Designated Provisions Regulations — Transportation Information (Canada Transportation Act): SOR/2019-185
Canada Gazette, Part II, Volume 153, Number 12
SOR/2019-185 June 6, 2019
CANADA TRANSPORTATION ACT
The Minister of Transport, pursuant to subsection 177(2) footnote a of the Canada Transportation Act footnote b, makes the annexed Designated Provisions Regulations — Transportation Information (Canada Transportation Act).
Ottawa, May 6, 2019
Minister of Transport
Designated Provisions Regulations — Transportation Information (Canada Transportation Act)
1 The provisions set out in the schedule are designated for the purposes of subsection 177(2) of the Canada Transportation Act.
Coming into Force
2 These Regulations come into force on December 15, 2019.
Maximum Amount Payable ($)
Maximum Amount Payable ($)
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues: Ministerial regulations are required to impose administrative monetary penalties (AMPs) as an enforcement and compliance tool for the reporting requirements set out in the Regulations Amending the Transportation Information Regulations (Air Travel Performance Data Collection) [TIRS Amendments].
Description: The Regulations will prescribe maximum penalty amounts for non-compliance with designated reporting requirements set out in the TIRS Amendments.
Rationale: Pursuant to subsection 177(2) of the Canada Transportation Act (CTA), a ministerial regulation is required to implement AMPs as an enforcement and compliance tool for the TIRS Amendments. Without AMPs, actions against non-compliance would be limited to prosecution of a summary conviction.
Regulations are required to issue administrative monetary penalties (AMPs) for non-compliance with regulations made under section 50 of the Canada Transportation Act (CTA). Without the availability of AMPs, Transport Canada’s actions against non-compliance would be limited to prosecution of a summary conviction. Exclusive use of this method of penalization limits the tools available to Transport Canada to effectively perform oversight and enforce the new information reporting obligations prescribed in the Regulations Amending the Transportation Information Regulations (Air Travel Performance Data Collection) [TIRS Amendments].
The Designated Provisions Regulations — Transportation Information (Canada Transportation Act) [AMP Regulations] would be used as an enforcement tool to address non-compliance with the new reporting obligations in the TIRS Amendments. Regulated stakeholders include the Canadian Air Transport Security Authority (CATSA), NAV CANADA, and most Canadian and foreign air carriers operating flights that originate in or are destined for an aerodrome in Canada. Through the new framework introduced in the TIRS Amendments, regulated stakeholders would be required to report information on air travel performance data, such as the number of overbookings, flight delays and cancellations, aircraft movement details and airport security screening wait times. The AMP Regulations would align with the same coming-into-force date as the TIRS Amendments, to ensure that data reports are submitted to Transport Canada on time and with accurate information.
The objective of the AMP Regulations is to create a flexible and effective enforcement program that promotes compliance with the data reporting obligations prescribed in the TIRS Amendments.
Subsection 177(2) of the CTA gives the Minister of Transport the authority to make regulations, to designate provisions in the TIRS Amendments that could be subject to AMPs if contravened, and to prescribe the maximum penalty amounts.
The AMP Regulations will designate all data reporting provisions set out in the TIRS Amendments as subject to a maximum AMP of $5,000 in the case of an individual, and $25,000 in the case of a corporation. Maximum penalties, rather than fixed amounts, are being used to ensure that the administration of monetary penalties are appropriate to the circumstance of each case. As the TIRS Amendments require stakeholders to submit performance metric reports on a monthly or quarterly basis, each reporting cycle resets the reporting obligations. Therefore, each non-compliant report constitutes a separate violation subject to a new AMP. When determining the AMP amount, the Minister of Transport will consider the impact and history of the stakeholder’s non-compliance.
Stakeholders were notified of the Department’s intentions to enforce the proposed TIRS Amendments through ministerial AMP Regulations. This notification occurred through the prepublication of the TIRS Amendments in the Canada Gazette, Part I; the technical briefings; and the Data and Performance Measurement working group. Some stakeholders provided feedback on the application of AMPs as part of their feedback to the TIRS Amendments.
Stakeholders identified two opposing views on how to use AMPs as an enforcement and compliance tool for the TIRS Amendments. On the one hand, air carriers and airline associations suggest leniency for enforcing AMPs for non-compliance, especially during the transition period. Consumer associations, on the other hand, would like to see AMPs issued at the maximum amount in order to enforce compliance.
While Transport Canada is implementing an AMP regime in order to enforce compliance with the TIRS Amendments, AMPs will be considered after employing other compliance tools intended to promote voluntary compliance (e.g. oral counselling, warning letter, etc.). However, where voluntary compliance is not achieved, or where there are serious or repeated violations, it may be appropriate to impose an AMP. In conjunction with the implementation challenges expressed by stakeholders, Transport Canada will work with stakeholders through a sub-working group to develop guidance instructions that can accommodate their reporting transition.
As there are no costs associated to the AMP Regulations, and they do not have an impact on the air travel industry, it is not necessary to prepublish in the Canada Gazette, Part I. For these reasons, the AMP Regulations are published directly in the Canada Gazette, Part II.
Modern treaty obligations and Indigenous engagement and consultation
There are no impacts on modern treaty obligations, and Indigenous engagement and consultations identified for these Regulations.
Transport Canada would generally consider imposing an AMP only after employing other compliance tools intended to promote voluntary compliance (e.g. oral counselling, warning letter, etc.). However, where compliance is not achieved on a voluntary basis, or where there are serious or repeated violations, it may be appropriate to impose an AMP. According to the CTA, provisions of an AMP system must be implemented by regulations.
Costs and benefits
There are no additional costs to industry for implementing these Regulations.
The “One-for-One” Rule does not apply to these Regulations, as there is no change in administrative burden to businesses.
Regulatory cooperation and alignment
The AMP Regulations will harmonize with the anticipated TIRS Amendments, which are also being developed by Transport Canada. The AMP Regulations will introduce specific compliance and enforcement rules that may align and differ from existing AMP regimes in other jurisdictions.
For instance, the United States and Australia also collect and publish data on air travel performance results, but differ on their approach to obtain this information. Australia relies on voluntary agreements to obtain and publish performance data and does not have an air passenger protection regime. On the other hand, the United States similarly regulates the collection and submission of data and designates each regulatory provision as subject to an AMP maximum of $25,000 for corporations. While Transport Canada’s AMP Regulations prescribe maximum penalty amounts per reporting cycle, the United States prescribes a separate AMP for each day the violation continues, or if applicable, for each flight involving the violation. The U.S. Department of Transportation also publishes enforcement orders for violations against accounting and reporting requirements, where fines could climb into hundreds of thousands of dollars.
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.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for these Regulations.
Without the AMP Regulations, actions against non-compliance with the TIRS Amendments would be limited to prosecution of a summary conviction. Transport Canada would also lack an enforcement mechanism to ensure that regulated stakeholders submit accurate and timely performance metric reports.
Implementation, compliance and enforcement, and service standards
Transport Canada’s goal is to create a fair and equitable compliance and enforcement environment that allows the regulated community to take corrective actions first. The enforcement of the TIRS Amendments would also be achieved through the AMP Regulations.
There are three intended applications of AMPs: (1) incomplete or inaccurate information; (2) failure to provide information respecting regional operators (air carriers only); and (3) late submissions. As the TIRS Amendments require stakeholders to submit performance metric reports on a monthly or quarterly basis, each reporting cycle resets the reporting obligations. Therefore, each report can become a separate violation subject to a new AMP, should the report fail to meet the reporting obligations.
To illustrate, an AMP can only be issued in response to non-compliance with the below criteria set out in the TIRS Amendments:
Application of AMPs
Maximum Penalty per Monthly/
When a submission is incomplete or inaccurate.
Air carriers, CATSA and NAV CANADA
When a submission fails to include information respecting regional operators operating on its behalf.
When a submission is late and/or is not submitted through ECATS.
Air carriers, CATSA and NAV CANADA
An AMP would generally be imposed only after employing other compliance tools intended to promote voluntary compliance (e.g. oral counselling, warning letter, etc.). However, where compliance is not achieved on a voluntary basis, or where there are serious or repeated violations, it may be appropriate to impose an AMP. When determining the AMP amount, the Minister of Transport will consider qualifying criteria such as the following:
- Impact of the non-compliance: the level of impact can depend on multiple factors, including the size of the non-compliant stakeholder; the type or amount of data not provided; and the delay caused by the inaccurate or missing information.
- Non-compliance history: Transport Canada will also consider the appropriate penalty range for a first, second or subsequent violation.
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