Canada Gazette, Part I, Volume 149, Number 26: Regulations Amending the Immigration and Refugee Protection Regulations

June 27, 2015

Statutory authority

Immigration and Refugee Protection Act

Sponsoring agency

Canada Border Services Agency

REGULATORY IMPACT ANALYSIS STATEMENT

For the Regulatory Impact Analysis Statement, see the Regulations Amending the Passenger Information (Customs) Regulations.

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1) and section 150 of the Immigration and Refugee Protection Act (see footnote a), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection 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

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

PART 1

AMENDMENTS COMING INTO FORCE ON THE DAY OF REGISTRATION

1. The Immigration and Refugee Protection Regulations (see footnote 1) are amended by adding the following after section 1:

Definition of agent — section 148 of the Act

1.1 (1) For the purposes of section 148 of the Act, “agent” includes any person — whether or not an independent contractor — who provides services as a representative of a vehicle owner, operator or charterer.

Definition of agent — paragraph 148(1)(d) of the Act

(2) For the purposes of paragraph 148(1)(d) of the Act, “agent” includes, in addition to a person referred to in subsection (1), a travel agent, a charterer and an owner or operator of a reservation system.

2. (1)The definition “agent” in section 2 of the Regulations is repealed.

(2) The definitions “commercial vehicle” and “transporter” in section 2 of the Regulations are replaced by the following:

“commercial vehicle”
« véhicule commercial »

“commercial vehicle” means a vehicle that is used for commercial purposes.

“transporter”
« transporteur »

“transporter” means

• (a) a person who owns, operates, charters or manages a vehicle or fleet of vehicles;
• (b) a person who owns or operates an international tunnel or bridge;
• (c) a designated airport authority within the meaning of subsection 2(1) of the Airport Transfer (Miscellaneous Matters) Act; or
• (d) an agent for a person or authority referred to in paragraphs (a) to (c).
  

(3) The portion of the definition “administration fee” in section 2 of the English version of the Regulations before paragraph (a) is replaced by the following:

“administration fee”
« frais administratifs »

“administration fee” means a portion of the average cost incurred by Her Majesty in right of Canada in respect of foreign nationals referred to in subsection 279(1), and includes the costs relating to

(4) Section 2 of the Regulations is amended by adding the following in alphabetical order:

“time of departure”
« moment du départ »

“time of departure” means

• (a) in the case of a commercial vehicle that carries persons or goods by air, the time of take-off from the last point of embarkation of persons before the vehicle arrives in Canada; and
• (b) in the case of a commercial vehicle that carries persons or goods by water or land, the time of departure from the last point of embarkation of persons before the vehicle arrives in Canada.
  

3. Section 258.1 of the Regulations is replaced by the following:

Prescribed persons

258.1 For the purposes of paragraph 148(1)(a) of the Act, the following persons are prescribed:

• (a) any foreign national who is the subject of a declaration made under subsection 22.1(1) of the Act, unless they hold a valid temporary resident permit issued under section 24 of the Act; and
• (b) any foreign national who is not authorized under subsection 52(1) of the Act to return to Canada.

4. (1)Paragraph 259(a) of the French version of the Regulations is replaced by the following:

• a) le titre de voyage visé au paragraphe 31(3) de la Loi;

(2) Section 259 of the Regulations is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):

• (g) an electronic travel authorization referred to in section 7.1.

5. Section 260 of the Regulations is replaced by the following:

Holding prescribed documentation

260. (1) If a commercial transporter has reasonable grounds to believe that the prescribed documents of a person whom it carries to Canada may not be available for examination at a port of entry, the commercial transporter must give the person a receipt for the documents and hold the documents until examination.

Presenting documents

(2) A commercial transporter that holds the documents of a person must, when presenting the person for examination under paragraph 148(1)(b) of the Act, present the documents and a copy of the receipt.

6. Section 263 of the Regulations is replaced by the following:

Medical examination and treatment

263. (1) A commercial transporter must arrange for the medical examination of a foreign national who is required to submit to a medical examination under paragraph 16(2)(b) of the Act and for any medical examination, surveillance or treatment that is imposed under section 32.

Exception

(2) Subsection (1) does not apply if

• (a) the foreign national holds a temporary or permanent resident visa at the time of their examination and the foreign national's health condition is not a result of the commercial transporter's negligence; or
• (b) the foreign national has been authorized to enter and remain in Canada and is not a member of the crew.

Prescribed medical costs

(3) For the purposes of paragraph 148(1)(g) of the Act, any medical costs incurred with respect to the foreign national are prescribed costs and are to be calculated on the basis of the applicable provincial health insurance system.

7. Subsection 268(2) of the English version of the Regulations is replaced by the following:

Failure to join means of transportation

(2) A transporter must, without delay, notify an officer at the nearest port of entry when a foreign national who entered Canada to become a member of the crew of the transporter's vessel fails to join the means of transportation within the period provided in paragraph 184(2)(b).

8. Section 269 of the Regulations is replaced by the following:

Advance passenger information

269. (1) On the request of an official of the Canada Border Services Agency, a commercial transporter that carries or expects to carry persons to Canada on board its commercial vehicle must provide the Canada Border Services Agency with the following information about each person whom it expects to carry:

• (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 by the transporter, if any, 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 transporter or its agent; and
• (f) the following information about their carriage on board the commercial vehicle:
  • (i) the following dates and times:
    • (A) in the case of a person who is or is expected to be carried on board a commercial vehicle by air, the date and time of take-off from the last point of embarkation of persons before the vehicle arrives in Canada, or
    • (B) in the case of a person who is or is expected to be carried on board a commercial vehicle by water or land, the date and time of departure from the last point of embarkation of persons before the vehicle arrives in Canada,
  • (ii) the last point of embarkation of persons before the commercial vehicle arrives in Canada,
  • (iii) the date and time of arrival of the commercial vehicle 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 vehicle that carries persons or goods by air, the flight code identifying the commercial transporter and the flight number.
    

Electronic means

(2) The information referred to in subsection (1) 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 Canada Border Services Agency, as amended from time to time.

Time of transmission — paragraphs (1)(a) to (d)

(3) The information referred to in paragraphs (1)(a) to (d) must be provided

• (a) not later than one hour before the time of departure, if the information relates to a member of the crew; and
• (b) not later than the time of check-in, if the information relates to any other person who is expected to be on board the commercial vehicle.

Time of transmission — paragraph (1)(e)

(4) The information referred to in paragraph (1)(e) must be provided not later than at the time of departure.

Time of transmission — paragraph (1)(d)

(5) The information referred to in paragraph (1)(d) must also be provided, for each person who is on board the commercial vehicle at the time of departure, not later than 30 minutes after the time of departure.

Time of transmission — paragraph (1)(f)

(6) The information referred to in paragraph (1)(f) must be provided at the same time that any information referred to in subsections (3) to (5) is provided.

Incomplete or inaccurate information

(7) A commercial transporter that becomes aware before or at the time of departure that information it has provided under paragraph 148(1)(d) of the Act is incomplete or inaccurate must, in the manner described in subsection (2) and without delay, provide the Canada Border Services Agency with the missing or accurate information.

Exception — paragraph (1)(e)

(8) Subsection (7) does not apply in respect of information referred to in paragraph (1)(e).

Maximum retention period

(9) The Canada Border Services Agency may retain information referred to in paragraphs (1)(a) to (d) about a person until three years and six months after the day of departure of the commercial vehicle that carried or was to carry the person to Canada.

Notification by Canada Border Services Agency

270. (1) The Canada Border Services Agency may notify a commercial transporter that a person whom it expects to carry to Canada may be a person who is prescribed under section 258.1 or a person who may not hold the necessary documents prescribed under section 259.

Obligations unchanged

(2) For greater certainty, subsection (1) does not remove a commercial transporter's obligation to comply with any requirement imposed by the Act or these Regulations.

9. The portion of subsection 273(1) of the Regulations before paragraph (a) is replaced by the following:

Obligation to carry from Canada

273. (1) A commercial transporter who has carried a foreign national referred to in this subsection to Canada or caused such a foreign national to be carried to Canada must, without delay, carry the foreign national from Canada

10. Sections 276 and 277 of the Regulations are replaced by the following:

Notifying commercial transporter

276. (1) When a foreign national who seeks to enter Canada is made subject to a removal order and a commercial transporter is or may be required under the Act to carry that foreign national from Canada, an officer must

• (a) notify the commercial transporter that it is or may be required to carry the foreign national from Canada; and
• (b) when the removal order is enforceable, notify the commercial transporter of its obligation to carry the foreign national from Canada and, if an escort is necessary, request the transporter to provide an escort or to arrange for the carriage of an escort assigned by the Minister.

Arrangements and notice

(2) After being notified under paragraph (1)(b), the commercial transporter must, without delay,

• (a) make arrangements to carry the foreign national from Canada and notify an officer of those arrangements; or
• (b) notify an officer that it is unable to make such arrangements.

Time period

(3) The commercial transporter must carry the foreign national from Canada within 48 hours after giving the notification required by paragraph (2)(a).

Non-compliance

(4) If a commercial transporter does not comply with paragraph 2(a) or subsection (3) or notifies an officer that it is unable to comply with those provisions, or if an officer notifies the commercial transporter in writing that the proposed arrangements are not acceptable, an officer must cause the foreign national to be carried from Canada and the commercial transporter must pay the costs referred to in section 278.

Requirements for acceptance of arrangements

(5) To be acceptable, the arrangements referred to in subsection (2) must meet the following requirements:

• (a) the itinerary of the carriage must begin where the foreign national is situated in Canada and end in the country and city to which the foreign national is to be removed, following the most direct routing possible;
• (b) the itinerary of the carriage must not include a country through which transit has not been approved;
• (c) the period of time between any connections must not exceed 12 hours; and
• (d) the commercial transporter must comply with any request by an officer to provide an escort or to arrange for the carriage of an escort assigned by the Minister.

Relief from obligations

277. Despite sections 273 and 276, a commercial transporter is not obliged to carry a foreign national from Canada, except in the case of a member of its crew or a foreign national who entered Canada to become a member of its crew, if the foreign national at the time of their examination

• (a) was authorized to enter and remain in Canada on a temporary basis; or
• (b) held a valid temporary or permanent resident visa.

11. (1)The portion of subsection 279(1) of the Regulations before paragraph (1)(c) is replaced by the following:

Assessment of administration fee

279. (1) Subject to subsection (2), an administration fee must be assessed against a commercial transporter in respect of any of the following foreign nationals it carried or caused to be carried to Canada:

• (a) a foreign national who is inadmissible under section 41 of the Act for failing to meet the requirements of section 6 or subsection 7(1), 50(1) or 52(1);
• (b) a foreign national who is prescribed under section 258.1 or whom the transporter has been directed under paragraph 148(1)(a) of the Act not to carry to Canada;

(2) Subsection 279(1) of the Regulations is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

• (f) a foreign national who is subject to a removal order, or is allowed under section 42 to withdraw their application to enter Canada, and who fails to leave Canada immediately.

(3) Paragraphs 279(2)(a) to (e) of the Regulations are replaced by the following:

• (a) a person referred to in section 39;
• (b) a foreign national who is prescribed under section 258.1 and in respect of whom notice under section 270 was not given before the foreign national was carried to Canada but who holds the necessary documents prescribed under section 259; or
• (c) a foreign national, other than a foreign national referred to in paragraph 190(3)(c), who seeks entry into Canada to obtain permanent residence and is inadmissible under paragraph 41(a) of the Act for failing to obtain a permanent resident visa as required under section 6, but who is exempted under Division 5 of Part 9 from the requirement to hold a temporary resident visa.

12. (1)Subsection 280(2) of the Regulations is amended by adding the following after paragraph (a):

• (a.1) $3,200, if the transporter carried to Canada a foreign national who is prescribed under section 258.1 or whom the transporter has been directed under paragraph 148(1)(a) of the Act not to carry to Canada;

(2) Paragraph 280(3)(g) of the Regulations is replaced by the following:

• (g) performance standards in respect of document screening, the interception of foreign nationals who do not hold the necessary prescribed documents before they board a commercial vehicle, administration fee assessments and the provision of any prescribed information set out in subsection 269(1);

13. Subsection 282(2) of the Regulations is replaced by the following:

Final assessment and notice

(2) If submissions are made, the Minister must consider the submissions, confirm, vary or cancel the assessment and give written notice of the decision to the commercial transporter.

PART 2

AMENDMENTS THAT COME INTO FORCE ON MARCH 15, 2016

14. Section 277 of the Regulations is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b):

• (c) is a person who is prescribed under paragraph 258.1(a) and the commercial transporter was not, before the person was carried to Canada, notified under section 270 that the person may have been a prescribed person.

15. (1)Paragraph 279(1)(a) of the Regulations is replaced by the following:

• (a) a foreign national who is inadmissible under section 41 of the Act for failing to meet the requirements of section 6, subsection 7(1), section 7.1 or subsection 50(1) or 52(1);

(2) Subsection 279(2) of the Regulations is amended by striking out “or” at the end of paragraph (b) and by replacing paragraph (c) with the following:

• (c) a foreign national who does not hold an electronic travel authorization when one is required under section 7.1 and in respect of whom the Canada Border Services Agency was unable to give notice under section 270 before the foreign national was carried to Canada, but who holds one of the required prescribed documents set out in paragraphs 259(a) to (f); or
• (d) a foreign national, other than a foreign national referred to in paragraph 190(3)(c), who seeks entry into Canada to obtain permanent residence and is inadmissible under paragraph 41(a) of the Act for failing to obtain a permanent resident visa as required under section 6, but who is exempted under Division 1 of Part 2 from the requirement to hold an electronic travel authorization required under section 7.1 or under Division 5 of Part 9 from the requirement to hold a temporary resident visa.

16. Section 282 of the Regulations is amended by adding the following after subsection (2):

Evidence considered

(2.1) In considering the submissions, the Minister must take into account whether the commercial transporter was, before the foreign national was carried to Canada, notified under section 270 that the foreign national may have been a person prescribed under section 258.1 or a person who may not have held an electronic travel authorization when one was required by section 7.1.

PART 3

AMENDMENTS THAT COME INTO FORCE ON A DAY TO BE FIXED IN ACCORDANCE WITH SUBSECTION 19(3)

17. (1)Paragraph 269(1)(e) of the Regulations is replaced by the following:

• (e) any information about them that is referred to in Schedule 2 and is in the reservation system of the transporter or its agent;

(2) Subsections 269(4) to (8) are replaced by the following:

Incomplete or inaccurate information

(4) A commercial transporter that becomes aware before or at the time of departure that information it has provided under paragraph 148(1)(d) of the Act is incomplete or inaccurate must, in the manner described in subsection (2) and without delay, provide the Canada Border Services Agency with the missing or accurate information.

Exception — paragraph (1)(e)

(5) Subsection (4) does not apply in respect of information referred to in paragraph (1)(e).

Time of transmission — paragraph (1)(d)

(6) The information referred to in paragraph (1)(d) must also be provided, for each person who is on board the commercial vehicle at the time of departure, not later than 30 minutes after the time of departure.

Time of transmission — paragraph (1)(e)

(7) The information referred to in paragraph (1)(e) must be provided for each person who is expected to be on board the commercial vehicle not later than 72 hours before the time of departure.

Updates

(8) If information referred to in paragraph (1)(e) about a person in relation to a particular carriage is added to the reservation system or changed less than 72 hours before the time of departure, the commercial transporter must, in the manner described in subsection (2) and at the following times, provide the Canada Border Services Agency with all the information referred to in paragraph (1)(e) about the person in relation to that carriage:

• (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 less than eight hours before the time of departure, not later than the time of departure.
  

Time of transmission — paragraph (1)(f)

(9) The information referred to in paragraph (1)(f) must be provided at the same time that any information referred to in subsections (3) to (8) is provided.

Maximum retention period

(10) The Canada Border Services Agency may retain information referred to in paragraphs (1)(a) to (d) about a person until three years and six months after the day of departure of the commercial vehicle that carried or was to carry the person to Canada.

18. The Regulations are amended by adding, after Schedule 1, the Schedule 2 set out in the schedule to these Regulations.

PART 4

COMING INTO FORCE

19. (1)Subject to subsections (2) and (3), these Regulations come into force on the day on which they are registered.

(2) Part 2 comes into force on March 15, 2016.

(3) Part 3 comes into force on a day to be fixed by amendment to this subsection.

SCHEDULE
(Section 18)

SCHEDULE 2
(Paragraph 269(1)(e))

INFORMATION ABOUT PERSONS IN A RESERVATION SYSTEM

1. Their surname, first name and any middle names
2. Their reservation record locator number
3. Date of their reservation and date their ticket was issued
4. Their itinerary, including the dates of departure and arrival for each segment of travel
5. Information about their participation in a loyalty program and the benefits earned under the program, such as free tickets or upgrades
6. Number of the other passengers included in the reservation record and their surname, first name and any middle names
7. Contact information for each person mentioned in the reservation record, including the person who made the reservation
8. Billing and payment information related to the travel transaction, including credit card number and billing address
9. Information about the travel agent or agency, including name and contact information
10. Code share information
11. Information about whether their reservation record has been split or is linked to another record
12. Their travel status, including confirmation and check-in status
13. Ticketing information, including ticket number, automated ticket fare quote and whether a one-way ticket was purchased
14. Their baggage information, including the number and weight of their bags
15. Their seating information, including seat number
16. General remarks in their reservation record, including other supplementary information, special service information and special service request information
17. The information referred to in paragraphs 269(1)(a) and (b)
18. The history of any changes to the information in items 1 to 17

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