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Seanad Éireann debate -
Tuesday, 9 Jun 2009

Vol. 195 No. 15

Aviation (Preclearance) Bill 2009: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The purpose of this Bill is to give legal effect to a landmark intergovernmental agreement reached last November between Ireland and the United States of America on air transport preclearance. Air transport preclearance means passengers of US-bound flights from Ireland can be fully cleared for entry to the United States in respect of all necessary US controls and checks, including US immigration, customs, agriculture and security checks, prior to departure. This will allow aircraft to land at an extended range of US airports and will facilitate easy onward connectivity to all points within the United States. This is a significant development for Irish aviation. As well as improving the passenger experience for those travelling to the US, preclearance should over time contribute significantly to growth in travel to the US and to the growth of new business for Irish airports as airlines take advantage of unique opportunities arising from access to a wider range of airports in the US. Preclearance for commercial aircraft is due to commence at Shannon on 29 July next and for private aircraft there in September. Preclearance is due to be introduced at Dublin Airport when terminal 2 opens next year.

It is understood the US authorities have no plans to introduce similar facilities elsewhere in Europe. This provides Irish airports with a unique marketing opportunity in attracting airlines and creating new business in the key transatlantic aviation market. Under this legislation, and no other, US preclearance officers in Ireland will be empowered to carry out their duties in dealing with requests for entry into the United States. In other words, the only powers to be exercised by preclearance officers at Dublin and Shannon airports will derive from this legislation only and will only be exercisable within clearly defined preclearance areas. Other powers assigned to preclearance officers in the United States are derived from US law but of course these are not exercisable in Ireland in the performance of preclearance duties.

The preclearance agreement with the US, on which this legislation is based, has been drafted in close co-operation with the Office of the Attorney General to ensure it is consistent with the Irish Constitution. Accordingly, the laws of Ireland, and of no other country, will apply at all times in the preclearance facility and the various preclearance areas and the only powers that can be exercised by a preclearance officer are those created by Oireachtas na hÉireann under this legislation.

The transatlantic aviation market is of enormous strategic, economic and cultural importance to Ireland but it has to be recognised that the ongoing global recession and high aviation fuel costs are having a seriously negative impact on the industry. Consumer demand for air travel has fallen sharply and transatlantic traffic is being hit particularly hard this year. The challenge will be to ensure that Irish aviation is well positioned to take advantage of the economic recovery when it comes. It is in this context that the full potential of preclearance can be realised and that includes the promotion of Irish airports as hubs for in-transit preclearance. Already there have been a number of outside expressions of interest in preclearance. In particular, British Airways has announced that it is considering a business class only service from London City Airport to the US with a stopover at Shannon, precisely for the purpose of taking advantage of the preclearance services there. Preclearance is also being introduced at Shannon for private US bound aircraft from September next. In line with the interest shown by commercial aviation, we can expect an increase in private and business aircraft routing through Shannon to take advantage of preclearance. All additional aircraft routing through Shannon will have a positive commercial impact on the airport and the surrounding region.

Preclearance is the process whereby all inspection and clearance requirements under US laws for travellers arriving into the US are carried out at the departing airport. Such passengers arriving at US airports are then processed without further official contact. On arrival at the US airport they will have a status similar to that of passengers arriving from another US airport. For passengers the benefits are that they are processed through all US entry procedures before they travel, knowing that when they arrive at their destination they will have an uninterrupted passage through the US airport. In addition, passengers will be able to travel onward to other US destinations, while remaining airside thereby obviating the need for further security and baggage checks. The airport authority will be able to market its airport as a hub for US bound flights having these preclearance advantages. This service is not on offer to any other European county.

Under this legislation preclearance officers of the US customs and border protection service will be authorised to carry out certain functions at designated preclearance areas of Irish airports in respect of passengers and aircraft bound for the US that would otherwise be carried out on arrival in the US. The functions of preclearance officers in Ireland shall include the inspection of individuals and their goods and aircraft, the searching of individuals, with the assistance of a member of the Garda Síochána in certain circumstances, and the holding of individuals, where the circumstances warrant it, pending the arrival of a member of the Garda Síochána who would then take charge. Where, during the course of an inspection, a preclearance officer discovers an item the possession of which constitutes an offence under Irish law the officer would seek the assistance of an Irish law enforcement officer.

If a situation arises where goods need to be seized, they shall be seized by an Irish law enforcement officer. The Bill makes provision for a right of appeal in situations where goods have been seized. The necessary preclearance facilities will be provided by the airport authority and the costs recovered from the participating airlines through a passenger charge. When negotiating the agreement, both sides saw the merit in not including in the agreement the details of operational procedures for the practical implementation of preclearance on the ground. It was decided these would be negotiated separately between the parties and agreed before implementing preclearance.

Section 1 of the Bill provides for the interpretation of the Act. Section 2 enables the Minister to make regulations designating preclearance areas at the airports. In such areas US preclearance officers would be able to undertake necessary procedures to grant preclearance to passengers seeking entry to the US and necessary security safeguards would be implemented. The airport authority, the Minister for Justice, Equality and Law Reform and the Revenue Commissioners would be consulted before the making of such regulations.

Section 3 outlines the duties and responsibilities of travellers in the preclearance area such as an obligation to provide an accurate written declaration of all goods and complying with the lawful requirements of an Irish law enforcement officer or a preclearance officer. Failure to adhere to such obligations constitutes an offence.

Section 4 provides the traveller with a right to withdraw from the preclearance area at any time subject to certain exceptions relating to threatening or obstructive behaviour by the traveller or where a person is suspected of committing an offence under Irish law. Section 5 outlines the functions of preclearance officers when processing applications for preclearance, including powers to search a traveller and his goods with his consent and to search a person and his goods in the preclearance area without warrant when suspected of posing an immediate threat. Preclearance officers may also detain a person or private aircraft where an offence is suspected and forthwith deliver that person or private aircraft into the custody of an Irish law enforcement officer to be dealt with in accordance with Irish law.

Subject to subsection 5(4), preclearance officers may also detain goods, which are not accurately declared by a traveller and forthwith deliver them to an Irish law enforcement officer for the purposes of sections 8 to 10 of the Bill, which deal with a special procedure for seizure and detention of goods to be administered by the Revenue Commissioners. Under section 5(5) preclearance officers, as a condition for the grant of preclearance, may require the traveller to pay a sum of money that would be payable by that traveller on postclearance in respect of any particular goods or to surrender the goods.

Section 6 sets out the functions of Irish law enforcement officers in the preclearance area where a person is suspected of making a false declaration of goods or is in possession of goods that are controlled or prohibited in the State or if the person is suspected of otherwise posing a threat to persons in the preclearance area. An Irish law enforcement officer may search the person without warrant and detain the person for such time as is reasonably necessary for carrying out the search subject to certain provisions. An Irish law enforcement officer may examine, seize or detain anything found in the course of the search that might be required as evidence in a prosecution. Section 6(6) provides that the powers granted under section 6 shall not prejudice other powers exercised by Irish law enforcement officers to search, seize or detain any goods.

Section 7 restricts entry into the preclearance area to preclearance officers, travellers and other authorised personnel. It also sets out the powers of preclearance officers and Irish law enforcement officers in the interest of security and the proper functioning of the preclearance area. It also empowers those officers to request a person to leave the preclearance area in certain circumstances. A person who contravenes these provisions shall be guilty of an offence.

Sections 8 to 10, inclusive, provide for the seizure of goods not declared or falsely declared, procedures for making a claim to the Revenue Commissioners in respect of goods seized and procedures to be followed by the Revenue Commissioners in the event of the seizure of goods and the processing of claims by the Revenue Commissioners.

Section 11 provides that the responsibility for costs incurred in respect of travellers refused preclearance are to be borne by the air carrier. The air carrier may recoup the costs from the traveller. Section 12 clarifies the status of in-transit preclearance travellers under the Aliens Act 1935 and the Immigration Act 2004.

Section 13 provides for the privileges and immunities of citizens of the United States who are assigned to carry out preclearance functions in the State under this Act. In line with article IV(4) of the agreement, section 13(6) enables any person to sue the Minister, who would be precluded from suing the US authorities because of the immunity granted under this section.

Section 14 empowers an airport authority to charge fees to air carriers availing of preclearance. Section 15 is a standard provision relating to the power of the Minister to incur expenses in the administration of the Act.

Section 16 gives the Minister the power to make general regulations as necessary to give effect to the Act and agreement and make regulations to ensure the integrity, security and proper functioning of preclearance areas. Sections 17 and 18 provide for the offences and penalties to be applied under the Act.

Sections 19 to 21, inclusive, provide for the repeal of the Air Navigation and Transport (Preinspection) Act 1986, a minor amendment to the Third Schedule to the Freedom of Information Act 1997 and for the short title and commencement of the Act.

The Bill does not have significant financial or staffing implications for the Exchequer.

The potential for job creation and long-term economic benefits for Ireland contained in this Bill are obvious. preclearance will present the industry with an opportunity to grow business in such a key international gateway for the country. While the immediate challenge will be to weather the current recession, I firmly believe that all international airlines, including Aer Lingus, will fully embrace this unique opportunity to grow their business over the long term. This is an important development for our State airports, particularly Shannon Airport where preclearance will be introduced a full year ahead of Dublin. I urge the airport authorities to fully utilise this unique marketing advantage.

Good international air access is a key factor in mitigating the impact of Ireland's peripheral location, in particular that of the west of Ireland. This is even more important now in times of recession. Growth in air transport links has played a significant part in our economic success since the mid-1990s. I firmly believe that this initiative will help ensure that air transport plays an even greater role in our economic recovery in the future. I commend the Bill to the House.

I welcome the Minister to the House. I also welcome this legislation. As the Minister said, it is a legislative change that is very much to be welcomed. I agree with his concluding remarks that during times of great economic difficulty, such as those in which we find ourselves, there is no single silver bullet remedy that will release us from them. Achieving that will require the implementation of a suite of measures, each of which, individually, might not deliver a great deal but when implemented together would deliver the effect we seek. I have no doubt our tourism industry will consider this to be a meaningful measure that will help to boost the competitive advantage of our country in terms of attracting tourists and passengers.

I will focus on five questions concerning the legislation and two questions on its operation, particularly within the relevant airports. I emphasise I pose these questions in the context that this legislation is a welcome initiative that will make a difference in attracting tourists and passengers to this country.

My questions relate to the role of preclearance officers and to sections 13 to 15, inclusive. My first question is a simple one, namely, will preclearance officers be allowed to carry weapons in preclearance areas? This is not stated as a fact and is not identified in the legislation. Through this discussion we are beginning to understand how the legislation will operate. I would like the Minister to indicate whether any of the personnel in question will carry weapons on Irish soil or in the preclearance area.

My second question relates to section 13(1) which specifies that the preclearance officer shall be a national of the United State and assigned and posted to the State. Is it necessary that the people who will perform the role of preclearance officers must be American nationals? People who work in these airports are local people who would be aware of the importance of the preclearance area to the airport and to the broader region. I want clarification as to whether it is specified in this section that people who will perform this role need to be nationals of the United States. That appears to be the case from this section, but I would like the Minister to clarify that.

Section 13(5) provides that all documents that would be used within the preclearance area would be regarded as archives kept at a consulate within the meaning of the Consular Conventions Act 1954. Does that mean that any of the decisions made in this area or paperwork in this respect would be exempt from freedom of information requests. I note section 20 includes a reference to previous legislation in terms of the Freedom of Information Act 1997. Would any decisions that would be made on the operation of the preclearance area be covered by the Freedom of Information Act?

My fourth question relates to section 13(1), which indicates that a preclearance officer shall not be amendable to the jurisdiction of the judicial or administrative authorities of the State in respect of acts performed by him or her in the exercise of his or her functions. That appears to indicate that this officer will have a degree of diplomatic immunity. Will that be the case? Is that the norm when such officers are appointed here or in equivalent countries? It appears to be a relatively sweeping indemnity to give to an officer who will be performing this job in our country.

My final question relates to sections 14 and 15. Section 14 provides that an airport authority may charge a fee to air carriers and aircraft commanders availing of preclearance. Section 15 provides that the expenses incurred by the Minister in the administration of this Act shall be paid out of moneys provided by the Oireachtas. If expenses are incurred by the taxpayer for the operation of these areas, for example, the provision of additional gardaí or other personnel, should there not be a mechanism to ensure the State can be reimbursed? It may be that such a mechanism is in existence or is provided for elsewhere in the Act, but I would appreciate clarification from the Minister in this regard.

Those were my main questions about the legislation. I also have two questions about the operation of the system, particularly by the airport authorities. As I said, it is clear the legislation will confer a smart competitive advantage on the airport authorities. I would like to ensure, through the Minister's offices and through the Department, that it makes good use of this. I have only been doing work of this kind over the last two years, but I get the sense that although great work is done to confer opportunities on bodies in the expectation they will make the most of them, we end up looking back and wondering what happened to them. There should be some mechanism in place to ensure the Department is happy with the way in which the system is implemented. Given that our Government had to go to the trouble of negotiating an agreement with the USA, we need to make sure we are getting the most out of it.

I note that the Dublin Airport Authority has indicated, with regard to Shannon Airport, that the current charge per passenger for miscellaneous services is €1.51 and that the fee for using the preclearance facility is to rise to €10.50 per passenger. The authority estimates the cost of providing this facility within Shannon will be around €20 million. I emphasise that a competitive advantage is being conferred on these bodies through the legislation. The last thing they should do is to nullify this by charging passengers unreasonable amounts for using the service. Whatever costs are incurred by the system, the first thing the authorities should do is to find out how they can cover that charge themselves to ensure the bare minimum is passed on to passengers making use of the services. As I said, it is obvious that the way out of our difficulties, particularly in industries such as tourism and aviation, will be through a collection of strong although perhaps small measures. It would be a pity if a measure such as this, which is clearly of great benefit, were nullified due to unreasonable charging of passengers.

The Bill is clearly to be welcomed. It contains many measures that will make a difference to the airports in the regions in question. I ask the Minister to respond to my points in his reply.

Like Senator Donohoe, I welcome this Bill. It was a positive move by the Government, in its negotiations with the American authorities last year, to ensure we got a competitive advantage. Competitive advantage is important for airlines because it is not always the price that can make something competitive; it can be the service or fringe benefits provided by an airline.

With regard to the legislation, there are one or two things about which we should be careful. The fixing of costs should be left to the Minister rather than to the airport authorities, because the airports that have this advantage could decide to use it as a means of taking more cash from travellers, which could cancel out the benefits that will be created. Thus, the cost should be controlled by the Department in conjunction with the airport authorities.

The system will give us an advantage which should be marketed. The Minister stated in his speech that a number of airlines have considered Irish airports as possible hubs for preclearance. The biggest beneficiary of this could be Aer Lingus, which flies into Dublin from its European destinations. If its schedules were designed to encourage people to take their onward journeys with Aer Lingus rather than from other European airports which do not have this facility, it could be a major boost for Aer Lingus. I have no doubt its competitor and shareholder Ryanair will consider ensuring that its flights are timed in such a way as to join up with clearance for US flights from Dublin. This should be considered by both airlines as a means of improving their competitive edge and the service provided to the general public.

Those who have travelled to American airports know that one could end up queueing for an inordinate length of time for immigration clearance and so on. It is not unknown for people to be queueing for two or two and a half hours. After this, one could end up meeting an individual who would put one through the wringer, go through one's cases and so on. This is something about which people have always complained.

Under the system, the personnel who carry out the inspections will have immunity. This is something that must be tightly controlled, and I hope the legislation will be sufficient to do that. There is one thing I do not see in the Bill, namely, an appeal mechanism for those who are refused landing rights in the US. This is something we should consider. In the future, if people decide to travel to Dublin on their way to the US and then discover they cannot go any farther, who will be responsible for repatriating them? Who will have to carry the cost? Will it be the airlines or the individuals concerned? I do not see anything in the Bill to deal with this possibility, but it is one that should be covered because people may try to use the system as a back-door mechanism to enter the country to seek asylum. It is only a minor issue but it should be considered.

The move to preclearance will provide a facility for people to complete various checks before they leave Ireland rather than standing in long queues. They will have the same privileges when they land as a US citizen. This is important. It also means that if they are taking an interconnecting flight in the US they will not have to go through customs between flights. People who use the facilities here will, on arrival in the US, be able to move freely through terminals and get onward connections without having to go through inordinate delays.

The fact that the staff of the preclearance system will be American and will have the equivalent of American Embassy status within the clearance area is something we should keep an eye on. I also have some fear about the length of time data provided by people will be retained. It will be retained indefinitely for those who use the facility. Anyone who feels threatened may decide to use other ways to enter the USA but that would be wrong. The fact that this will be the equivalent of an embassy means this is the only way it could be agreed, it could not be done any other way. The American authorities have stringent regulations for travel documentation and entry. They introduced the biometric passport and made it mandatory for entry into the country.

The preclearance facility is to be welcomed. It will be in place in both Dublin and Shannon. Shannon may not have the facility for a further year but a year is not that long in aviation terms. Airlines often prepare schedules two years in advance. The major advantage will be for our national carrier and those other carriers from America that use Dublin Airport. They will be able to offer preclearance facilities in Dublin and Shannon, allowing travellers faster access to the US, which will encourage people to travel through Ireland on the way to America.

While we are putting this in place, I hope we would also ask the United States to do something with regards to those who have entered the US over the years and are living there undocumented. We might be able to persuade the American authorities to look at an amnesty for such people in the United States. It is not an area within the remit of the Department of Transport but there is a need to look at some way to get the Irish undocumented immigrants addressed. We know in recent times that no one enters the US without a visa but there was a recent incident where an undocumented Irishman died for the want of medical treatment. We should put further pressure on the US authorities to clear up this issue. I spoke to someone recently whose brother has been undocumented in the US for ten years. If there was a family bereavement or wedding, he could not come home. The Minister should ask his Government colleagues to do something. From now on, however, everyone will be properly documented before going to America.

I welcome the Minister. The Bill is obviously welcome as it is required to give legal effect to the preclearance agreement signed by the Minister and the US Secretary of Homeland Security in Washington in November last year. I welcome the indication from the Minister that it is only this legislation that will apply in terms of preclearance and the roles of preclearance officers and Irish law enforcement officers are clearly laid out. There is consistent reference as we go through the sections in the Bill to Irish law enforcement officers.

I welcome the agreement and recognise the Minister's success in progressing it; credit is due in that regard. The primary aim is to facilitate the new preclearance facilities at Shannon Airport, due to open in July, and in Dublin Airport in November 2010. They will be of great benefit to passengers and industry alike. I particularly welcome the fact the first place outside the Americas to offer a full preclearance service to US-bound passengers will be located in Shannon Airport. This is the only such facility proposed for Europe and it offers many opportunities for Ireland to exploit.

Having visited the States many times, with documentation processed both in the US and Ireland on different occasions, I am aware of the difference preclearance makes for passengers. Any US-bound flight leaving Shannon from July and Dublin from November 2010 will offer all immigration, customs and agricultural clearance before take off and, therefore, passengers will enjoy uninterrupted transit. The benefits in time and money saved will be appreciable. The new agreement will also afford a greater choice of airport destinations in the US for aircraft originating in or transiting through Ireland. Passengers will also welcome the change that will allow them to check their baggage through from Dublin and Shannon to their final destinations in the US, even if it involves flights with different airlines.

Preclearance has the potential to boost business. The Shannon Airport Authority hopes to attract up to 70 business jets a day to the airport when the US preclearance facility opens as a result of this agreement. It has been reported that management at the airport is in talks with a large number of airlines, including Middle Eastern carriers, to attract as much stopover business as possible when the service begins. The potential is that some aircraft that currently overfly Shannon might stop and benefit from the preclearance.

Shannon is already a popular technical stop due to its being a 24/7 airport with some of the most competitive fuel pricing in Europe. If this agreement generates additional interest and traffic, when transatlantic operators see advantages in the time and money saved with the ability to bypass the normal airports of entry within the US and proceed directly to their destinations, it can only be good for Ireland. This opportunity must be exploited. Mr. Brendan O'Grady of Universal Aviation in Ireland, a ground support firm for corporate planes that has bases in more than 50 countries, has stated this could encourage multinationals to locate their head offices in this region as chief executives and directors could fly in, do their business, have fast-tracked preclearance, and fly back to their local airports.

Ireland needs every boost it can get economically. I welcome the agreement and this legislation. Between now and Committee Stage on Thursday, we will look closely at the detail of the Bill to check for shortcomings and to suggest possible improvements. Senator Ellis mentioned people who are refused access, an interesting question that should be teased out, particularly when it comes to ensuring there is no cost to the State.

I thank Senators for their contributions and their interest in this topic. I will try to address the number of matters raised and I look forward to working with Senators on Committee Stage. This Bill represents a landmark in the development of Irish aviation and I thank Members for recognising that. I am confident the Government's policy on preclearance will help Ireland on the road to economic recovery when the current recession passes.

The fee being set for preclearance at Shannon will increase from €1.50 to €10.50. This is an airport authority doing its own business and for that reason it would be a matter for it to decide what the costs should be and to recoup those costs. That is provided for in the memorandum and agreement. I do not believe it would be a good idea from anyone's point of view that there should be ministerial interference in that aspect of an airport's business anymore than in any other aspect of its day-to-day business.

It is very important the airport does not price itself out of the market. Obviously, it will have an eye to being as competitive as possible. Currently, air travel is almost a luxury except in respect of low cost fares. I suppose it involves discretionary spending. If too many costs are imposed, it could become very cost sensitive.

A number of Senators spoke about the importance of the facility being available and of marketing it. I have emphasised that repeatedly to the airport authorities, especially in Shannon, which are very alive to the opportunities and conscious of the need to market it proactively. We have offered assistance. The Tánaiste and Minister for Enterprise, Trade and Employment, the Minister for Arts, Sport and Tourism and I have indicated in our various roles that if the airport authorities need us to promote this we will do so as we promote Enterprise Ireland or IDA Ireland companies or Ireland as a destination for work. Senators are correct that it is very important we do not take it for granted that because this facility is in place and this is the only country outside the Americas which has this facility, it will automatically mean new business. If one does not go out and market it, one will not get that business.

I refer to immunity, the status of that immunity and why American personnel or citizens of the United States of America will provide this service. This is a United States of America service to travellers who originate in Ireland and are travelling to a destinations in the United States of America. Whatever regulation the US has in regard to preclearance officers and immigration, we must recognise that. We cannot second guess it or choose its personnel. As I said, there is a strong role for Irish personnel, including the Garda, in the preclearance area.

Increasing business and generating employment as a result of this facility is more to do with what I spoke about earlier, namely, marketing the facility, increasing the throughput of passengers at airports and attracting businesses from eastern Europe to transit through Shannon, which I believe we can do. That is where the jobs will be created.

Jobs can also be created if private jets land. Good marketing might mean we give people the opportunity to stay overnight or for a few nights in the area before travelling to the United States. Good marketing may capture a market there. That is very important.

I refer to the personnel working in this facility and diplomatic immunity. The officers operating there will have the equivalent of diplomatic immunity. Senator Ellis asked whether the preclearance area will be equivalent to the American embassy. The preclearance area will remain part of Ireland while, technically speaking, the American embassy is American soil. It is important to emphasise that.

A number of Senators raised the question of expenses and costs being met. We do not anticipate there will be huge costs involved and anticipate they will be able to be met from within existing resources.

I refer to the retention of documents. Documents are American consular documents and are the property of the United States of America. We have no control over those documents. They will remain with the United States of America.

I can categorically state that preclearance officers will not be allowed to carry weapons. As I said, where there is a necessity to detain people, they have the power to do so until the Garda Síochána arrives. They do not have a general power. Preclearance officers do not have to be US nationals but the likelihood is that they will be because they will be employed by the United States Government. However, they could be Irish nationals. Many of the people working in immigration inspections regard themselves as Irish because they have been here so long and enjoy it here. If I have missed one or two of the points Senators raised, I am sure we can tease them out on Committee and Report Stages.

Preclearance will bring many benefits to Ireland over the coming years. It will bring financial and economic benefits and will enhance the strong business and cultural relationship which exists between Ireland and the United States of America. It could be very important as another string to our bow in attracting American multinationals to this country. It is very important we use this opportunity to develop air links between the two countries and to maintain the close relationship we have.

This facility will bring obvious benefits to passengers and will make it much easier for them at the end of their journey. It will generate new transit business at Irish airports. We will continue to follow up on a number of active inquiries we have had about that. I am confident there is great scope for enhancing business, helping airports and generating new business opportunities not only in the airports but in their catchment areas.

Question put and agreed to.
Committee Stage ordered for Thursday, 11 June 2009.

When is it proposed to sit again?

Tomorrow at 10.30 a.m.

The Seanad adjourned at 6.30 p.m. until 10.30 a.m. on Wednesday, 10 June 2009.