Canada Gazette, Part I, Volume 157, Number 50: Preclearance in the United States Regulations

December 16, 2023

Statutory authority
Preclearance Act, 2016

Sponsoring agency
Canada Border Services Agency

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues

Through the LRMA and the PCA, 2016, Canada and the United States committed to further exploring the potential of preclearance operations in both countries. In order to further this work and support Canadian land preclearance operations in the United States, preclearance regulations under the PCA, 2016 are needed.

Background

“Preclearance” refers to an arrangement between two countries that allows customs and immigration officials from the country of destination to be located in the country of origin in order to allow or deny the admission of travellers or goods to the destination country. In this case, the inspecting country (Canada) would be able to perform customs, immigration, and related inspections in the territory of the host country (the United States) in order to determine the admissibility of people and goods before they enter the inspecting party’s country.

Canadian preclearance in the context of the LRMA would have Canadian officers, such as border services officers (BSOs), working in a “designated preclearance area and perimeter” (herein referred to as a “preclearance area”) in the United States to examine travellers and goods in order to determine whether they should be allowed to proceed to Canada.

The United States has conducted preclearance operations in Canada in the air mode since 1952. Canada does not currently have preclearance operations in any country. Establishing Canadian preclearance operations in the United States would support government and industry goals to facilitate the flow of legitimate travellers and goods across the border (i.e. once a legitimate traveller or good is precleared, they may not need to be re-examined in Canada). It would also increase the safety and security of Canadians and the Canadian economy by pushing the border out to prevent inadmissible people and goods from entering Canada. Inadmissible travellers or goods could then be intercepted prior to entering Canada.

Preliminary analysis indicates that preclearance may be a cost-effective option for replacing small and remote POEs with aging infrastructure. The CBSA operates 80 small and remote POEs in the land mode along the Canadian border, many of which are in various states of disrepair. Investing in maintenance or repairs to small and remote POEs is often delayed because larger, higher-volume POEs take precedence for infrastructure funding. Establishing preclearance operations in the United States would be a cost-effective way to reduce the investment required to maintain these aging facilities, and, at the same time, would allow the CBSA to continue to facilitate the flow of legitimate travellers and goods into Canada while maintaining the security of the Canadian border.

Preclearance legislation and regulation

The LRMA was signed by both Canada and the United States in March 2015 and was subsequently ratified in August 2019. The ratification of the LRMA coincided with the coming into force of the PCA, 2016. Together, the LRMA and the PCA, 2016 allow for preclearance expansion to all modes of travel (i.e. land, rail, marine, and air) and cargo operations between Canada and the United States.

The PCA, 2016 includes two main parts.^{footnote 1} Therefore, a phased approach for the two main parts of the Act was applied to the regulatory process. The regulations supporting Part 1 of the PCA, 2016, which relates to U.S. preclearance in Canada, were published as Preclearance in Canada Regulations: SOR/2019-183 on June 12, 2019, and came into force when the PCA, 2016 and the LRMA came into force. In conjunction with U.S. domestic law, Part 2 of the PCA, 2016 establishes the legal framework governing Canadian preclearance operations in the United States. Alongside the LRMA, Part 2 also establishes that Canadian legislation relating to the importation of goods, immigration, agriculture and public health and safety applies to Canadian-bound travellers and goods in a preclearance area located in the United States.

The PCA, 2016, includes a deeming provision that allows for existing Canadian legislation and regulations that apply to the entry of persons and the importation of goods into Canada, normally administered at a port of entry, to be administered in a preclearance area as if the traveller had entered and the goods had been imported into Canada. In other words, provisions that meet the definition of “preclearance legislation” are deemed to apply in preclearance operations outside Canada in the same manner they would apply in Canada. However, the deeming provision does not apply to immigration legislation and its regulations, hence the necessity to create these proposed Regulations to adapt the language in the IRPA and its corresponding regulations.

In addition, based on internal Government consultations, only minor changes were identified in non-immigration regulation. The proposed Regulations are necessary to adapt three regulations to apply in the preclearance area: the Returning Persons Exemption Regulations, the Tariff Item No. 9807.00.00 Exemption Order and Tariff Item No. 9805.00.00 Exemption Order and the Plant Protection Regulations (PPR).

The PPR specifically lists all places of entry for plant inspections. Therefore, the PPR need to be adapted for the purposes of the PCA, 2016 to include the preclearance area within the list. Without this adaptation, preclearance would not be considered as a place to perform these inspections that are necessary for both traveller and commercial purposes. The Returning Persons Exemption Regulations, the Tariff Item No. 9807.00.00 Exemption Order and Tariff Item No. 9805.00.00 Exemption Order, for the most part, set out the application or exclusion of alcohol exemptions based on the provincial age of majority at the location of the importation. For the purposes of the PCA, 2016, these regulations need to be adapted to clarify the appropriate age of majority that would be applied in preclearance for the importation of alcohol. Without the proposed Regulations, it would be difficult to determine the age of majority for alcohol importation as preclearance is “outside Canada” and not located in a province where the age of majority is determined.

Pilot project

The small and remote POE at Covey Hill, Quebec, which is in a state of disrepair, would be relocated to the U.S. side of the border by moving into an established U.S. facility at Cannon Corners, New York. During this pilot, the CBSA would be processing travellers and conveyances on U.S. soil shortly before their entry to Canada. There is a distance of approximately 200 m between the U.S. POE (Cannon Corners, New York) and the adjacent Canadian POE (Covey Hill, Quebec). The Canadian POE would be shuttered during the pilot project.

The Government of Canada committed funding to the land preclearance pilot project through Budget 2021 under “Modernizing Travel and Trade at our Borders,” where $7.4M will be allocated towards this land preclearance pilot project at Cannon Corners, New York. Funding is primarily focused on physical and information technology infrastructure requirements to accommodate the CBSA operation within the U.S. facility. The proposed Regulations would facilitate the implementation of the pilot project by providing BSOs with the authority to perform immigration processing. While there are ongoing discussions with respect to the timing of the pilot project, it is expected that the pilot project will launch in 2024–2025 for two years. More broadly, the implementation of the pilot project would demonstrate whether preclearance is a cost-effective and operationally viable option for replacing small and remote POEs with aging infrastructure. Should the land pilot project results indicate that preclearance is a good alternative to rebuilding small and remote POEs, future land preclearance sites would likely not require additional regulations.

Objective

The proposed Regulations would allow the CBSA to perform its mandate in Canadian preclearance operations located in the United States by providing integrated border services that support national security and public safety priorities as well as facilitate the free flow of persons and goods, including animals and plants. In addition, the proposed Regulations would ensure that operations in the preclearance environment are as efficient and effective as the operations at the POE in Canada.

To meet both objectives, the proposed Regulations would allow most immigration functions that currently exist for BSOs working in POEs to be performed by BSOs working in a preclearance area in the United States. Through these authorities, BSOs would be able to better facilitate the flow of legitimate travellers and goods and increase the safety and security of Canada by preventing inadmissible people and goods entry into Canada, while they are still on U.S. soil. In addition, as done at a POE, the proposed Regulations would ensure BSOs can apply the age of majority for the importation of alcohol and ensure the completion of plant inspections in preclearance areas. In this way, BSO authorities would mirror those at POEs and align with the CBSA mandate.

Description

The proposed Regulations address the legislative and regulatory issues that result from preclearance being applied outside Canada.

Grounds of inadmissibility for permanent residents and foreign nationals

Using authorities under the PCA, 2016, officers would be able to refuse to permit permanent residents and certain foreign nationals from proceeding through preclearance if they are found inadmissible on prescribed grounds.

Should the officer believe the traveller is inadmissible based on the grounds prescribed in the regulatory proposal, the officer may write a report against that traveller pursuant to subsection 48(4) of the PCA, 2016 and the report is subject to review by a Minister’s delegate pursuant to subsection 48(5) of the PCA, 2016. If the Minister’s delegate believes the report to be well founded, the traveller may be refused entry to Canada through a preclearance area, but would not be subject to a removal order regardless of the inadmissibility. These individuals may seek judicial review to challenge the officer’s decision.

The proposed Regulations would define the scope of this authority by specifying the grounds of inadmissibility that apply in preclearance, and prescribe different grounds between permanent residents and certain foreign nationals (including permanent resident visa holders and protected persons).

The grounds of inadmissibility for persons seeking to enter Canada that may be prescribed are limited to those set out in the IRPA. There are no new grounds of inadmissibility. The preclearance grounds of inadmissibility were a result of extensive collaboration between the CBSA and the IRCC. The CBSA and the IRCC are collaborating on officer guidance in relations to the grounds. At a high level, these grounds were known during the drafting (and associated technical briefings) and ratification of the PCA, 2016.

As found in the regulatory proposal, permanent residents may only be found to be inadmissible and be refused preclearance for the following grounds: security grounds, human and international rights violations, serious criminality and organized criminality (respectively, sections 34, 35, 36(1) and 37 of the Act).

Of note, if a permanent resident is refused or withdraws from preclearance and is otherwise able to travel to a conventional POE located in Canada, the current statutory right of entry under the IRPA would still apply when they seek to enter at that POE.^{footnote 2} The preclearance decision is simply a refusal to allow the permanent resident to proceed to Canada through a preclearance area. It does not result in a removal order or generate an admissibility hearing.

The same grounds of inadmissibility that apply to permanent residents would also apply to foreign nationals who are protected persons, with the addition of inadmissibility for sanctions under section 35.1 of the Act now that Bill S-8 has received royal assent. The grounds of inadmissibility for foreign nationals with a permanent resident visa and foreign nationals are outlined in the proposed Regulations. All the grounds of inadmissibility apply to foreign nationals, this is consistent at both preclearance and a POE.

Admissible travellers to enter Canada

The proposed Regulations would allow BSOs to conduct examinations of travellers at a preclearance area, in alignment with activities currently performed at POEs such as allowing all admissible travellers to enter Canada. No new requirements or activities are being introduced by the proposed Regulations.

If the traveller and goods are determined to be admissible, no examination would then be required once the traveller arrives in Canada unless otherwise directed by the officer.

Application for documents

The proposed Regulations would prevent travellers who would normally need to apply for certain documents (such as a permit or visa) outside Canada, at embassies or consulates, from doing so in a preclearance area. In other words, foreign nationals and permanent residents would continue to apply at embassies or consulates, prior to entering Canada through a POE or through a preclearance area, for travel documents, work permits, study permits and visas.

Conversely, the proposed Regulations would allow travellers who can apply for certain documents at POEs, where that service is offered, to continue to do so in a preclearance area.

Customs exemption

The proposed Regulations would ensure the appropriate age of majority is used in the Returning Persons Exemption Regulations, the Tariff Item No. 9807.00.00 Exemption Order and Tariff Item No. 9805.00.00 Exemption Order. Currently, the age of majority for the importation of liquor is based on the province or territory where the customs office is situated. As the Canadian preclearance area would be situated outside Canada, the proposed Regulations would authorize BSOs applying certain customs exemption to use the age of majority of the province, or territory, into which the alcohol would be entering Canada, by adapting the aforementioned Regulations and exemption orders for the purposes of preclearance.

Plant Protection Regulations

The proposed Regulations would adapt the Plant Protection Regulations for the purposes of preclearance, as the specific ports of entry at which plant inspections can be completed are listed in the Regulations themselves, thereby limiting application at preclearance. The proposed Regulations adapt that list to include preclearance areas.

Future expansion

While the proposed Regulations would support the pilot project at the Covey Hill, Quebec–Cannon Corners, New York border crossing, they are not site-specific. That is, the proposal would provide Canada with the regulatory framework to expand traveller preclearance operations without further regulatory amendments. The expansion of preclearance operations in the United States is subject to future policy approval and agreement by the United States.

Regulatory development

Consultation

During the prepublication period, the CBSA plans to directly consult, virtually and in-person, groups that could be affected by the regulatory proposal. This process would play a key role in finalizing this regulatory proposal and aligns with the CBSA’s plan for increased general and targeted engagement with stakeholders in advance of the proposed Regulations coming into force. In addition, the CBSA remains available for inquiries as required.

In terms of previous consultations, in advance of the presentation of the regulatory proposal, the CBSA had limited engagement with non-government stakeholders and partners, although engagement was done with the Customs and Immigration Union and the Canadian Bar Association, as well as with U.S. Customs and Border Protection (CBP) and the Department of Homeland Security (DHS). Stakeholders are generally aware that regulations are needed. In addition, when the PCA, 2016 underwent the parliamentary process, it was clear that immigration legislation would have to be adapted by regulations for the preclearance framework in order to capture the appropriate inadmissibility criteria and ensure cohesion between both Acts.

In 2018 and 2019, the CBSA had significant and widespread consultation within the Government of Canada to identify necessary regulatory changes. In addition, the other government departments were consulted prior to the PCA, 2016 being drafted to ensure their programs’ compatibility with the policy objectives sought through preclearance.

Analysis from these consultations indicated that the IRCC, the Canadian Food Inspection Agency (CFIA) and the Department of Finance would be the only government stakeholders impacted by the proposed Regulations; therefore, consultations with all three departments were frequent and ongoing during the development of this regulatory proposal.

As the IRCC shares responsibility with the CBSA for the implicated areas of the IRPA and its regulations, they have been consulted extensively. The IRPA and its regulations make up the majority of this proposal, as they fall outside of the deeming provision. Therefore, the CBSA collaborated with the IRCC throughout the development of this proposal to ensure the proposed Regulations and policy are also aligned with IRCC program goals, and to integrate perspectives on immigration processing in preclearance.

Modern treaty obligations and Indigenous engagement and consultation

No impacts on Indigenous peoples are anticipated as a result of the regulatory proposal. As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted. The assessment examined the geographical scope and subject matter of the initiative in relation to modern treaties in effect and did not identify any potential federal modern treaty impacts or obligations. The Indigenous Affairs Secretariat within the CBSA was consulted on the regulatory proposal. The Agency would continue to assess potential impacts as new modern treaties are implemented.

Irrespective of the requirements related to the Duty to Consult, the CBSA will engage with the Indigenous partners in the region of the Covey Hill, Quebec, pilot site with their self-governance protocols in mind.

Instrument choice

Failure to enact the proposed Regulations would result in the CBSA not being able to offer the full range of services intended for traveller preclearance and this would limit the CBSA’s ability to assess the operational benefits of preclearance. For example, the CBSA would not be authorized to make all the admissibility decisions concerning goods and people in preclearance it is currently able to do in Canada. Without the proposed Regulations, preclearance under Part 2 of the PCA, 2016 would not fully meet its intended objectives, and Canada would miss an opportunity to demonstrate its full commitment to preclearance with the United States and assess the operational impacts of preclearance.

The deeming provision in the PCA, 2016 does not apply to the IRPA as the PCA, 2016 specifically excludes the IRPA from the definition of “preclearance legislation.” Instead, the PCA, 2016 provides that a traveller in a preclearance area who is seeking to enter Canada for the purposes of the IRPA is outside Canada.^{footnote 3} The extraterritorial provisions of the IRPA were not drafted with the intent of being applied in a preclearance area. Without regulations adapting provisions of the IRPA and its regulations, BSOs would lack the authorities necessary to process travellers at a preclearance area. The provision of these authorities can only be made through regulation. Therefore, no other instrument was considered.

Regulatory analysis

Benefits and costs

With the coming into force of both the LRMA and the PCA, 2016 in August 2019, Canada now has the framework and authorities to establish Canadian preclearance operations in the United States; therefore, the authority to establish preclearance operations exists independently of the proposed Regulations. Therefore, operational costs, as well as cost savings, related to physical preclearance infrastructure are not being considered as part of the cost-benefit analysis associated with the proposed Regulations.

The proposed Regulations apply to a preclearance area; they do not purport to create a specific preclearance area. Therefore, any costing analysis related to establishing preclearance, as compared to a POE, such as renting or sharing space with the United States, are irrelevant to the proposed Regulations.

In addition, the proposed Regulations merely adapt the POE authorities so that they can be administered at a preclearance area; they do not change authorities. The Regulations also define grounds of inadmissibility that apply at the preclearance area; these grounds are already established in the IRPA. Therefore, there would only be minor costs directly and indirectly associated with the proposed Regulations, such as training costs (for example the development of training materials and policy guidance documents and course delivery).

Baseline scenario

At a POE, which is inside Canada, a BSO conducts an examination of travellers and goods in order to determine their admissibility under Canadian legislation, including the IRPA and its regulations. Where services are available, a BSO may issue additional documentation for permanent residents and foreign nationals who meet the requirements. The IRPA and its regulations outline the class of travellers for which documents can be issued at a POE and the class of travellers for which documents can only be issued outside Canada. At a POE, under the IRPA, a BSO has the authority to prepare a report on permanent residents and foreign nationals who are believed to be inadmissible. Enforcement options under the IRPA and its regulations are also available to CBSA officials at the POE, including arrest and detention, issuance of a removal order in prescribed circumstances or referral of a report to an admissibility hearing. Under prescribed circumstances, at a POE, a BSO may direct the traveller to leave Canada, for example, if the traveller is unable to be examined.

Absent the proposed Regulations, the preclearance area would be treated as “outside Canada” for the purposes of immigration legislation, and BSOs would not have access to POE examination authorities. Failure to enact the proposed Regulations would result in the CBSA not being able to offer the full range of services intended under preclearance. For example, the CBSA would not be authorized to make all admissibility decisions concerning goods and would not be able to make any admissibility decisions on people in preclearance as it is currently able to do in Canada at a POE.

Regulatory scenario

The proposed Regulations would allow a BSO working in Canadian preclearance operations in the United States to conduct an examination of travellers and goods in order to determine their admissibility under Canadian legislation, including the IRPA and its regulations as well as the PCA, 2016.

With the proposed Regulations, immigration processing at preclearance would operate as it does today at a POE for those who enter by right and for admissible travellers that require an authorization to enter Canada. With the Regulations, any documentation that is required before entering a POE is also required before entering preclearance. These documents are often obtained at an embassy or consulate prior to entering Canada. Under the same set of requirements, where services are available at that site, a BSO working in preclearance could issue documentation to select permanent residents and foreign nationals who can normally apply for this documentation at a POE.

In preclearance, the PCA, 2016 provides the authority for a BSO to prepare a report on permanent residents and foreign nationals who are believed to be inadmissible, similar to the authority in the IRPA. Therefore, these proposed Regulations would set out the IRPA grounds for inadmissibility for which the PCA, 2016 inadmissibility report can be prepared. Unlike the IRPA inadmissibility report at a POE, which can have immigration enforcement consequences (e.g. a removal order), the PCA, 2016 inadmissibility report can only result in a refusal to preclear the traveller to proceed to Canada. In Canadian preclearance, the traveller has not yet entered Canada, so they cannot leave or be removed from Canada. A BSO may direct a traveller to leave preclearance similarly to what could be done at a POE. However, in this scenario or any scenario where the traveller is denied preclearance, leaves or withdraws, the traveller would remain in the United States and only leave the preclearance area.

The purpose of these proposed Regulations is to adapt the IRPA and its regulations so that the provisions apply, as needed, in a preclearance area that is outside Canada. In addition, the proposed Regulations would adapt the PPR, the Returning Persons Exemption Regulations, the Tariff Item No. 9807.00.00 Exemption Order and Tariff Item No. 9805.00.00 Exemption Order to apply in preclearance as they apply at a POE. The proposed Regulations, which would allow the CBSA to make admissibility determinations in preclearance, would facilitate the successful implementation of the preclearance pilot project. Further, the successful implementation of the pilot project would allow the CBSA to demonstrate whether preclearance is a cost-effective and operationally viable option. In addition, it would better position the Agency to complete an evidence-based plan for the strategic expansion of preclearance as the CBSA would be able to assess the operational impacts of BSOs performing immigration duties in preclearance.

Description of the incremental impact

Costs

There would be no costs for travellers crossing at preclearance areas. Currently, all individuals and goods are subject to an immigration and customs examination when seeking to enter Canada.

The incremental costs attributable to the proposed Regulations over a 10-year period starting in June 2024 and ending in May 2033 are monetized at $415,018^{footnote 4} (total present value) or $59,080 (annualized average). These costs consist of updating CBSA and IRCC system applications and training costs.

Benefits

The proposed Regulations would support national security and public safety priorities as well as facilitate the free flow of legitimate persons and goods, including animals and plants.

Additionally, the proposed Regulations would provide CBSA BSOs working in preclearance areas in the United States with the necessary authorities with respect to immigration processing, ensure application of the appropriate age of majority for the importation of alcohol, and clarify that plant inspections can be completed in preclearance areas. The CBSA would avoid the situation of allowing a foreign national to travel to Canada only to be referred inland for an admissibility hearing immediately upon arrival and then removed from Canada. This would lessen the need for inland enforcement activities such as investigations, arrests, warrant management, detention and removals, thereby increasing safety and security as well as decreasing costs for government.

Small business lens

Analysis under the small business lens concluded that the proposed Regulations would not impact Canadian small businesses. The proposed Regulations only impact travellers at the preclearance site.

One-for-one rule

There is no incremental change in the administrative burden on business. While a new regulatory title is introduced, it does not count as a new title under the rule.

Regulatory cooperation and alignment

The LRMA is fully reciprocal and enables preclearance to be established in either country, in all modes of travel. Article IX of the LRMA outlines joint commitments of both parties and Article XIII outlines a reciprocity obligation on both parties.

The United States passed their implementing legislation, the Promoting Travel, Commerce, and National Security Act of 2016, in December 2016. Canada’s implementing legislation, the PCA, 2016, received royal assent in December 2017. On August 15, 2019, the LRMA was ratified and the PCA, 2016, came into force, and representatives of Canada and the United States exchanged diplomatic notes to bring the LRMA into force in 2019. Upon entry into force, the PCA, 2016, both repealed and replaced the Preclearance Act from 1999.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required. This proposal is unlikely to result in important environmental effects. Canada would use existing infrastructure located in the United States to perform examinations. There may exist minor positive environmental effects, as it would avoid new construction in Canada.

Gender-based analysis plus

The proposed Regulations adapt Canadian POE authorities to apply to preclearance; they do not amend existing authority or introduce new authorities. Therefore, the proposed Regulations do not introduce any gender or diversity specific benefits. Any gender-based analysis plus (GBA+) impact stems from the nature of preclearance and not from the proposed Regulations. As preclearance would be occurring in U.S. territory, Canadian BSOs must adhere to U.S. policies and law as well as Canadian standards and law. As well, all individuals, including Canadian citizens and those registered under the Indian Act, remain subject to the laws of the United States in the preclearance area because they remain physically located in the United States at that moment.

The CBSA would work with its government counterparts to ensure that travellers are aware of any differences between crossing at a traditional POE and at a preclearance site. This would enable travellers to make informed decisions regarding how they cross the border. At the preclearance pilot site, the CBSA, in collaboration with the United States, would ensure that communications products, in both official languages (such as signage), provide messaging that is clear, concise and appropriate in order to inform the travelling public that they are in Canadian preclearance in the United States.

Implementation, compliance and enforcement, and service standards

Implementation

The proposed regulations would come into force upon registration.

The CBSA works closely with its Government of Canada preclearance partners, including the IRCC, on this initiative and would continue this collaboration and coordination for the effective and efficient implementation of the proposed Regulations.

The development of the proposed Regulations is a precondition to advance operational and policy discussions with the U.S. Government toward implementing the Canadian preclearance pilot project in the United States. Upon pilot project launch, the CBSA would perform ongoing analysis of the pilot project operation, and applicable data would assist to identify performance measurement and compliance frameworks of the proposed Regulations and, in the broader sense, of preclearance operations.

Compliance and enforcement

The same procedures that are currently in place at POEs are expected to be maintained in preclearance. Training would be a significant component to reinforce both the proposed Regulations and the authorities, obligations and limitations in the PCA, 2016, and the LRMA in situations where there would be deviation as a result of the proposed Regulations.

Service standards

It is expected that the preclearance environment would be as efficient and effective as the operations at POEs. Ongoing analysis of pilot project operations and applicable data would assist to identify developing issues and inform any steps or strategies to be taken to mitigate them both for the proposed Regulations and in the broader sense.

Contact

Travellers Policy and Programs Directorate
Travellers Branch
Canada Border Services Agency
Email: CBSA.Preclearance-Precontrole.ASFC@cbsa-asfc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed Preclearance in the United States Regulations under subsections 48(7) and 57(1) of the Preclearance Act, 2016 ^{footnote a}.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Keith Pritchard, Manager, Preclearance Programs, Travellers Policy and Programs Directorate, Travellers Branch, Canada Border Services Agency, 191 Laurier Avenue West, Ottawa, Ontario K1A 0L8 (email: cbsa.preclearance-precontrole.asfc@cbsa-asfc.gc.ca).

Ottawa, December 7, 2023

Wendy Nixon
Assistant Clerk of the Privy Council

Preclearance in the United States Regulations

Grounds of Inadmissibility

Grounds of inadmissibility

1 For the purposes of subsection 48(4) of the Preclearance Act, 2016, grounds of inadmissibility are prescribed as follows:

• (a) in the case of a permanent resident, the grounds set out in sections 34 and 35, subsection 36(1) and section 37 of the Immigration and Refugee Protection Act;
• (b) in the case of a protected person within the meaning of the Immigration and Refugee Protection Act, the grounds set out in sections 34 to 35.1, subsection 36(1) and section 37 of that Act;
• (c) in the case of a foreign national who holds a permanent resident visa, the grounds set out in sections 34 to 35.1, subsection 36(1) and section 37 of the Immigration and Refugee Protection Act;
• (d) in the case of a foreign national who holds a permanent resident visa accompanied by a family member who is inadmissible or has been refused entry to Canada through a preclearance area or preclearance perimeter on the grounds set out in any of sections 34 to 35.1, subsection 36(1) or section 37 of the Immigration and Refugee Protection Act, the grounds set out in sections 34 to 35.1, subsection 36(1) and sections 37 and 42 of that Act; and
• (e) in the case of a foreign national, the grounds set out in sections 34 to 42 of the Immigration and Refugee Protection Act.

Adaptations and Exclusions

Adaptations — Immigration and Refugee Protection Act

2 In respect of a traveller entering Canada through a preclearance area or preclearance perimeter, the Immigration and Refugee Protection Act is adapted as follows:

• (a) subsection 11(1) is to be read as follows:

11 (1) A foreign national must, before entering Canada or before entering a preclearance area or preclearance perimeter, apply to an officer for a visa or for any other document required by the regulations.

• (b) subsection 11(1.01) is to be read as follows:

11 (1.01) Despite subsection (1), a foreign national must, before entering Canada or before entering a preclearance area or preclearance perimeter, apply for an electronic travel authorization required by the regulations by means of an electronic system, unless the regulations provide that the application may be made by other means.

• (c) a reference to “on their entry” in section 19 is to be read as a reference to “in a preclearance area or preclearance perimeter”;
• (d) the reference to “have come to Canada” in paragraph 20(1)(a) of the English version is to be read as a reference to “are coming to Canada through a preclearance area or preclearance perimeter”;
• (e) the reference to “upon arrival in Canada” in subsection 24(2) is to be read as a reference to “upon arrival in a preclearance area or preclearance perimeter”; and
• (f) the reference to “outside Canada” in the portion of subsection 31(3) before paragraph (a) is to be read as a reference to “outside a preclearance area or preclearance perimeter”.

Adaptations — Immigration and Refugee Protection Regulations

3 In respect of a traveller entering Canada through a preclearance area or preclearance perimeter, the Immigration and Refugee Protection Regulations are adapted as follows:

• (a) in the following provisions, a reference to “subsection 44(2) of the Act” is to be read as a reference to “subsection 48(5) of the Preclearance Act, 2016”:
  • (i) paragraph 12.06(d),
  • (ii) paragraph 37(1)(d), and
  • (iii) paragraph 41(b);
• (b) in the following provisions, a reference to “port of entry” is to be read as a reference to “preclearance area or preclearance perimeter”:
  • (i) subsection 27(1),
  • (ii) paragraphs 37(1)(a) and (d),
  • (iii) the portion of section 38 before paragraph (a) and paragraph 38(a),
  • (iv) subsections 40(1) and (3),
  • (v) subsection 71.1(1), and
  • (vi) paragraph 240(1)(a);
• (c) the reference to “departure from Canada” in paragraph 37(1)(c) is to be read as a reference to “departure from the preclearance area or preclearance perimeter”;
• (d) the reference to “leave Canada” in subsection 40(1) is to be read as a reference to “leave the preclearance area or preclearance perimeter”;
• (e) in the following provisions, a reference to a time period that begins on the day on which a traveller enters Canada is to be read as a time period that begins on the day on which the traveller is authorized in a preclearance area or preclearance perimeter to enter Canada:
  • (i) subparagraph 132(1)(a)(i),
  • (ii) paragraphs 183(3)(a) and (b), and
  • (iii) paragraph 184(2)(b);
• (f) in the following provisions, a reference to “enters Canada” or “entering Canada” is to be read as a reference to “enters Canada through a preclearance area or preclearance perimeter” or “entering Canada through a preclearance area or preclearance perimeter” respectively:
  • (i) the portion of subsection 184(2) before paragraph (b),
  • (ii) subsection 198(1) and the portion of subsection 198(2) before paragraph (a), and
  • (iii) the portion of section 214 before paragraph (a);
• (g) in the following provisions, a reference to “before entering Canada” is to be read as a reference to “before entering a preclearance area or preclearance perimeter”:
  • (i) section 197, and
  • (ii) section 213;
• (h) the reference to “entry into Canada” in paragraph 180(b) of the English version is to be read as “entry into Canada through a preclearance area or preclearance perimeter”; and
• (i) the reference to “contrôle d’arrivée” in paragraph 180(b) of the French version is to be read as a reference to “contrôle d’arrivée dans une zone de précontrôle ou un périmètre de précontrôle”.

Exclusions — Immigration and Refugee Protection Regulations

4 The following provisions of the Immigration and Refugee Protection Regulations do not apply in a preclearance area or preclearance perimeter:

• (a) paragraphs 38(b) to (h);
• (b) paragraph 41(c); and
• (c) subsection 188(2).

Adaptations — enactments under the Customs Tariff

5 In respect of a traveller entering Canada through a preclearance area or preclearance perimeter,

• (a) a reference to “the province where the customs office through which the alcoholic beverages are imported is located” in paragraph 3(2)(a) of the Returning Persons Exemption Regulations is to be read as “the province where the person enters Canada”;
• (b) a reference to “the province in which the customs office where the alcoholic beverages are imported is situated” in paragraph 3(a) of the Tariff Item No. 9805.00.00 Exemption Order is to be read as “the province where the person enters Canada”; and
• (c) a reference to “the province in which the customs office where the alcoholic beverages are imported is situated” in paragraph 2(a) of the Tariff Item No. 9807.00.00 Exemption Order is to be read as “the province where the settler enters Canada”.

Adaptations — Plant Protection Regulations

6 For the purposes of the Preclearance Act, 2016, a reference to “place of entry” in the Plant Protection Regulations includes a reference to a preclearance area or preclearance perimeter.

Coming into Force

Registration

7 These Regulations come into force on the day on which they are registered.

Terms of use and Privacy notice

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