Vol. 149, No. 26 — June 27, 2015
Regulations Amending the Passenger Information (Customs) Regulations
Canada Border Services Agency
(This statement is not part of the regulations.)
Issues: Every year, inadmissible travellers arrive at Canadian airports and are subsequently refused entry by officers working for the Canada Border Services Agency (CBSA). The Government of Canada (GoC) currently has no means to systematically indicate to an air carrier whether a traveller is prohibited from entering Canada without prior authorization (a “prescribed person,” by regulation) or whether a traveller has the documents required by regulation for travel into Canada (“prescribed documents”), prior to a flight’s departure for Canada. This inability will present a noticeable enforcement gap upon the introduction of Canada’s new requirement for visa-exempt foreign nationals (FNs) to hold an electronic travel authorization (eTA), a document that cannot be presented for visual inspection by the air carrier, to travel to Canada.
Description: The proposed Interactive Advance Passenger Information (IAPI) regulatory amendments build on the existing regulatory framework underpinning the CBSA’s current Advance Passenger Information/Passenger Name Record (API/PNR) program. These proposed amendments would serve to both expand on and modernize the description of the legal obligations imposed on commercial transporters generally. The proposed amendments would also introduce new data elements in the air mode and would ensure the earlier provision of data that carriers already submit in the API/PNR Program.
The IAPI amendments would provide the CBSA with the authority to apply a systematic mechanism to identify travellers who are not admissible to Canada, either as a result of being previously found inadmissible and lacking the required authorization to return to Canada (ARC), or because they lack the documentation necessary to enter Canada, including the eTA. The IAPI initiative would contribute to preventing prescribed persons and improperly documented FNs from reaching Canadian Ports of Entry (PoE), thereby protecting the integrity of Canada’s immigration program and enhancing public safety. Communicating inadmissibility information in near real-time to air carriers prior to the departure for Canada of commercial flights would inform the carrier’s decision of whether to board an individual.
The IAPI regulatory proposal would amend four sets of regulations made under the authority of the Customs Act and the Immigration and Refugee Protection Act (IRPA):
- Passenger Information (Customs) Regulations;
- Designated Provisions (Customs) Regulations;
- Immigration and Refugee Protection Regulations; and
- Protection of Passenger Information Regulations.
Cost-benefit statement: The total cost of implementing the regulations under the IAPI initiative is estimated at 77.36 million Canadian dollars (CAD) in present value, or CAD 11.01 million in annualized value over the first 10 years of implementation. (see footnote 1)
It is estimated that there would be a total monetized benefit of CAD 2.23 million associated with the IAPI initiative, resulting from the prevention of inadmissible travellers arriving at air PoE. This number is relatively small in comparison with the total costs; however, this represents a conservative estimate in light of data limitations and the inability to accurately monetize all of the savings that would be achieved as a result of fewer inadmissible travellers to be processed at airports. The major benefit of IAPI would be greater confidence in the integrity of the immigration/border controls applied throughout the travel continuum to screen and assess the risk of travellers entering Canada. This would be broadly shared among air travellers coming to Canada, the commercial air carriers, the GoC, and the Canadian population through the benefit of increased national security.
“One-for-One” Rule and small business lens: The “One-for-One” Rule will apply to this proposal, and the related administrative costs imposed by these amendments are considered an “IN” under this rule. The total annualized administrative costs are estimated at CAD 2,780,880, resulting in an annualized average administrative cost per business of approximately CAD 37,579.
The small business lens will also apply. The average total costs (present value) per small air carrier are estimated at CAD 26,380 (or CAD 3,760 annualized). While the flexible option assessed for this proposal is not recommended due to concerns for the safety and security of Canadians, in order to assist small businesses with administrative and compliance costs, the initial option for IAPI implementation is flexible for all commercial air carriers (regardless of size) since it provides two low or no additional cost alternatives to using the “direct-connect” type of data transmission method.
Domestic and international coordination and cooperation: The proposed amendments support perimeter security initiatives under the Canada–United States declaration entitled Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness. Both countries have acknowledged a shared responsibility concerning those entering the perimeter and the need to have a common approach to screening travellers.
The Canada Border Services Agency (CBSA) is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods that meet all requirements under the legislation administered or enforced by the Agency.
The Customs Act and the Immigration and Refugee Protection Act (IRPA) are important pieces of legislation administered and enforced by the Agency. The administration and enforcement of the Customs Act is largely the responsibility of the Minister of Public Safety and Emergency Preparedness. Although the Minister of Citizenship and Immigration is given general responsibility for the IRPA, the Minister of Public Safety and Emergency Preparedness has policy authority over enforcement of the Act, and also for conducting examinations at ports of entry (PoE). The CBSA is responsible for administering and enforcing Canada’s border-related legislation, including immigration enforcement within Canada.
Internationally, an increasing number of jurisdictions require air carriers to provide information on all passengers and crew who intend to travel to their territory. The required data elements are collected and transmitted to border control agencies, usually via an electronic communications system. Some border control agencies, such as those of the United States, Australia and the United Kingdom, have evolved to an interactive system, whereby an interchange of electronic messaging occurs between the border control authority and the air carrier. This type of system provides various responses such as “Board/No-Board,” “Red Light / Green Light System” and “Authority to Carry.”
Increased threats to global security have led to increased cooperation among jurisdictions in recognition of the necessity and importance of the use of reservation information, also known as passenger name record (PNR) data, in the fight against terrorism and serious transnational crime. (see footnote 2) Earlier transmission of PNR data has been adopted as a way to address the pressures brought by the growth of global air passenger traffic, namely to facilitate faster clearance of international passengers and reduce examination time upon arrival.
Canada currently uses a variety of controls throughout the travel continuum to screen and assess the risk of travellers and their goods entering the country. These controls have evolved over time in relation to changes in threats to the integrity of Canada’s immigration program, public safety and security, technological advances, and the best practices of international partners.
The IRPA states that FNs seeking to come to Canada on a temporary basis must, before entering, apply to an officer for a temporary resident visa (TRV) or for any other document required by the Immigration and Refugee Protection Regulations (IRPR). However, a TRV is not required for all visitors to Canada; the IRPR exempt citizens of certain countries and other specified classes of individuals from the requirement to obtain a TRV before entering Canada. As a result, the citizens of 51 countries currently do not require a visa to enter Canada.
Travellers from visa-exempt countries, excluding the U.S., represent 74% of FN travellers to Canada. Whereas FNs from visa-required countries undergo systematic overseas screening for admissibility at the time of application to enter Canada, travellers arriving from visa-exempt countries (excluding those who have applied for and received work or study permits) are only screened for admissibility upon arrival at a Canadian PoE.
Advance Passenger Information/Passenger Name Record (API/PNR)
CIC provides overseas screening and issues documents prescribed by the IRPA or IRPR to travellers who are determined to be admissible to Canada and to meet the requirements of the IRPA. However, as noted above, this examination process does not apply to all travellers intending to come to Canada, meaning that a significant proportion of travellers arriving in Canada are not examined prior to their departure.
All travellers must undergo examination at a PoE upon their arrival in Canada. To facilitate the examination process, the CBSA screens advance information on incoming air passengers as part of its Advanced Passenger Information/Passenger Name Record (API/PNR) program. Since 2002, commercial air carriers have been required to provide the CBSA with API and, beginning in 2003, PNR data relating to all passengers on board a commercial aircraft once it is bound for Canada. API consists of a traveller’s biographic data (namely, the basic identifying information which appears in a passport), and PNR data comprises a traveller’s reservation and travel itinerary contained in a carrier’s departure control and reservation systems (e.g. payment methods, seat number, baggage information). Failure to provide accurate API/PNR information may result in an air carrier being penalized up to a maximum of $3,000 per flight.
Currently, the regulations dealing with API and PNR require air carriers to submit a specific set of API data, whereas carriers are obligated to provide the CBSA with PNR data only to the extent that they already collect this information for their own business purposes. If a carrier does not collect a particular piece of data (e.g. baggage information), it would not be required to provide this information to the CBSA. The API/PNR program currently allows the CBSA to screen in-bound travellers and to identify those travellers who may warrant further examination upon arrival in Canada.
The role of commercial air carriers
Commercial air carriers have several obligations found under sections 148 to 150 of the IRPA. For example, carriers have an obligation not to carry to Canada any person who does not have appropriate travel documents (e.g. passports, visas, permanent resident cards), as prescribed by section 259 of the IRPR. All passengers must be presented, with the proper documentation, for examination by an officer upon arrival at a Canadian PoE.
Similarly, transporters must not carry to Canada a prescribed person, meaning a person belonging to a class of persons, specified in the IRPR as not allowed to enter Canada (for example, a person cannot become a temporary resident if the Minister of Citizenship and Immigration is of the opinion that such an exclusion is justified by public policy considerations).
By working cooperatively with CBSA liaison officers overseas, air carriers are also trained to look for documents that appear to be fraudulent, playing an important role in Canada’s current ability to interdict potentially inadmissible or improperly documented travellers abroad.
Ultimately, a carrier will be held responsible for ensuring that the passengers they carry to Canada are not prescribed persons and that they are properly documented. If improperly documented passengers are carried, the carrier is liable for an administration fee of up to $3,200 per improperly documented FN. Linked to this responsibility is the obligation to arrange for and/or pay for the removal from Canada of most FNs whom they have carried, or caused to be carried, to Canada who are found inadmissible upon examination at a PoE.
Beyond the Border Action Plan
Previously, the TRV was Canada’s only mechanism for screening, prior to their arrival in the country, FNs who intend to come to Canada on a temporary basis. In 2012–13, the CBSA recorded over 2 500 improperly documented arrivals, including 1 750 FNs who arrived without a required TRV.
In 2011, Canada and the United States concluded the Beyond the Border Action Plan (http://actionplan.gc.ca/en/page/bbg-tpf/beyond-border-action-plan). Canada committed to mirroring its programs with similar programs in the United States that pre-screen travellers and advise air carriers of the status of passengers and travel documents. This led to the development of two initiatives:
- the new electronic Travel Authorization (eTA) [www.Canada.ca/eTA], led by CIC, which is designed to improve the pre-departure screening of all visa-exempt FNs, other than citizens of the United States and other exemptions indicated in the IRPR; and
- the Interactive Advance Passenger Information (IAPI) initiative, led by the CBSA, which will serve as a pre-departure screening tool to assist air carriers in their obligations under paragraph 148(1)(a) of the IRPA by providing carriers with information concerning passengers intending to travel to Canada. IAPI will be used to determine whether Canada-bound travellers hold the appropriate documentation to enter Canada and will provide a “board” or “no-board” message based on this information to air carriers prior to an individual boarding a flight to Canada.
The regulatory amendments necessary to implement the eTA program were published in Part II of the Canada Gazette on April 22, 2015 (Vol. 149, No. 8).
Under the eTA program, all visa-exempt FNs, with the exception of U.S. citizens and other exemptions indicated in the IRPR, will be required to hold a valid eTA when seeking to enter Canada by air. Prior to travel to Canada, eTA applicants will be required to apply online, through the CIC Web site, by entering biographic, passport and background information similar to the personal information that is currently collected by an officer at a PoE in Canada. CIC will use the eTA applicant’s information to make an admissibility determination using the criteria set out in the IRPA.
The purpose of the current API/PNR program is to provide officers with electronic pre-arrival passenger information so that they are equipped with the right information in a timely fashion to identify potential security threats before travellers arrive in Canada. The proposed IAPI initiative would build on Canada’s existing API/PNR program by allowing the Government of Canada (GoC) to obtain passenger information earlier in the travel continuum, thus pushing the border out, by providing the CBSA with more time to screen incoming travellers for potential inadmissibility concerns and those failing to comply with Canada’s immigration laws.
Moreover, the IAPI initiative would serve as a validation mechanism for the eTA, by rendering it a “visible” document for air carriers. In addition to providing a means of confirming the eTA, IAPI capability could convey information relating to visa validity, helping to detect counterfeit and/or cancelled visas. This would assist the carrier in making decisions concerning whether a passenger should be allowed to board a plane to Canada. Other travellers in violation of the IRPA are also found inadmissible at Canadian airports and must be returned to their point of departure. One of the important advantages of IAPI is that it will also screen those FNs who are exempt from the requirement to hold a TRV (i.e. those required in the future to hold an eTA).
While most cases of inadmissibility are discovered upon examination of the traveller at a PoE, there are often cases where a traveller’s inadmissibility is based on information that was known prior to the passenger’s arrival in Canada. Those “known to be inadmissible” in this context include individuals who are subject to an enforced removal order (i.e. exclusion or deportation orders) and who are required to obtain an authorization to return to Canada (ARC) but have not done so, and individuals who are the subject of a ministerial declaration deeming them inadmissible to Canada for public policy reasons pursuant to subsection 22.1(1) of the IRPA (a “section 22.1 declaration”). Although they represent a small portion of overall passenger volume, such occurrences can cause significant expenses, delays and inconvenience for international travellers, air carriers and the GoC. Together, the eTA and IAPI initiatives would strengthen Canada’s approach to screening travellers and further align U.S. and Canadian risk assessment procedures.
Limitations associated with the current regulatory regime governing transporter obligations and the CBSA’s screening processes create potential immigration integrity, public safety and national security concerns for the GoC.
Immigration integrity and public safety
The GoC currently has a limited capacity to identify, prior to their departure for Canada, FNs known to be inadmissible to Canada.
Dealing with FNs who are known to be inadmissible once they arrive at a PoE, as opposed to preventing their arrival in the first place, is inefficient for the CBSA and for commercial transporters, and hinders the free flow of legitimate travellers into Canada. Officers must interview the traveller, make a determination of inadmissibility, and complete the required documentation. All of this takes time and resources that could otherwise be utilized to scrutinize other travellers of unknown risk. Air carriers may then be responsible for costs associated with returning inadmissible FNs to their point of departure, as well as medical costs where situations arise on arrival.
Travellers who have previously been found inadmissible under the IRPA could represent public safety threats should they gain re-entry to Canada. For example, FNs previously deported due to violent weapons-related offenses, but who are citizens of countries not subject to visa requirements, can board flights to Canada and, upon arrival, are identified as inadmissible at a PoE.
According to paragraph 148(1)(a) of the IRPA, transporters have an obligation not to carry to Canada persons who do not hold prescribed documents or those persons who are prescribed. Prescribed documents are listed in section 259 of the IRPR, while prescribed persons are listed in section 258.1. Canada’s new eTA, issued by CIC, will not appear in a traveller’s passport and therefore cannot be verified by air carriers before a traveller boards a flight to Canada. The GoC currently has no means to systematically provide this information to an air carrier prior to a flight’s departure for Canada.
CBSA targeting officers are afforded limited time frames to perform their analyses before travellers arrive in Canada, including any required coordination with intelligence officers and law enforcement partners. This coordination process can often take time, which is not always available when PNR is only received upon departure and a flight is of short duration.
Sufficient advance warning of a high-risk traveller’s impending arrival at a PoE would allow the CBSA’s targeting program to put appropriate resources in place to meet and escort these travellers safely off the aircraft for secondary examination when such actions are deemed necessary and appropriate. This is congruent with the work currently being performed by the program; the IAPI initiative would simply allow the CBSA’s National Targeting Centre to receive PNR data earlier in the travel continuum to further assist it in fulfilling its mandate.
The IAPI initiative would introduce regulatory amendments which would serve to strengthen Canada’s immigration program, thereby benefitting public safety and national security, as well as establishing a basis for future priorities in these areas.
Immigration integrity and public safety
The proposed regulatory amendments would modernize the regulatory regime underpinning the legal obligations imposed on commercial transporters in the air mode by accounting for electronic transmission and validation of information, and by updating the regulations to reflect current requirements with respect to acceptability of removal arrangements (i.e. the proposed amendments would remove negative language — what is not acceptable regarding removal arrangements — and replace it with positive obligations — positive in terms of what is acceptable regarding removal arrangements). At the same time, amendments would provide the CBSA with the authority to introduce a systematic mechanism to screen travellers and verify their travel document status, including the existence of a valid eTA, and to communicate this information, typically within seconds or minutes, to air carriers prior to a commercial flight’s departure for Canada.
This information would contribute to reducing the administrative and financial burden on the GoC and commercial air transporters associated with removing from Canada FNs whose incorrect or incomplete travel documents (such as the lack of an eTA) could have been detected by the air carrier and the CBSA prior to the departure of the flight to Canada.
By identifying, in advance, travellers who are known to present admissibility concerns and communicating this fact to air carriers via “no-board” messages, the carriage of these travellers to Canada, interaction between individuals known to be inadmissible to Canada and CBSA officers and other travellers on Canadian soil could be minimized or even prevented.
The proposed regulatory amendments would permit the CBSA to obtain API and PNR data earlier in the travel continuum, thereby increasing the effectiveness of CBSA air mode targeting and intelligence activities by allowing additional time to address any potential high-risk travellers. The proposed regulatory amendments related to pre-departure PNR would come into force at a later date than those with respect to API. Therefore, although there will be national security benefits realized by the IAPI initiative, many of these benefits would be realized at a later date.
Proposed regulatory amendments in support of the IAPI program
The regulatory framework underpinning the CBSA’s current API/PNR program comprises four sets of regulations made under the authority of the Customs Act and the IRPA. The proposed regulatory amendments would be made pursuant to subsections 8.1(8), 107.1(1) and 109.1(3), and paragraphs 164(i) and (j) of the Customs Act, and to subsection 5(1) and sections 150 and 150.1 of the IRPA.
The IAPI regulatory proposal would amend the following four sets of regulations.
Regulations made under the Customs Act:
- 1. Passenger Information (Customs) Regulations
- 2. Designated Provisions (Customs) Regulations
Regulations made under the IRPA:
- 3. Immigration and Refugee Protection Regulations
- 4. Protection of Passenger Information Regulations
The proposed amendments to these regulations are described below.
An explanation of how the various amendments interact to make up the IAPI program follows the description of the amendments proposed to each set of regulations.
The obligations arising from the regulatory amendments described below, in many cases, would apply to all commercial transporters in all modes of travel, but will, for the present time, only be enforced in the air mode until such time as the GoC decides to enforce these obligations for commercial transporters in other modes of travel (marine, rail, highway).
For the purposes of this section, the description of messages as “board” and “no-board” will serve to illustrate the decision points. The actual messages to be transmitted to the air carriers will be in a code format.
1. Passenger Information (Customs) Regulations (PICR)
Pursuant to section 107.1 of the Customs Act, the Minister may require that prescribed information be provided about any person on board or expected to be on board a conveyance within the prescribed time and in the prescribed manner. However, the PICR made under section 107.1 of the Act only refer to specific information being provided to the CBSA for all persons on board a commercial conveyance at the time of departure [emphasis added].
Under the current API/PNR program, commercial air carriers provide the CBSA with API/PNR data beginning at the time of departure. The Agency is therefore currently unable to legally compel commercial air carriers to provide passenger information prior to a flight’s departure for Canada. The IAPI initiative is predicated on the idea that the Agency will receive API data from air carriers in advance of departure, which will provide the CBSA sufficient time to alert air carriers of the fact that passengers may be prescribed persons or may not hold prescribed documents.
The proposed amendments to the PICR would amend these regulations to match the language of subsection 107.1(1) of the Customs Act, which provides for the transmission of information about any person on board or expected to be on board a conveyance [emphasis added]. This amendment would permit the provision of this information to the Agency earlier in the travel continuum. Under the IAPI initiative, therefore, the CBSA would have a legal basis to require that air carriers provide the advance passenger information prior to the departure of passengers for Canada, rather than upon departure of the aircraft.
The proposed amendments to the PICR would also amend or add definitions, including those for “reservation system,” “crew member,” and “time of departure,” applicable to commercial conveyances. Additionally, the amendments would prescribe the circumstances and the conditions under which the regulations would apply, and the general classes of persons to whom the regulations would apply.
The proposed amendments related to API in the PICR would specify that air carriers submit API data to the CBSA “not later than the time of departure” to allow for the provision of API associated with crew members to the CBSA no later than one hour before the time of departure. The proposed amendments would align the API elements described in the PICR with those found at section 269 of the Immigration and Refugee Protection Regulations to the extent possible.
The proposed regulatory amendments related to pre-departure PNR would come into force at a later date, based on considerations such as ratification of the Canada-EU PNR Agreement or, if deemed necessary, national security interests.
These proposed amendments would require commercial air carriers to transmit PNR data no later than 72 hours before the time of departure. In addition, air carriers would be required to provide updates (i.e. where new information is received) no later than 24 hours before the time of departure, 8 hours before the time of departure and at the time of departure. The PNR elements that air carriers are required to transmit to the CBSA, where already collected, are set out in the proposed Schedule to the PICR.
Until the proposed amendments related to pre-departure PNR come into force, air carriers will continue to be obligated to provide PNR data at “the time of departure.”
The proposed amendments would specify that air carriers must provide flight header information when providing both new and updated API and PNR data (on each person carried or expected to be carried) to the CBSA. Flight header information would include the following data elements:
- Date and time of departure;
- Location of the last point of embarkation prior to arriving in Canada;
- Date and time of arrival;
- Location of the first point of debarkation in Canada; and
- Commercial air carrier flight code.
The inclusion of flight header information is necessary to ensure that passengers are associated with the correct flight (via the close-out message, described below), and to ensure that “board/no-board” messages are provided to air carriers for each passenger at the appropriate time.
The proposed amendments would add the Unique Passenger Reference (UPR) associated with each traveller as a data element that must be provided to the CBSA. The UPR will be generated by the commercial air carrier for all passengers specifically for the purpose of communication with the CBSA. The “board/no-board” message is attached to the UPR, rather than the traveller’s name, for privacy reasons. This reference is primarily used for passengers; however, the UPR may also be assigned to crew members in cases where they are reported as passengers by the air carrier.
The PICR would also be amended to require air carriers to provide a close-out message for each flight no later than 30 minutes after the time of departure. This message would indicate the UPR of all the passengers actually on board the flight and would associate the passengers on board the flight to the flight header elements described above. This would permit the CBSA to link each passenger to the flight on which they would be arriving to Canada.
The proposed amendments would also obligate air carriers to notify the CBSA when they become aware of any new or corrected information.
Section 164.1 of the Customs Act provides that regulations made under the Act “may incorporate by reference any material, regardless of its source, either as it exists on a particular date or as amended from time to time.” The proposed amendments would incorporate by ambulatory reference (that is, as amended from time to time) the CBSA Carrier Messaging Requirements (CMR) document into the PICR. The CMR sets out the technical requirements, specifications and procedures required to interact with the CBSA’s system. Incorporating the CMR into the PICR would mean that information prescribed by the PICR must be transmitted to the CBSA in accordance with the technical requirements, specifications and procedures set out in the CMR.
It should be noted that the CMR will be republished annually, and will be publicly distributed to allow reasonable time for impacted clients to review and incorporate any changes related to the technical requirements, specifications and procedures prior to the enforcement of any new system requirements.
2. Designated Provisions (Customs) Regulations (DPCR)
The DPCR designates various provisions of the Customs Act and regulations made under the Customs Act. If a provision designated by the DPCR is violated, the CBSA may issue an administrative monetary penalty (AMP) to the offender. Item 50 of Schedule 1, Part 1, to the DPCR designates section 107.1 of the Customs Act: “Failing to provide, or provide access to, prescribed information about any person on board a conveyance in advance of, or within a reasonable time after, the arrival of the conveyance in Canada.”
In 2012, the provision on passenger information in subsection 107.1(1) of the Customs Act was amended to include information about “any person on board or expected to be on board a conveyance” [emphasis added]. Item 50 of Schedule 1 of the DPCR references section 107.1, but still employs the more limited wording “any person on board,” which was used in the Customs Act prior to the 2012 amendments.
The proposed amendments would align the wording of the DPCR with that of subsection 107.1(1) of the Customs Act and would therefore permit the CBSA to issue AMPs for failure to provide advance information according to the new IAPI transmission time frames (reflected in the amendments to the PICR described above).
3. Immigration and Refugee Protection Regulations (IRPR)
The IRPR are quite extensive and cover all aspects of temporary and permanent residence in Canada, from applying to visit or immigrate to being removed for various reasons. Part 17 of the IRPR (sections 258.1 to 287) describes the obligations transporters have with respect to the travellers they carry to Canada and to their crew. Among other things, Part 17 sets out who should not be carried to Canada (prescribed persons) and the documents that must be held by travellers coming to Canada (prescribed documents). Part 17 also provides that the CBSA may levy an administration fee against a carrier in the event the carrier fails to meet its transporter obligations under Part 17.
The proposed amendments to the IRPR would amend various definitions, such as “administration fee,” “agent,” and “transporter,” to better reflect the operational reality of the IAPI initiative, and the impact this initiative would have on the overall transporter obligation regime described in Part 17 of the IRPR. It should be noted that some provisions will apply to the general class of transporters and other provisions will be limited to commercial transporters.
According to paragraph 148(1)(a) of the IRPA, a transporter is prohibited from carrying to Canada a person who is prescribed or does not hold the prescribed documents. Prescribed persons are identified in section 258.1 of the IRPR; prescribed documents are identified in section 259 of the IRPR.
Currently, the only persons prescribed by section 258.1 of the IRPR are FNs who are the subject of a section 22.1 declaration by the Minister of Citizenship and Immigration. The proposed amendments would add FNs who are required to obtain, but do not hold, an ARC as a new class of prescribed persons. Travellers who are not required to obtain an eTA (e.g. U.S. citizens), but who are subject to a deportation order or an exclusion order, are generally inadmissible to Canada without an ARC (accompanying family members who had been removed from Canada along with the inadmissible FN are excepted from this ARC requirement). All persons seeking to enter Canada who do not have an ARC would be added to the classes of prescribed persons, regardless of the mode of travel used. In the air mode, the IAPI initiative would enable the CBSA to send carriers a “no-board” message should such a person attempt to board a flight to Canada.
It is also proposed to amend section 259 of the IRPR to add the eTA to the list of prescribed documents that a traveller may be required to possess before coming to Canada. This addition, as well as the addition of administration fee assessments against commercial transporters who carry FNs without eTAs, would allow the CBSA to enforce the eTA requirement.
Pursuant to paragraph 148(1)(c) of the IRPA, a transporter has an obligation, in accordance with the regulations, to arrange for a medical examination and medical treatment of a person it carries to Canada, if required. Section 263 of the IRPR currently limits this obligation to apply only in respect of FNs carried if a report is prepared under subsection 44(1) of the IRPA, or to those who are members of a crew or who are entering Canada to become members of a crew.
The proposed amendments to section 263 of the IRPA would provide that medical examination and treatment would apply to commercial transporters (e.g. air carriers) but not to the general class of transporters, as this class is fairly broad and encompasses international tunnel/bridge operators and designated airport authorities, among others. The administrative formality of requiring a report under section 44 of the IRPA for these obligations to come into play would be removed, thus enlarging the scope of the class of foreign nationals to whom this provision would apply. However, this section would also be amended to clarify conditions under which transporters would be excluded from this obligation.
Subsection 269(1) of the IRPR enumerates the data elements that make up API in the immigration context; PNR elements are referred to in subsection 269(2) of the IRPR.
The proposed amendments to section 269 of the IRPR would mirror the language used in section 107.1 of the Customs Act; specifically, the section would state that advance information must be provided concerning persons “expected to be” carried by a commercial vehicle.
One additional data element would be added to the advance information prescribed by the IRPR: the unique passenger reference associated to each traveller (the UPR is described above, under PICR). The UPR will be used by the CBSA when transmitting a “board” or a “no-board” message to a carrier, as well as when a carrier provides a “close-out message” to the CBSA. A schedule would be added to the IRPR, specifically listing PNR elements that air carriers would be required to provide to the CBSA, should they already collect them for their own business purposes.
The proposed amendments to section 269 would ensure that the IRPR are consistent with the PICR to the extent possible. The amendments would
- specify submission time frames for submission of API, crew information and the close-out message;
- specify submission time frames for PNR information;
- specify that air carriers must provide flight header information when providing API and PNR data; and
- require transporters to submit corrections in all instances where they have knowledge of inaccurate and/or incomplete information previously submitted.
As with the PICR, all of the proposed regulatory amendments relating to pre-departure PNR data (e.g. requiring earlier transmission of PNR data) would come into force at a later date, based on considerations such as ratification of the new Canada-EU PNR Agreement or, if deemed necessary, national security interests. Until the proposed amendments related to pre-departure PNR data come into force, air carriers will continue to be obligated to provide PNR data at the time of departure.
The proposed amendments would move the three-and-a-half-year retention limits for API data from the Protection of Passenger Information Regulations (PPIR), where they are currently set, to the IRPR. These limits would be identical to the current API retention limits (i.e. three and a half years) in the PPIR.
As with the PICR, the IRPR would be amended to specify that the manner of submission for both API and PNR data can be found in the CMR. Such “incorporation by reference” is explicitly authorized by section 92 of the IRPA.
The provision of information to the transporter (i.e. the “board/no-board” message) by the CBSA is a new activity, and the proposed amendments to the IRPR would therefore add a new section 270, which would specifically authorize the Agency to provide information to commercial transporters to the effect that a passenger is or may be a prescribed person, or that he or she may not hold the prescribed documents.
Despite receiving a “board/no-board” message, transporters would remain responsible for ensuring that any traveller who is boarded holds the prescribed document (i.e. even if the transporter gets a “board” message for a traveller who requires a visa, the transporter still has to ensure that the traveller is in possession of the visa counterfoil).
The proposed amendments would also eliminate the current requirement found at section 279 of the IRPR that an officer must prepare a report, pursuant to subsection 44(1) of the IRPA (i.e. an inadmissibility “section 44” report), in order for the CBSA to assess an administration fee against the transporter who carried the subject of the report to Canada. This proposed amendment would address the fact that the GoC carries processing costs when an inadmissible foreign national is carried to Canada without the required documentation, whether or not such a report is prepared, even in the event that an inadmissible FN’s journey is facilitated (i.e. the FN is directed to leave pursuant to section 40 of the IRPR, is directed back to the U.S. pursuant to section 41 of the IRPR, is allowed to withdraw their application to enter Canada pursuant to section 42 of the IRPR or is issued a temporary resident permit pursuant to subsection 24(1) of the IRPA), on the FN’s arrival at a PoE.
In parallel with the proposed elimination of the requirement that a report under section 44 of the IRPA be prepared before fees are assessed, modifications to subsection 279(2) of the IRPR would serve to consolidate existing fee exemptions and ensure that an administration fee would not be assessed against a commercial transporter in certain circumstances arising from the proposed new classes under sections 258.1 and 259 of the IRPR.
As the IAPI initiative, once in place, will assist air carriers by alerting them to those individuals who would likely present concerns if carried to Canada, compliance with respect to the document requirement provisions under paragraph 148(1)(a) of the IRPA and section 259 of IRPR should be less onerous. Although officers would retain their discretion to facilitate the entry or onward travel of inadmissible persons, as appropriate, under the proposed amendments, an administration fee would be assessed against commercial transporters in instances where air carriers would have been made aware, through IAPI, that these persons may not hold the required documents. These amendments would allow the IAPI program to be fully integrated into the existing compliance regime.
The IRPR would also be amended to prevent the assessment of administration fees in cases where the CBSA fails to transmit “no-board” information to carriers prior to a flight’s departure for Canada; for example, such would be the case where an FN arrives in Canada with valid physical travel documents (such as a valid passport), but fails to possess the required eTA. The air carrier still has an obligation to check to ensure that a traveller holds valid physical documents; however, as the eTA is an electronic document, commercial air carriers cannot be held responsible for boarding a passenger who does not possess an eTA if the CBSA fails to provide them with this information. These changes would therefore be put into place to account for potential CBSA system outages. Commercial transporters would continue to have the opportunity to file a submission (an appeal) with respect to any administration fee assessment that they deem to be incorrect. Submissions procedures would also be amended to reflect system outages.
Coming into force
The regulatory amendments related to API and “board/no-board” messaging would come into force upon registration.
To align with the date upon which the requirement to obtain an eTA is mandatory before entering Canada (unless there is an exemption), certain amendments are proposed to come into force on March 15, 2016. Once the eTA becomes a mandatory travel document under section 7.1 of the IRPR, the CBSA will begin to enforce those regulations which impose new obligations to transporters with regard to this additional prescribed document.
4. Protection of Passenger Information Regulations
These Regulations, made under the authority of the IRPA, codify into Canadian law commitments made by Canada to the European Union (EU) in 2006 with regard to the use, disclosure, and retention of API and PNR data. The commitments were part of an agreement that came into force in 2006, whereby a range of data protection measures were established. Though the agreement expired in 2009, the protections, now in the PPIR, continue to apply to data collected by all international carriers with routes operating to Canada.
The proposed amendments to the PPIR would continue to provide for the use, disclosure and retention of PNR information, whereas the retention of API would be drafted into the IRPR. Consequently, all references to API data would be removed from the PPIR, thereby expanding the uses available for API data to include immigration control as governed by the IRPA.
Proposed amendments would modify the PPIR to give the CBSA the flexibility to modernize the use of PNR for targeting purposes while not conflicting with the commitments made to the EU in the previous API/PNR Agreement, or the signed, but not yet ratified, Canada-EU PNR Agreement. The use of PNR data would still be limited to identifying persons who have or may have committed a terrorism offence or serious transnational crime; as the amendments to the PPIR are not impacted by the issues that prompted the European Parliament (EP) to refer the Canada-EU PNR Agreement to the European Court of Justice (ECJ), thus delaying its ratification, these proposed regulatory amendments would come into force upon registration.
Finally, amendments to the PPIR also include the addition of various definitions, including those of “serious transnational crime” and “terrorism offence,” in order to satisfy concerns raised by the Standing Joint Committee for the Scrutiny of Regulations. The proposed definitions would be compatible with the text of the signed PNR Agreement.
How IAPI would work in practice
Modern border control processes increasingly rely on obtaining secure electronic data from commercial air carriers at an earlier stage in the travel continuum. Commercial air carriers are currently required to provide API/PNR information to the CBSA when a flight departs for Canada.
The introduction of IAPI would allow the CBSA to obtain this information earlier in the travel continuum; PNR would be provided not later than 72 hours prior to a flight’s scheduled time of departure, while full API would be provided when a passenger checks in for the flight. API could be provided earlier but it may be incomplete prior to check-in. Every traveller scheduled to be carried to Canada by air via a commercial flight will be within the scope of the IAPI program, including U.S. citizens and returning Canadians.
Transmission of API data
Each traveller’s (i.e. commercial air passengers) API information will be collected and transmitted to the CBSA by the air carrier at check-in, which normally begins up to 24 hours in advance of the scheduled time of departure. Crew API will be required to be submitted not later than one hour prior to departure.
After the initial transmission of a traveller’s API data, commercial air carriers will be required to send any new or updated information to the CBSA if any changes or additions are made to a traveller’s API prior to the flight’s departure.
Use of API data
The CBSA currently queries CIC’s enforcement and immigration databases when a traveller arrives at the primary inspection line (PIL). This practice will not change under the IAPI initiative; however, under IAPI, the CBSA would be querying these databases earlier in the travel continuum.
API data will be used to provide commercial transporters with information to assist them in determining whether the FN that they are about to carry to Canada is, or may be, a “prescribed person,” or whether the FN holds the required eTA or TRV needed to enter Canada. Admissibility will continue to be determined by CBSA officers upon an examination at the PoE.
API data will also be used to query the Lost, Stolen or Fraudulent Document (LSFD) database for an exact Canadian passport number match.
Establishing whether the traveller holds prescribed documents
Prescribed documents can be divided into two categories: those visible to the transporter (e.g. visa counterfoils) and electronic documents (e.g. the eTA). Electronic documents are not physical documents, but the interactive messaging system introduced by IAPI will serve to make the eTA “visible” to the transporter.
FNs may be required to obtain an ARC and/or a temporary resident permit (TRP) before they are able to obtain the eTA or visa counterfoil needed for entry into Canada. An ARC is required by FNs seeking to return to Canada who have been previously removed from Canada and who are barred from returning under section 52 of the IRPA.
On receipt of a traveller’s API, the IAPI initiative will run an automated query to determine whether the traveller is exempt from having a prescribed document, or does not require one. Those exempt from the requirement to present prescribed documents include Canadian citizens, Canadian permanent residents, Status Indians, and U.S. citizens (U.S. permanent residents require an eTA, which is linked to a passport electronically). Canadian passports will automatically generate a “board” message, unless the passport has been reported lost, stolen, or fraudulent.
For those travellers who are not exempt from prescribed travel document requirements, the IAPI initiative will run an automated query to determine whether the traveller has a prescribed document on file. IAPI will validate that the documents presented by FNs are those prescribed by section 259 of the IRPR for travel into Canada.
The IAPI initiative will use the travel document number and country or entity of issuance associated with that document to query CIC’s immigration database to determine the status (e.g. valid, revoked, expired) of any travel document (i.e. eTA or TRV) required by that traveller. In the case of the eTA, which is an electronic authorization with no corresponding physical document, this step serves to effectively validate the authorization. Transporters still have an obligation to ensure that travellers requiring a visa are in possession of the visa counterfoil. This would apply even in cases where the transporter receives a “board” message for the travellers, provided that the FN is presented with other prescribed documents (as per section 259 of the IRPR). For example, a British national would have to be presented for examination possessing a valid, unexpired passport.
Based on results of this automated vetting process, either a “board” or “no-board” message will be sent to the commercial air carrier. This interactive step does not apply to crew. The IAPI system will receive crew information up to one hour before departure and will process it in a “non-interactive” manner, meaning that a “board/no-board” message will not be issued for crew members. In the unlikely event that a crew member is inadmissible due to the fact that the individual requires an ARC or is the subject of a section 22.1 declaration, the targeting officer would generate a target on the crew member in order to flag that the person should be referred to immigration secondary for processing.
Commercial air carriers will use the “board/no-board” information to determine whether they should allow a passenger to board the flight in question. FNs who do not have an appropriate prescribed document to travel to Canada will be directed to the CIC Web site for further information. Travellers submitting a Canadian passport that has been reported in the LSFD database will be instructed to contact the consular section of the nearest Canadian embassy/mission for assistance, as is the current process today.
It is important to note that in cases where the CBSA is unable to notify the air carrier that the FN is lacking a valid eTA due to a CBSA system outage, no administration fees will be assessed, on the condition that the FN holds other prescribed documents and meets other requirements as prescribed by the IRPR under the IRPA.
Establishing whether the traveller is a prescribed person
The API data of every FN traveller (this includes U.S. citizens and other exempt FN travellers) who is the subject of a preliminary automated “board” message, as well as crew, would be the subject of a second automated query using name-matching technology to verify whether the traveller is the subject of a section 22.1 declaration and does not hold a valid TRP or is the subject of a removal order and does not have an overriding ARC.
All travellers who receive a match (close or exact name match) to a record for a prescribed person would then undergo a manual review by a CBSA targeting officer. The CBSA targeting officer would review the traveller’s API and immigration record to determine whether the traveller is, in fact, the same person as the one who is the subject of the declaration or removal order. The targeting officer would then review the file to ensure that the traveller does not have an ARC or TRP that overrides the removal order or declaration.
If the traveller is subject to a declaration or a removal order, but does not have an ARC or a TRP, the targeting officer would transmit a “no-board” message for that individual to the air carrier. In cases where the manual review by the targeting officer determines that the match was a false hit, no further action would be taken, and the original automated “board” message would stand.
Transmission of PNR data
PNR data would be transmitted electronically to the CBSA by the commercial air carrier (“pushed”) not later than 72 hours prior to the scheduled time of departure. In all cases where there are updates to any of the submitted PNR data elements, carriers would be required to push all PNR data again within one of three time frames: if the addition or change occurs more than 24 hours before the time of departure, not later than 24 hours before the time of departure; if the addition or change occurs during a period beginning 24 hours before the time of departure and ending 8 hours before that time, not later than 8 hours before the time of departure; and if the addition or change occurs less than 8 hours before the time of departure, not later than the time of departure.
Use of PNR data
The PNR data elements, if sent by a commercial air carrier, will not be used as the basis of a “board” or “no-board” message, but would continue to be used as a screening tool to help the CBSA identify travellers who might warrant additional scrutiny upon their arrival at a Canadian PoE.
The proposed regulatory amendments related to pre-departure PNR in the PICR and the IRPR would come into force at a later date, based on considerations such as the ratification of the Canada-EU PNR Agreement or, if deemed necessary, national security interests.
Until the amendments related to pre-departure PNR are brought into force, the existing regulatory requirements relating to PNR within these two regulations would remain in force. The proposed PPIR amendments would come into force immediately upon registration.
Regulatory and non-regulatory options considered
According to both the Customs Act and the IRPA, the Governor in Council has the authority to make regulations for the purposes of, and with respect to, the matters being addressed by the proposed regulations.
The proposed amendments are necessary to complete the implementation of the IAPI initiative and to ensure that the public safety, immigration integrity, and national security issues identified above are addressed. In addition, these amendments would ensure that the CBSA has the proper tools to effectively screen and process all travellers coming to Canada by commercial air carrier.
The current API/PNR program is set out in regulations. Therefore, any changes to the current requirements, particularly those that would increase the reporting requirements of commercial air carriers, must also be set out in regulations. Implementing IAPI-related requirements as an administrative policy, as opposed to codifying them in regulations, would put the CBSA in a position where it is introducing policy requirements more stringent than those required by law. Moreover, as carriers would not be legally required to provide API and PNR data to the CBSA about all travellers expected to be on board a commercial flight, the CBSA would have limited options for enforcing the IAPI requirements and, consequently, for serving as the enforcement mechanism for other GoC initiatives, such as the eTA.
Benefits and costs
A cost-benefit analysis (CBA) for the proposed IAPI regulatory amendments was completed, covering a 10-year period from 2015 (the year most of the regulatory amendments would come into force) to 2024 (the 10th year of the full implementation).
Based on a preliminary analysis, the IAPI initiative was assessed to have a medium level of cost impact (between $10 million and $100 million in present value). As a result, the CBA followed Treasury Board of Canada Secretariat (TBS) guidelines for medium-impact initiatives, which require that
- all costs, and those benefits where data are easily available, be monetized and present; and
- all non-measurable benefits be analyzed qualitatively.
The costs associated with the proposed regulatory amendments for the implementation of the IAPI initiative for commercial flights are based on government estimates and estimates from a literature review on similar regulations in other countries, as industry estimates from commercial air carriers are not available.
The cost of implementing the IAPI initiative amounts to CAD 77,355,100 in present value or CAD 11,013,600 in annualized value, over the first 10 years of implementation. (see footnote 3)
Of this total, CAD 46.06 million would be carried by the CBSA to develop and maintain information technology (IT) systems for IAPI, and to allocate resources for activities associated with policy and program support and targeting activities. The other CAD 31.30 million would be carried by the commercial air industry to update their systems and transmission capability, to train their staff and implement the necessary business processes to comply with the regulations and serve their clients.
All of the costs and benefits described below are monetized (i.e. estimated in terms of dollar value) in the cost-benefit analysis that was prepared to support the IAPI initiative.
Identification and description of costs and benefits for businesses
The IAPI initiative effectively represents an expansion and enhancement of the CBSA’s current API/PNR Program. Therefore, the costs to commercial air carriers represent incremental costs to improve and enhance systems already in place to provide API and PNR data to the Agency as per existing program requirements.
One of the major costs to the commercial air industry would be the establishment of IT capability to transmit API data according to the new IAPI parameters and to receive “board/no-board” messages interactively. Air carriers would have different options for complying with these data communication requirements.
Air carriers could transmit and receive the data utilizing either their own systems or the infrastructure of third-party service providers, via
- a direct connection to the CBSA system through the Message Queue (MQ) Network;
- the Interactive API Gateway (IAG); or
- email transmission of passenger manifests directly to the CBSA through a secure Web connection.
On average, it is estimated that commercial air carriers could invest more than CAD 790,000 to develop or update a direct connection system, or they could opt to transmit using third-party service provider infrastructure at an estimated cost of CAD 0.06 to CAD 0.07 per transmission.
In the cost-benefit analysis, the transmission choice of an air carrier is assumed to be the same as the option the carrier is currently utilizing to transmit its API/PNR data. These costs add up to CAD 29.33 million over the first 10 years for the commercial air industry.
Other costs to the air carriers, totalling CAD 1.96 million over the first 10 years, include employee training and human resources required to handle passengers with “no-board” messages. The estimates of these costs are based on an employee’s time and wage. An hourly wage rate of CAD 22.46 was used for this analysis.
Receiving “board/no-board” messages from the CBSA would provide commercial air carriers with additional information to assist them in fulfilling their obligation not to transport prescribed persons or persons lacking prescribed documents to Canada. This would reduce carriers’ exposure to administration fees assessed by the CBSA for failing to meet these obligations, which can be as high as CAD 3,200 per case. The additional information made available to commercial air carriers via IAPI therefore represents a measurable benefit to carriers if IAPI contributes to a significant reduction of the number of administration fees assessed against carriers.
Identification and description of costs and benefits for the CBSA and the Government of Canada
Government cost estimates of CAD 46.06 million comprise mainly the development and maintenance of an IT system capable of receiving API data from the commercial air carriers, querying various databases and issuing “board” and “no-board” messages to the air carriers interactively. The IT system would also need to receive and process PNR data more frequently at the intervals prescribed by the proposed regulatory amendments. Resources would also be required for various policy and program areas to support targeting activities, handle policy and program queries from the air carriers, evaluate performance of the initiative and monitor client compliance.
The implementation of IAPI is expected to increase the CBSA’s ability to identify prescribed persons or improperly documented travellers prior to their departure for Canada, and to facilitate the examination of all arrivals for entry into Canada.
It should be noted that there are data limitations on estimating the amount of resources expended on inadmissible cases at secondary examination at airports. Thus, for the CBA analysis, a conservative approach is taken; however, it should be recognized that in doing so, the analysis understates the potential benefits of this proposal.
Owing to data limitations, only part of the CBSA savings that would be achieved as a result of fewer inadmissible travellers to be processed at the airports can be monetized and estimated. The value of this benefit is therefore conservatively estimated at a total of CAD 2.23 million in present value or CAD 0.32 million in annualized value.
The understated benefits resulting from the IAPI initiative that can be monetized are relatively small compared to the total costs associated with the initiative. Based on the estimated human resource costs of CAD 169.43 to the CBSA for processing an inadmissible traveller at an airport of entry, the estimated costs avoided due to a portion of inadmissible travellers being prevented from boarding a plane bound for Canada are estimated to be CAD 2.23 million over the first 10 years.
However, it should also be noted that it can be quite costly to remove inadmissible persons after they have gained entry to Canada (i.e. travellers who are inadmissible but escape detection upon arrival at a PoE and are therefore permitted to enter Canada). Removal costs generally range between CAD 1,500 and CAD 15,000 per person, but can cost as much as CAD 300,000 in certain circumstances (i.e. for a removal necessitating a chartered flight and accompaniment by a CBSA officer). While the vast majority of inadmissible travellers would likely be interdicted upon arrival at a PoE, there are cases where inadmissible travellers nevertheless gain entry to Canada; there are potential savings to the GoC if the IAPI initiative prevents these travellers from arriving in Canada in the first place.
Increased transportation and national security, immigration program integrity and compliance, as well as strengthened public safety, are the major benefits of the proposed regulatory amendments but are not easily monetized because of the lack of available data and valid methodology.
Benefits and costs
Based on costs and benefits that can be monetized, the present value of the net cost of the proposed regulatory amendments is estimated at CAD 75.13 million (CAD 10.70 million, annualized).
The following table presents the costs and benefits of the proposed regulatory amendments that would result from the implementation of the IAPI initiative. The coming-into-force date of the proposed regulations is assumed to be FY2015–2016. The additional “pushes” of PNR data that would be required upon the coming into force of the pre-departure PNR requirements are assumed, for the purposes of this exercise, to begin one year after the other proposed regulatory amendments.
Present values (PVs) and annualized values are calculated based on a discount rate of 7% over a 10-year period from FY2015–2016 to FY2024–2025.
Table 1: Cost-benefit statement (2012 constant Canadian dollars)
|Costs and benefits||Base Year 2015–2016||Year Five 2019–2020||Final Year 2014–2025||PV Total||Annualized Average|
|A. Monetized impacts|
|Operating and maintenance (O and M)||8,370,000||620,000||620,000||13,340,400||1,899,400|
|Employee benefit plan||1,610,000||520,000||520,000||4,920,200||700,500|
|Commercial air carriers|
|IT system updates||7,367,900||0||0||7,367,900||1,049,000|
|Prevented inadmissible arrivals||276,400||311,100||360,600||2,229,800||317,500|
|B. Qualitative impacts|
|Commercial air carriers||
Commercial air carriers have been identified as the main private sector stakeholder group impacted by the proposed regulatory amendments and the IAPI initiative, as they would be responsible for complying with these regulatory requirements. The majority of these stakeholders already comply with the regulatory requirements of the CBSA’s API/PNR program, as well as with similar requirements imposed by other countries.
As for individual travellers, suspected high-risk travellers and those known to the CBSA as persons subject to active lookouts, or past enforcement actions, would receive more scrutiny prior to boarding and may be compelled to alter their travel plans. Legitimate travellers are not likely to be adversely affected by these requirements, and may perceive a greater benefit in travelling by air to Canada with improved screening practices in place.
For the purposes of this analysis, the scope of affected businesses has been limited to those international commercial carriers currently participating in the API/PNR Program that are certified to operate in Canada, and that have offices with addresses in Canada (those that operate in Canada). The numbers of such businesses meeting these criteria are estimated as follows:
- 71 medium/large (see footnote 4) commercial air carriers; and
- 3 small commercial air carriers (small businesses).
Distributional impacts of costs to the carrier increase according to air carrier size, in that larger carriers tend to
- use their own or a third party’s “direct-connect” type (see footnote 5) of data transmission method, which would translate to higher system update and maintenance costs;
- send more transmissions because of higher traveller volume, which would translate to higher total costs for transmission;
- have more employees, which would translate to higher total costs for training; and
- have proportionally more passengers for whom a “no-board” message could potentially be issued, which would in turn translate to higher total customer service costs to deal with these passengers.
It is worth noting that with respect to the distribution of total burden on the industry (as opposed to impacts on a carrier’s revenue presented above), medium/large air carriers would have a large share of the burden due to the proportionate number of carriers in the medium/large category.
The average total costs (present value) are estimated at CAD 439,700 (or CAD 62,600 annualized) per medium/large air carrier and CAD 26,400 (or CAD 3,800 annualized) per small air carrier.
While they are not included in the cost-benefit calculations for this proposal, the CBSA recognizes that some commercial carriers, that have not been participating as required in the API/PNR Program to date, are presumed to be reporting the arrival of persons and goods through the CBSA Telephone Reporting Center as per procedures designated for applicable private/corporate or business aircraft.
It should be noted that these remaining small commercial carriers (e.g. charterers) and the general aviation community combined represent less than 1% of the total air traveller population to Canada. Furthermore, it is worth noting that the majority of these carriers are based in Canada or the United States and, while not reporting to the CBSA’s API/PNR Program currently, carriers operating U.S.-Canada trans-border flights and/or flying over U.S. airspace engage with the United States Customs and Border Protection (USCBP) by providing pre-arrival flight data. As this information is risk-assessed through the Secure Flight Program, the small population of travellers transported to Canada by these carriers is considered to represent a minimal risk.
The CBSA’s Small Commercial Carrier Action Plan seeks to expand the number of commercial air carriers registered with the API/PNR Program to include all air carriers in possession of a Canadian Transportation Agency (CTA) licence that are currently operating in Canada, and that plan to operate internationally. This action plan also aims to encourage existing API/PNR clients that have only one transmission method to set up an alternate method prior to the IAPI implementation date of fall 2015.
The CBSA will continue efforts such as these to encourage comprehensive participation in the API/PNR Program, including the participation of all international passenger and/or cargo conveyances, as well as those carriers with existing code-sharing agreements in current API/PNR programs. Full implementation of IAPI functionality will also continue to be encouraged. The CBSA recognizes that it is important to ensure consistency and fairness across the Canadian aviation industry.
The “One-for-One” Rule will apply to this proposal, and the related administrative costs imposed by these amendments are considered an “IN” under this rule. The CBSA approached commercial air carriers with a questionnaire in order to solicit information that could be used to monetize the administrative impacts that the proposed regulatory amendments would have on Canadian businesses. The total annualized administrative costs are estimated at CAD 2,780,880, resulting in an annualized average administrative cost per business of approximately CAD 37,579.
To estimate the administrative burden for each stakeholder type and each proposed regulatory requirement, the internationally recognized Standard Cost Model (see footnote 6) is used to quantify and monetize the direct administrative costs associated with the regulations. Administrative activities that are required for compliance with the regulations are identified and their costs estimated for this purpose.
The administrative activities considered to impose an increased burden for air carriers, and which are included in the calculations for this regulatory proposal, are as follows:
- training of airline employees to familiarize those who are affected by the operational changes with the information obligations and submission procedures;
- increased transmission of the required information to the CBSA (including most costly interactive API, more frequent PNR pushes, and the new close-out messages); and
- handling of passengers who have been issued a “no-board” message.
For each activity, four cost parameters were factored in:
- Price — the wage cost plus overhead or the price associated with the activity;
- Time — the amount of time required to complete the activity;
- Frequency — the number of times that the activity must be completed each year; and
- Population — the number of affected businesses.
Parameter values used in calculation
|Activity||Price (2012 constant dollar)||Time (hours)||Frequency||Population|
|Training||CAD 22.46/hr||1 014 ||1 ||74|
|Transmission of API (3rd Party MQ) ||CAD 0.07/transmission||421 609 ||53|
|Transmission of PNR (3rd Party MQ) ||CAD 0.06/transmission||374 176 ||53|
|Transmission of PNR (non-MQ)||CAD 0.06/transmission||886 ||14|
|Transmission of close-out (3rd Party MQ) ||CAD 0.01/transmission||421 609 ||53|
|Transmission of close-out (non-MQ)||CAD 0.01/transmission||1 194 ||16|
|Handling passenger||CAD 22.46/hr||1||20 ||74|
These elements are combined in the following basic formula:
Cost per activity = price × time × frequency × population
Based on the “One-for-One” Rule methodology (i.e. using a 10-year time horizon from FY2015–2016 to FY2024–2025, constant 2012 dollars, a 7% discount rate, and the present value base year of 2012), it is estimated that the total annualized average administrative costs imposed by the introduction of the proposed regulatory amendments would be approximately CAD 2,780,880, resulting in an annualized average administrative cost per business of approximately CAD 37,579.
The expected increase in administrative costs would stem mainly from a one-time cost to train front-line employees and to update training material on the new process imposed by the regulations. As well, costs are associated with more frequent data transmittals (e.g. for API, PNR, and the close-out message).
Based on the information above, the proposal is considered an “IN” under the Rule. An “IN” is a monetized increase in administrative burden costs from the revision of existing regulations.
Small business lens
The CBSA recognizes that Canadian small businesses would be impacted by the new requirements. The average total costs (present value) per small business are estimated at CAD 26,380 (or CAD 3,760, annualized).
Determination of population
A small business is defined by the TBS, thus for the purposes of this proposal, as any business, whether incorporated or not, with under 100 employees or between $30,000 and $5 million in annual revenues. Because revenue data was not readily available for all commercial air carriers considered under this regulatory proposal, the number of employees was most often used to define small businesses in the cost-benefit analysis, as well as for the purposes of the small business lens. Where information pertaining to both revenue and the number of employees was available, revenue took precedence over the number of employees for determining business size.
For the purposes of the cost-benefit analysis and the small business lens, all those commercial air carriers currently participating in the API/PNR Program were included in calculations to monetize the costs and assess the benefits of IAPI requirements. Of those approximately 200 carriers, 3 were determined to be small businesses operating in Canada, according to the small business lens.
Both direct compliance and administrative costs associated with the regulations have been calculated for the small business lens. The compliance activities included in the calculations are the upfront costs relating to the updating, testing and certification of air carrier IT systems so they have the capability to meet their information obligations. The administrative activities are the same as those listed in the “‘One-for-One’ Rule” section above. The compliance and administrative costs were calculated for the three small businesses identified for this regulatory proposal using a 10-year time horizon, from FY2015–2016 to FY2024–2025, constant 2012 dollars, a 7% discount rate, and the present value base year of 2015.
Recognizing the importance of consulting as broadly as possible stakeholders potentially affected by the IAPI regulatory proposal, and particularly the small businesses that may endure an increased burden as a result of the proposed regulatory changes, the CBSA has been conducting outreach and engagement activities with commercial air carriers (including small businesses) since the fall of 2012. The CBSA has used a number of different strategies, including communiqués, the creation of general mailboxes from which to send and receive responses to stakeholder questions, the creation of a Web page, attendance at specific conferences, and the creation of the Air Industry Working Group. In addition, the CBSA provided commercial air carriers in the Air Industry Working Group with a questionnaire in December 2014 in order to solicit additional information that could be used to monetize the impacts that the proposed regulatory amendments would have on Canadian businesses.
The three small businesses within the scope of the small business lens identified for this regulatory proposal have been provided with IAPI communiqués and informative materials, as well as access to the Web page mentioned above. Each of the small businesses has been invited to participate in webinars and meetings where the provision of feedback is encouraged. One of the three small businesses participated in webinars hosted by the CBSA and provided feedback in the form of questions about the program. No major concerns have been raised to date by the small businesses identified, but questions on the timelines for IAPI implementation and on how transmission methods may change and/or pose new challenges for small operators have been raised. More specifically, small businesses wondered whether there will be any exemptions or other considerations made for smaller operators, whether there will be significant changes in the way data is transmitted and what the timeline is for the implementation of these new processes.
The CBSA continues to respond to all questions and concerns raised by air carriers (including small businesses) as they are received.
Summary of flexibility analysis
After careful consideration and analysis of options for reducing the burden on small businesses, the CBSA has determined that it would not be advisable, from a risk management perspective, to provide regulatory flexibility to the small businesses identified under the IAPI regulatory proposal. A flexible option of requiring fewer pushes of passenger or reservation data for small businesses has been quantified and compared to the initial option for this proposal; however, it has been determined that this option could adversely impact immigration integrity, public safety and national security, and thus is not recommended.
The following flexible option was quantified and considered for this regulatory proposal: allowing small businesses to transmit PNR data elements once rather than requiring multiple pushes (up to four times and no later than 72 hours prior to departure).
Allowing small businesses to send a passenger’s PNR data elements once rather than requiring that they send all updates to said elements (up to four times) would fail to strengthen the Agency’s Air Passenger Targeting Program by reducing the frequency at which information is made available to targeting officers and reducing its timelines. Multiple pushes of PNR data elements no later than 72 hours prior to departure will allow the CBSA targeting officers to determine, for example, whether a passenger travelling to Canada has attempted to obfuscate some aspect of his or her identity by changing a reservation multiple times. This behaviour has been shown to be consistent with attempts to conceal criminal activity or the identity of a traveller. Allowing a two-tiered system to be in place with regard to the submission of PNR data elements will therefore not strengthen the Agency’s targeting program or address a current gap in Canada’s national security perimeter. As this flexible option is assessed to have the potential to adversely affect the security and/or safety of Canadians, it is not the recommended option for this regulatory proposal.
Flexibility within the initial option
Although a flexible regulatory option is not available to small businesses, the CBSA provides flexibility for all businesses through the implementation of the initial option (proposed regulations) by allowing various approved methods (see footnote 7) for the transmission of API and PNR elements. IAPI would leverage the multiple transmission methods already in place for the existing API/PNR Program, including
- the Message Queue (MQ) / direct connection (API and PNR);
- Secure email (API only); and
- the Internet API Gateway (IAG), which supports file upload (API and PNR) and interactive data entry (API).
Small business owners have the option of using interactive data entry or file upload through the IAG (a secure Web site that allows operating air carriers and/or service providers to transmit data to the CBSA via these methods), or they can use email to transmit data to the CBSA secure email address. These alternative options introduce no new direct costs for businesses that already have Internet access, and may be considered more user-friendly than the Message Queue (MQ) Network.
Both secure email and the IAG Web site transmission methods are available at no cost to registered air carriers and, in most cases, air carriers will be able to continue to use the transmission methods that they are currently using for the API/PNR Program for future IAPI transmissions.
Table 2: Regulatory flexibility analysis summary
|Short description||All air carriers will be given multiple options for transmission, including Message Queue (MQ) Network, the Internet API Gateway (IAG), and secure email. In most cases, for future IAPI transmissions, air carriers can continue to use the transmission methods that they are currently using for the API/PNR Program.||Allowing small businesses to transmit PNR data elements once rather than requiring multiple pushes (up to four times, no later than 72 hours prior to departure).|
|Maximum number of small businesses impacted||3||3|
|Annualized Average ($ 2012)||Present Value ($ 2012)||Annualized Average ($ 2012)||Present Value ($ 2012)|
|Average cost per small business||$3,760||$26,380||$3,250||$22,840|
|Risk considerations||While the transmission of IAPI data via IAG and secure email might delay the reception of “board/no-board” messages, since transmissions via MQ / Direct sense Connect have priority and are promised a short response time, this is not expected to result in significant delays in boarding or in passengers missing connecting flights.||This flexible option is assessed to have the potential to adversely affect the security and/or safety of Canadians by failing to strengthen the Agency’s Air Passenger Targeting Program. Reducing the frequency at which information is available to targeting officers and its timelines will not address an existing gap in Canada’s national security perimeter.|
Note: Costs have been estimated using the Standard Cost Model. Detailed calculations are available upon request.
Calculations for the costs considered above for small businesses are based on a 10-year time horizon (FY2015–2016 to FY2024–2025) using a discount rate of 7% in 2012 constant Canadian dollars.
Streamlining processes and minimizing impact, duplication of effort, and costs to stakeholders, including small businesses, remain key considerations as the IAPI initiative is developed and implemented by the CBSA. In order to ensure the utmost openness and transparency with stakeholders, and to seek their feedback as to whether their particular business needs are being addressed, the CBSA began consultations and established stakeholder working groups early in the development of the project.
The CBSA has undertaken a variety of engagement and outreach activities to inform and to seek feedback from carriers on the IAPI initiative requirements such as the development of an IAPI Web site, the establishment of air industry working groups, the delivery of presentations/webinars and distribution of informational materials at conferences and the issuance of communiqués. In addition, a questionnaire was sent to air carriers participating in the Air Industry Working Group seeking their input on the perceived benefits and verifying costs relating to compliance with the IAPI initiative for their business. The CBSA has undertaken such a variety of outreach activities to ensure that information on IAPI and opportunities to provide feedback are distributed as widely as possible to all stakeholders.
One small business identified for this regulatory proposal participated in webinars hosted by the CBSA and provided feedback in the form of questions about the program. While no major concerns have been raised, questions on the timelines for the implementation of IAPI requirements and on how transmission methods may change and/or pose new challenges for small operators have been raised. The CBSA will continue respond to all questions and concerns raised by air carriers as they are received.
Engagement, outreach, and implementation strategies for those air carriers currently participating in the API/PNR Program, as well as those carriers that are anticipated to come take part in the future, remain ongoing.
On February 4, 2011, the Prime Minister of Canada and the President of the United States issued Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness. The Declaration established a new long-term partnership built upon a perimeter approach to security and economic competitiveness, and was followed in December 2011 by the Beyond the Border Action Plan, which provided details concerning the general commitments made in the Declaration.
The Action Plan committed Canada to implementing an enhanced approach to identifying and interdicting inadmissible persons at the perimeter, including the use of IAPI to make “board/no-board” decisions on all travellers wishing to fly to Canada prior to their departure.
The CBSA committed to aligning the requirements and the processes of IAPI with the U.S. Advance Passenger Information System (APIS) / Interactive Quick Query (AQQ) option under the APIS Pre-departure Final Rule as much as possible. Such alignment allows air carriers currently operating commercial flights to the United States to leverage their existing technology and knowledge to the fullest extent
The proposed regulatory amendments underpin the changing nature of the interaction between border control authorities and commercial air carriers by allowing the GoC to provide crucial information to inform the carrier’s decision of whether to board an individual bound for Canada. Doing so in the context of Canada’s IAPI program would contribute to preventing prescribed persons and improperly documented FNs from reaching Canadian PoE, thereby protecting the integrity of Canada’s immigration program and enhancing public safety. The proposed amendments would also enhance the CBSA’s ability to target high-risk travellers by providing targeting officers with relevant information earlier in the travel continuum. This would, in turn, strengthen national security.
The proposed amendments would allow the CBSA
- to ensure that the required data is being provided within the time, manner and format as prescribed in section 107.1 of the Customs Act;
- to collect information earlier in the travel continuum in order to allow additional time for targeting activities to identify high-risk travellers upon the coming into force of the requirement for air carriers to provide pre-departure PNR;
- to work more effectively with commercial air carriers to ensure that the passengers they carry to Canada are properly documented and that travellers are not prescribed persons; and
- to provide the capacity to validate the existence of the eTA for all FNs who require an eTA and are flying to Canada prior to departure.
The CBSA has completed a Privacy Impact Assessment (PIA) for this proposal, and is committed to continuing to work with the Office of the Privacy Commissioner to address all privacy-related concerns that may be raised.
The privacy risks and proposed mitigation strategies identified through the IAPI initiative’s PIA findings are described below. These risks and mitigation strategies are elaborated upon further in the IAPI PIA. A version of the IAPI PIA’s Executive Summary will be posted on the external CBSA Web site for public consultation. The final PIA itself will be a confidential document shared with the Office of the Privacy Commissioner. However, members of the public may file an access to information request with the CBSA for a copy of the IAPI PIA. The document would then be reviewed by the CBSA’s Access to Information and Privacy Division and any sensitive material redacted prior to release.
Risk: The Privacy Act does not grant the right of access to FNs who are not in Canada.
Mitigation: The CBSA should continue the informal policy of granting right of access to all FNs in order to ensure that those passengers affected by an IAPI board/no-board message are able to access the information about them provided to the CBSA.
Risk: The current Passenger Information System (PAXIS) system does not allow for the annotation or alteration of API/PNR records for the purposes of requests for corrections submitted by passengers.
Mitigation: The CBSA should ensure that it continues to meet its obligations under the Privacy Act by providing some means of correction/notation for API/PNR records stored in PAXIS.
Risk: IAPI may issue erroneous no-boards to passengers based on a close or exact match between their API data and another individual who is listed under the Minister’s section 22.1 IRPA declaration or a passenger that has a previously enforced removal order.
Mitigation: The CBSA should continue to implement the planned IAPI manual no-board targeting process. As this risk was highlighted within the context of IAPI’s PIA during the development phase of the initiative, the proposed risk mitigation was adopted and integrated into IAPI. As a result, the primary mitigation approach for this risk has already been established (manual review of no-boards under IAPI involving a previously enforced removal order or a declaration).
Risk: API/PNR information is collected indirectly without notice under the authorities of the Privacy Act, whereby information may be collected in this manner if providing notice may elicit the submission of false information.
Mitigation: The CBSA should update the existing material that aims to educate passengers on the API/PNR program and inform them that their information is routinely collected as part of the program.
Risk: The CBSA currently receives API/PNR information about passengers who are no longer planning to come to Canada, but is unable to label this information.
Mitigation: The various Flight Update Notification messages that will be implemented as part of the IAPI initiative will address this issue by allowing for the Agency to determine when a passenger cancels their plans to come to Canada and annotate the passenger’s travel history. This will allow the CBSA to label any previously received API/PNR data as “not coming to Canada.”
Risk: CBSA Info Source Records relating to the API/PNR Program Data Acquisition and Air Passenger Targeting program functions do not accurately reflect all elements of the IAPI initiative.
Mitigation: Prior to the implementation of IAPI, the CBSA should update the API/PNR Program Personal Information Bank to reflect data elements collected and retained under IAPI.
Implementation, enforcement and service standards
The IAPI initiative was announced in December 2011, as part of the Beyond the Border Action Plan commitments agreed upon by Canada and the United States. The regulatory amendments are designed to provide regulatory support for the full implementation of the IAPI initiative.
The majority of the proposed IAPI-related regulatory amendments would come into force upon registration, while amendments to the IRPR relating to administration fees to transporters would come into force to coincide with the coming-into-force date of the eTA as a mandatory travel document. The proposed regulatory amendments related to pre-departure PNR would come into force at a later date, based on considerations such as ratification of the Canada-EU PNR Agreement or, if deemed necessary, national security interests.
The CBSA is working closely with CIC and the commercial air carriers to develop an expedient airline boarding approach that will meet the expected strategic, business and operational success factors for the eTA and IAPI initiatives. Each of the commercial air carriers (numbering approximately 200) will review and sign an action plan with the CBSA confirming their system’s readiness and ability to begin the testing process to be certified to transmit data under the IAPI requirements and receive “board/no-board” messages. The IAPI action plan is a document that CBSA testers will use to validate each air carrier’s technical API/PNR transmission details, and those of the service providers they will be using, as well as to allocate a testing window. Once all action plans have been signed, the final commercial air carrier testing and certification schedule can then be created.
Commercial air carriers that do not provide API on all passengers and crew are subject to financial penalties. AMPs are issued when there is non-compliance with Customs Act requirements. To assist stakeholders in adapting to the changes introduced with the IAPI program, for most of the regulatory requirements, there will be a period of approximately six months after the coming-into-force date of the proposed regulatory amendments during which the AMPs will be $0.00.
Implementation of the IAPI initiative, carried out with the commercial air carriers identified as carrying 99% of traveller volumes, will coincide as much as possible with the eTA mandatory compliance date of March 15, 2016.
In addition to AMPs, administration fees will be assessed under section 279 of the IRPR as part of the transporter obligations program. As it will become mandatory for prescribed travellers to possess an eTA beginning on March 15, 2016, the CBSA would begin assessing administration fees as of this date against commercial airline transporters who carry FNs without a valid eTA to Canada. This will be enforced with air carriers that are participating in the IAPI initiative and are therefore capable of receiving a “no-board” message from the Agency, but that nevertheless carry a passenger who does not possess an eTA to Canada.
The CBSA does not intend to penalize carriers for carrying a traveller who does not possess an eTA until March 15, 2016, when the eTA becomes a mandatory travel document. Administration fees related to physical documents, such as valid passports and TRVs, will continue to be assessed as they are today, while amended provisions would apply upon registration of the Regulations, whether or not an air carrier is participating in the IAPI initiative.
Should the air carrier decide to carry to Canada an FN for whom they have received a “no-board” message, the FN will be intercepted on arrival by CBSA officers at the PoE, based on the close-out message that the CBSA receives up to 30 minutes after departure and that serves to alert the Agency to the fact that the subject of a “no-board” message is en route to Canada.
Similar to the case today, if the FN who was the subject of the “no-board” message is determined upon examination at the PoE to be a prescribed person, or not in the possession of the prescribed documents, the air carrier would be subject to administration fees under the transporter obligation program.
Performance measurement and evaluation
Canada, like the United States, would track performance indicators, such as the number of inadmissible persons denied permission to travel, the number of high-risk targets identified, and the number of subsequent enforcement actions taken that were facilitated by targeting.
The CBSA is in the process of developing a Performance Measurement Framework (PMF) for the IAPI initiative, which would serve as an objective basis for collecting information related to the intended results of the initiative. For the PMF, expected results to be achieved and specific outputs to be produced by the IAPI initiative would be set out and related performance indicators, information sources, frequency of information availability and performance targets would be identified. Based on the PMF, the necessary performance measurement infrastructure would be put in place to collect relevant data on an ongoing basis. This data would be used to regularly assess the IAPI initiative’s performance in terms of efficiency in management, effectiveness in achieving results, satisfaction of stakeholders and relevance to the priorities of the CBSA and the GoC.
Canada Border Services Agency
Small Business Lens Checklist
1. Name of the sponsoring regulatory organization:
2. Title of the regulatory proposal:
3. Is the checklist submitted with a RIAS for the Canada Gazette, Part I or Part II?
Canada Gazette, Part I Canada Gazette, Part II
A. Small business regulatory design
|I||Communication and transparency||Yes||No||N/A|
|1.||Are the proposed regulations or requirements easily understandable in everyday language?|
|2.||Is there a clear connection between the requirements and the purpose (or intent) of the proposed regulations?|
|3.||Will there be an implementation plan that includes communications and compliance promotion activities, that informs small business of a regulatory change and guides them on how to comply with it (e.g. information sessions, sample assessments, toolkits, Web sites)?|
|4.||If new forms, reports or processes are introduced, are they consistent in appearance and format with other relevant government forms, reports or processes?|
|Any new reporting requirements or processes introduced for small businesses under the IAPI regulatory proposal will be consistent with those already in place under the current API/PNR Program and are thus consistent with existing relevant government processes.|
|II||Simplification and streamlining||Yes||No||N/A|
|1.||Will streamlined processes be put in place (e.g. through BizPaL, Canada Border Services Agency single window) to collect information from small businesses where possible?|
|IAPI will leverage the existing streamlined processes of the API/PNR Program to collect information from these small businesses.|
|2.||Have opportunities to align with other obligations imposed on business by federal, provincial, municipal or international or multinational regulatory bodies been assessed?|
|While obligations imposed on business by provincial and municipal regulatory bodies would not apply in this case, the IAPI regulatory proposal has been developed in close consideration of internationally recognized formats, definitions and standards of existing border control interactive systems for screening air travellers. In particular, the IAPI regulatory proposal has been developed to align with systems and guidelines imposed by international federal bodies, such as the International Air Transport Association (IATA) and the International Civil Aviation Organization (ICAO).|
|3.||Has the impact of the proposed regulations on international or interprovincial trade been assessed?|
|This regulatory proposal is not anticipated to have impacts on international or interprovincial trade as it is focused solely on air passenger conveyances to Canada.|
|4.||If the data or information, other than personal information, required to comply with the proposed regulations is already collected by another department or jurisdiction, will this information be obtained from that department or jurisdiction instead of requesting the same information from small businesses or other stakeholders? (The collection, retention, use, disclosure and disposal of personal information are all subject to the requirements of the Privacy Act. Any questions with respect to compliance with the Privacy Act should be referred to the department’s or agency’s ATIP office or legal services unit.)|
|The information required to comply with the proposed regulatory amendments is already collected by the CBSA for the existing API/PNR Program and will not increase or duplicate the information requested from small businesses by other departments or jurisdictions.|
|5.||Will forms be pre-populated with information or data already available to the department to reduce the time and cost necessary to complete them? (Example: When a business completes an online application for a licence, upon entering an identifier or a name, the system pre-populates the application with the applicant’s personal particulars, such as contact information and date, when that information is already available to the department.)|
|While templates and standardized formatting for transmitting passenger information will be provided by the CBSA to airlines during the testing and certification process, specific information for each flight will be unique, making the pre-population of data largely unfeasible for the purposes of IAPI.|
|6.||Will electronic reporting and data collection be used, including electronic validation and confirmation of receipt of reports where appropriate?|
|7.||Will reporting, if required by the proposed regulations, be aligned with generally used business processes or international standards if possible?|
|The IAPI regulatory proposal has been developed in close consideration of internationally recognized formats, definitions and standards of existing border control interactive systems for screening air travellers. Further, as a Beyond the Border commitment, IAPI has been developed to align with the technical specifications and requirements of the U.S. Customs and Border Protection interactive system for screening air travellers.|
|8.||If additional forms are required, can they be streamlined with existing forms that must be completed for other government information requirements?|
|No additional forms will be required. Information to be submitted by air carriers (including small businesses) will be the same as under the current API/PNR Program.|
|III||Implementation, compliance and service standards||Yes||No||N/A|
|1.||Has consideration been given to small businesses in remote areas, with special consideration to those that do not have access to high-speed (broadband) Internet?|
|All small businesses considered in the cost-benefit analysis for IAPI have access to the Internet and use it (or a service provider) to submit API data under the current CBSA API/PNR Program. Either the MQ Network (through a service provider) or IAG/secure email transmission methods are used by small businesses. There are no airlines identified that do not have access to high-speed Internet.|
|2.||If regulatory authorizations (e.g. licences, permits or certifications) are introduced, will service standards addressing timeliness of decision making be developed that are inclusive of complaints about poor service?|
|There will not be any new regulatory authorizations introduced. The regulatory authorizations required under the IAPI initiative will be the same as those currently required under the CBSA API/PNR Program.|
|3.||Is there a clearly identified contact point or help desk for small businesses and other stakeholders?|
|The CBSA will leverage current services provided to air carriers, including client account managers; the Advance Passenger Information (API)/Passenger Name Record (PNR), PAXIS Support Unit (APSU); and the High Availability Response Team (HART). The CBSA also manages the Border Information Service (BIS), which is an automated telephone service that answers incoming calls and provides general information on CBSA programs, services and initiatives through recorded scripts. Officers are available from Monday to Friday, 8:00 a.m. to 4:00 p.m., should callers require additional information. The BIS accepts calls not only from within Canada, but from overseas as well.|
B. Regulatory flexibility analysis and reverse onus
|IV||Regulatory flexibility analysis||Yes||No||N/A|
Does the RIAS identify at least one flexible option that has lower compliance or administrative costs for small businesses in the small business lens section?
Examples of flexible options to minimize costs are as follows:
|2.||Does the RIAS include, as part of the Regulatory Flexibility Analysis Statement, quantified and monetized compliance and administrative costs for small businesses associated with the initial option assessed, as well as the flexible, lower-cost option?|
|3.||Does the RIAS include, as part of the Regulatory Flexibility Analysis Statement, a consideration of the risks associated with the flexible option? (Minimizing administrative or compliance costs for small business cannot be at the expense of greater health, security or safety or create environmental risks for Canadians.)|
|4.||Does the RIAS include a summary of feedback provided by small business during consultations?|
|1.||If the recommended option is not the lower-cost option for small business in terms of administrative or compliance costs, is a reasonable justification provided in the RIAS?|
Notice is given that the Governor in Council, pursuant to subsections 8.1(8) (see footnote a)and 107.1(1) (see footnote b) and paragraphs 164(1)(i) (see footnote c) and (j) of the Customs Act (see footnote d), proposes to make the annexed Regulations Amending the Passenger Information (Customs) Regulations.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jennifer McKinley, Director, IAPI Policy, Programs Branch, Canada Border Services Agency, 427 Laurier Avenue West, Ottawa, Ontario, K1A 0L8 (tel.: 613-952-2893; email: Jennifer.McKinley@cbsa-asfc.gc.ca).
Ottawa, June 9, 2015
Assistant Clerk of the Privy Council
REGULATIONS AMENDING THE PASSENGER INFORMATION (CUSTOMS) REGULATIONS
1. (1) The definition “Minister’s representative” in section 1 of the Passenger Information (Customs) Regulations (see footnote 8) is repealed.
(2) The definition “reservation system” in section 1 of the Regulations is replaced by the following:
« système de réservation »
“reservation system” means any system, whether electronic or manual, that contains information about persons on board or expected to be on board a commercial conveyance.
(3) Section 1 of the Regulations is amended by adding the following in alphabetical order:
« membre d’équipage »
“crew member” means a person assigned to duty on a commercial conveyance.
“time of departure”
« moment du départ »
“time of departure” means
- (a) in the case of a commercial conveyance that transports persons or goods by air, the time of take-off from the last point of embarkation of persons before the conveyance arrives in Canada; and
- (b) in the case of a commercial conveyance that transports persons or goods by water or land, the time of departure from the last point of embarkation of persons before the conveyance arrives in Canada.
2. Sections 2 to 5 of the Regulations are replaced by the following:
2. The purpose of sections 3 to 7 is to prescribe the circumstances, conditions, classes of persons, information and time and manner for the purposes of section 107.1 of the Act.
Prescribed circumstances and conditions
3. The prescribed circumstances and conditions are the following:
- (a) the conveyance is a commercial conveyance; and
- (b) the conveyance is expected to arrive in Canada.
4. The prescribed classes of persons are commercial carriers and charterers that undertake to carry persons or goods to Canada.
5. The prescribed information about a person on board or expected to be on board a conveyance is the following:
- (a) their surname, first name and any middle names, their date of birth, their citizenship or nationality and their gender;
- (b) the type and number of each travel document that identifies them and the name of the country or entity that issued it;
- (c) their reservation record locator number, if any;
- (d) the unique passenger reference assigned to them, if any, by the person that has been required to provide information or, in the case of a crew member who has not been assigned one, notification of their status as a crew member;
- (e) any information about them that is in the reservation system of the person that has been required to provide information or in the reservation system of the representative of such a person; and
- (f) the following information about their carriage on board the commercial conveyance:
- (i) the following dates and times:
- (A) in the case of a person who is or is expected to be transported on board a commercial conveyance by air, the date and time of take-off from the last point of embarkation of persons before the conveyance arrives in Canada, or
- (B) in the case of a person who is or is expected to be transported on board a commercial conveyance by water or land, the date and time of departure from the last point of embarkation of persons before the conveyance arrives in Canada,
- (ii) the last point of embarkation of persons before the commercial conveyance arrives in Canada,
- (iii) the date and time of arrival of the commercial conveyance at the first point of disembarkation of persons in Canada,
- (iv) the first point of disembarkation of persons in Canada, and
- (v) in the case of a commercial conveyance that transports persons or goods by air, the flight code identifying the commercial carrier and the flight number.
- (i) the following dates and times:
6. The information referred to in section 5 must be provided by electronic means in accordance with the technical requirements, specifications and procedures for electronic data interchange set out in the document entitled CBSA Carrier Messaging Requirements issued by the Agency, as amended from time to time.
Prescribed time — advance passenger information
7. (1) The information referred to in paragraphs 5(a) to (d) must be provided, along with the information referred to in paragraph 5(f),
- (a) not later than one hour before the time of departure, if the information relates to a crew member; and
- (b) not later than the time of departure, if the information relates to any other person who is or is expected to be on board the commercial conveyance.
Prescribed time — information in a reservation system
(2) The information referred to in paragraph 5(e) must be provided, along with the information referred to in paragraph 5(f), not later than at the time of departure.
Prescribed time — close-out information
(3) The information referred to in paragraph 5(d) must also be provided for each person on board the commercial conveyance at the time of departure, along with the information referred to in paragraph 5(f), not later than 30 minutes after the time of departure.
Incomplete or inaccurate information
8. (1) A person that becomes aware before or at the time of departure that information it has provided under section 107.1 of the Act is incomplete or inaccurate must, in the manner described in section 6 and without delay, provide the Minister with the missing or accurate information.
(2) Subsection (1) does not apply in respect of information referred to in paragraph 5(e).
3. Paragraph 5(e) of the Regulations is replaced by the following:
- (e) any information about them that is referred to in the schedule and is in the reservation system of the person that has been required to provide information or in the reservation system of the representative of such a member; and
4. Subsection 7(2) of the Regulations is replaced by the following:
Prescribed time — information in reservation system
(2) The information referred to in paragraph 5(e) must be provided for each person who is expected to be on board the commercial conveyance, along with the information referred to in paragraph 5(f), not later than 72 hours before the time of departure.
5. Section 8 of the Regulations is amended by adding the following after subsection (2):
(3) If information referred to in paragraph 5(e) about a person in relation to a particular carriage is added to a reservation system or is changed after it has been provided to the Minister under section 107.1 of the Act, the person that provided the information must, in the manner described in section 6 and at the following times, provide the Minister with all the information referred to in paragraph 5(e) about the person in relation to that carriage, along with the information referred to in paragraph 5(f):
- (a) if the addition or change occurs more than 24 hours before the time of departure, not later than 24 hours before the time of departure;
- (b) if the addition or change occurs during a period beginning 24 hours before the time of departure and ending eight hours before that time, not later than eight hours before the time of departure; and
- (c) if the addition or change occurs later than eight hours before the time of departure, not later than the time of departure.
6. The Regulations are amended by adding, after section 8, the schedule set out in the schedule to these Regulations.
COMING INTO FORCE
7. (1) Subject to subsection (2), these Regulations come into force on the day on which they are registered.
(2) Sections 3 to 6 of these Regulations come into force on a day to be fixed by amendment to this subsection.
INFORMATION ABOUT PERSONS IN A RESERVATION SYSTEM
- Their surname, first name and any middle names
- Their reservation record locator number
- Date of their reservation and date their ticket was issued
- Their itinerary, including the dates of departure and arrival for each segment of travel
- Information about their participation in a loyalty program and the benefits earned under the program, such as free tickets or upgrades
- Number of the other passengers included in the reservation record and their surname, first name and any middle names
- Contact information for each person mentioned in the reservation record, including the person who made the reservation
- Billing and payment information related to the travel transaction, including credit card number and billing address
- Information about the travel agent or agency, including name and contact information
- Code share information
- Information about whether their reservation record has been split or is linked to another record
- Their travel status, including confirmation and check-in status
- Ticketing information, including ticket number, automated ticket fare quote and whether a one-way ticket was purchased
- Their baggage information, including the number and weight of their bags
- Their seating information, including seat number
- General remarks in their reservation record, including other supplementary information, special service information and special service request information
- The information referred to in paragraphs 5(a) and (b) of these Regulations
- The history of any changes to the information in items 1 to 17 of this schedule
- Footnote 1
All present values and annualized values of cost and benefit estimates are in 2012 constant dollars and use 7% as the discount rate and 2015–2016 as the base year.
- Footnote 2
On June 26, 2014, the Agreement between Canada and the European Union on the transfer and processing of Passenger Name Record data (the Canada-EU PNR Agreement) was signed, replacing an older agreement with the European Union (EU) that came into force in 2006. While Canada has taken steps to ratify the PNR Agreement, on November 20, 2014, representatives from the European Parliament proposed a motion to refer the PNR Agreement to the European Court of Justice (ECJ); this motion was passed by the European Parliament on November 25, 2014. As a result, the ECJ will now need to render an opinion on the Agreement’s compliance with EU law prior to EU ratification of the PNR Agreement. The equivalent U.S.-EU and Australia-EU PNR agreements were signed in 2011 and entered into force in 2012.
- Footnote 3
All present values and annualized values of cost and benefit estimates are in 2012 constant dollars and use 7% as the discount rate and 2015–2016 as the base year.
- Footnote 4
A medium/large air carrier is defined as an air carrier with at least 100 employees or between CAD 30,000 and CAD 5,000,000 in annual gross revenues.
- Footnote 5
Direct Connect is a border declaration system that provides clients with a direct connection to the CBSA. This communication method requires an initial investment of $25,000 (+/− $5,000) to set up and $6,000 (+/− $2,000) in annual maintenance fees.
- Footnote 6
For more details about the Standard Cost Model, please refer to http://www.oecd.org/gov/regulatory-policy/34227698.pdf.
- Footnote 7
See the CBSA Web site for approved service providers: http://www.cbsa-asfc.gc.ca/security-securite/api_ipv_provfourn-eng.html.
- Footnote 8
- Footnote a
S.C. 2001, c. 25, s. 8(2)
- Footnote b
S.C. 2012, c. 31, s. 267
- Footnote c
S.C. 1992, c. 28, s. 30(1)
- Footnote d
R.S., c. 1 (2nd Supp.)