CANADA EXPLAINS NEW GLITCH IN AVIATION

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