Vol. 148, No. 14 — July 2, 2014

Registration

SOR/2014-161 June 19, 2014

AERONAUTICS ACT

Regulations Amending the Canadian Aviation Security Regulations, 2012 (Non-Passenger Screening — Phase 1)

P.C. 2014-813 June 18, 2014

His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to paragraph 4.71(2)(b) (see footnote a) of the Aeronautics Act (see footnote b), makes the annexed Regulations Amending the Canadian Aviation Security Regulations, 2012 (Non-Passenger Screening — Phase 1).

REGULATIONS AMENDING THE CANADIAN AVIATION SECURITY REGULATIONS, 2012 (NON-PASSENGER SCREENING — PHASE 1)

AMENDMENTS

1. The Canadian Aviation Security Regulations, 2012 (see footnote 1) are amended by adding the following after section 123:

Non-passenger access to restricted areas

123.1 The operator of an aerodrome must, in accordance with a security measure, ensure that non-passengers enter a restricted area at the aerodrome only through a restricted area access point where screening is carried out.

2. The Regulations are amended by adding the following after section 279:

Non-passenger access to restricted areas

279.1 The operator of an aerodrome must, in accordance with a security measure, ensure that non-passengers enter a restricted area at the aerodrome only through a restricted area access point where screening is carried out.

3. Schedule 4 to the Regulations is amended by adding the following after the reference “Section 123”:

Column 1



Designated Provision		 Column 2

Maximum Amount Payable ($)

Individual		 Column 3

Maximum Amount Payable ($)

Corporation
Section 123.1   25,000

4. Schedule 4 to the Regulations is amended by adding the following after the reference “Section 279”:

Column 1



Designated Provision		 Column 2

Maximum Amount Payable ($)

Individual		 Column 3

Maximum Amount Payable ($)

Corporation
Section 279.1   25,000

COMING INTO FORCE

5. These Regulations come into force on July 14, 2014.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: A more stringent International Civil Aviation Organization (ICAO) standard for screening and security controls for non-passengers (e.g. airport and airline workers, maintenance staff, retailers) came into effect in July 2013. Canada’s ability to continue to meet the requirements of the standard will require every non-passenger enter the airport’s restricted area through a screening checkpoint.

Description: The ICAO standard requires member countries to ensure that non-passengers and items they carry are subject to screening and security controls, prior to entering restricted areas serving international air operations. The amendment will require airports to ensure that all non-passengers enter restricted areas through restricted area access points where the Canadian Air Transport Security Authority (CATSA) is conducting screening.

Cost-benefit statement: Requiring that non-passengers access restricted areas only through restricted area access points where CATSA is conducting screening will mitigate the risks posed by non-passengers and will support an air transportation industry that is secure, competitive and compliant with international standards. The cost to airports to implement this change is estimated to be $3.6 million annually. Details of how those costs would be incurred are contained in a separate document that cannot be disclosed to the public as it contains protected information which must be safeguarded under the provisions of Canada’s Government Security Policy.

“One-for-One” Rule: The “One-for-One” Rule does not apply, because the amendment does not impose new administrative burden on business.

Small business lens: The small business lens does not apply to this amendment, as there are no costs imposed on small business.

Background

The potential risk posed by non-passengers at airports due to their access to aircraft or security-sensitive airport areas has been a long-standing matter of concern to international civil aviation security. CATSA’s non-passenger screening program has been in place at Canadian airports since 2004. It consisted of screening non-passengers on a random basis, which was consistent with the international standard at that time.

Issues

On July 15, 2013, a more stringent ICAO international standard for screening non-passengers came into effect. The standard requires member countries to ensure that non-passengers and items they carry are subject to screening and security controls prior to entering airport restricted areas serving international civil aviation operations. Canada, as a member of ICAO, remains committed to meeting the requirements of the standard.

Since the more stringent international standard for screening non-passengers was introduced, CATSA began increasing its non-passenger screening operations at Canadian airports serving international flights.

That said, airports are responsible for access control and have the ability to control whether a restricted area access point is open or closed to non-passengers. Without a regulatory amendment, restricted area access points could remain operational, even though CATSA may not be present to screen non-passengers entering the restricted area. To prevent this from occurring, a regulatory amendment is needed to require airport operators to ensure that nonpassengers enter a restricted area only at restricted area access points where CATSA is conducting screening.

To further enhance the non-passenger screening program and to continue meeting the requirements of the international standard, an amendment to the Canadian Aviation Security Regulations, 2012, is needed.

Objective

The objective is to enable Canada to continue to meet the requirements of the more stringent ICAO non-passenger screening standard by ensuring that every non-passenger entering the restricted area encounters a screening checkpoint.

Description

The Canadian Aviation Security Regulations, 2012, are being amended to require that all non-passengers enter restricted areas through restricted area access points where CATSA carries out screening. If CATSA cannot be present at a restricted area access point, the airport will be required to prevent non-passengers from entering the restricted area through that access point. Doing so will prevent non-passengers from circumventing the screening process.

By amending the designated provisions of the Canadian Aviation Security Regulations, 2012, it will be possible to enforce the new regulatory requirement by means of an administrative monetary penalty in the case of a contravention. This means of enforcement is preferable to both the Government and industry, as it ensures that non-compliance is dealt with at a lesser cost and is a more expeditious means of enforcing certain provisions than if violations were prosecuted through the court system.

“One-for-One” Rule

The “One-for-One” Rule does not apply, because the amendment does not impose new administrative burden on business.

Small business lens

The small business lens does not apply to this amendment, as there are no costs imposed on small business. A small business is defined as any business, including its affiliates, that has fewer than 100 employees or generates between $30,000 and $5 million in annual gross revenue. The airports in question are not small businesses.

Regulatory and non-regulatory options considered

Although the non-regulatory option of voluntary action was considered, the Department determined that this option would not achieve the same objectives and there would be no means to enforce compliance with the requirement. Therefore, the regulatory amendment to the Canadian Aviation Security Regulations, 2012 is the only feasible option available to Transport Canada.

Benefits and costs

Cost-benefit statement Base Year (2014) Year 2018 Final Year (2023) Total (PV) Average Annual
A. Quantified Impacts $
Costs Airports $3,600,000 $3,600,000 $3,600,000 $25,284,894 $3,600,000
Total $3,600,000 $3,600,000 $3,600,000 $25,284,894 $3,600,000
Total Costs $25,284,894 $3,600,000
B. Qualitative Impacts
Benefits Improve aviation security and ensure harmonization with Canada’s major partners (European Union, Australia and the United States) and international standard.

Non-passengers are authorized to access Canadian airports’ restricted areas as access is required in the course of their duties. The amendment will require airport operators to ensure that all non-passengers enter restricted areas through restricted area access points were CATSA is conducting screening.

Airport operators will need to fund staffing of airport personnel to redirect non-passengers to a location where CATSA is conducting screening. Therefore, the present value of the cost to airports is estimated to be $25,284,894 over a 10-year period, which corresponds to an annualized value of $3.6 million. The value is discounted because the cost in each following year is worth less in today’s terms than the previous year. The discount prescribed by Treasury Board is 7%. Costs could be lowered by making an access point impassable; by using signs to redirect non-passengers to other access points or with measures such as remote systems (closed-circuit television, intercom, personnel to monitor video cameras).

The amendment may also have downstream impacts. There might be indirect costs associated with lost productivity and non-passenger wait times. However those costs are difficult to quantify as they depend on the number of checkpoints where CATSA carries out screening, which is not known at this time.

The benefits are qualitative in nature and, as with other security regulations, it is difficult to quantify or monetize them given that both the risk and impact are subjective and uncertain. However, unlawful interference with civil aviation could result in significant negative impacts via loss of life and property damage. Attempts have been made to measure the impact of significant acts of terrorism, such as those that occurred on September 11, 2001, as a means of identifying the magnitude of such an event. Although a precise measurement is not possible, a “scenario estimate” (e.g. 9/11) shows that the benefits of preventing just one imminent attack could be significant (as high as US$375 billion (see footnote 2)) and could be interpreted as the “upper bound” of plausible benefits. Therefore, overall, the amendment is expected to have a positive impact for Canadians.

The economic impact on Canada of not observing the more stringent ICAO international standard for screening nonpassengers was not estimated. However, not meeting the requirements of the international standard would either eliminate international travel or risk other countries imposing additional screening measures on passengers departing from Canada.

Consultation

Transport Canada has consulted with stakeholders, including CATSA, operators of aerodromes and air carriers on enhancements to non-passenger screening since 2011. Discussions with the Canadian Airports Council (CAC) and CATSA in early 2013, focused on airport and airside restricted area access points. Additional consultative meetings were held in early 2014 to discuss the enhancements of the non-passenger screening program and their implementation.

Rationale

The regulatory amendment is needed to demonstrate Canada’s compliance with the more stringent international standard for non-passenger screening and security controls. The cost to airports to implement this change is estimated to be $3.6 million annually. The impact of not amending the Canadian Aviation Security Regulations, 2012 (where non-passengers could circumvent the screening process) would dilute the security value of the existing non-passenger screening program; undermine Canada’s ability to demonstrate continued compliance with the more stringent standard; and would lead to scrutiny from other countries.

The amendment will prevent non-passengers from entering the restricted area through a restricted area access point where CATSA is not carrying out screening.

Implementation, enforcement and service standards

The regulatory amendment will come into force on July 14, 2014. Communications efforts have been ongoing with the CAC and CATSA since early 2014. An ongoing outreach program for affected airports is being developed to ensure that additional enhancements are implemented effectively and efficiently.

The amendment includes the amendment of the designated provisions of the Canadian Aviation Security Regulations, 2012, in order to provide for the imposition of monetary penalties as a means to enforce the Regulations. Under the Aeronautics Act, the maximum monetary penalty that can be assessed for the contravention of a regulation is $5,000 for individuals and $25,000 for corporations.

Transport Canada’s philosophy on the enforcement of the Canadian Aviation Security Regulations, 2012 stresses promoting compliance as the preferred means of achieving a secure aviation environment. However, the Aeronautics Act provides that enforcement actions could be taken in the form of administrative monetary penalties pursuant to sections 7.6 to 8.2, charges could be laid for the commission of an offence set out under subsection 7.3(3), or a Canadian aviation document could be suspended or cancelled in accordance with section 6.9.

Contact

Francine Massicotte
Chief
Aviation Security Regulations
Aviation Security Regulatory Affairs
Transport Canada
330 Sparks Street, 13th Floor, Tower C
Ottawa, Ontario
K1A 0N5
Email: francine.massicotte@tc.gc.ca