US embassy cable - 03OTTAWA965

UNCLAS SECTION 01 OF 02 OTTAWA 000965 
 
SIPDIS 
 
STATE FOR EB/TRA-SUSAN PARSON AND WHA/CAN-BILL MCCULLA 
DHS FOR F. KINNEY 
DHS FOR JOE O'GORMAN AND LIZ TISDALE 
WHITE HOUSE FOR HSC-CHRIS HORNBARGER 
 
E.O. 12958: N/A 
TAGS: EAIR, ECON, PREF 
SUBJECT: CANADA EXPLAINS NEW GLITCH IN AVIATION 
PRECLEARANCE AGREEMENT 
 
1. This is an action request.  See paragraph 9. 
 
2.  Officials in the Department of Foreign Affairs and 
International Trade (DFAIT) expressed mild apologies delay in 
Canadian internal procedures are slowing down the entry into 
force of the new aviation preclearance agreement.   DFAIT 
explained that the GOC cannot bring the agreement into force 
until Transport Canada designates the exact locations of the 
preclearance sites at the Montreal (Dorval), Vancouver, and 
Calgary Airports.  Preclearance areas in these three airports 
have changed since they were last designated.  DFAIT said 
Transport Canada began this designation process a few weeks 
ago, soon after the U.S. passed reciprocity legislation 
necessary to bring the agreement into effect, but it has not 
been completed.  DFAIT said the process might take four to 
six weeks, but did not indicate why the GOC had waited until 
the U.S. legislation had passed to begin this process. 
 
3. The "designations" are important, DFAIT said, because the 
new (2001) preclearance agreement provides U.S. officers a 
measure of law enforcement authority by permitting them to 
detain individuals on Canadian soil.  Thus, DFAIT argues, 
Canadian law requires that the GOC specify exactly the areas 
where U.S. officers have this authority. 
 
4.    Because the Montreal preclearance area has changed 
significantly, Transport Canada and other parties are 
conducting a site survey on April 3.  Calgary and Vancouver 
have changed only slightly, so no survey is necessary.  The 
airports will prepare architectural drawings of all three 
locations showing the preclearance areas for approval by both 
Transport Canada and U.S. agencies. 
 
5. DFAIT explained that it originally designated the 
preclearance areas of all seven airports in May 2002.  DFAIT 
provided copies of floor plans to Embassy Ottawa, accompanied 
by a diplomatic note dated May 8 that explained the drawings. 
 The DFAIT note also said, "Preclearance areas of Canadian 
airports will not be set out by regulation but will be 
established administratively through the issuance of a 
document by the Minister of Transport, in consultation with 
the Minister of Foreign Affairs, that designates the 
preclearance areas on an airport-by-airport basis."   The 
Embassy, after consulting with Federal Inspection Agencies, 
responded with a note dated June 5 that acknowledged that the 
preclearance areas described by the GOC  "appear to meet the 
definition of the preclearance area" in the new preclearance 
agreement, which, our note stated, "is not in force as of 
this date."    Nothing in either the DFAIT note or the 
Embassy note made any reference to the designation of the 
preclearance areas as having any bearing on bringing the 
agreement into force.  (Dipnotes faxed to EB/TRA and WHA/CAN.) 
 
6.  DFAIT cites the following sections of the new agreement 
as referring to the process of designating the specific 
locations of the preclearance areas: 
 
Article I, paragraph 1: Definition of the preclearance area; 
 
Article II, paragraph 1: "The host party, before designating 
a preclearance area, shall consult with the participating air 
industry in order to seek their recommendation on the precise 
location of preclearance and in-transit preclearance areas;" 
 
 
Article II, paragraph 2: "The Host Party shall consult with 
the Inspecting Party with respect to the designation of the 
preclearance area." 
 
GOC said it is consulting with the airports and with the USG 
in accordance with these provisions.  DFAIT said the 
consultation with the USG in the current instance is 
accomplished through both the participation of the 
preclearance staff in Montreal in the site survey on April 3 
and in a future exchange of notes with the Embassy, as in May 
2002 (para 2). 
 
7.  ECONOFF  asked DFAIT officer how the designations in 
Article II relate to bringing the agreement into force. 
DFAIT responded that Article XII, paragraph 1 says that the 
agreement can be brought into force with an exchange of notes 
"following the completion of all internal procedures of the 
parties."  DFAIT said that the designation process it is 
performing is an "internal procedure" under this provision. 
After the agreement is in effect, DFAIT said, changes in the 
size and location of the preclearance areas would be 
accomplished by a similar consultation and designation 
process, consistent with Articles I and II of the agreement. 
 It is necessary, DFAIT maintains, to designate the exact 
preclearance areas where U.S. officers will have authority 
before the agreement goes into effect. 
 
8. Comment: A generous explanation for this bureaucratic 
glitch is that DFAIT and the Privy Council Office (PCO), 
which had pushed to complete the agreement in time for the 
Ridge-Manley meeting April 7, had simply not told Transport 
Canada to ensure that the designations would be accomplished 
according to this schedule.   End Comment. 
 
9. Embassy recommends that we request the GOC agree to an 
exchange of notes giving an entry into force date not later 
than May 12.  This should provide the GOC ample time to meet 
its internal procedure requirements.   Does Washington 
approve such a request and May 12 deadline? 
CELLUCCI