Vol. 148, No. 40 — October 4, 2014

Regulations Amending the Presentation of Persons (2003) Regulations

Statutory authority

Customs Act

Sponsoring agency

Canada Border Services Agency

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The proposed amendments to the Presentation of Persons (2003) Regulations (the Regulations) affect the eligibility criteria to join the NEXUS and CANPASS Air programs of the Canada Border Services Agency (CBSA) by expanding the scope of persons who are eligible. The Regulations currently exclude certain groups of persons who would otherwise be eligible for membership given, for instance, their compliance with legislation administered or enforced by the CBSA and lack of criminal record.

The purpose of the NEXUS and CANPASS Air programs is to assist in identifying, at a very early stage, the high-risk travellers and to separate them from the low-risk ones, while providing the low-risk travellers with a simpler and more streamlined entry into Canada. Due to the three-year residency requirement included in the eligibility criteria, some Canadian and American citizens who live overseas or have come back home within the last three years minus a day are not eligible to become members of NEXUS or CANPASS, notwithstanding the fact that they meet all the other eligibility criteria.

In addition, the current eligibility criteria only allow for citizens from Canada and the United States (U.S.) to be eligible for NEXUS and CANPASS Air membership. Therefore, citizens from third countries with whom Canada would like to enter into trusted traveller program arrangements are excluded. Should these third country citizens be permitted to obtain membership in either the NEXUS or the CANPASS Air program, this would help to increase the number of pre-approved, low-risk travellers entering the country. This would in turn allow the CBSA to focus its resources on higher or unknown risk travellers coming from these countries.

Finally, the Regulations do not reflect the complex reality of modern families and the different issues that could arise in the application process for a membership (e.g. custody agreements in case of separation). A definition of what constitutes a “parent” and clarifications regarding the application process on behalf of a child who is under 18 years of age and on behalf of a person who is 18 years of age or more who has a mental or physical disability would be beneficial.

Background

The CBSA is responsible for providing integrated border services that support national security and public safety priorities and that facilitate the free flow of persons and goods that meet all program requirements.

The NEXUS program is a joint initiative of the CBSA and the U.S. Customs and Border Protection (CBP) that enables pre-approved, low-risk travellers to present themselves in an alternative manner and receive expedited border clearance into Canada and the United States. NEXUS is supported by the Canada/United States Accord on our Shared Border and by the Smart Border Declaration.

CANPASS is a suite of CBSA programs that facilitate efficient and secure entry into Canada for pre-approved, low-risk travellers. CANPASS programs provide a more streamlined clearance procedure for program members entering Canada by different means of transportation. The present amendments would only modify eligibility criteria relating to CANPASS Air (commercial aircraft).

The trusted traveller programs NEXUS and CANPASS Air are designed to expedite the border clearance process for low-risk, pre-approved travellers into Canada and, for NEXUS only, the United States. They provide simplified border crossing for travellers while enhancing overall security, as they allow the CBSA to improve its capacity to mitigate risk in advance and focus examination efforts on identifying travellers and traders of unknown or higher risk. NEXUS members enjoy additional benefits, such as special lines to expedite airport pre-boarding security screening.

The Presentation of Persons (2003) Regulations (the Regulations) provide the regulatory framework for the administration of the CBSA’s trusted traveller programs, which include NEXUS and the CANPASS suite of programs. All applicants to the NEXUS program and the CANPASS suite of programs must meet the eligibility criteria, such as not being inadmissible to Canada under the Immigration and Refugee Protection Act or its regulations, being compliant with any program legislation and providing their consent in writing to the use by the Minister of Public Safety and Emergency Preparedness of biometric data.

However, notwithstanding whether they meet all those eligibility criteria, some Canadian and American citizens who are living abroad or have been living abroad and have come back to either Canada or the United States within the last three years would not be eligible for membership in the NEXUS and the CANPASS Air programs, as they do not meet the three-year residency requirement included in the eligibility criteria. Paragraph 6(f) of the Regulations states that during the three-year period preceding the day on which the application is received, an applicant must have resided in either Canada or the United States, or in a foreign country where a citizen of Canada or the United States is serving at a Canadian or U.S. diplomatic mission or consular post. This provision excludes, among others, permanent residents of Canada or the United States who are serving overseas in the armed forces or accompanying spouses, common-law partners and other family members of persons who are serving abroad at a Canadian or U.S. diplomatic mission or consulate and who are permanent residents of Canada or the United States, even if they meet all the other eligibility criteria and could therefore be considered low-risk to be eligible to join the NEXUS and the CANPASS programs. The NEXUS and CANPASS Air programs were not designed to exclude these individuals, and in December 2010, the CBSA published a Customs Notice (10-025) in order to remedy the situation and is now ready to incorporate the modifications in the Regulations.

Furthermore, the Beyond the Border Action Plan (BBAP), announced by the Prime Minister of Canada and the President of the United States in 2011, committed to increase harmonized benefits to NEXUS members, more specifically to extend NEXUS membership eligibility to Canadian and American citizens who currently do not reside in Canada or the United States, in order to improve the reach of the two programs. This is particularly beneficial to business travellers and company executives who are living abroad or are travelling between Canada or the United States and a third country for the company’s business. A Customs Notice (12-020) was published in June 2012 to make the appropriate modification to NEXUS, and the CBSA would now like to proceed with the needed regulatory modifications.

Finally, the commitment to increase harmonized benefits under the BBAP includes the development of a plan to incorporate third country traveller programs to NEXUS and CANPASS Air programs. Adhesion to the program of additional low-risk travellers would allow the CBSA to focus even more resources on travellers and goods of higher or unknown risk. In addition, it is beneficial from an economic and political relationships standpoint, as the trusted traveller programs support the Government’s goals to promote trade and economic competitiveness, and could be an asset in international trade negotiations and diplomatic relations. In order to do so, the Regulations should be modified so that citizens from third countries, other than the United States, are eligible to receive an authorization where Canada has entered into an arrangement with that third country. The CBSA published another Customs Notice (12-030), in November 2012, to make these modifications to the NEXUS and CANPASS Air programs. This third Customs Notice has also made the harmonized benefits stated in Customs Notice 12-020 applicable to the CANPASS Air program. The CBSA would like to make the related amendments to the Regulations as soon as possible.

Objectives

The objectives of this regulatory proposal are to expand the NEXUS and CANPASS Air programs, nationally and internationally, by broadening eligibility in specific situations.

The following persons would be exempted from the residency requirement for membership to the NEXUS and CANPASS Air programs:

The provision setting out the residency requirement would be modified to allow the following people to qualify:

The following persons would be eligible for membership in the NEXUS and CANPASS Air programs, in addition to citizens and permanent residents of Canada and the United States:

The eligibility criteria would remain the same for the other CANPASS programs (CANPASS – Private Aircraft, CANPASS – Corporate Aircraft and CANPASS – Private Boats), which are not affected by the internationalization of the programs and commitment under the BBAP.

Also, in order to provide greater clarity on how to apply the general three-year residency requirements, it was suggested to amend the provision to clarify until when the three-year residency requirement would apply. The Regulations would specify that the three-year period should be completed before the day on which the application for membership is received and should be maintained until the day on which the authorization is issued to be aligned with the residency requirement to be applied during the membership. The individual applying for a membership must meet the residency requirements during the three years before the application and until the day on which the authorization is issued. Not maintaining these residency requirements while the application is being processed would defy the spirit of the continuous eligibility requirements that the applicant must meet even upon receiving membership. This amendment is done for the CANPASS suite of programs and NEXUS.

Finally, in order to address uncertainties regarding the concept of a family in the application process, the Regulations would define what constitutes a “parent.” They would also clarify who may apply for membership to the programs on behalf of a child who is under 18 years of age or on behalf of a person who is 18 years of age or more and has a mental or physical disability. A person may apply on behalf of a child with respect to whom they are a parent, or of whom they have custody or tutorship under a court order, if the other parent and every other person who has custody or tutorship of the child consent to the application. For the person who is 18 years of age or more and has a mental or physical disability, he or she would have to consent to the application. If the person has been declared incompetent, a person who is legally authorized to act on the person’s behalf would have to consent to the application. The Regulations would also mention that the person who is applying on behalf of a child or a disabled person should personally meet the regulatory eligibility criteria.

Description

The proposed modifications would be divided chronologically in the Regulations Amending the Presentation of Persons (2003) Regulations since they would be made retroactive to the date of publication of the related Customs Notices. Most of the modifications would be made to Part 2 of the Regulations, which is entitled “PRESENTATION IN ALTERNATIVE MANNERS.”

The first part of the amendments would modify the Regulations to reflect Customs Notice 10-025.

The second part of the amendments would modify the Regulations to reflect Customs Notice 12-020 as announced in the BBAP.

The third part of the amendments would modify the Regulations to reflect Customs Notice 12-030.

The fourth part of the amendments would modify the Regulations non-retroactively as the following amendments would come into effect on the date of registration:

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small businesses.

Consultation

From November 16 to December 15, 2012, the CBSA consulted with internal and external stakeholders:

Very few comments were received in relation to the proposed modifications to the Regulations from all internal and external stakeholders. There was a general interest in the fact that the goal of some of these amendments is to increase the clarity of the wording to ensure greater comprehension of the terms and conditions of the programs. It was also mentioned that the broadening of the language to include citizens from other countries in Canada’s trusted travellers programs is consistent with the federal government priorities of supporting tourism by facilitating customs and immigration clearance for pre-approved, low-risk, frequent travellers.

The CBSA did not consult publicly on the proposed provision that states until when the three-year residency requirement would be applicable, as it is a necessary specification for the clarity and integrity of the programs. An individual applying for membership must meet the residency requirement during the three years before the application, and up until the day on which the authorization is issued. Not maintaining the residency requirement while the application is being processed would defy the spirit of the continuous eligibility requirements that must be met even upon receiving membership.

The CBSA also did not consult publicly on the proposed provision that restricts the availability of the three-year residency requirement exception to children whose parent or legal tutor meets the three-year residency requirement. This restriction is necessary for the clarity and integrity of the programs and would be made to avoid fraudulent membership applications (the program has already seen a few such applications). Not adding this restriction would open the door to unwanted situations where children adopted or born abroad who do not meet the three-year residency requirement could become members of the programs when the parent or legal guardian could not, as he or she does not meet the residency requirement either. The purpose of providing an exemption for children adopted or born abroad is to ensure that a family cell is kept together; it was not intended as a way to circumvent the eligibility criteria.

Rationale

Regarding the persons who should be eligible for membership in the NEXUS and CANPASS Air programs as per commitments under the BBAP, regulatory amendments are the only option to correct the situation. The way the Regulations are presently written excludes specific individuals from the programs, and the proposed regulatory amendments would ensure that all persons who were intended to participate in the programs can apply.

As for the amendments regarding the eligibility criteria of the NEXUS and CANPASS Air programs for citizens of another country (other than the United States), regulatory amendments are also the only viable option. The proposed amendments allow for the possibility of future trusted traveller reciprocal arrangements with other countries, which would benefit all members of the programs and would provide the Government with a framework within which to negotiate such agreements. This is also in line with the BBAP commitments.

These regulatory amendments do not add any burden on potential applicants, and are providing the possibility to a greater number of people to enroll in NEXUS and CANPASS Air programs. This way, the CBSA can focus resources on travellers and goods of higher or unknown risk and facilitate border management processes for low-risk travellers.

Implementation, enforcement and service standards

Under paragraph 167.1(b) of the Customs Act, a regulation made under that Act may come into force retroactively if it gives effect to a public announcement (in the form of a Customs Notice) made on or before the date on which the regulation is to come into force. All the modifications that were announced in Customs Notices 10-025, 12-020 and 12-030 are presently enforced and would be deemed to have come into force retroactively as of the date of publication of the respective Customs Notices. The amendments to the Regulations that were not part of a Customs Notice would come into effect at the date of registration. The inclusion of these amendments in the Regulations would not modify the way the programs are being enforced presently.

To date, no agreement regarding a trusted traveller program from another country has been concluded.

Contact

Robert Gray
Manager
Trusted Travellers Programs Division
Canada Border Services Agency
191 Laurier Avenue West, 15th Floor
Ottawa, Ontario
K1A 0L8
Telephone: 613-954-7136

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to sec-tion 11.1 (see footnote a) and paragraph 167.1(b) (see footnote b) of the Customs Act (see footnote c), proposes to make the annexed Regulations Amending the Presentation of Persons (2003) 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 Amanda Morris, Manager, Legislative and Regulatory Affairs, Corporate Secretariat Directorate, Canada Border Services Agency, 191 Laurier Avenue West, 13th Floor, Ottawa, Ontario K1A 0L8 (email: Amanda.Morris@cbsa-asfc.gc.ca).

Ottawa, September 25, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE PRESENTATION OF PERSONS (2003) REGULATIONS

PART 1

AMENDMENTS RETROACTIVE TO DECEMBER 17, 2010

1. Section 1 of the Presentation of Persons (2003) Regulations (see footnote 1) is amended by adding the following in alphabetical order:

“common-law partner”
« conjoint de fait »

“common-law partner” means, in relation to a person, an individual who has cohabited with the person in a conjugal relationship for a period of at least one year.

“family member”
« membre de la famille »

“family member” means, in relation to a person who is serving as a member of the Canadian or American armed forces in a foreign country or at a Canadian or American diplomatic mission or consular post in a foreign country, a spouse, common-law partner or dependent who is identified as such in the document confirming the mission or post.

2. Paragraph 6(f) of the Regulations is replaced by the following:

PART 2

AMENDMENTS RETROACTIVE TO JUNE 30, 2012

3. Section 1 of the Regulations is amended by adding the following in alphabetical order:

“permanent resident of Canada”
« résident permanent du Canada »

“permanent resident of Canada” means a permanent resident within the meaning of the Immigration and Refugee Protection Act.

4. (1) Paragraph 6.1(a) of the Regulations is replaced by the following:

(2) Section 6.1 of the Regulations is renumbered as subsection 6.1(1) and is amended by adding the following:

Exception

(2) Paragraph (1)(a.1) does not apply to

PART 3

AMENDMENTS RETROACTIVE TO NOVEMBER 21, 2012

5. The Regulations are amended by adding the following before section 6:

CANPASS Air program

5. (1) The Minister may issue an authorization to a person to present themself in an alternative manner described in paragraph 11(a) if the person

Exception

(2) Paragraph (1)(f) does not apply to

6. (1) The portion of section 6 of the Regulations before paragraph (a) is replaced by the following:

Other CANPASS programs

6. The Minister may issue an authorization to a person to present themself in an alternative manner described in paragraph 11(b), (c) or (e) if the person

(2) The portion of paragraph 6(f) of the Regulations before subparagraph (i) is replaced by the following:

7. (1) Paragraphs 6.1(1)(a) and (a.1) of the Regulations are replaced by the following:

(2) Subsection 6.1(1) of the Regulations is renumbered as section 6.1 and subsection 6.1(2) is repealed.

8. The portion of subsection 7(2) of the Regulations before paragraph (a) is replaced by the following:

Application on behalf of another person

(2) A person may apply for an authorization under section 5, 6 or 6.1 on behalf of

9. Subsection 10(4) of the Regulations is replaced by the following:

Duration

(4) An authorization referred to in section 5 to present oneself in an alternative manner described in paragraph 11(a) expires one year after the date of its issuance.

10. Subsection 24(2) of the Regulations is replaced by the following:

CANPASS Air program

(2) The fee for the issuance or renewal of an authorization referred to in section 5 to present oneself in an alternative manner described in paragraph 11(a) is $50.

PART 4

AMENDMENTS COMING INTO FORCE ON REGISTRATION

11. Section 1 of the Regulations is amended by adding the following in alphabetical order:

“parent”
« parent »

“parent” in respect of a child, means a parent who, by operation of law, by virtue of a written agreement or under a court order, has custody or parental authority over the child.

12. The portion of paragraph 5(2)(c) of the Regulations before subparagraph (i) is replaced by the following:

13. Subparagraph 6(a)(i) of the Regulations is replaced by the following:

14. Subsection 7(2) of the Regulations is replaced by the following:

Application on behalf of child

(2) A person may apply for an authorization under section 5, 6 or 6.1 on behalf of a child who is under 18 years of age

Application on behalf of adult

(2.1) A person may apply for an authorization under section 5, 6 or 6.1 on behalf of a person who is 18 years of age or more who has a mental or physical disability if the person who has the disability consents to the application or, if the person has been declared incompetent, a person who is legally authorized to act on the person’s behalf consents to the application.

PART 5

COMING INTO FORCE

Registration

15. (1) Subject to subsections (2) to (4), these Regulations come into force on the day on which they are registered.

December 17, 2010

(2) Part 1 is deemed to have come into force on December 17, 2010.

June 30, 2012

(3) Part 2 is deemed to have come into force on June 30, 2012.

November 21, 2012

(4) Part 3 is deemed to have come into force on November 21, 2012.

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