Regulations Amending the Secure Air Travel Regulations and the Designated Provisions Regulations: SOR/2022-225

Canada Gazette, Part II, Volume 156, Number 23

Registration
SOR/2022-225 October 28, 2022

SECURE AIR TRAVEL ACT
AERONAUTICS ACT

P.C. 2022-1165 October 28, 2022

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, makes the annexed Regulations Amending the Secure Air Travel Regulations and the Designated Provisions Regulations pursuant to

(a) section 32footnote a of the Secure Air Travel Act footnote b; and

(b) subsection 7.6(1)footnote c of the Aeronautics Act footnote d.

Regulations Amending the Secure Air Travel Regulations and the Designated Provisions Regulations

Secure Air Travel Act

Secure Air Travel Regulations

1 (1) The definition unique identifier in section 1 of the Secure Air Travel Regulations footnote 1 is repealed.

(2) Section 1 of the Regulations is amended by adding the following in alphabetical order:

Canadian Travel Number
means the unique identifier referred to in section 10.1 of the Act. (numéro canadien de voyages)

2 Subsection 2.1(1) of the Regulations is replaced by the following:

Collection of information

2.1 (1) An air carrier must, no later than 72 hours before the scheduled time of departure of a domestic flight or international flight, collect the information set out in paragraphs 6(2)(a) to (c) of the Act about each person who is expected to be on board the aircraft for the flight.

Canadian Travel Number

(1.1) An air carrier must provide to each person referred to in subsection (1) an opportunity to provide their Canadian Travel Number at the time of reservation and at check-in.

Collection of Canadian Travel Number

(1.2) If a Canadian Travel Number is provided in accordance with subsection (1.1), the air carrier must collect it as soon as it is provided to them.

3 Paragraph 2.3(c) of the Regulations is replaced by the following:

4 Subsection 2.4(1) of the Regulations is amended by adding “and” at the end of paragraph (a) and by replacing paragraphs (b) and (c) with the following:

5 (1) The portion of subsection 2.6(3) of the Regulations before paragraph (a) is replaced by the following:

Verification of identity

(3) If the person presents themselves at the air carrier’s check-in desk to obtain a boarding pass for the flight in question, the air carrier must, before providing information about the person to the Minister in accordance with paragraph 2.4(1)(c), verify the person’s identity using a piece of identification that is acceptable under subsection 3(1) or section 4, as the case may be, and must compare

(2) Subsection 2.6(4) of the Regulations is replaced by the following:

Information discrepancy

(4) If the comparison reveals a discrepancy between the information on the person’s identification and the information in their reservation record, the air carrier must not issue a boarding pass to the person pending a response from the Minister with respect to the information that has been provided in accordance with paragraph 2.4(1)(a) or (c), as the case may be.

6 Subsection 3(2) of the English version of the Regulations is replaced by the following:

Alternative identification — loss or theft

(2) In the event that a passenger’s identity cannot be verified in accordance with subsection (1) because of the loss or theft of one or more pieces of their identification, the air carrier may verify their identity using other pieces of valid identification such as their employee identity card, public transit pass or baptismal certificate if the passenger presents the identification in conjunction with documentation issued by a government authority or a police service that attests to the loss or theft.

7 Section 10.11 of the Regulations is amended by striking out “or” at the end of paragraph (b) and by replacing paragraph (c) with the following:

8 Subsection 10.2(1) of the Regulations is replaced by the following:

Resolution of interruption

10.2 (1) For the purposes of subsection 6(2) of the Act, if, because of an interruption of an air carrier’s or the Minister’s electronic communications system, the information that is required to be provided about a person who is expected to be on board the aircraft cannot be provided in accordance with subsection 2.5(1) of these Regulations at any of the times prescribed in paragraphs 2.4(1)(a) and (c) of these Regulations, the prescribed time is as soon as feasible after the resolution of the interruption.

9 The portion of section 11 of the Regulations before paragraph (a) is replaced by the following:

Information — removal and destruction

11 Every air carrier must, by March 4, 2023,

10 The Regulations are amended by adding the following after section 11:

Information collected by air carrier

12 (1) The Minister may collect any information that an air carrier referred to in subsection (2) collects and provides to the Minister about each person who is expected to be on board an aircraft for a flight set out in that subsection operated by that air carrier.

Application of section 12

(2) This section applies only to air carriers that are referred to in subsection 6(1) of the Act and that operate domestic flights or international flights if the passengers, the property in the possession or control of the passengers and the personal belongings or baggage that the passengers give to the air carrier for transport are not subject to screening carried out before boarding.

Aeronautics Act

Designated Provisions Regulations

11 The portion of item 1 of Schedule 2 to the French version of the Designated Provisions Regulations footnote 2 in column 1 is replaced by the following:
Article

Colonne 1

Texte désigné
1 Paragraphe 2.1(1)
12 Schedule 2 to the Regulations is amended by adding the following after item 1:
Item

Column 1

Designated Provision

Column 2

Maximum Amount Payable

Individual ($)

Column 3

Maximum Amount Payable

Corporation ($)
1.1 Subsection 2.1(1.1) 5,000 25,000
1.2 Subsection 2.1(1.2) 5,000 25,000

Coming into Force

13 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Secure Air Travel Act (SATA) and the Secure Air Travel Regulations (SATR) were amended in 2019 to enhance the Passenger Protect Program (PPP). During the implementation of enhancements to the program in 2020–2021, Public Safety Canada (PS) discovered a number of operational issues that required minor adjustment to the SATR to ensure the program runs optimally. In addition, the 2019-nCoV acute respiratory disease (COVID-19) pandemic had significant impacts on air industry operations, which created delays for some air carriers in onboarding to the enhanced PPP. An amendment to the SATR was needed to provide more time to air carriers that require it to transition to the new system.

Background

Canada uses a variety of tools to mitigate threats to national security and aviation transportation involving air travel to, from, and/or within Canada. These tools have evolved over time in relation to changes in threats to public safety and security, and the best practices of international partners. The PPP is an example of one such tool.

Passenger Protect Program

The PPP was implemented in 2007 to prevent individuals who may pose a threat to air security, or travel by air to commit an act of terrorism from boarding a plane flying to, from or within Canada. The PPP is administered by PS and Transport Canada (TC), in cooperation with several federal departments and agencies.

The SATA provides the legislative framework for the PPP, which includes the authority for the Minister of Public Safety and Emergency Preparedness (the Minister) or his/her delegate to

Enhancements to the PPP

In Budget 2018, the Government of Canada (GC) committed an investment of $81.4 million over five years, starting in 2018–2019, and $14 million per year ongoing, for PS, TC, the Canada Border Services Agency (CBSA), and Shared Services Canada (SSC) to enhance the PPP.

SATA and the SATR were amended in 2019. The changes were the result of extensive consultations involving over 90 000 responses from Canadians, stakeholders and subject-matter experts. The amendments established the following two major enhancements to the PPP:

To deliver on the GC priority to enhance the PPP by March 2023, PS has been working in close partnership with the CBSA, SSC and TC to plan, design, and implement the following changes.

Centralized screening

The centralized screening system transfers the responsibility for screening passengers against the SATA List from air carriers to the GC, namely the Minister of Public Safety and Emergency Preparedness, with assistance from TC and the CBSA. For the Minister to fulfill this responsibility, SATA requires air carriers to provide the Minister (in practice the CBSA, the centralized receiver of all electronic passenger manifests) with prescribed data (name, date of birth, gender and, if provided, the CTN) on each person who is on board or expected to be on board an aircraft for any flight captured under the SATR, if that information is in the air carrier’s control, within a prescribed time and manner.

The CBSA is leveraging its existing programs (e.g. Advanced Passenger Information/Passenger Name Record [API/PNR], Interactive Advanced Passenger Information [IAPI] and Entry/Exit Program) that already require air carriers to provide similar passenger and flight data, to support the GC centralized screening system against the SATA List. In other words, air carriers that participate in those programs are able to use existing transmission methods in order to send data to the CBSA for the purpose of the PPP. Once an air carrier is onboarded to the new GC centralized screening system, they transmit all passenger data and flight data for each applicable flight to the CBSA for automatic screening against the SATA List to determine if there are potential matches. Should there be a potential match, an electronic message is provided by the CBSA to ensure that air carriers prevent the corresponding passenger from obtaining a boarding pass until their identity has been verified. At the same time, the CBSA notifies TC’s Passenger Protect Program Operations Centre (PPPOC), which is responsible for reviewing and deconflicting potential matches to the SATA List that have been automatically identified by the GC centralized screening system.

Canadian Travel Number

The CTN is a unique identifier that provides travellers with an additional piece of information to help verify their identity and reduce the number of false name matches with the SATA List. False name matches that are detected by the GC centralized screening system are either automatically cleared with the information provided by the passenger (including their name, date of birth and a CTN, if applicable) or manually by TC PPPOC. Travellers who think they may have experienced difficulty travelling as a result of having the same name as, or a name similar to, an individual on the List can apply for a CTN on the PS website. Travellers who have a CTN can provide it when reserving and/or checking in for a flight operated by an air carrier that has onboarded to the new system, to help them be distinguished from a SATA-listed individual, should their name and/or date of birth be similar or the same as that of someone on the list.

Onboarding air carriers

Centralized screening and the CTN were launched in November 2020, with the coming into force of the amended SATA and SATR. The Regulations required air carriers to onboard and permanently remove or destroy all versions of the SATA List by November 4, 2022. PS issued Ministerial Exemption Orders (MEO) to temporarily exempt air carriers from complying with centralized screening and CTN provisions and to require carriers to continue to screen against the SATA List until they are onboarded to Canada’s new system. This ensures that the PPP requirement to screen passengers against the SATA List continues to be met until air carriers have fully transitioned to the centralized screening system. Once a carrier successfully completes the testing and certification process for the centralized screening system, a Rescinding Order (RO) is issued from PS that repeals the terms and conditions of the MEO and requires full compliance with the SATA and SATR.

Minor gaps in the regulatory design and COVID-19 impacts

During air carriers’ transition to the GC centralized screening, unforeseen operational issues highlighted minor gaps in the regulatory design that needed to be addressed. In addition, delays in some air carriers’ plans to onboard to the new system have occurred given the significant impact COVID-19 has had on the air industry. These issues are discussed in further detail below.

I. Information collected by air carriers

The CTN was put in place as part of the GC’s commitment to address the issue of legitimate travellers experiencing travel delays because they have the same name as, or a name similar to, someone on the SATA List. Although the SATR require air carriers to collect and transmit CTNs for the purpose of the GC centralized screening system, research conducted in August and in December 2021 revealed that several air carriers that have onboarded to the new system are not offering a field on their website for travellers to provide a CTN when reserving flights covered by the PPP. The fact that travellers are not required to provide a CTN to fly to, from, and/or within Canada may have caused confusion among air carriers with respect to their obligation to provide travellers with the option to provide this additional piece of information at reservation.

II. Information provided to the Minister

The types of passenger-carrying flights and aircraft that are covered by Canada’s PPP are specified in the application section of the SATR. Some air carriers have identified that they will send passenger information to the GC centralized screening system for a small number of flights that are exempted from the SATR. The data structure and format used by air carriers to transmit passenger data, and for the GC to receive this information, are based on international standards,footnote 3 which do not provide a code to distinguish between different types of flights. Because the GC centralized screening system is not able to identify and discard this information, it will automatically screen all passenger information that is received against the SATA List. This created a risk because the GC did not have the authority to collect this information. However, the Minister has authority under the SATA to direct air carriers to deny transportation or require additional screening of a passenger that is a listed person for any domestic or international flight. This situation created an inconsistency in authorities, given that the Minister has the authority to issue a direction for a SATA-listed person expected to be on any flight, even though the authority did not necessarily exist for the Minister to collect the information.

Of note, privacy impact assessments describing how travellers’ personal information is protected throughout the GC centralized screening system, as well as with respect to the application and use of their CTNs, were submitted to and approved by the Office of the Privacy Commissioner in 2020. With regard to the authority to collect issue, risks were mitigated in the short term through interim procedures to guide the handling of information should the Minister have received information for flights that were outside the scope of application of the SATR. At this time, the GC is not aware of any instances of this issue materializing, given that the onboarding of air carriers is not fully complete and that air carriers do not distinguish between these types of flights.

III. Prescribed times

The SATR required air carriers to transmit passenger information to the GC centralized screening system for the purpose of screening against the SATA List at specific intervals: 72 hours before departure or when the reservation is made, the time when the person checks in for their flight, and when there is a change to the information already provided. However, unless there is a change to the information previously transmitted or new passenger data is available, there was no value in requiring air carriers to retransmit passenger information at check-in. Requiring the resubmission of identical information at check-in created an unnecessary compliance burden on air carriers and was not consistent with the international industry practice to minimize the number of times data is transmitted for a specific flight.

IV. Duty to provide information and outages

To conduct effective SATA List screening, the GC must be provided with accurate passenger information with respect to surname, first name, any middle names and date of birth. The GC centralized screening system can accommodate minor errors or inconsistencies in passenger information, such as typos and the addition or removal of special characters. In the event of an outage or interruption of the system, the SATR required air carriers to call TC PPPOC at the time of check-in if “any” passenger information had changed since it was last submitted to the GC (e.g. name, date of birth, gender, citizenship, passport number and expiry date). This included manually flagging discrepancies between booking information and travellers’ identification documents. However, for the purpose of the SATA List screening, only significant discrepancies pertaining to passengers’ name and date of birth would have an impact on a screening result and should be flagged by air carriers to the GC. The only other change that holds value from a PPP perspective during an outage is if a CTN is provided, or there is a change to a CTN since it was provided, as this added piece of information could help resolve a false name match against the SATA List more quickly. The way the SATR was previously written required air carriers to call TC PPPOC for any discrepancy, including inconsequential changes involving typos, special characters or gender, which would have no value in the screening process and would have put both air carriers and TC PPPOC at risk of facing an unmanageable volume of calls to clear passengers for travel.

V. Destruction of information

The SATR previously required air carriers to permanently remove or destroy all versions of the SATA List from their system within two years of the centralized screening provisions coming into force, which was by November 4, 2022. This meant that air carriers would have to be onboarded to the GC centralized screening system by this date, as they would no longer be able to screen passengers against the SATA List. The SATR amendments provide an additional four months for air carriers to onboard to the GC centralized screening system. Accordingly, where needed, the MEOs that exempt air carriers from having to comply with the requirements associated with the GC centralized screening system and the CTN are being manually updated to reflect the new date of March 4, 2023. PS will reissue the updated MEOs only to air carriers that are not yet onboarded to the PPP.

While as of July 7, 2022, 79 air carriers, representing 65% of passenger volume, have been onboarded to the enhanced PPP, the COVID-19 pandemic has impacted the ability of others to implement Canada’s new requirements as originally planned. Because of the pandemic, the air industry faced several challenges, including a significantly reduced workforce, restructuring of business models and, in some cases, bankruptcy. There have also been additional requirements imposed on the air industry in relation to public health, which has resulted in some air carriers reprioritizing their enhanced PPP onboarding.

Temporary mitigation strategies

To maintain the onboarding schedule of air carriers to the enhanced PPP, the following measures were put in place by the GC, in consultation with air carriers:

Objective

The objectives of the amendments are to

Description

The amendments to the SATR will

Regulatory development

Consultation

These amendments impact industry stakeholders who operate passenger-carrying flights to, from and/or within Canada, and are subject to SATA requirements and the SATR requirements, which represents approximately 122 international and/or domestic air carriers. Throughout the planning, testing and certification phases of the onboarding strategy to the GC centralized screening system, GC officials from PS, TC and the CBSA regularly engaged with air carriers covered by the PPP individually as well as through the following forums:

Ongoing discussions have also taken place with two service providers, Amadeus and Sabre, which represent approximately 75% of air carriers covered by the PPP.

Consultations prior to publication

In advance of prepublication of the amendments in the Canada Gazette, PS led two consultation exercises with air carriers, between July and August 2021, to gain a better understanding of the issues described above and to inform the way forward for addressing the gaps in the regulatory design. First, PS organized a virtual consultation session and invited representatives from the top 10 PPP carriers by passenger volume pre-COVID-19. Then, informed by the virtual consultation session, PS subsequently issued a call for input to all air carriers regulated under the PPP by means of a questionnaire sent by email using the AIWG and AITWG distribution lists. A total of 15 air carriers participated in either one or both of these engagement activities.

Overall, the minor adjustments to SATR have been well received by stakeholders. This is because they address key concerns raised by the air industry as well as eliminate unnecessary compliance burden on air carriers in a way that is consistent with the temporary mitigation measures that were in place.

In accordance with PS’ Forward Regulatory Plan 2021–2023, the need to update the SATR to offer more options to travellers and the industry to meet pre-aircraft boarding identity verification requirements through innovation (e.g. digitized identification documents, digital identity documents and biometric travel documentsfootnote 7) was also considered during the stakeholder consultation exercises. While four air carriers confirmed their intent to implement innovative identity management solutions in the short to medium term, no specific immediate changes were identified for the SATR. PS will however continue to monitor air traveller modernization initiatives to ensure Canada’s PPP remains current and adaptable to innovative approaches for identity management across the air travel continuum. PS will also continue to engage air carriers and keep informed on how this area evolves, while remaining nimble to respond to future requests to test these technologies through a ministerial exemption under SATA for testing new technologies and alternative measures for the purpose of Canada’s PPP.

Finally, the following two areas of concern were raised during the consultation process that were not addressed through the amendments, as they fall outside of the scope of the SATR:

Prepublication

A further 30-day consultation period was held from May 14, 2022, to June 13, 2022, following prepublication of these amendments in the Canada Gazette. PS officials proactively informed air carriers of this prepublication, to ensure they were aware of the opportunity to participate in the 30-day consultation process. Only one comment from a member of the public was received on concerns related to the use of biometrics and facial recognition technology in airports. Since the SATR amendments under consideration do not propose any changes related to biometrics and facial recognition, no change to the amendments were required as a result of the consultation period.

Modern treaty obligations and Indigenous engagement and consultation

The amendments will either formalize temporary measures that have already been put in place or address gaps that are minor in nature. As such, no impacts to Indigenous peoples are anticipated as a result of these amendments. Therefore, no specific engagement or consultation was undertaken with Indigenous peoples.

Instrument choice

Minor gaps in the regulatory design created issues during the implementation of the GC centralized screening system. Therefore, a regulatory solution was required to ensure a common understanding and consistent application of the enhanced PPP requirements. While the GC’s SATA-PPP Industry Guidance for Air Carriers was updated as a mitigation strategy to maintain the onboarding schedule of air carriers to the enhanced PPP, this non-regulatory option alone could not provide the regulatory clarity that was required to address the issues outlined above.

Regulatory analysis

Benefits and costs

The amendments will not introduce new requirements for air carriers and will have minor impacts for air carriers and passengers. In most cases, the amendments will formalize temporary mitigation strategies already in place or clarify an existing requirement, resulting in little to no costs.

The collection and transmission of CTNs to the GC centralized screening system for the purpose of the PPP are part of the SATR. The amendment to this requirement will ensure that the CTN is collected by air carriers as intended. This change will reduce unnecessary travel delays for a small number of travellers who experience matching errors by enabling the use of CTNs.

The amendments pertaining to the Minister’s authority to collect passenger information exempted from the SATR, but provided voluntarily by air carriers to the GC, will not impose new information collection or transmission requirements on air carriers.

Eliminating the requirement for air carriers to retransmit to the GC, for the purpose of the PPP, passenger data that has not changed will eliminate a redundant requirement for air carriers. The amendment aligns with industry-accepted international standards and will have no impact on the existing IT systems of air carriers.

The amendments to the information required from air carriers during an outage will formalize a temporary mitigation strategy already in practice and will have no impact on stakeholders.

Extending the deadline for air carriers to permanently destroy the SATA List will provide air carriers with more time to transition to the GC centralized screening system, while maintaining the integrity of the PPP, by enabling them to continue to screen passengers travelling by air to, from and/or within Canada.

Small business lens

Analysis under the small business lens concluded that the amendments will not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply, as there will be no incremental change in the administrative burden on businesses.

Regulatory cooperation and alignment

These amendments are not related to a work plan or commitment made within a formal regulatory cooperation forum (e.g. the Canada–United States Regulatory Cooperation Council, the Canada-European Union Regulatory Cooperation Forum, the Canada-United Kingdom regulatory cooperation relations, the Regulatory Reconciliation and Cooperation Table of the Canadian Free Trade Agreement).

Nonetheless, the amendments will better align Canada’s air passenger screening requirements and practices with those of the United States, while not creating misalignment with regulatory regimes of like-minded countries such as the United Kingdom and Australia or the broader international community.

In particular, the amendment to the SATR to remove the requirement for air carriers to retransmit passenger information that has not changed at check-in since it was provided at 72 hours will align with U.S. Secure Flight Programfootnote 8 requirements. While the United States requires advanced passenger information, additional transmission of data is not required unless there is a change. This means that air carriers operating flights to, from, and/or within the United States, as well as Canada, will be able to use their existing system to meet both countries’ requirements in terms of the frequency of passenger data transmission. Minimizing the number of times data is transmitted for a specific flight is also consistent with international guidelines for Advance Passenger Information jointly developed by the World Customs Organization, International Air Transport Association, and International Civil Aviation Organization (WCO/IATA/ICAO).

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 this proposal.

Implementation, compliance and enforcement, and service standards

To ensure the air industry is made aware of the amendments to the SATR, the GC’s SATA – PPP Industry Guidance for Air Carriers has been updated to promote consistent interpretation and application of the requirements. For example, additional guidance about the duty to provide information during, as well as following, outages has been included as a complement to the SATR to promote a common understanding of the requirement and ensure its consistent application by air carriers. Public Safety Canada has also conducted several outreach sessions with implicated stakeholders and will continue to engage with air industry to advise on and respond to questions regarding these amendments.

Given that the Enhanced PPP Project will only close in March 2023, air carriers that have not yet changed to the new system will have until that time to make adjustments, if needed, as part of their existing action plan.

No additional implementation, compliance and enforcement actions are necessary, as the existing enforcement regime also applies to the amendments. The amendments came into force upon registration.

Contact

Justin Chan
Director
Passenger Protect Office
Department of Public Safety and Emergency Preparedness
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
Email: ppp-ppp@ps-sp.gc.ca