Preclearance in Canada Regulations: SOR/2019-183
Canada Gazette, Part II, Volume 153, Number 12
SOR/2019-183 June 4, 2019
IMMIGRATION AND REFUGEE PROTECTION ACT
PRECLEARANCE ACT, 2016
P.C. 2019-736 June 3, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness and the Minister of Transport, makes the annexed Preclearance in Canada Regulations pursuant to
- (a) section 4.71 footnote a of the Aeronautics Act footnote b;
- (b) paragraph 133(b) and subparagraph 133(h)(i) of the Customs Tariff footnote c;
- (c) subsection 5(1) of the Immigration and Refugee Protection Act footnote d; and
- (d) section 43 of the Preclearance Act, 2016 footnote e.
Preclearance in Canada Regulations
Definition of Act
1 In these Regulations, Act means the Preclearance Act, 2016.
2 (1) For the purposes of paragraph 17(d) of the Act, the following persons may enter a preclearance area:
- (a) the holder of a pass — issued by or under the authority of the operator of a facility that entitles the holder to have access during a specified period to the preclearance area — who must enter the preclearance area in order to perform the functions of their employment;
- (b) a person who is authorized by the preclearance officer to enter the preclearance area;
- (c) a person who is authorized to administer or enforce Canadian law who must enter the preclearance area for that purpose; and
- (d) a provider of emergency services who must enter the preclearance area in the performance of their duties.
Notification and surveillance
(2) For the purposes of paragraph 17(e) of the Act, the operator of a facility must
- (a) in the case of a person that they have authorized to enter the preclearance area in order to perform urgent repair, notify a preclearance officer of that entry and ensure the constant surveillance of the person while they are in the area; and
- (b) in the case of any other person that they have authorized to enter the preclearance area, give a preclearance officer reasonable notice of the entry and ensure the constant surveillance of the person while they are in the area.
Citizen under the age of 16
3 For the purposes of paragraph 18(1)(a) of the Act, a traveller bound for the United States by any mode of transportation other than air does not require identification that contains their photograph if they are a Canadian citizen under the age of 16.
Obligations in Preclearance Area
Obligations under subsection 18(3) of the Act
4 For the purposes of subsection 18(3) of the Act, a person must, if directed by a preclearance officer,
- (a) report to a preclearance officer, identify themselves and state their reason for being in a preclearance area; and
- (b) leave a preclearance area if they are not authorized to be there.
Obligations of the Operator of a Facility
Armed police officer
5 (1) The operator of a facility must, if preclearance officers are not permitted to be armed in a preclearance area or in a preclearance perimeter, ensure the continuous presence of at least one armed police officer in the facility during the hours in which preclearance activities are ongoing.
Patrols and response
(2) The operator of the facility must ensure that the armed police officer makes regular patrols within the preclearance areas and preclearance perimeters in which preclearance officers are not permitted to be armed and responds rapidly and in person to any emergency calls from, or alarms activated by, a preclearance officer.
Preclearance Consultative Group
Inform in writing
6 A traveller who elects under section 26.1 of the Act to inform the Canadian senior officials of the Preclearance Consultative Group of any situation referred to in sections 22, 23 and 24, subsection 31(2) and section 32 of the Act must do so in writing.
Seizure and Detention
Transfer of certain seized goods
7 (1) A preclearance officer must, as soon as feasible after seizing any of the following goods under subsection 34(1) or (3) of the Act, transfer them to a peace officer or a person who is authorized to enforce an Act of Parliament for disposal:
- (a) goods that are subject to the public health, food inspection or plant and animal health laws of either Canada or the United States;
- (b) goods that are, or contain, nuclear substances as defined in section 2 of the Nuclear Safety and Control Act; and
- (c) goods that are dangerous goods as defined in section 2 of the Transportation of Dangerous Goods Act, 1992.
Notice to traveller
(2) The preclearance officer must immediately give to the traveller a written notice advising them of the following:
- (a) that the goods are seized under subsection 34(1) or (3) of the Act;
- (b) the reasons for the seizure; and
- (c) that the goods will be transferred for disposal as soon as feasible to a person who is authorized to administer or enforce Canadian law.
Notice to traveller — other seized goods
8 A preclearance officer who, under subsection 34(1) or (3) of the Act, seizes goods other than goods described in paragraphs 7(1)(a) to (c) of these Regulations must immediately give to the traveller a written notice advising them of the following:
- (a) that the goods are seized under subsection 34(1) or (3) of the Act;
- (b) the reasons for the seizure;
- (c) if applicable, the requirements under the laws of the United States that must be complied with before the goods may be imported into the United States; and
- (d) if applicable, the steps that must be taken in order to avoid forfeiture of the goods to the Government of the United States.
Transfer of detained goods
9 A preclearance officer must, as soon as feasible after detaining, under subsection 34(2) of the Act, any of the goods described in paragraphs 7(1)(a) to (c) of these Regulations, transfer the goods to a peace officer or a person who is authorized to enforce an Act of Parliament.
Consequential Amendments, Repeals and Coming into Force
Non-residents’ Temporary Importation of Baggage and Conveyances Regulations
10 Subparagraph (a)(iii) of the definition temporary resident in section 2 of the Non-residents’ Temporary Importation of Baggage and Conveyances Regulations footnote 2 is replaced by the following:
- (iii) performing preclearance activities on behalf of the Government of the United States under the terms of the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America, done at Washington on March 16, 2015,
Immigration and Refugee Protection Regulations
11 The definition in-transit preclearance passenger in section 2 of the Immigration and Refugee Protection Regulations footnote 3 is replaced by the following:
in-transit preclearance passenger means an in-transit passenger who is subject to a preclearance procedure in accordance with the Preclearance Act, 2016. (passager en transit bénéficiant d’un précontrôle)
Definition of Settler for the Purpose of Tariff Item No. 9807.00.00 Regulations
12 Paragraph 1(c) of the Definition of Settler for the Purpose of Tariff Item No. 9807.00.00 Regulations footnote 4 is replaced by the following:
- (c) performing preclearance activities on behalf of the Government of the United States under the terms of the Agreement on Land, Rail, Marine, and Air Transport Preclearance between the Government of Canada and the Government of the United States of America, done at Washington on March 16, 2015.
Canadian Aviation Security Regulations, 2012
13 Section 238 of the Canadian Aviation Security Regulations, 2012 footnote 5 and the heading before it are repealed.
14 The references “Subsection 238(1)” and “Subsection 238(2)” in column 1 of Schedule 4 to the Regulations and the corresponding amounts in column 3 are repealed.
15 The following Regulations are repealed:
- (a) the Manner of Disposal of Detained, Seized or Forfeited Goods Regulations (Preclearance Act) footnote 6;
- (b) the Regulations Excluding Certain Things from the Definition of “Goods” under the Preclearance Act footnote 7;
- (c) the Passenger Information Regulations (Preclearance Act) footnote 8; and
- (d) the Regulations Designating Persons and Categories of Persons — Other Than Travellers Destined for the United States — Who May Enter a Preclearance Area footnote 9.
Coming into Force
S.C. 2017, c. 27
16 These Regulations come into force on the day on which the Preclearance Act, 2016, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations or the Order.)
Preclearance is a process that enables an inspecting (foreign) country to perform customs, immigration, and related inspections in a host country in order to determine the admissibility of people and goods before they enter the inspecting country. The United States (U.S.), as an inspecting country, have conducted preclearance operations in Canada in the air mode of transportation since 1952.
In 2015, Canada and the U.S. signed the Agreement on Land, Rail, Marine and Air Transport Preclearance between the Government of Canada and the Government of the United States of America (LRMA). The LRMA builds on the preceding agreement, the Agreement on Air Transport Preclearance Between the Government of Canada and the Government of the United States of America, with a view to expanding preclearance operations beyond the air mode to include the land, rail, and marine transportation modes. The LRMA also allows Canadian preclearance operations to be established in the U.S. in these modes. The primary objective of the LRMA is to further strengthen the Canada–U.S. bilateral relationship by way of enhanced security and economic competitiveness.
Both countries have introduced legislative changes needed to ratify the LRMA. In Canada, the LRMA’s enabling legislation is the Preclearance Act, 2016 (the Act), which received royal assent on December 12, 2017. Canada requires regulatory changes before ratifying the LRMA and bringing the Act into force. Under U.S. law, Title 8 of the United States Code 1103, Title 19 of the United States Code 1629, and the Promoting Travel, Commerce, and National Security Act of 2016 are in place and support the LRMA’s entry into force.
The U.S. has conducted air passenger preclearance in Canada since 1952. This arrangement was first formalized in 1974 through the Agreement between the Government of Canada and the Government of the United States of America on Air Transport Preclearance and updated through the ratification of the Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America in 2003 (the Air Preclearance Agreement). In 2002, the Preclearance Act was brought into force and is the statute that supports air preclearance activities in Canada until the LRMA and the Act take effect.
Overview of current preclearance regime
Under the current regime, U.S. Customs and Border Protection officers (preclearance officers) conduct preclearance operations at eight major Canadian airports: Vancouver, Edmonton, Calgary, Winnipeg, Toronto (Pearson), Ottawa, Montréal (Trudeau) and Halifax. These operations preclear approximately 15 million passengers annually and have achieved a wide range of benefits for Canadians, including shorter wait times when compared to customs and immigration clearance on arrival in the U.S., efficiencies for airlines (e.g. shorter connection times for flights to U.S. airports) and privileged access to U.S. markets (e.g. due to preclearance, Canadian commercial flights are the only international commercial flights allowed to land at Reagan National Airport in Washington, D.C.). Preclearance serves as a final instance in which potential threats can be intercepted before travel begins, thereby increasing the safety and security of both countries and enhancing their trade relationship.
Under the Preclearance Act, a space designated as a “preclearance area” defines the area in which U.S. preclearance officers inspect travellers and goods for entry to the U.S. prior to leaving Canada. The Minister of Transport is responsible for designating preclearance areas by ministerial order. Given that the Air Preclearance Agreement is limited to air transportation, preclearance areas are, in practice, only designated at aerodromes.
In addition to the Preclearance Act, preclearance operations are governed by the following regulations:
Manner of Disposal of Detained, Seized or Forfeited Goods Regulations (Preclearance Act)
These Regulations prescribe the manner in which preclearance officers may dispose of detained or seized goods under the Preclearance Act, and related procedures. For example, they direct preclearance officers to immediately transfer certain detained or seized goods to a Canadian officer for disposal (e.g. those that pose a risk of contamination under public health, food inspection or plant and animal health laws); specify the conditions under which detained goods will be forfeited to the Government of the United States (e.g. if the good is explicitly abandoned by the traveller, or not claimed by the traveller within a specified period); and require preclearance officers to provide written notifications to travellers whose goods have been detained, setting out their rights and obligations and how they may regain possession of their goods.
Regulations Excluding Certain Things from the Definition of “Goods” under the Preclearance Act
The Preclearance Act defines goods as means of transport (e.g. cars, boats, and other vehicles), animals and plants and their products, and any document in any form. This definition does not include any good that is specifically excluded by regulation. These Regulations exclude currency and monetary instruments from the definition of “goods.” Under the Preclearance Act, travellers to the U.S. are required to report all goods travelling with them to a preclearance officer; this requirement does not apply to currency and monetary instruments (e.g. a bank draft) because of the Regulations. As a result of these exclusions, preclearance officers (who are responsible for determining the admissibility of goods into the U.S.) may not seize currency or monetary instruments.
Regulations Designating Persons and Categories of Persons — Other Than Travellers Destined for the United States — Who May Enter a Preclearance Area
These Regulations designate the persons and categories of persons, other than travellers destined for the U.S., who may enter preclearance areas and the conditions under which they may do so. Aside from travellers to the U.S., and preclearance officers, the Regulations specify that individuals who must enter a preclearance area to fulfill their duties as part of their job or under their contract with the airport operator may enter a preclearance area if they have a Restricted Area Identity Card (RAIC) issued by the airport operator after the individual has received a Transportation Security Clearance from Transport Canada. In addition, the Regulations provide flexibility to enable airport operators to deal with exceptional or unforeseen situations. In these situations, the Regulations require that persons performing maintenance or repair, or emergency services, only enter the preclearance area if they are kept under electronic surveillance or provided with a personal escort (e.g. an airport employee or a security guard who is authorized to access restricted areas of the airport) when they are in the preclearance area.
Passenger Information Regulations (Preclearance Act)
These Regulations apply to airlines operating flights from Canada to the U.S., and specify the passenger information (e.g. passenger’s name, date of birth, flight number, date of travel, electronic ticket information) that they must provide to U.S. preclearance officers before the arrival of passengers destined for the U.S. These Regulations facilitate the preclearance of passengers from a third country that stop in Canada temporarily before flying to the U.S. and enable Canada to fulfill its obligations under Annex III (In transit Advance Passenger Information) of the Agreement on Air Transport Preclearance Between the Government of Canada and the Government of the United States of America. The specific data elements that constitute “specified passenger information” are listed in Column I of Schedules I and II to the Regulations and correlate to the data elements laid out in Annex III.
Canadian Aviation Security Regulations, 2012
Section 238 of these Regulations requires airport operators to ensure that there is a continuous armed police presence (i.e. at least one armed police officer) in place during the hours that preclearance operations are underway; that the police officer(s) patrols the preclearance area; and that they respond rapidly to any emergency calls from U.S. preclearance personnel. These requirements serve to fulfill Canada’s obligations under Annex II (Security Arrangements) of the Agreement on Air Transport Preclearance Between the Government of Canada and the Government of the United States of America. Annex II describes Canada’s specific obligations with regard to ensuring the security of U.S. personnel in the course of their preclearance activities.
New Regime: LRMA and Preclearance Act, 2016
The LRMA renews and expands the existing framework for preclearance operations. For example, it allows for preclearance to occur in land, rail, and marine transportation modes in addition to the air mode, and provides a process for the establishment and continuation of preclearance; a framework for covering the costs of preclearance; the treatment of information collected by preclearance officers; and a shared jurisdiction framework applicable to alleged criminal offences committed by preclearance officers.
Further to this, Part 1 of the Act outlines the rules that apply to travellers, such as their requirement to answer a preclearance officer’s questions truthfully as well as their right to withdraw from preclearance. Part 2 of the Act establishes the legal framework governing Canadian preclearance operations in the U.S. and establishes that Canadian legislation related to the entry of persons or the importation of goods into Canada applies to travellers and goods in preclearance areas and perimeters located in the U.S. Part 3 of the Act amends the Criminal Code so that it is not a criminal offence for a U.S. preclearance officer to carry a firearm in Canada in the course of their preclearance duties. It also requires the Attorney General of Canada to suspend legal action against a U.S. preclearance officer when the U.S. gives notice that it is exercising primary criminal jurisdiction under the LRMA. Part 3.1 provides for an independent review of the administration and operation of the Act. Part 4 repeals the Preclearance Act, and makes consequential changes to the Customs Act.
The objective of the Regulations is to support the implementation of Part 1 of the Act.
The Regulations Excluding Certain Things from the Definition of “Goods” under the Preclearance Act; the Regulations Designating Persons and Categories of Persons —Other Than Travellers Destined for the United States — Who May Enter a Preclearance Area; the Passenger Information Regulations (Preclearance Act); and section 238 of the Canadian Aviation Security Regulations, 2012 are repealed and replaced by the Preclearance in Canada Regulations (the Regulations).
Existing regulatory requirements governing preclearance operations in the air transportation mode will be reflected under the Preclearance in Canada Regulations; they are being redrafted and put into one regulation for clarity, coherence, ease of use, and for general application to all modes (e.g. marine, rail, air, and land). As a result, the Preclearance in Canada Regulations will continue to specify classes of persons authorized to enter a preclearance area and the conditions under which they may do so; detail the authorities and responsibilities of U.S. preclearance officers with respect to the disposal of detained, seized and forfeited goods; and clarify the circumstances under which facility operators are required to provide an armed police presence during preclearance operations.
Additionally, three new provisions would be introduced through the Preclearance in Canada Regulations:
- 1. For the purposes of section 18(3) of the Preclearance Act, 2016, the Regulations specify requirements applicable to a person, other than a traveller bound for the U.S., who is present in a preclearance area. If directed by a U.S. preclearance officer, these individuals would have to identify themselves and state their reason for being in the preclearance area. If a person is not authorized to be in the preclearance area, they must leave the preclearance area if directed to do so by a U.S. preclearance officer. These requirements would give effect to provisions of the LRMA.
- 2. When going through U.S. customs at a land, rail, or marine port of entry, Canadian citizens under the age of 16 are not required to produce photo identification. However, the Preclearance Act, 2016 requires all travellers bound for the U.S. to possess photo identification, except in circumstances prescribed by regulation. The Regulations provide an exception to the general rule for Canadian citizens under the age of 16 so that they are not required to carry identification that contains their photograph when travelling to the U.S. by any means other than by air. This exception is meant to ensure that the minimum requirements for photo identification in preclearance areas are not more onerous for travellers than those that would otherwise apply to them upon arrival at a U.S. port of entry.
- 3. The Preclearance Act, 2016 enables any traveller to inform a Canadian senior official of the Preclearance Consultative Group (PCG) of a situation related to a physical search (e.g. strip search, x-ray, body cavity search) authorized under the Act to be conducted by a CBSA officer or U.S. preclearance officer when preclearing travellers for entry into the U.S. A traveller may also provide information about a situation in which they continued to be engaged by a U.S. preclearance officer after their withdrawal from a preclearance area. For example, after a traveller’s withdrawal from a preclearance area, a U.S. preclearance officer may direct a traveller to produce photo identification; question a traveller in order to determine their reason for withdrawal; and visually inspect their conveyance (e.g. car, boat). For the purposes of informing the Preclearance Consultative Group of these types of situations, the Regulations prescribe that a traveller must inform the official in writing. Although not prescribed by the Regulations, in practice, information provided by a traveller will be routed to a Canadian Chair of the PCG (currently, this role is fulfilled by Assistant Deputy Ministers within Transport Canada and Public Safety Canada). Upon the coming into force of the Act, travellers will be able to make submissions through written correspondence and by way of a web portal that will be established by Public Safety Canada. General information on preclearance will be available on Government of Canada websites; these will direct travellers to an online submissions page and provide instruction on alternative methods for providing a written submission (i.e. email or physical address for correspondence).
Furthermore, the Regulations will make a number of consequential housekeeping amendments to the Non-residents’ Temporary Importation of Baggage and Conveyances Regulations; the Immigration and Refugee Protection Regulations; and the Definition of Settler for the Purpose of Tariff Item No. 9807.00.00 Regulations. When the LRMA and the Act take effect, references to the Preclearance Act and the pre-existing Air Preclearance Agreement in these regulations will be replaced with reference to the LRMA and the Preclearance Act, 2016.
Order to Amend the Schedule to the Preclearance Act, 2016
Under the new Preclearance Act, 2016, the preclearance area is not confined to the area where travellers and goods are inspected. In fact, preclearance areas can include the departure lounges in which travellers wait to board a conveyance (e.g. an airplane, train or vessel), the conveyance itself while it is stationed in preparation for departure to the U.S., and baggage handling areas. The Preclearance Act, 2016 will also allow for the designation of “preclearance perimeters” in which U.S. preclearance officers will be carrying out functions aimed at securing the conveyance destined for the U.S. For example, U.S. preclearance officers will be permitted to inspect the exterior of the conveyance, examine goods being loaded onto the conveyance, and to require a person in the perimeter to identify themselves and their purpose for being there. The preclearance perimeter will be those areas in the immediate vicinity surrounding the conveyance while it is stationed in preparation for departure to the U.S.
Physical locations within an airport or other facilities are not “preclearance areas” or “preclearance perimeters” unless they are designated as such. The Minister of Transport will be responsible for designating preclearance areas and perimeters located at air-, marine-, and rail-based locations. The Minister of Public Safety and Emergency Preparedness will be authorized to designate preclearance areas and perimeters located at land-based locations (e.g. vehicle-based border crossings).
Unlike under the Preclearance Act regime, the types of locations within which a physical site can be designated as a preclearance area or perimeter must be listed in the Schedule to the Preclearance Act, 2016. When the Act received royal assent, the Schedule did not list any locations. The Order Amending the Schedule to the Preclearance Act, 2016 lists four categories of locations where preclearance areas and perimeters can be designated: i) aerodromes; ii) marine facilities; iii) railway stations and terminals; and iv) any highway, road, bridge, tunnel or path that connects Canada with the United States.
If the Schedule were not amended concurrently with the Regulations and the coming into force of the Act, then when the LRMA takes effect, existing preclearance operations that occur at eight Canadian airports would no longer be authorized. To ensure that preclearance operations at these airports continue uninterrupted, and to also enable preclearance to be conducted at marine, rail, and land facilities in the future, the Schedule to the Act is amended to include descriptions of marine, rail, land, and air locations.
The Regulations would not result in any increases or decreases in administrative burden for businesses. However, Element B under the “One-for-One” Rule does apply to the Regulations because they repeal four existing regulatory titles and replace them with one new regulatory title; as a result, a net amount of three titles out is counted under the rule.
Small business lens
The small business lens does not apply because the Regulations have no impact on businesses.
During the development of the LRMA, airport authorities, major airlines and industry stakeholders were consulted on the changes to the existing preclearance regime. Representatives from airport authorities, airlines, and other stakeholders have expressed support for the expansion of U.S. preclearance operations in Canada and have been periodically briefed at various annual events since 2014 through bilateral meetings, and through such venues as the Eastern Border Transportation Coalition and the Pacific Northwest Economic Region conferences and at meetings of the Transportation Border Working Group. Additional stakeholder consultations were held during the development of the Preclearance Act, 2016.
Targeted consultations on the Regulations alone were not undertaken, given that they largely reflect existing regulatory requirements and operational practices. However, there has been significant stakeholder engagement on implementation of the LRMA, the Preclearance Act, 2016, and how the regulations support the broader regime.
For example, at the Canadian/American Border Trade Alliance conference from May 6 to 8, 2018, in Ottawa, and at the Eastern Border Transportation Coalition meeting on September 12, 2018, in Burlington, Vermont, stakeholders received detailed briefings on the differences between the Air Preclearance Agreement and the LRMA, and how those differences impact them. Included in these briefings was an overview of what requirements would be outlined in regulations (e.g. who may enter a preclearance area and perimeter and obligations of a facility operator).
The Regulations support implementation of the Preclearance Act, 2016 and help fulfill Canada’s international commitments under the LRMA. The Regulations are not expected to result in incremental costs for the eight airports where U.S. preclearance is already conducted because the Regulations reflect existing regulatory requirements and operational practices.
For any facility that chooses to adopt preclearance activities in the future, that facility (in any mode of transportation) would become newly subject to the Regulations. Any decision by a facility operator to conduct preclearance activities would include an assessment of the costs associated with implementing the Regulations. The Regulations do not impose incremental costs on existing or prospective facility operators above and beyond what is already required by the existing regulatory regime for preclearance operations under the Air Preclearance Agreement.
The new requirement to introduce a public input mechanism will result in minor implementation costs for Public Safety Canada, as it will require the development of a process to address and compile public comments, to provide this information to Canadian officials who are members of the PCG, and to support any appropriate actions taken in response to the comments received (e.g. responding to travellers). Public Safety Canada will manage these costs within existing resource allocations; no new funding will be sought to support this process.
Implementation, enforcement and service standards
Expansion of U.S. preclearance in Canada is market-driven and voluntary. In this context, it is recognized that preclearance may not be a financially viable option for all facility operators. In considering whether preclearance should be pursued, it is incumbent on interested operators to undertake a detailed and informed cost-benefit analysis. This would include detailed consultations with U.S. Customs and Border Protection to fully understand U.S. technical design standards and resource capacities, as well as ensure they appreciate the legal requirements associated with preclearance, including the requirements under the Regulations. The Government of Canada will play a facilitative role in this process when and where possible.
Public Safety Canada plans to develop guidance that would support operators that are considering implementing preclearance at their facility (e.g. to provide an overview of Canadian legislative and regulatory requirements and the terms and conditions under the LRMA applicable to them).
The Regulations will apply at all designated preclearance areas and preclearance perimeters on the day the Preclearance Act, 2016 comes into force. The designation of preclearance areas and preclearance perimeters at the eight Canadian airports would take effect concurrently with the coming into force of the Preclearance Act, 2016. Going forward, the Regulations would apply to existing preclearance facility operators, the operators of any new preclearance sites (on the date their designation takes effect); U.S. preclearance officers; and any other person in the preclearance area.
Under the LRMA, the PCG, which is comprised of senior Canadian and U.S. government officials, is the governing body established to oversee preclearance operations. Specifically, its mandate is to review performance and resolve any issues related to the implementation of the LRMA. The PCG is also the body to which operational and administrative issues at individual facilities are referred if they cannot be resolved by parties administering on site (e.g. the facility operator); this would apply to any of the requirements set out in the Regulations as they pertain to preclearance officers, facility employees and facility operators.
Public Safety Canada is examining a means to regularly collect information, likely on an annual basis, on preclearance administration in Canada directly from those involved in its delivery, i.e. U.S. officials and facility operators. To the extent that the feedback from this exercise identifies systemic or facility-specific issues, including those related to the Regulations, the results will be shared with the Canadian officials of the PCG and potentially referred to the full PCG for resolution. However, the LRMA makes clear that the inspecting country and facility operators are expected to try to resolve facility-specific issues as a first step.
Under the Preclearance Act, 2016, the Minister of Public Safety and Emergency Preparedness is also required to ensure that an independent review of the Act, including its administration and operations, is undertaken within five years of it coming into force. This review represents an opportunity to address any operational issues that have arisen over the course of the administration and implementation of the Preclearance Act, 2016 and its regulations.
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