In-Bound International GA: Is Pre-clearance the Answer?

[from the archives 8/15/2013] by Joseph F. Corrao

The Department of Homeland Security’s Customs and Border Protection agency (CBP) found itself in a dust-up recently when it announced plans to open a “preclearance” facility in Abu Dhabi.1   “Preclearance” is a way of “pushing the border out” to inspect and clear an aircraft and its crew, passengers and cargo at the last point of departure (LPD) before arrival at a U.S. port of entry (POE).  The model has limitations, however, and may be neither the panacea its proponents hope nor the ticking time bomb its critics allege.  

Simply put, “[p]reclearance allows U.S.-bound air passengers to get advance approval to enter the United States from established locations in airports outside the country.”2   CBP’s simple summary glosses over much complexity underlying the concept.  

With respect to international passenger and cargo traffic, nations have traditionally assured their security and exacted customs and import duties at their POEs.  In the traditional model, each nation is responsible for its own borders, so we have about 185 or so potential ways of accomplishing these tasks, more or less, given the relatively recent creation of a few regional schemes, notably the Schengen Agreement in Europe.3  Preclearance represents an extension of the tradition model; at a preclearance facility, CBP places its own personnel and equipment at the LPD on foreign soil, where they perform the inspection and clearance functions normally performed at the POE on U.S. soil.  

In addition to the logistical complexity of placing U.S. Government civilian personnel in a foreign land, such bilateral arrangements are subject to the permission of the host nation and to any limitations of CBP’s operations that the host nation may demand in exchange for that permission.  Historically, CBP resisted the preclearance model because many – perhaps most – potential host nations limit or prohibit the carriage of weapons, certain investigative techniques, and other aspects of CBP’s preferred way of doing business.  

From a security perspective, preclearance is helpful because many contraband items and unwelcome persons are more easily and effectively handled before departure than upon arrival.  Preclearance offers operational and customer satisfaction advantages as well.  Operationally, handling security and customs inspections at the LPD rather than the POE opens up the full range of airports in the destination country to non-emergency operations, thereby making diversions, such as for weather, less challenging when fuel may be low and crews busy.  And passengers may be better able to navigate the challenges of security and customs procedures when they are fresh at the start of the leg than when they are fatigued at the end of the leg.    

On the other hand, as Calio, Moak and Wytkind point out, if thoughtlessly implemented, preclearance seems to give operators at the LPD “a strategic competitive advantage” over operators at neighboring locations.4   Thoughtful implementation can calm this fear.  Studies indicate that approximately 65% of international general aviation flights in-bound to the U.S. either launch from, or pass over, approximately 14 LPD airports scattered around the world; another 25% passes by at least one of those LPDs closely enough to make diversion to one of those 14 locations feasible and the cost of diversion potentially acceptable in exchange for the operational efficiencies and customer advantages of preclearance.  Prioritizing CBP preclearance facilities to these 14 LPDs would go far toward alleviating the fears expressed by as Calio, Moak, Wytkin and others.  

Ironically, the security, operational and customer-satisfaction advantages of preclearance may hold the seeds of the model’s destruction.  Every nation has an interest in protecting its borders.  If the preclearance model is widely adopted, it is foreseeable that LPD airports could be called upon to house customs officials from a large number of countries, and that each country may feel it necessary to maintain preclearance facilities at a large number of LPDs.  Clearly, such a scheme would not be workable for LPD airports, for nations, or for travelers.  

Moreover, the right of each host nation to limit, even to prescribe, the manner in which the inspecting nation (the preclearing nation) conducts itself on the soil of the host nation, limits the utility of the preclearance model.  Undoubtedly some host nations’ requirements will not be acceptable to some preclearing nations, limiting the preclearance scheme and, in all likelihood, limiting it most severely precisely where the preclearing nation would consider it most needed.  

For these reasons, it may be wise to envision an alternative model that can provide the benefits of preclearance while avoiding the preclearance model’s inherent weaknesses.  For example, one may envision each LPD nation accountable for the security and customs and import duties of each downstream POE nation.  In essence, each nation would employ its transportation security and customs personnel, on its own soil, to focus on out-bound international traffic rather than in-bound.  In this model, cooperation among participating nations would have to be very high and very consistent; clearly, to make this model even thinkable, some mechanism of test and verification must also be envisioned.  As the most thoroughly regulated transportation mode on the face of the planet, aviation may be well positioned to develop such a model; the International Civil Aviation Organization (ICAO) may be a place to design it, along with the test and verification methods necessary to make it more than a laughable idea.  

Realistically, is such a scheme feasible?  Perhaps.  Observe that CBP is recruiting travelers to participate in “Global Entry,” a program that “allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States….  At airports, program participants proceed to Global Entry kiosks, present their machine-readable passport or U.S. permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs declaration.  The kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit…. Travelers must be pre-approved for the Global Entry program.  All applicants undergo a rigorous background check and interview before enrollment.”5   

Global Entry is not equivalent to, nor a substitute for, physical screening.  No amount of identity verification, with or without biometric ID cards to memorialize it, nor any amount of background checking, will detect or deter first time operatives or dupes.  Such people will use their own names and biographical information and will pass any background check.6

In-bound international travelers who participate in Global Entry are physically screened, to agreed international standards, before boarding at the LPD.  Global Entry facilitates collection of customs duties at the POE, but physical screening is not eliminated; it is accomplished at the LPD before departure.  

And this is the point: To the extent that Global Entry implicitly leans on physical screening performed by the screening agency of the LPD country, it may reflect a tacit, perhaps unknowing, experiment with the alternative model described above.  

One thing seems clear: When Russia, China, or any other nation, concludes that, if preclearance at a foreign LPD such as Shannon Ireland is advantageous to the United States, it may also be advantageous to themselves, the practical limit of preclearance will have been met.  The preclearance model will not long endure thereafter.  It might be wise to envision a multi-lateral scheme to take the place of bilateral preclearance agreements while there is a bit of time to do so, or prepare to revert to the traditional model.

Citations

1 See, e.g., Calio, Moak & Wytkind, “Why preclearance in Abu Dhabi is a bad deal for America,” in The Hill’s Congress Blog (July 22, 2013) at https://thehill.com/blogs/congress-blog/economy-a-budget/312337-why-preclearance-in-abu-dhabi-is-a-bad-deal-for-america.

2 For more information about CBP's preclearanceprogram, see  https://www.cbp.gov/xp/cgov/toolbox/contacts/preclearance/ .

3 For more information about the Schengen Agreement, see https://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm .

4  See Caio, Moak & Wytkind, op cit.  

5  For more information on CBP's Global Entry program, see https://www.globalentry.gov/about.html .

6  See “Rethinking Pre-Check” in the Spring 2013 issue of GA Security magazine (Vol. 3, No. 1) for further discussion of this point.