Pre-clearance will be major hurdle in Perimeter Far from a done deal, border plan must confront law enforcement authority, budget woes, need for political will. By Carl Meyer Published December 14, 2011    8 Comments

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Canada and the United States last week announced a mammoth undertaking to reshape their relationship and build a new bilateral fortress, one that analysts say drives the relationship forward on several fronts, but remains silent on price tags and legal issues surrounding cross-border policing.

"These agreements create a new, modern order for a new century," said Prime Minister Stephen Harper on Dec. 7 in Washington, alongside US President Barack Obama, as they announced the results of nine months of talks: the Perimeter Security and Economic Competitiveness Action Plan, and the Regulatory Cooperation Council Joint Action Plan.

The perimeter plan released to the public establishes commitments and names which departments and agencies are responsible for getting things done. A long list of deadlines runs through the document, reaching forward to 2016 (see page 5). By the end of 2012, dozens of changes to how Canada interacts with the world will be in the pipeline.

The plan broadly aims to achieve two things: pushing out the inspection of cargo and people to offshore or overseas locations, or at the perimeter of the continent, and aiming to make the land border more efficient for business and travellers.

It tightens security through a system that tracks who is in and out of the country, lets police on both sides enter each other's territory, and pre-screens travellers and cargo shipments, as well as aligns many Canadian travel and trade programs with similar US programs. Both countries will also jointly manage and develop their border infrastructure.

The other plan involving regulatory co-operation aims to develop common approaches to food and transportation safety standards, food certification requirements and marketing rules, health care products, and the environment.

But because the plan has no dollar signs, a debate is forming around whether the items in the plan will be paid for with new or old money. And big legal issues over how US customs officials will enforce the law in Canada are still looming over the talks, as past efforts to address the same issues fell flat.

Give and take

Officials said the talks were composed of teams of five to 10 officials per side, who tackled issues over a half-dozen face-to-face meetings, as well as a series of teleconferences. It was a process of give and take, and observers say both sides emerged as winners.

Edward Alden, a senior fellow at the US-based Council on Foreign Relations, said one of the biggest issues is US Customs and Border Protection officials stationed in Canada operating pre-clearance facilities for both goods and people.

Canada has wanted more pre-clearance facilities for years, but American officials have worried that because it does not have the authority to arrest people and detain them while in Canada, terrorists could exploit the system, probing it for weaknesses. In 2007, the Bush administration tried to work out a pilot project at the Peace Bridge crossing at Fort Erie, Ont., but it fell on its face.

Mr. Alden said Homeland Security Secretary Janet Napolitano had rejected the notion of pre-clearance as recently as February 2011. And the US Department of Homeland Security has been incredibly "risk-adverse" and wary of foreign relations, he said, pointing to Ms. Napolitano's 2009 assertion that terrorists regularly entered the US from Canada.

But the department now appears to be embracing pre-clearance. The perimeter plan makes a broad commitment to move forward on the issue with Canada. As well, on Dec. 9, in a discussion with the Council on Foreign Relations about pre-clearance facilities around the world, she said it was "a big deal" for the department and "a huge step forward."

Others like Greg Anderson, assistant professor of political science at the University of Alberta, are skeptical of the conditions surrounding how the law will be changed to permit US officials to arrest and detain people in Canada in and around pre-clearance facilities.

Roland Paris, director of the Centre for International Policy Studies at the University of Ottawa, also noted the plan only called for addressing the situation again, but gave no indication that the long-held pre-clearance issues were going to be any easier to tackle this time around.

Even so, there are other breakthroughs, such as the goal of developing an inventory of fees at the border—an admission that the growth of border charges is hurting competitiveness and hurting trade, said Chris Sands, a senior fellow at the US-based Hudson Institute.

As well, he said the commitment to develop joint risk assessment criteria for cargo was a big step for a US government famously wary of foreign interference in its security.

"What it means is, for the first time since September 11^th, the US is trying to develop security standards in conjunction with an ally," he said.

And the plan for an integrated entry-exit system was another US win, he added. Congress has mandated the acquisition of exit data, and Canada agreed to implement entry recording at land ports. What they're working towards now is filling in the gaps.

"That's ambitious," said Mr. Sands. "It will take a while to implement, but that's the big thing Americans wanted."

Mr. Alden agreed the breakthrough was a win for the Obama administration, which can now tell Congress that it can do something on the entry-exit program it had been looking at since 1996.

Dollar bills

The plan tacitly calls for additional staffing for border crossings and pre-clearance facilities, as well as infrastructure, and a host of new duties for officials, bureaucrats and other government and private-sector workers—in other words, things that require lots of money.

But since it is oriented towards establishing deadlines, the issue of how everything will be paid for is avoided. Budget figures will still have to be hammered out on both sides, leading many to question whether the perimeter plan is just building castles in the sky.

Canadian officials, while staying tight-lipped about financing at the announcement on Dec. 7, predicted there would be money for border measures in the 2012 budget. But with a federal deficit reduction plan rumoured to be tilting towards 10 per cent slashes to direct program spending rather than the softer five per cent that is also being considered, it is not certain how much cash will be available.

How the Americans will pay for things is even less clear. In the US, Congress holds the purse strings, so any new money required would have to get its blessing. But on Dec. 7, Canadian Manufacturers and Exporters president Jayson Myers said he was confident the measures contained in the plan could be funded with departmental appropriations that Congress already approved in years past.

Mr. Alden agreed with that assessment. He said the Canada-US border had mostly never been a congressional issue, and Congress wasn't likely to get involved now either. As well, Homeland Security has already received budget authorizations that should cover any cash problems, he said.

One example of pre-approved funding, said Mr. Anderson, would be the entry-exit system that Congress approved in the 1990s and re-established in the Patriot Act in 2001. There would be no need to ask for new money, he said.

At the same time, he also said he was doubtful that the plan could be carried out if Congress does have to get involved.

"If they have to go to Capitol Hill to do very much, will the president want to spend that capital, especially in an election year?" he asked.

The US is under severe financial stress, and departments are being told to tighten their belts—especially Homeland Security, which has significant new responsibilities under the border plan.

Ms. Napolitano has publicly complained about cuts to her department, stating Dec. 9 that she suspected disaster-response grants, first-responder training and research will all be affected.

"I just don't know how realistic [more border funding] is, unless you can engage Congress in thinking that this is really important, in which case you can get a few key members of Congress to try to secure spending for this," said Mr. Sands.

Success possible?

The Dec. 7 plan gives the public a peek at where Canada and the US want to take their relationship in the next few years, but it is far from a done deal.

Many analysts noted that the plan is being handed down on the cusp of the American presidential election, which they said could disturb the carefully-planned schedule of deadlines.

The perimeter plan did not dispense with the long-standing issues plaguing the Canada-US relationship and border, said Mr. Paris. It commits to reaching agreement on many issues by December 2012, but it remains to be seen what that agreement will contain.

It will also require a huge amount of political push, he added, something that will be hard to come by in a Washington preoccupied with the presidential race.

And he said the fact that the regulatory co-operation plan was far less hashed out than the perimeter plan could be an indication of where Canada gave its concessions—but that wouldn't be made obvious until the real deal is seen.

Mr. Anderson played down the impact of the plan, disagreeing with Mr. Harper's statement on Dec. 7 that it was "the most significant steps forward in Canada-US co-operation since the North American Free Trade Agreement." Mr. Anderson argued instead that it was pushing forward a series of long-standing bilateral issues.

Some aspects of the plan will also be difficult for the public to judge success or failure, said Mr. Alden. For example, if pre-clearance is eventually implemented for passengers, the public will have little to no knowledge of whether the system is working, since approved travellers will not see who is rejected, he said. Other aspects, like publishing wait times for border crossings, will be more publicly visible.

Another barrier to the perimeter plan's success is its similarity to the Security and Prosperity Partnership, the trilateral North American pact launched in 2005 that failed spectacularly after a procession of protests, bad press, and few accomplishments.

David Biette, director of the Canada Institute at the Woodrow Wilson International Center for Scholars, said the SPP "was a tarnished brand, but the issues didn't go away."

He argued the perimeter deal could avoid the same fate, but only if there is political will on both sides and it continues to fly under the American public's radar. (A reporter's question to Mr. Obama on the Keystone XL pipeline during the perimeter announcement got more US press than the plan itself.)

The reason the SPP failed, said Mr. Sands, was that "people felt that it was a bunch of secret negotiations on things, and there wasn't enough transparency or accountability to the process." There is a danger of that happening again, he said.

Even government officials acknowledge the similarity to SPP, especially in the area of regulatory co-operation, where they said they were attacking the problem in a more practical and focused way in order to limit the range and fit within a time frame.

But SPP was also known publicly for deep US integration, something some Canadians find disturbing. As University of Victoria research associate Ronald Crelinsten argued in a recent Toronto Star column, "sharing information between Canadian and US law enforcement agencies was what led to Maher Arar's unscheduled trip to Syria."

cmeyer@embassymag.ca

THE 2012 PERIMETER CALENDAR

The 2011 talks conjured a lengthy succession of deadlines that will, one by one, incrementally change the face of the Canada-United States relationship. The calendar spreads out over several years and involves at least 17 federal departments and agencies on both sides of the border. Here are the dates and commitments that both countries have now put forward, edited for length and style:

In 2011-12 / immediately:

- Pursue ratification of Shiprider framework agreement.

- Launch pilot regional resilience assessment program.

- Begin deployment of US-certified explosive detection systems equipment at pre-clearance airports.

In early 2012:

- Establish bi-national port operations committees.

By Jan. 31, 2012:

- Determine the way ahead on information and intelligence in support of law enforcement and national security.

- Establish or identify and leverage existing joint Canada-US pacific region committee.

By March 2012:

- Evaluate and achieve mutual recognition of respective air cargo security programs for passenger aircraft.

- Reduce number of air cargo loads re-screened to zero.

By March 31, 2012:

- Implement joint marketing campaign to promote trusted traveller programs.

- Develop plan to expand NEXUS lanes, booths and access to lanes at jointly identified ports of entry.

- Report publicly on plan toward implementing new technology at all identified border crossings within identified time frames.

- Develop action plans for bi-national port operations committees.

By May 30 / May 31, 2012:

- Create inventory of Canadian and US domain awareness capabilities at the border.

- Complete a joint statement of joint Canada-US privacy principles.

By June 2012:

- Produce common set of manifest data elements.

-Conduct detailed comparison and review of the customs self-assessment and importer self-assessment.

- Develop criteria to extend the applicability of the Free And Secure Trade card for drivers.

- Initiate one-year pilot to provide for advance review and clearance of official certification and alternative approaches to import-inspection activities for fresh meat.

- Identify and develop solutions to operational impediments to the effectiveness of US pre-clearance operations at Canadian airports.

- Establish bi-national mechanisms for conducting joint critical and cyber infrastructure risk analysis.

By June 30, 2012 / summer 2012:

- Develop common set of required data elements for all modes of transport for advance security screening of cargo.

- Launch phase I of the integrated cargo security strategy.

-Extend FAST benefits to members in certain programs at agreed locations.

-Jointly develop plan to incorporate third-country traveller programs.

- Extend NEXUS membership eligibility to expat Canadians and Americans.

- Provide enhanced administrative guidance and training to border officers.

- Develop and implement operational and administrative policies and requirements to facilitate the movement of specialized personnel.

- Review the effectiveness of existing redress and recourse mechanisms for business travellers whose applications are denied.

- Develop co-ordinated project investment and implementation plans that will constitute the first bilateral five-year border infrastructure investment plan.

- Develop joint action plans for all small ports and incorporate recommendations into the infrastructure plan.

- Publish wait-time service levels at key crossings.

- Deploy two regularized Shiprider teams.

- Complete the scope of operations and program architecture for the next-generation integrated cross-border law enforcement pilot projects and deploy two pilot projects.

- Develop preliminary planning guides for emergency response.

- Convene the first beyond the border executive steering committee.

By July 2012:

- Initiate a one-year pilot to provide tier-two benefits to the processed food sector.

By Aug. 31, 2012:

- Develop and implement specific approaches to incorporate designating documents onto the NEXUS client profile for predictable expedited clearances.

By September 2012:

- Identify and evaluate options under which trusted traders could use alternate processes and approaches to submit advance data elements.

- Launch phase II of the integrated cargo security strategy.

- Fully implement Canada's Partners in Compliance program.

- Completed and distribute to members a report with recommendations on pilots or new initiatives in regards to additional ways to expedite border processes.

-Implement a truck cargo facilitation pilot project in at least one location in Canada.

By Sep. 30, 2012:

- Create a joint inventory of existing intelligence work and a gap analysis.

- Begin implementation of a pilot project exchanging the data of third-country nationals, permanent residents of Canada and lawful permanent residents in the US.

- Improve current, or establish new processes under which all categories of business travellers may request adjudication of employment and related petitions by the destination country's immigration authorities to identify and resolve potential issues prior to the actual date of travel.

- Publish and make public a joint report on border fees.

By Oct. 30 / Oct. 31, 2012:

- Identify gaps and vulnerabilities in Canadian and US domain awareness capabilities.

- Conduct a tabletop exercise to validate concepts and mechanisms for emergency response.

- Establish the working groups that will develop work plans and validation metrics for bi-national plans and capabilities for emergency management.

By December, 2012:

- Conduct a review of the FAST program.

- Negotiate a pre-clearance agreement in the land, rail and marine modes.

- Complete negotiations to conduct full pre-clearance of goods and travellers at Massena, US.

- Implement solutions to operational impediments to the effectiveness of US pre-clearance operations at Canadian airports.

- Complete study on policy, program or operational changes required to move inspections for wood packaging material away from the border to the perimeter.

By Dec. 31, 2012 / end of 2012:

- Develop assessment processes and joint site-visit plans for commodities of common interest from third countries.

- Develop joint methodologies, including audit criteria, for conducting food safety audits.

- Develop joint audit plans to pilot the evaluation of foreign food-safety inspection systems in third countries.

- Develop a protocol for what information from food safety audits can be shared.

- Complete negotiations to conduct full pre-clearance of travellers and accompanying goods at Vancouver, BC, for US-bound rail and cruise ships.

- Identify and implement administrative and operational improvements to redress and recourse mechanisms for business travellers whose applications are denied.

- Complete and distribute to stakeholders a report on the progress of facilitating the conduct of cross-border business.

- Conduct full evaluation of the bi-national port operations committees.

- Release the initial Beyond the Border implementation report.

By winter 2012-2013:

- Report on results of the emergency response planning exercise and finalize a schedule of periodic reviews of concepts and processes.

By 2013:

- Consider new bi-national port operations committees.

- Implement a systematic and automated biographic information-sharing capability.

- Convert the data requirements of all participating government departments and agencies to electronic form.

By April 30, 2013:

- Prioritize coverage of intelligence awareness gaps.

- Establish a process to coordinate the joint procurement and deployment of technology along the border.

By June, 2013:

- Expand NEXUS lanes and booths at select locations.

By June 30, 2013 / summer 2013:

- Establish or identify and leverage existing joint Canadian-US Atlantic and Great Lakes committees.

- Begin implementation of a program exchanging the data of third-country nationals, permanent residents of Canada and lawful permanent residents in the US, at all automated common land border ports of entry.

- Develop a set of measures to reduce the impacts of shared health-security risks.

By September 2013:

- Evaluate the one-year pilot to provide for advance review and clearance of official certification and alternative approaches to import-inspection activities for fresh meat.

By October 2013:

- Implement an enhanced, scenario-based passenger targeting methodology.

By December 2013:

- Implement a common set of manifest data elements.

- Develop an interoperable communication portal.

- Convert border-related decision processes for at least the top four priority departments and agencies to electronic form.

By Dec. 31, 2013 / end of 2013:

- Complete the pilot regional resilience assessment program.

- Make public real-time information on websites, roadside signs, and other traveller information systems on wait times.

By 2014:

- Implement a systematic and automated biometric information-sharing capability.

- Implement the integrated cargo security strategy.

By June 30, 2014:

- Expand the data exchange program to include all travellers at all automated common land border ports of entry.

- Develop a system to establish exit data.

By March 31, 2015:

- Complete the deployment of US TSA-certified explosive detection systems equipment at pre-clearance airports.

By 2015-2016:

- Deploy two more regularized Shiprider teams.

—Source: Perimeter Security and Economic Competitiveness Action Plan, Dec. 7, 2011. Compiled by Carl Meyer.