, this Article shall only apply to a person authorized by the Inspecting Party to reside in the Host Party’s territory.
- This Article shall not apply to persons who are permanently resident in the territory of the Host Party.
- The Inspecting Party shall attempt to resolve local operational issues through consultation with affected stakeholders, as appropriate.
- The Parties shall ensure that the Preclearance Consultative Group consults on a regular basis, at least annually, to review performance and resolve any issues related to the implementation of this Agreement.
- Operational issues that cannot be resolved at the local level or by the Preclearance Technical Working Group, which is co-chaired by U.S. Customs and Border Protection and Transport Canada, shall be referred to the Preclearance Consultative Group, which shall consist of senior representatives of the federal governments of the respective Parties, to be specified in an exchange of letters following the signature of this Agreement. The Parties shall collaborate on issues including: the application of technical design standards, personal searches, the measurement of wait times, service levels, and personnel vetting.
- The Parties may allow interested persons to attend portions of the Preclearance Consultative Group meetings, if jointly decided by the Parties in advance of the meetings.
- The Parties may jointly decide to establish preclearance committees at each specific preclearance location, including representation from the Inspection Agencies of both Parties to address operational and procedural issues at that location.
- At any time, a Party may request consultations regarding any provision or issue that arises under this Agreement. This request may include consultations on changes in domestic law or any other matter a Party considers may affect the interpretation, application, or implementation of this Agreement.
Pursuant to the terms of this Agreement, each Party shall comply with its obligations as Host Party or Inspecting Party, as the case may be, in respect of any preclearance operation established pursuant to this Agreement.
Entry into Force
- This Agreement shall enter into force on the date of the last note in an exchange of notes in which the Parties notify each other of the completion of their respective internal procedures necessary for the entry into force of this Agreement.
- Upon entry into force of this Agreement, this Agreement shall supersede the Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America, done at Toronto on 18 January 2001.
The Parties may amend this Agreement by mutual agreement in writing.
Either Party may terminate this Agreement by giving notice in writing through diplomatic channels to the other Party of its decision to terminate. This Agreement shall terminate one year after the date of the notice, unless the notice to terminate is withdrawn by mutual consent before the expiry date of this period.
IN WITNESS WHEREOF the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE in duplicate at Washington, this 16th day of March, 2015, in the English and French languages, both being equally authentic.
For the Government of Canada: Steven Blaney
For the Government of the United States of America: Jeh Johnson
- Date Modified: