Exit Information Regulations: SOR/2019-241

Canada Gazette, Part II, Volume 153, Number 14

Registration
SOR/2019-241 June 25, 2019

CUSTOMS ACT

P.C. 2019-905 June 22, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsections 8.1(8) footnote a, 92(2) footnote b, 93(5)b and 109.1(3) footnote c and paragraph 164(1)(j) of the Customs Act footnote d, makes the annexed Exit Information Regulations.

Exit Information Regulations

Interpretation

Definitions

1 The following definitions apply in these Regulations.

Act means the Customs Act. (Loi)

commercial carrier means the owner or operator of a commercial conveyance. (transporteur commercial)

commercial conveyance means any conveyance that is used for the commercial transportation of persons or goods by air. (moyen de transport commercial)

crew member means a person assigned to duty on board a commercial conveyance. (membre d’équipage)

time of departure means the time of take-off from the last point of embarkation of persons before the conveyance leaves Canada. (moment du départ)

Information Collected by Agency

Purpose

2 The purpose of sections 3 to 5 is to prescribe the source, circumstances and time and manner for the purposes of subsection 92(1) of the Act.

Prescribed source

3 The prescribed source from which the Agency may collect information is the United States Customs and Border Protection Agency or its successor.

Prescribed circumstances

4 The prescribed circumstances in which the Agency may collect information are those in which a person is leaving or has left Canada by land.

Prescribed time and manner

5 When collecting the information, the Agency must collect it by electronic means as soon as it is available from the United States Customs and Border Protection Agency or its successor.

Information Given to Agency

Purpose

6 The purpose of sections 7 to 12 is to prescribe the information, conveyances, classes of persons, circumstances and time and manner for the purposes of subsection 93(1) of the Act.

Prescribed information

7 The prescribed information that is to be given to the Agency under paragraph 93(1)(a) of the Act is the flight code that identifies the commercial carrier and the flight number of the conveyance.

Prescribed conveyances

8 The prescribed conveyances in relation to which information must be given to the Agency are all commercial conveyances except those commercial conveyances that are operated by or on behalf of the Department of National Defence, the Canadian Armed Forces or a visiting force or those used for diplomatic missions to Canada.

Prescribed classes of persons

9 The prescribed classes of persons who must give the information to the Agency are commercial carriers and persons who charter a commercial conveyance.

Prescribed circumstances

10 The prescribed circumstances in which information must be given to the Agency are those in which a conveyance departs or is expected to depart from a place inside Canada with a final destination outside of Canada.

Prescribed time — 72 hours before departure

11 (1) If the following information becomes known to a person of a prescribed class of persons, as provided for in section 9, during the period beginning 72 hours before the conveyance’s scheduled time of departure and ending at check-in, that person must provide the information to the Agency as soon as possible:

Prescribed time — before departure

(2) The information referred to in subsection 93(1) of the Act must be given to the Agency not later than

Prescribed time — after departure

(3) The following information must be given to the Agency not later than 30 minutes after the time of departure of the conveyance:

Prescribed manner

12 The information referred to in subsection 93(1) of the Act must be given to the Agency 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 established by the Agency, as amended from time to time.

Information — incomplete or inaccurate

13 Any person who becomes aware that they have given incomplete or inaccurate information to the Agency under subsection 93(1) of the Act must, without delay and in the manner referred to in section 12, give the missing or accurate information to the Agency.

Consequential Amendments

14 Part 1 of Schedule 1 to the Designated Provisions (Customs) Regulations footnote 1 is amended by adding the following after item 42:

Item

Column 1

Designated Provision

Column 2

Short-form Description

42.1

93(1)

Failing to provide exit information in the prescribed circumstances, within the prescribed time and in the prescribed manner

42.2

94

Failing to present oneself to
an officer and to answer truthfully any questions
asked by an officer

15 Schedule 1 to the Regulations is amended by adding the following after Part 5.1:

PART 5.2

Exit Information Regulations

Item

Column 1

Designated Provision

Column 2

Short-form Description

1

13

Failing to provide the Agency, without delay and in the prescribed manner, with missing or accurate information

Coming into Force

S.C. 2018, c. 30

16 (1) Subject to subsection (2), these regulations come into force on the day on which section 2 of An Act to amend the Customs Act, chapter 30 of the Statutes of Canada 2018, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

Sections 6 to 15

(2) Sections 6 to 15 come into force on the first anniversary of the day on which these Regulations are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The Government of Canada does not currently have access to reliable exit information on all persons leaving Canada. As a result, the Government cannot easily determine who is inside or outside the country at any given time, which adversely impacts Canada’s ability to manage the border and support pressing and substantial public policy objectives related to national security, law enforcement and federal program integrity.

Description: New regulations are required following recent amendments to the Customs Act to enable the Canada Border Services Agency (the CBSA or the Agency) to collect reliable exit information on all travellers leaving Canada, by specifying the sources from which information may be collected, the persons who will be required to provide information, the conveyances (i.e. aircraft) for which information is required, as well as the circumstances, time and manner in which the information must be provided to the Agency.

Cost-benefit statement: The costs of the Exit Information Regulations (the Regulations) are estimated at a total of $110.29 million (Can$) in present value, or $15.38 million in annualized value over the first 10 years of implementation, from 2019 (the year the Regulations are expected to come into force) to 2029. It is estimated that $79.60 million of the costs will be assumed by the CBSA over the 10-year period, with approximately $30.69 million expected to be assumed by the commercial air industry over this same period. The benefits are estimated at a total of $357.17 million in present value, or $50.85 million annualized over the 10-year period. The estimated net benefit of the Regulations is $246.88 million or $35.47 million annualized over the 10-year period, based on the costs and benefits that can be monetized.

“One-for-One” Rule and small business lens: The “One-for-One” Rule does not apply, as these Regulations do not impose new administrative burden costs on business. The small business lens applies, as the Regulations increase costs to the three small businesses identified within the regulatory scope. The average total costs (present value) per small business are estimated at $147,474 (or $20,997 annualized).

Domestic and international coordination and cooperation: These Regulations fulfill Canada’s commitment to take a common approach to that of the United States (U.S.) in managing the movement of outbound travellers across each country’s respective borders and to better strengthen the mutual security of both countries. Moreover, with these Regulations, Canada is fulfilling its international obligations to modernize its border operations in a manner consistent with other developed states and according to existing international standards.

Background

At present, the CBSA does not have access to a reliable source of exit information on all travellers leaving Canada, including Canadian citizens. footnote 2 By contrast, the CBSA routinely collects basic biographic information, such as name, date of birth, sex, as well as related travel document information, when processing travellers seeking entry into Canada.

Under Canada’s immigration and customs laws, all persons seeking to enter Canada are required to report to an authorized port of entry immediately upon arrival and present themselves to a CBSA officer and answer all questions truthfully. In this manner, entry information is collected on all travellers who lawfully enter the country, regardless of the mode of transportation used to enter Canada.

Additional obligations are placed on transporters who bring passengers into Canada.

International travellers arriving by air

Under the Advance Passenger Information/Passenger Name Record program (API/PNR program), footnote 3 since 2002, commercial transporters have been required to provide the CBSA with advance information that identifies air travellers and flight crew (API) on the departure of inbound international flights, as well as any traveller flight reservation and itinerary information (PNR) collected by the carrier.

In March 2016, the regulated time frames were amended to require earlier submission of passenger and crew information, as well as information about the flight. These amendments supported a new interactive capability that allows the CBSA to communicate to commercial air carriers the status of its passengers electronically under the Interactive Advance Passenger Information initiative (IAPI initiative). footnote 4

International travellers departing Canada by air

The CBSA does not currently collect exit information from commercial air carriers on any travellers. The CBSA relies on air travellers to provide exit information on the customs Declaration Card (the E311 form), or electronically via the Primary Inspection Kiosk (PIK) or through the CanBorder application, all of which require returning travellers to self-declare the date on which they originally left Canada. The validity of this information cannot be determined without an alternative source of exit information to compare it against.

Travellers crossing the Canada–U.S. border in the land mode

The CBSA has been securely exchanging biographic entry records for foreign nationals and permanent residents through an information-sharing arrangement with the United States since June 2013, such that an entry into one country confirms the departure from the other. footnote 5

Since August 2016, the CBSA has also been sharing with the United States information on U.S. citizens and nationals who have entered Canada.

In summary, the CBSA lacks exit information on Canadian citizens and U.S. citizens departing Canada by land and relies on anecdotal exit information from all travellers in the air mode. The CBSA does not collect any exit information on travellers departing Canada in the rail and marine modes.

Given that persons leaving Canada by land and air combined represent approximately 97% of all outbound travellers, the CBSA is missing reliable exit information on the significant majority of travellers departing Canada. More specifically, the CBSA does not have exit information on the roughly 61% footnote 6 of all travellers annually crossing Canada’s border who are Canadian citizens.

The absence of exit information has been a long-standing issue with respect to the management of Canada’s border, which has been noted by the Office of the Auditor General of Canada (OAG) in reports issued in 2003 and 2008 that highlighted a number of security concerns stemming from the absence of reliable exit information. In 2008, the OAG estimated that the number of inadmissible persons remaining in Canada illegally had grown by approximately 36 000 people over a six-year period. footnote 7

In recent years, the Government of Canada has seen a number of individuals travelling to foreign destinations to engage in terrorist activities. These individuals often pose a danger to countries in which they operate and may become a direct threat to Canadians upon their return to Canada (through acquiring combat experience and training and potentially establishing terrorist networks and recruitment capabilities).

In June 2015, the Standing Senate Committee on National Security and Defence recommended that the Government move as soon as possible to implement a system to register the entry and exit information of all travellers in light of growing international security concerns. footnote 8 In April 2019, Public Safety Canada released its “2018 Public Report on the Terrorism Threat to Canada,” whereby it was reported that the Government was aware of approximately 190 individuals, with a connection to Canada, suspected of travelling abroad to engage in extremist activity. footnote 9 In addition, the report indicated that the Government was also aware of an additional 60 foreign fighters who had returned to Canada by the end of 2015.

In response to these issues, the Government recently established a new legislative framework to allow the CBSA to systematically collect exit information on all travellers leaving Canada to ensure that reliable travel history information is available to strengthen the management of Canada’s border. On December 13, 2018, legislative amendments to the Customs Act, introduced under Bill C-21, An Act to amend the Customs Act, received royal assent.

The Entry/Exit Initiative

In February 2011, Canada and the United States issued Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness, establishing a new perimeter approach to security and economic competitiveness built upon a long-term partnership between both countries. In February 2017, Canada reaffirmed its commitment to support the ongoing implementation of coordinated entry and exit systems with the United States and to build upon processes implemented under previous phases of the Entry/Exit Initiative, outlined below.

What has been implemented

The Entry/Exit Initiative was first introduced through a pilot project to measure the ability to reconcile biographic entry records between Canada and the United States, to test the IT systems and evaluate the validity of the information sharing concept for statistical and analytical purposes. It was launched in 2012 and was limited to the exit information of third-country nationals (non-citizens) and permanent residents of both countries at four land border crossings. footnote 10

In June 2013, the Entry/Exit Initiative was formally launched and expanded the exchange of information for third-country nationals and permanent residents crossing the shared land border from the initial four ports to all automated ports of entry (POEs).

In August 2016, Canada began the one-way sharing of biographic entry information with the United States on all U.S. citizens and nationals footnote 11 who enter Canada at land ports of entry as an interim measure, until legislative and regulatory authorities are in place to allow for the exchange of reciprocal information on departing Canadian citizens.

Under the new provisions of the Customs Act and the Regulations

Issues

The CBSA is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods across Canada’s border. Additionally, Canada’s immigration, citizenship, travel document and social benefit programs require reliable exit information to help support program decisions and to identify possible cases of non-compliance, fraud or misrepresentation.

However, the CBSA does not currently have access to reliable exit information on all persons leaving Canada. Without this information, the travel history information for travellers crossing Canada’s border remains incomplete. Incomplete or unreliable information, in instances where it is both relevant and required to assess compliance with program requirements under Canadian law, effectively undermines the integrity of these programs.

The lack of access to reliable exit information limits the CBSA in fulfilling its mandate, specifically, the ability to

To address this gap, new regulations are required to operationalize the new provisions under the Customs Act, which specify the exit information that may be collected by the CBSA.

Objectives

The Exit Information Regulations (the Regulations) will prescribe who must provide exit information, the sources and circumstances of its collection and the specific intervals and manner of its provision to the CBSA.

In doing so, the Regulations achieve the following objectives:

Description

Overview

Part V of the Customs Act has been amended to include new sections pertaining to information concerning persons leaving Canada. The exact data elements that make up this information have been included within the legislation so that the collection of personal information remains limited by a statutory framework that may not be changed without open and transparent discussion before Parliament.

The Exit Information Regulations support the full implementation of the Entry/Exit Initiative, enabling the CBSA to compile complete travel history records on all travellers leaving Canada in the air and land modes. By collecting the information from reliable partners, rather than requiring travellers to report to the CBSA when leaving Canada, the process will be seamless for travellers. This is achieved differently depending on how a traveller leaves the country:

Once these proposed Regulations are in place, the CBSA will assess the feasibility of collecting exit information in the rail and marine modes. As the collection of exit information in the remaining modes of transportation falls outside the scope of this regulatory proposal, regulatory amendments would be required for any future modes.

Exit Information Regulations

The Regulations will apply to exit information in the land and air modes of transportation.

In the land mode, the Regulations will specify the circumstances, sources, time and manner in which the information may be collected by the CBSA footnote 12 in relation to any person who is leaving or who has left Canada:

In the air mode, in relation to persons on board (including crew), or expected to be on board, outbound international flights from Canada, the proposed Regulations prescribe the following:

Coming into force

The Regulations are divided into two parts, which will come into force as follows:

Designated Provisions (Customs) Regulations (consequential amendment)

The Designated Provisions (Customs) Regulations (DPCR) designate various provisions of the Customs Act and its regulations for enforcement purposes. If a provision designated by the DPCR is violated, the CBSA may issue an administrative monetary penalty (AMP) to the individual or corporation that was found to be in non-compliance. In order to provide the CBSA with the ability to enforce the new legislative provisions related to the collection of exit information, consequential amendments to the schedules to the DPCR are needed.

Specifically, the DPCR is amended to include a reference to subsection 93(1) and section 94 of the Customs Act, under Schedule 1.

The reference to subsection 93(1) enables the CBSA to issue AMPs to prescribed persons (i.e. a commercial carrier or charterer) in the air mode who fail to provide exit information within the prescribed circumstances, time or manner. Schedule 1 of the DPCR has also been amended to include a reference to the Regulations to enable the CBSA to issue a penalty for persons who fail to provide missing or accurate information in the air mode. This allows the CBSA to create provisions similar to those in place under the Advance Passenger Information/Passenger Name Record program (API/PNR program) for inbound flights to Canada, where a commercial carrier or charterer fails to provide information within the prescribed time and manner about any person on board, or expected to be on board, a conveyance prior to its arrival in Canada.

The reference to section 94 in the DPCR enables the CBSA to issue AMPs to persons who failed to present oneself to an officer and to answer truthfully to questions. This aligns the CBSA’s authorities on exit with those governing passengers upon entry. footnote 15

Regulatory and non-regulatory options considered

In addition to the approach described above, the following options were considered.

Maintain status quo

Maintaining the status quo was determined not to be a viable option, given that the new provisions under the Customs Act that permit the collection of exit information cannot be operationalized in the absence of supporting regulations.

Any decision by Canada not to impose exit requirements similar to those being adopted in many like-minded countries footnote 16 would result in Canada falling behind its allies in taking action against important issues requiring international cooperation, such as efforts to combat irregular migration or enhanced global security.

Amend existing regulatory framework under the Passenger Information (Customs) Regulations

This option examined amending the existing Passenger Information (Customs) Regulations (PICR), which currently govern the provision of advance information to the CBSA for inbound flights to Canada under the API/PNR program, footnote 17 to further prescribe requirements for the provision of information on outbound international flights. This option was not chosen, given that the current PICR framework would not align well with the recently enacted legislative amendments to the Customs Act. Specifically, the type of information that must be provided to the CBSA for inbound travellers is outlined in regulations. Whereas, the type of information that must be provided to the CBSA for outbound travellers is set in legislation.

Voluntary compliance regime

A decision to forgo the Regulations in favour of an alternate reporting regime, such as allowing information to be provided to the CBSA on a voluntary basis, would result in incomplete information, as it can be reasonably expected that only some carriers would be in a position to comply. As a result, existing gaps in the travel history information collected by the CBSA would remain and any information collected would therefore be of little value to the Agency. In effect, this option would create a burden on participating stakeholders that is disproportionate to the benefit achieved.

Benefits and costs

The costs associated with the Regulations are based on CBSA data derived from an analysis of costs incurred for similar programs implemented by the CBSA, such as the API/PNR program and the IAPI initiative, as well as on international comparisons with other countries where similar regulations are already in place.

Based on costs and benefits that can be monetized, the present value (PV) of the cost of the Regulations has been estimated at $110.29 million, or $15.38 million in annualized value over the first 10 years of implementation. Present values and annualized values are calculated based on a discount rate of 7% over a 10-year period, from fiscal year 2019–20 (the fiscal year in which the Regulations are expected to come into force) to fiscal year 2028–29 (the tenth year of implementation) inclusive.

It is estimated that the CBSA will incur costs of $79.60 million over the 10-year period to develop and maintain the necessary IT systems to support the collection of exit information in the land and air modes and provide policy and operational support to the program. An estimated $30.69 million will be carried by the commercial air industry over 10 years to update IT systems to support the incremental transmission of electronic passenger manifests to the CBSA for outbound international flights, conduct training and ensure that business processes comply with the Regulations.

The benefits derived from the Regulations are estimated at a total of $357.17 million in present value, or $50.85 million annualized over the 10-year period.

Both Employment and Social Development Canada (ESDC) and the Canada Revenue Agency (CRA) will use exit information received from the CBSA to identify persons who are outside of Canada who may be ineligible to receive further benefit payments based on established eligibility requirements. An estimated $206.11 million in benefits will be realized by ESDC over 10 years to prevent fraud and ensure compliance with requirements under Canada’s Employment Insurance (EI) and Old Age Security (OAS) programs, respectively. Similarly, it is estimated that $151.06 million in benefits will be realized by the CRA over the 10-year period to prevent fraud and ensure compliance with family and child tax credits and benefits administered by the CRA. Both ESDC and the CRA will begin using exit information as it becomes available to enforce their respective programs as the regulatory requirements come into force for each mode of travel.

The estimated net benefits stemming from the Regulations are $246.88 million, or $35.47 million annualized over the 10-year period, based on the costs and benefits that can be monetized. The realization of these cost savings by ESDC and the CRA will ultimately contribute to a more efficient public administration and better management of public funds, which is a benefit for Canadians.

In addition to the monetized benefits, the Regulations and the collection, use, and lawful disclosure of reliable exit information are expected to result in a number of qualified benefits, including increased national security and public safety, enhanced border management, and improved integrity of Canada’s customs, immigration, citizenship, travel document and social benefit programs.

The following table presents the costs and benefits of the Regulations that result from the implementation of the Entry/Exit Initiative.

Table 1: Cost-benefit statement (2018 constant Canadian dollars)

Costs and Benefits

Year 1
Land Mode Only

Year 2
Land and Air Modes

Year 5

Year 10

PV Total

Annualized Average

2019

 2020

2023

2028

A. MONETIZED IMPACTS

Costs

Government costs

Salary

3,473,000

3,473,000

3,473,000

3,473,000

24,391,000

3,473,000

Operating and maintenance (O&M)

8,364,000

6,461,000

6,461,000

6,461,000

47,160,000

6,714,000

Employee Benefit Plan (EBP)

695,000

695,000

695,000

695,000

4,878,000

695,000

Accommodation

451,000

451,000

451,000

451,000

3,171,000

451,000

Government subtotal

12,983,000

11,080,000

11,080,000

11,080,000

79,600,000

11,333,000

Business costs

Data transmission

0

4,177,000

4,564,000

5,291,000

28,327,000

4,033,000

Training

0

179,000

0

0

157,000

22,000

IT testing and onboarding

0

2,527,000

0

0

2,208,000

314,000

Business subtotal

0

6,883,000

4,564,000

5,291,000

30,692,000

4,055,000

Total costs

12,983,000

17,963,000

15,644,000

16,371,000

110,292,000

15,388,000

Benefits

Government benefits

Social benefit program savings (ESDC/CRA)

11,969,000

29,799,000

55,018,000

81,208,000

357,174,000

50,853,000

Total benefits

11,969,000

29,799,000

55,018,000

81,208,000

357,174,000

50,853,000

NET BENEFIT

246,882,000

35,465,000

B. QUALITATIVE IMPACTS

Benefits

Canadian public

1. Increased national security and public safety

a. Reductions in national security and public safety risks resulting from a reduction in the probability of known high-risk persons and goods departing Canada on board outbound commercial international flights (e.g. known terrorists; human smugglers; child abductors; registered sex offenders; controlled, prohibited or regulated goods).

Government

2. Enhanced border management and public security

a. The collection of reliable exit information for all travellers leaving Canada will better position the Government to manage the outbound movement of high-risk travellers and goods across Canada’s border. Exit information collected prior to departure in the air mode will enhance the Government’s ability to respond to the expected departure of high-risk travellers and goods before they actually leave Canada to safeguard the safety and security of Canadians travelling abroad on board outbound international commercial flights.

3. Improved integrity of Canada’s immigration, customs, citizenship, and travel document programs

a. The collection of exit information on all travellers will enable the CBSA to better monitor compliance with Canada’s customs and immigration laws by verifying travel dates to confirm applicable duties and taxes for returning residents, identify temporary residents who attempt to remain in Canada illegally, focus immigration enforcement investigations on persons still in Canada, and verify whether permanent residents returning to Canada have complied with statutory residency requirements based on residency-based eligibility criteria. footnote 18

b. Exit information will be shared with Immigration, Refugees and Citizenship Canada (IRCC) to support evidence-based decision making when processing applications for permanent residency or Canadian citizenship. footnote 19 This information will also be provided to IRCC decision-makers to support admissibility decisions for overseas applicants seeking to return to Canada and verify whether family-class sponsors are residing in Canada when applying to sponsor relatives to live in Canada. The information will also help IRCC investigators identify cases of possible travel document fraud and the revocation of Canadian-issued travel documents.

4. Prevent abuse of federally administered social benefit programs to achieve Government savings

a. Reliable exit information will help protect the integrity of Canada’s federal social benefit programs by helping the Government identify cases where beneficiaries continue to collect benefits that they may no longer be entitled to receive. Exit information will support ongoing investigations led by ESDC and the CRA to achieve incremental program savings by preventing future payments, and recovering payments made in error, to ineligible persons.

b. An increase in the public’s awareness of the Government’s program integrity efforts will help deter future cases of fraud due to the higher probability of detection. In effect, this will also increase the likelihood that benefit payments, which would have otherwise been spent outside the country, are spent in Canada to better support the ongoing prosperity of Canada’s economy.

Note: Figures may not sum to total due to rounding.

To calculate the compliance costs, a number of assumptions were made.

General assumptions

Assumptions related to transmissions and training

1. Transmission of the required information to the CBSA, in accordance with the prescribed timelines, as follows:

2. Familiarization with regulatory obligations (including training)

For each activity, four cost parameters were factored in:

1. Price: the wage cost plus overhead or the price associated with the activity;

2. Time: the amount of time required to complete the activity;

3. Frequency: the number of times that the activity must be completed each year; and

4. Population: the number of affected businesses.

The Regulations have been designed so that travellers, including Canadians, departing Canada by land or air are not required to provide any information directly to the CBSA. The information will be collected from reliable third-party partners through existing IT infrastructure. The Customs Act limits the collection of exit information to basic biographic data elements that are already routinely collected from all travellers entering Canada. This reduces the impact to affected travellers and ensures that the Entry/Exit Initiative is implemented in a cost-effective and seamless manner.

In regard to the land mode, as all biographic entry data exchanged between the CBSA and the U.S. CBP will continue to be done through the use of the same secure connection used and determined to be effective under previous phases, there will be no additional incremental costs.

In respect of the air mode, although the Regulations result in incremental costs to impacted air industry stakeholders, commercial carriers are able to leverage investments previously made to comply with requirements for the provision of inbound passenger information to the CBSA.

A summary comparison of the baseline scenario and the regulated scenario for the CBSA is presented in Table 2A and Table 2B.

Table 2A: Baseline scenario vs. regulated scenario (land mode)

Baseline

Regulated
(Differences in bold)

Collection of information

Currently, the CBSA collects information from the
U.S. CBP on foreign nationals (excluding U.S. citizens) and permanent residents leaving Canada and entering the United States in the land mode.

Collection of information

The CBSA collects information from the U.S. CBP on all travellers, including Canadian citizens and registered Indians, leaving Canada and entering the United States in the land mode.

Table 2B: Baseline scenario vs. regulated scenario (air mode)

Baseline scenario: Currently, no outbound passenger manifest information collected by commercial air carriers for persons (including passengers and crew members) on board or expected to be on board flights leaving Canada is transmitted to the CBSA.

Regulated scenario: The Exit Information Regulations require all commercial air carriers operating international flights to provide this information to the CBSA electronically and within the following prescribed time frames, as follows:

Partial dataset
~72 hours prior to departure

Full dataset
~24 hours prior to departure

Crew dataset
~1 hour prior to departure

Close-out message
~30 minutes following departure

Where available, beginning at 72 hours prior to the flight’s scheduled time of departure, the air carrier transmits basic biographic information (complete name, date of birth and sex) as well as the unique passenger reference (UPR) and flight number to the CBSA for all passengers expected to be on board the outbound international flight.

As soon as the information becomes available during "check-in" (beginning at 24 hours prior to the flight’s scheduled time of departure), the air carrier transmits complete passenger manifest information (complete name, date of birth, sex, citizenship/nationality and travel document information) as well as the scheduled date, time and place of departure, UPR and flight number to the CBSA for all passengers expected to be on board the outbound international flight.

A minimum of one hour prior to the flight’s scheduled time of departure, the air carrier transmits complete crew manifest information (complete name, date of birth, sex, citizenship/nationality and travel document information) to the CBSA for all crew members expected to be on board the outbound international flight, as well as the flight number and scheduled date, time and place of departure from Canada.

Within 30 minutes following the flight’s actual departure from Canada, the air carrier transmits a final
"close-out" message to the CBSA containing the unique passenger reference numbers for each passenger on board the conveyance as well as the flight number and actual date, time and place of departure from Canada.

Ad hoc transmission

See sensitivity analysis, Table 3.

The air carrier transmits additional messages to the CBSA at any point within these time frames in the event that new information is received or information previously provided to the CBSA is subsequently updated (e.g. flight cancellation or correction to passenger manifest information).

Note: Outbound passenger manifest information is transmitted to the CBSA by the air carrier via a direct (Message Queue) connection, third-party service provider, CBSA’s Interactive API Gateway website or secure email.

The Exit Information Regulations require commercial carriers to send additional ad hoc transmissions to the CBSA in the event that information previously submitted is subsequently updated or determined to be inaccurate. The following table shows the estimated cost of each additional transmission to commercial carriers.

Table 3: Sensitivity analysis: Extra transmissions (updates) required
 

Costs table 6 note * /Carrier

Total Cost to Carriers table 6 note *

% of Extra Transmissions per Passengers on Outbound Flights

10-Year PV

10-Year Annualized Average

10-Year PV

10-Year Annualized Average

10%

29,700

4,200

1,364,800

194,300

20%

59,300

8,400

2,729,600

388,600

30%

89,000

12,700

4,094,300

582,900

Table 6 note(s)

Table 6 note *

Approximate values only, in 2018 dollars

Return to table 6 note * referrer

Increasing the number of extra transmissions by 10% from the assumed value would raise the costs to commercial air carriers by 4.45% and the total cost of the proposal by 1.12%. If the number of extra transmissions increased by 30% from the assumed value, then the cost to commercial carriers would rise by 13.3% and total cost of the proposal by 3.71%.

The CBSA further offset costs to air industry stakeholders by ensuring that the proposed Regulations closely aligned with exit information requirements already in place in the United States through the Advance Passenger Information System (APIS) Final Rule and that they are consistent with established guidelines based on international standards recognized by the International Air Transport Association (IATA), the International Civil Aviation Organization (ICAO) and the World Customs Organization (WCO). For these reasons, it is believed that the incremental costs to commercial carriers remain proportionate to the policy objectives for this initiative, and that the Regulations, overall, represent a net benefit to Canadians and the Government of Canada.

“One-for-One” Rule

The Exit Information Regulations are new; however, as they do not impose new administrative burden on business, the “One-for-One” Rule made under the Red Tape Reduction Act and its Regulations does not apply.

When the Regulations were prepublished in the Canada Gazette, Part I, the costs associated with submission of data for the exit of passengers from Canada were considered to be administrative burden costs. The Red Tape Reduction Act defines administrative burden as anything that is necessary to demonstrate compliance with a regulation. As the submission of this information is essential to the achievement of the regulations’ objectives rather than focused on demonstrating compliance, these costs are no longer considered to meet the definition of administrative burden. The costs (to comply with these regulations) to business previously outlined in this section have now been accounted for in the above costs and benefits section.

Small business lens

The small business lens applies, as the Regulations have nationwide costs that exceed $1 million annually and impact small businesses. Of the 70 commercial air carriers identified within the scope of this regulatory proposal, 3 meet the criteria established by TBS for small business, namely; any business, whether incorporated or not, with fewer than 100 employees or between $30,000 and $5 million in annual revenues. footnote 22

The average total costs (present value) per small air carrier are estimated at $147,474 (or $20,997 annualized). Direct compliance costs associated with the Regulations have been calculated for the small business lens. The compliance activities included in the calculations are the upfront costs relating to the updating, testing and certification of air carrier IT systems, and the familiarization of employees with the regulations so the businesses have the capability to meet their information obligations. Compliance costs also include the ongoing costs required to submit information that is essential to the regulations meeting their intended objectives.

Flexible option

Two flexible options were considered for this regulatory proposal:

1. requiring fewer data transmissions for small businesses; and

2. introducing an extended compliance period for small business whereby any administrative monetary penalties (AMPs) would be assessed at $0 for 18 months footnote 23 after the coming into force of the Regulations governing the air mode. This period has been set at 12 months for medium and large carriers.

It was determined that fewer transmissions could lead to potential issues with data integrity and compliance monitoring, thereby compromising overall program integrity. Consequently, the CBSA has not adopted this approach.

The extended compliance period, while not directly reducing compliance costs for small businesses, is expected to reduce the burden on these carriers by providing additional time to conduct training, testing and certification activities. As this option also maintains data integrity, it is the recommended option.

A summary comparison of the initial option and the flexible option for small business is presented in Table 4.

Table 4: Flexible option analysis
 

Initial Option

 Flexible Option

Short description

Upon registration of the Regulations and supporting amendments to the DPCR, there will be a period of approximately 12 months after the regulations governing air mode come into force during which AMPs will be assessed at $0 to assist affected stakeholders and provide sufficient time for commercial carriers to undertake IT testing activities, where required.

 Extending the application of $0 assessed AMPs by an additional 6 months for small businesses as an informed compliance period.

Number of small businesses impacted

3

 3
 

Annualized Average ($2012)

Present Value
($2012)

Annualized
($2012)

Present Value
($2012)

Compliance costs

$64,983

$456,516

$64,983

$456,516

Administrative costs

$0

$0

$0

$0

Total costs

$64,985

$456,428

$64,985

$456,428

Average cost per small business

$21,662

$152,143

$21,662

$152,143

Risk considerations

Small businesses affected under this proposal may not have the same level of resources or expertise to conduct testing and certification as large/medium commercial carriers. There is a risk that 12 months would not be sufficient to comply with the regulatory requirements.

Providing small businesses with an extended compliance period may present a risk of elevated non-compliance with the regulatory requirements and create a negative reaction from the airline industry as a whole.

Given that all carriers need to be compliant with existing requirements for inbound, it is expected that small commercial carriers have in place systems to enable the transmission of exit information to the Agency, as required for these new regulations. The risk of non-compliance is therefore extremely low. However, given the small proportion of passengers carried by these small carriers, any non-compliance within this period would have very little impact on overall program integrity.

Flexibility within the initial option

In addition to proposing a flexible option for small businesses, the CBSA provides flexibility for all businesses by encouraging commercial air carriers to transmit prescribed information through various approved methods already in place (e.g. direct connection, secure email and Internet API Gateway) for the transmission of inbound passenger information through the API/PNR program. With the launching of IAPI initiative functionality, the CBSA has encouraged API/PNR program clients that have only one transmission method to set up an alternate method.

In addition, if commercial air carriers or their service providers are allowed to test and certify for IAPI initiative and Entry/Exit Initiative requirements at the same time, businesses could further leverage previous investments made under the API/PNR program. Message format components are based on internationally recognized standards that air carriers already conform to when sending data for inbound passengers under the API/PNR program.

Privacy impacts

The CBSA has completed a privacy impact assessment (PIA) for the full implementation of the Entry/Exit Initiative in consultation with the Office of the Privacy Commissioner (OPC). The executive summary will be available on the CBSA website, and the full privacy impact assessment will be available on request. The PIA highlights the following potential privacy risks and proposed mitigation strategies.

Risk: There may be insufficient oversight to ensure that program owners and other government department partners are accountable for how personal information is used and shared under the Entry/Exit Initiative.

Mitigation: The Entry/Exit Initiative will be subject to ongoing audits and evaluations as part of the Agency’s corporate reporting lifecycle. A formal evaluation of the program is currently scheduled to take place once the Initiative is fully implemented.

Information-sharing arrangements specific to the Entry/Exit Initiative will also be put in place between the CBSA and each federal partner, which include privacy protection language consistent with legislative safeguards already in place under the Customs Act. The CBSA will lead interdepartmental evaluations, approximately every five years, to ensure that all federal partners have complied with statutory requirements, as well as the provisions of applicable information-sharing arrangements. To outline their respective administrative frameworks for privacy protection, including a description of accountability, other government department partners must have completed PIAs, or updated existing PIAs, for all programs that use Entry/Exit Initiative information.

Risk: The scope of the Entry/Exit Initiative could inadvertently be expanded to include additional personal information beyond what is strictly necessary to manage travel history information (biometric information, licence plates, passenger name record data, etc.).

Mitigation: New legislative authorities have been enacted to ensure that the collection of personal information is limited by a statutory framework, namely, the data elements outlined in sections 92 and 93 of the Customs Act. The collection of any additional personal information is not currently in scope, nor are there any plans to collect this information in the immediate future.

Risk: Personal information collected under the Entry/Exit Initiative will be retained longer than necessary.

Mitigation: Once fully implemented, personal information collected under the Entry/Exit Initiative will be retained for no more than 15 years, after which it will be purged from the CBSA’s data holdings, unless it is otherwise required to be retained under Canadian law or is linked to an active and ongoing CBSA investigation. The CBSA has determined that the 15-year maximum retention period strikes the appropriate balance between respecting the privacy rights of travellers while ensuring that the Agency has the necessary information available to support programs and activities related to its mandate (e.g. assessing duties and taxes, determining admissibility, undertaking immigration enforcement investigations).

Risk: There exists a risk that personal information collected and disclosed under the Entry/Exit Initiative will be used or further disclosed for unauthorized secondary purposes.

Mitigation: In addition to statutory and policy restrictions on the use and disclosure of Entry/Exit information, the CBSA reserves the right to suspend further sharing with any partner in the event of an unlawful use or disclosure of information. In this manner, no additional information would be shared until the Agency has been satisfied that all privacy issues have been resolved.

Risk: There exists a risk that administrative decisions or actions, such as the discontinuation of benefits, could be taken against an individual in error, given that several individuals can have similar biographic information (e.g. false positives).

Mitigation: Entry/Exit information alone will never form the sole basis for an administrative action, and all employees or partners using this information must endeavour to verify its accuracy prior to administrative actions or decisions being taken against individuals. A redress process is in place to ensure that all individuals can request access to their personal information and seek corrections where warranted. IT safeguards, such as audit controls, will also monitor and record all internal and external disclosures, and notifications may be issued in the event that previously disclosed information is subsequently corrected.

Risk: There is a risk that the CBSA will “over-collect” personal information for persons that have not left Canada in the event that an outbound international flight is subsequently cancelled after personal information has previously been submitted to the CBSA.

Mitigation: Similarly to processes in place under the API/PNR program for inbound flights to Canada, commercial air carriers will use Flight Update Notification (FUN) messages to notify the CBSA in instances where an outbound international flight is subsequently cancelled. The CBSA will also use the final closeout message received from commercial air carriers to confirm all passengers that were on board the aircraft at the time of departure from Canada.

Risk: There is a risk that the incomplete collection of entry information captured for all travellers entering Canada via the land mode could undermine the Agency’s ability to successfully reconcile entry and exit records under the Entry/Exit Initiative.

Mitigation: Effective April 2, 2013, the CBSA implemented a 100% data capture policy nationwide requiring border services officers to scan and capture all traveller identity document information at all ports of entry equipped with Integrated Primary Inspection Line (IPIL) technology in the land and rail modes. This has effectively increased the volume of reliable and accurate information collected from all travellers as they enter Canada in these modes. Further, the CBSA will continue to invest in new technology (e.g. handheld devices) to increase data capture at small and remote ports of entry across Canada.

Risk: There is a risk that personal information may not be safeguarded to the highest level, given that threat and risk assessments have not yet been undertaken for all IT systems and databases that will be leveraged to support the IT solution for the Entry/Exit Initiative.

Mitigation: The CBSA will continue to monitor the completion of all required IT security assessments to ensure that all relevant safeguards are put into place to protect personal information collected under the Entry/Exit Initiative. The CBSA will endeavour to ensure that the related IT security assessments and supporting IT security measures are in place prior to the full implementation of the Entry/Exit Initiative.

Risk: There remains a risk that there will be insufficient transparency between the CBSA and federal partners to ensure that personal information disclosed under the Entry/Exit Initiative is properly safeguarded.

Mitigation: Prior to any disclosure of information, all affected partners will be required to demonstrate, through the completion of a PIA, that the necessary administrative, physical, technical safeguards and control frameworks are in place to ensure the effective management and protection of all personal information received. Affected security partners, such as the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS), are subject to regular, ongoing and independent oversight from review bodies, including the Commission for Public Complaints against the RCMP and the Security Intelligence Review Committee, respectively. Further, sections 36 and 37 of the Privacy Act provide for the additional scrutiny by the federal Privacy Commissioner of all activities conducted by affected government departments. The CBSA also reserves the right to suspend the sharing of information with any partner in the event of unlawful use or disclosure.

Risk: The Privacy Act does not afford the right of access to foreign nationals who are not in Canada.

Mitigation: Under the Entry/Exit Initiative, the CBSA will go beyond its legal requirements by informally extending the right of access to individuals not currently covered under the Privacy Act, footnote 24 specifically foreign nationals whose personal information is held by the Agency from a previous visit to Canada. Foreign nationals located overseas will be able to request that their personal information be corrected in the event that an error is identified. A correction may be made by the CBSA where there is sufficient reason to believe that an error was made. However, foreign nationals located abroad will not have the right to file a formal complaint with the OPC in the event that they are not satisfied.

Consultation

Public consultations with affected stakeholders regarding the implementation of the Entry/Exit Initiative have been ongoing since the announcement of the Beyond the Border Action Plan between Canada and the United States in 2011. A key commitment of the announcement was to solicit input from a broad cross-section of Canadian stakeholders. footnote 25 Consultations were held in 2011 with Canadian citizens and the general public in advance of the announcement and no significant concerns were raised in relation to the Entry/Exit Initiative. Feedback was received on the proposed border Entry/Exit systems from representatives of Canada’s airline industry and the Canadian Council of Chief Executives (now known as the Business Council of Canada).

Stakeholders supported the implementation of an integrated automated Entry/Exit system at the border; concern was expressed that new exit processes might result in new costs and procedures, and recommendations were made for the development of joint (Canada–United States) data collection/information sharing for the Entry/Exit Initiative. Individual Canadians and other levels of government did not provide feedback specific to this initiative.

Commercial air carriers have been identified as the primary stakeholder group affected by the regulatory requirements introduced in support of the Entry/Exit Initiative. To establish a forum for ongoing consultation regarding the implementation of the IAPI and Entry/Exit initiatives respectively, the CBSA established the Air Industry Working Group (AIWG), bringing together air industry representatives with CBSA officials, commercial carriers, aviation groups and third-party service providers. Further, the CBSA established a subcommittee, known as the Airline Industry Technical Working Group (AITWG), to work closely with air industry representatives to discuss and outline the necessary IT business requirements and technical details for both the IAPI and Entry/Exit initiatives.

Regular AIWG and AITWG meetings (three to four times a year) were held with the CBSA from December 2012 to February 2018. Input solicited from these consultations was taken into consideration to inform CBSA business decisions so as to address concerns raised by stakeholders. In general, the airline industry expressed support for both initiatives, but emphasized the importance of aligning as closely as possible regulatory and technical requirements with those already in place. The CBSA has also introduced a number of other measures to help reduce the financial burden on the air industry, such as allowing commercial air carriers or their service providers to test and certify for IAPI and Entry/Exit requirements at the same time, leveraging previous investments made under the API/PNR program and providing a range of technical options on how to transmit information to the CBSA.

Feedback received from air industry stakeholders was incorporated into the CBSA CMR, made available on June 29, 2015. The CMR, which are updated annually, footnote 26 detail the technical requirements for commercial air carriers to implement the IAPI and Entry/Exit (air mode) initiatives. The CMR have been endorsed at the AIWG and will be incorporated by reference under this regulatory proposal.

Since June 2013, through the AIWG and the AITWG, the CBSA has also applied a variety of engagement methods to inform and solicit input from commercial air carriers regarding the implementation of the Entry/Exit Initiative and supporting requirements, such as providing technical webinars and presentations to commercial carriers and service providers, holding one-on-one meetings, responding to written correspondence and questions received from stakeholders via the Air Exit mailbox, creating a dedicated Entry/Exit Initiative web page and issuing periodic public communiqués.

Moving forward, the CBSA will leverage consultative committees, such as the annual Air Consultative Committee (ACC), to provide or discuss any Entry/Exit Initiative updates. For example, the CBSA provided a high-level update to airlines during an ACC meeting held on June 14, 2018. Engagement and implementation activities, following the coming into force of the Regulations, are expected to remain ongoing.

Government consultations

The Regulations do not impose any new obligations on other government departments, such as the IRCC, the RCMP, CSIS, ESDC and the CRA. The Exit Information Regulations have been established under CBSA’s statutory authorities in accordance with its mandate. Although the Regulations do not directly impact partners from other government departments, the information collected by the CBSA will be shared, where permissible, with federal partners to support public policy priorities across the Government of Canada, such as strengthening security, law enforcement and the integrity of federally administered programs. Information sharing with other government departments is governed by the Customs Act, and is managed through formal information-sharing arrangements that include strict limits on use and onward disclosure. To this end, interdepartmental communication, collaboration and alignment with all affected federal partners, such as those mentioned above, remain ongoing.

CBSA officials have also regularly consulted with the OPC concerning the ongoing implementation of the Entry/Exit Initiative. The privacy risks highlighted by the OPC, its recommendation, and the CBSA’s proposed mitigation strategies are summarized above.

Consultations with U.S. authorities

Extensive consultations have been conducted with the U.S. Department of Homeland Security and U.S. CBP officials throughout the ongoing joint implementation of the Entry/Exit Initiative along the shared land border.

The Regulations allow the CBSA to collect information from the U.S. CBP relating to travellers that depart Canada by entering the United States at an authorized border crossing along the shared land border, in a manner consistent with the joint statement of privacy principles footnote 27 of the United States and Canada, issued under the shared vision for perimeter security and economic competitiveness. Examples of these principles include

The United States has indicated support for Canada’s commitment to establishing entry and exit information systems in the land and air modes, as demonstrated by joint public statements of support issued in the years since the announcement of the Beyond the Border Action Plan. Since 2011, the CBSA and U.S. CBP officials have made great strides in implementing a coordinated Entry/Exit system in the land mode. It is expected that this work will continue given the recent Canada–United States joint statement in February 2017 reaffirming the commitment to work together on the Entry/Exit Initiative. footnote 28 Consultations between CBP and CBSA officials continue to be held regularly to help ensure that results are closely monitored to improve border management capabilities and support greater security.

Prepublication comments and CBSA responses

The Exit Information Regulations were prepublished in the Canada Gazette, Part I, on March 16, 2019. A 30-day comment period was provided to allow interested persons and parties to provide feedback on the proposed regulations.

The CBSA received a total of five written submissions from the general public with questions and comments about the collection, use and disclosure of Entry/Exit information. In its responses, the CBSA clarified the objectives of the initiative and the legal context for collecting and sharing Entry/Exit information. The CBSA also responded to concerns relating to the use and sharing of personal information by indicating that protections have been incorporated into the design of the initiative and the drafting of the enabling legislation, both of which were informed by the PIA.

Air carriers provided feedback through two written submissions and a one-day engagement session (Tenth Annual Airline-CBSA meeting) held on April 11, 2019. Air carriers were generally supportive of the initiative, and raised questions regarding how it would be operationalized in the air mode and the implementation costs. The CBSA clarified that the regulatory requirements were developed with a view to lessening the financial impact on the industry (by leveraging, for example, IAPI capabilities), following recommendations previously provided by the industry. Technical specifications and procedures for implementation will be provided to the industry shortly after the final publication to provide as much time as possible to air carriers to comply with new requirements.

The Mohawk Council of Akwesasne (MCA) has also provided feedback on the initiative on several occasions during the Parliamentary review of the bill and at a dedicated meeting with the CBSA and ESDC (March 2019). At the meeting, the MCA expressed concerns regarding the impact of the initiative on their community and on continued access to certain benefits from specific programs that will use Entry/Exit information. There are no other communities with a situation comparable to Akwesasne’s. As the Mohawk territory includes land in Quebec, Ontario and New York State; a resident may move across these three jurisdictions on a daily basis, and because of the current location of Ports of Entry, they may be recorded as having spent an extended period of time in the U.S. when they have actually returned to their home in Canada after transiting through the U.S.

The CBSA reaffirmed that it would share information with other federal government departments and foreign counterparts within the authorities provided by the Customs Act, and that the disclosure of Entry/Exit information will be governed through information-sharing arrangements. The CBSA confirmed that sharing Entry/Exit information with the provinces is not within the scope or authorities of the initiative. As well, the CBSA also recognized that the unique geography of Akwesasne would generate a travel history record that needs to be interpreted differently from travel histories of residents of other parts of Canada. The CBSA committed to adding a section to its interpretative guidance for Entry/Exit information users that specifically addresses Akwesasne residents. Interpretive guidance will outline the parameters of information collection and how a travel history record should be used. The guidance will be provided to all users, including other organizations receiving Entry/Exit information from the CBSA, to ensure consistency of use and fairness for clients of programs using the information.

No changes were made to the Regulations following the prepublication comment period.

Regulatory cooperation

Land mode

In the land mode, Canada and the United States committed to establishing a coordinated entry and exit information system so that the record of a land entry into one country can be used to establish an exit record from the other. This exchange is done via a secure connection in place in both countries: no wireless or external devices are used as part of the transmission process.

Both countries tested their capability to exchange and reconcile biographic entry information of third-country nationals and released the results of this process test in a joint report footnote 29 on May 13, 2013. The high reconciliation rate validated the initiative’s concept that a traveller’s record of entry in one country can serve as a record of exit from the other.

The Regulations build upon the process already in place, using data already exchanged between customs authorities of both countries. In addition to the biographic information that Canada and the United States currently collect on all travellers at ports of entry (namely first name, middle name, last name, date of birth, nationality, sex, document type, document number, and name of the country that issued the travel document), the date and time of entry, as well as the port through which the traveller entered, will be exchanged on all travellers, including Canadian citizens, as part of the Regulations under the Entry/Exit Initiative.

Air mode

The Regulations, which govern outbound international air passenger travel (Air Exit), include the time frames, transmission options and the technical requirements, specifications and procedures prescribing the provision of electronic passenger manifest information, consistent with those set out by international guidelines for air carriers. Currently, over 50 countries, including the United States and Canada (for inbound passenger and flight data), already adhere to these standards in relation to data requirements for API.

API systems are based on the Guidelines on Advance Passenger Information, which are international guidelines for commercial air carriers jointly developed by the WCO, IATA, and ICAO so that all parties adopt and implement harmonized data standards, formats and transmission for the collection of passenger information. The API systems developed by air carriers, or commercial service providers on their behalf, allow for the provision of specific information to border authorities in each country on crew and all passengers prior to travel to or from certain countries. Canada’s IAPI (operating inbound) and Air Exit initiatives (for outbound flights) adhere to the same API requirements as those already in place, including the air component of the U.S. Advance Passenger Information System (APIS).

Canada’s Air Exit technical components build off the existing IAPI initiative and Advance Passenger Information/Passenger Name Record (API/PNR) program, which requires all commercial air carriers flying into Canada to provide flight and traveller (including passenger and crew member) data to the CBSA. The CBSA developed the API/PNR Client Implementation Guide in 2010 under the standards established by the WCO and ICAO. This document has since been renamed the CMR and has been expanded to include the technical requirements, system specifications and procedures to enable commercial air carriers to review, plan, and implement system changes necessary in order to comply with the IAPI initiative as well as Air Exit, once the Regulations are in effect for the air mode.

The CMR has been incorporated by reference (on an ambulatory basis, i.e. as amended from time to time) into the IAPI regulatory regime, and has similarly been incorporated for the Air Exit initiative. Incorporating the CMR by reference means that information prescribed by the Regulations must be transmitted to the CBSA in accordance with the technical requirements, specifications and procedures set out in the CMR. The CMR is updated annually and publicly distributed.

Rationale

New authorities under the Customs Act enable the CBSA to collect exit information on all travellers departing Canada in the air and land modes. The collection of exit information, rendered reliable, timely and accurate through the regulatory framework, will improve border management and support enhanced security and law enforcement as well as support efforts to protect the integrity of Canada’s customs, immigration, citizenship, travel document and social benefit programs.

By implementing a new regulatory framework that prescribes the source, time, manner and circumstance related to the collection of information, the CBSA will have access to reliable, timely and accurate information that will be effectively safeguarded and managed through information-sharing arrangements. Obtaining reliable information electronically provides a cost-effective means to record the exit of persons without introducing new infrastructure or procedures at the border that could impose a new burden on travellers as they depart Canada. The Regulations also allow Canada to keep pace with other jurisdictions, such as the United States, Australia, the United Kingdom and the European Union, which systematically collect exit information on travellers in the air mode.

These Regulations also enable Canada to meet its commitments under the Beyond the Border Action Plan to implement a comprehensive Entry/Exit system in the land mode.

Implementation, enforcement and service standards

Implementation

The Exit Information Regulations and amendments to the DPCR are designed to support the full implementation of the Entry/Exit Initiative.

The land mode portion of the Exit Information Regulations will come into force upon registration of the Regulations, while the air mode portion, including amendments to the DPCR, will come into force one year later so as to reduce the burden on air carriers in implementing system changes to comply with regulatory obligations.

The Entry/Exit Initiative in its current form represents the least intrusive manner in which personal information can be collected from travellers departing Canada without establishing new infrastructure or mandatory reporting requirements similar to those already used in other countries, such as Australia, New Zealand, and parts of Europe. The personal information necessary for the Entry/Exit Initiative is not collected directly from the individual, but rather is collected indirectly from independent and reliable third-party partners. This will be communicated to the travelling public in both the land and air modes.

Signs will be posted at all implicated Canadian ports of entry along the shared land border to notify travellers entering Canada that their personal information will be shared with the United States. Travellers departing Canada via an international flight will continue to be notified by air carriers as part of their existing privacy notice statements that personal information will be shared with the CBSA in accordance with Canadian domestic law.

Through the IAPI process, air carriers conveyed the challenges and costs in making multiple incremental changes to their systems. The coming-into-force date for air carriers will allow them sufficient time and flexibility to plan, test and implement IT and business process changes to comply with Exit Information Regulations. In 2013, in an effort to reduce costs, the CBSA provided commercial carriers with the option of making system changes to prepare for onboarding for the Entry/Exit Initiative at the same time as IT systems changes were undertaken to support the implementation of the IAPI initiative. Nine commercial carriers operating in Canada have successfully “onboarded” (a term for the process to register, test and certify that they meet the IT requirements related to electronic messaging) and completed IT testing for Entry/Exit Initiative requirements to date. The remaining airlines are expected to begin onboarding activities once the Exit Information Regulations are in force. This includes validating their data transmission information and signing an Action Plan footnote 30 committing to specific testing dates with the CBSA.

Once fully implemented, the systematic collection of exit information will enhance the Agency’s ability to manage border security by closing the loop on an individual’s travel history. This helps establish a pattern of compliance for legitimate travellers, allowing both the CBSA and the Government of Canada to refocus resource efforts toward unknown or higher risk travellers. Specifically, exit information will provide CBSA officers and IRCC immigration officers with a more comprehensive travel history for all travellers. This new information will be used to assist in identifying individuals with residency requirements who overstay their lawful period of admission to Canada; verifying travel dates to determine applicable duties and taxes for residents returning to Canada; and helping the CBSA better manage immigration enforcement inventories. A training plan, which may include face-to-face training and interpretative guidance documents, will be developed to provide key users with a comprehensive understanding of the legislative changes, as well as guidance on how and when to use “exit information” to make informed decisions.

Where authorized under Canadian law, Entry/Exit information may be disclosed to other government departments to support Government of Canada public policy priorities related to the integrity of Canada’s immigration, citizenship, visa and travel document, and benefit programs.

Enforcement

Following the coming into force of the Regulations relating to the air mode and supporting amendments to the DPCR, there will be a period of one year footnote 31 during which AMPs will be assessed at $0.00 to assist implicated stakeholders and provide sufficient time for commercial carriers to undertake IT testing activities, where required. This is consistent with the compliance framework already in place for commercial air carriers operating inbound international flights to Canada.

Performance measurement and evaluation

A detailed Performance Measurement Strategy (PMS) has been prepared by the CBSA, in consultation with other government partners, to assess the performance and measure the efficiency and effectiveness of the Entry/Exit Initiative once fully implemented. This strategy outlines the performance objectives, risks and mitigation measures, data sources and key performance indicators and specifies the methods selected for monitoring progress against expected outcomes. Examples of key performance indicators included in the PMS are

Once the Entry/Exit Initiative has been fully implemented, the CBSA has committed to undertake an audit of the entire initiative. The audit will determine if controls are working as intended, taking into consideration the implementation of previous internal audits, external audits and evaluation recommendations. The Entry/Exit Initiative will also be subject to a separate comprehensive evaluation as part of the CBSA Five-Year Program Evaluation Plan to assess the relevance, performance and economy of key activities. The scope of evaluation will include questions related to the use, management, governance, and protection of personal information in addition to merely an assessment of the efficiency and effectiveness of the program.

Contact

Andrew Lawrence
Acting Director General
Travellers Programs Directorate
Travellers Branch
Canada Border Services Agency
191 Laurier Avenue West, 15th Floor
Ottawa, Ontario
K1A 0L8
Email: Andrew.Lawrence@cbsa-asfc.gc.ca