Preclearance in the United States Regulations: SOR/2024-283

Canada Gazette, Part II, Volume 159, Number 1

Registration
SOR/2024-283 December 16, 2024

PRECLEARANCE ACT, 2016

P.C. 2024-1358 December 16, 2024

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, makes the annexed Preclearance in the United States Regulations under subsections 48(7) and 57(1) of the Preclearance Act, 2016 ^{footnote a}.

Preclearance in the United States Regulations

Grounds of Inadmissibility

Grounds of inadmissibility

1 For the purposes of subsection 48(4) of the Preclearance Act, 2016, grounds of inadmissibility are prescribed as follows:

• (a) in the case of a permanent resident, the grounds set out in sections 34 and 35, subsection 36(1) and section 37 of the Immigration and Refugee Protection Act;
• (b) in the case of a protected person within the meaning of the Immigration and Refugee Protection Act, the grounds set out in sections 34 to 35.1, subsection 36(1) and section 37 of that Act;
• (c) in the case of a foreign national who holds a permanent resident visa, the grounds set out in sections 34 to 35.1, subsection 36(1) and section 37 of the Immigration and Refugee Protection Act;
• (d) in the case of a foreign national who holds a permanent resident visa accompanied by a family member who is inadmissible or has been refused entry to Canada through a preclearance area or preclearance perimeter on the grounds set out in any of sections 34 to 35.1, subsection 36(1) or section 37 of the Immigration and Refugee Protection Act, the grounds set out in sections 34 to 35.1, subsection 36(1) and sections 37 and 42 of that Act; and
• (e) in the case of a foreign national, the grounds set out in sections 34 to 42 of the Immigration and Refugee Protection Act.

Adaptations and Exclusions

Adaptations — Immigration and Refugee Protection Act

2 In respect of a traveller entering Canada through a preclearance area or preclearance perimeter, the Immigration and Refugee Protection Act is adapted as follows:

• (a) subsection 11(1) is to be read as follows:
  • 11 (1) A foreign national must, before entering Canada or before entering a preclearance area or preclearance perimeter, apply to an officer for a visa or for any other document required by the regulations.
• (b) subsection 11(1.01) is to be read as follows:

11 (1.01) Despite subsection (1), a foreign national must, before entering Canada or before entering a preclearance area or preclearance perimeter, apply for an electronic travel authorization required by the regulations by means of an electronic system, unless the regulations provide that the application may be made by other means.

• (c) a reference to “on their entry” in section 19 is to be read as a reference to “in a preclearance area or preclearance perimeter”;
• (d) the reference to “have come to Canada” in paragraph 20(1)(a) of the English version is to be read as a reference to “are coming to Canada through a preclearance area or preclearance perimeter”;
• (e) the reference to “upon arrival in Canada” in subsection 24(2) is to be read as a reference to “upon arrival in a preclearance area or preclearance perimeter”; and
• (f) the reference to “outside Canada” in the portion of subsection 31(3) before paragraph (a) is to be read as a reference to “outside a preclearance area or preclearance perimeter”.

Adaptations — Immigration and Refugee Protection Regulations

3 In respect of a traveller entering Canada through a preclearance area or preclearance perimeter, the Immigration and Refugee Protection Regulations are adapted as follows:

• (a) in the following provisions, a reference to “subsection 44(2) of the Act” is to be read as a reference to “subsection 48(5) of the Preclearance Act, 2016”:
  • (i) paragraph 12.06(d),
  • (ii) paragraph 37(1)(d), and
  • (iii) paragraph 41(b);
• (b) in the following provisions, a reference to “port of entry” is to be read as a reference to “preclearance area or preclearance perimeter”:
  • (i) subsection 27(1),
  • (ii) paragraphs 37(1)(a) and (d),
  • (iii) the portion of section 38 before paragraph (a) and paragraph 38(a),
  • (iv) subsections 40(1) and (3),
  • (v) subsection 71.1(1), and
  • (vi) paragraph 240(1)(a);
• (c) the reference to “departure from Canada” in paragraph 37(1)(c) is to be read as a reference to “departure from the preclearance area or preclearance perimeter”;
• (d) the reference to “leave Canada” in subsection 40(1) is to be read as a reference to “leave the preclearance area or preclearance perimeter”;
• (e) in the following provisions, a reference to a time period that begins on the day on which a traveller enters Canada is to be read as a time period that begins on the day on which the traveller is authorized in a preclearance area or preclearance perimeter to enter Canada:
  • (i) subparagraph 132(1)(a)(i),
  • (ii) paragraphs 183(3)(a) and (b), and
  • (iii) paragraph 184(2)(b);
• (f) in the following provisions, a reference to “enters Canada” or “entering Canada” is to be read as a reference to “enters Canada through a preclearance area or preclearance perimeter” or “entering Canada through a preclearance area or preclearance perimeter” respectively:
  • (i) the portion of subsection 184(2) before paragraph (b),
  • (ii) subsection 198(1) and the portion of subsection 198(2) before paragraph (a), and
  • (iii) the portion of section 214 before paragraph (a);
• (g) in the following provisions, a reference to “before entering Canada” is to be read as a reference to “before entering a preclearance area or preclearance perimeter”:
  • (i) section 197, and
  • (ii) section 213;
• (h) the reference to “entry into Canada” in paragraph 180(b) of the English version is to be read as “entry into Canada through a preclearance area or preclearance perimeter”; and
• (i) the reference to “contrôle d’arrivée” in paragraph 180(b) of the French version is to be read as a reference to “contrôle d’arrivée dans une zone de précontrôle ou un périmètre de précontrôle”.

Exclusions — Immigration and Refugee Protection Regulations

4 The following provisions of the Immigration and Refugee Protection Regulations do not apply in a preclearance area or preclearance perimeter:

• (a) paragraphs 38(b) to (h);
• (b) paragraph 41(c); and
• (c) subsection 188(2).

Adaptations — enactments under the Customs Tariff

5 In respect of a traveller entering Canada through a preclearance area or preclearance perimeter,

• (a) a reference to “the province where the customs office through which the alcoholic beverages are imported is located” in paragraph 3(2)(a) of the Returning Persons Exemption Regulations is to be read as “the province where the person enters Canada”;
• (b) a reference to “the province in which the customs office where the alcoholic beverages are imported is situated” in paragraph 3(a) of the Tariff Item No. 9805.00.00 Exemption Order is to be read as “the province where the person enters Canada”; and
• (c) a reference to “the province in which the customs office where the alcoholic beverages are imported is situated” in paragraph 2(a) of the Tariff Item No. 9807.00.00 Exemption Order is to be read as “the province where the settler enters Canada”.

Adaptations — Plant Protection Regulations

6 For the purposes of the Preclearance Act, 2016, a reference to “place of entry” in the Plant Protection Regulations includes a reference to a preclearance area or preclearance perimeter.

Coming into Force

Registration

7 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.)

Executive summary

Issues

Through the LRMA and the PCA, 2016, Canada and the U.S. committed to further exploring the potential of preclearance operations in both countries. In order to further this work and support Canadian land preclearance operations in the U.S., preclearance regulations under the PCA, 2016 are needed.

Background

“Preclearance” refers to an arrangement between two countries that allows customs and immigration officials from the country of destination to be located in the country of origin in order to allow or deny the admission of travellers or goods to the destination country. In this case, the inspecting country (Canada) would be able to perform customs, immigration, and related inspections in the territory of the host country (the U.S.) in order to determine the admissibility of people and goods before they enter the inspecting party’s country.

Canadian preclearance in the context of the LRMA would have Canadian officers, such as border services officers (BSOs), working in a “designated preclearance area and perimeter” (herein referred to as a “preclearance area”) in the U.S. to examine travellers and goods in order to determine whether they should be allowed to proceed to Canada.

The U.S. has conducted preclearance operations in Canada in the air mode since 1952. Canada does not currently have preclearance operations in any country. Establishing Canadian preclearance operations in the U.S. supports government and industry goals to facilitate the flow of legitimate travellers and goods across the border (i.e. once a legitimate traveller or good is precleared, they may not need to be re-examined in Canada). It also increases the safety and security of Canadians and the Canadian economy by pushing the border out to prevent inadmissible people and goods from entering Canada. Inadmissible travellers or goods can then be intercepted prior to entering Canada.

Preliminary analysis indicates that preclearance may be a cost-effective option for replacing small and remote POEs with aging infrastructure. The CBSA operates 80 small and remote POEs in the land mode along the Canadian border, many of which are in various states of disrepair. Investing in maintenance or repairs to small and remote POEs is often delayed because larger, higher-volume POEs take precedence for infrastructure funding. Establishing preclearance operations at shared facilities in the U.S. may be a cost-effective way to reduce the investment required to maintain these aging facilities, and, at the same time, allows the CBSA to continue to facilitate the flow of legitimate travellers and goods into Canada, and maintain the security of the Canadian border.

Preclearance legislation and regulation

The LRMA was signed by both Canada and the U.S. in March 2015 and was subsequently ratified in August 2019. The ratification of the LRMA coincided with the coming into force of the PCA, 2016. Together, the LRMA and the PCA, 2016 allow for preclearance expansion to all modes of travel (i.e. land, rail and marine as well as air) and cargo operations between Canada and the U.S.

The PCA, 2016 includes two main parts.^{footnote 1} A phased approach for the two main parts of the Act was applied to the regulatory process. The regulations supporting Part 1 of the PCA, 2016, which relates to U.S. preclearance in Canada, were published as Preclearance in Canada Regulations: SOR/2019-183 on June 12, 2019, and came into force when the PCA, 2016 and the LRMA came into force. In conjunction with U.S. domestic law, Part 2 of the PCA, 2016 establishes the legal framework governing Canadian preclearance operations in the U.S. Alongside the LRMA, Part 2 also establishes that Canadian legislation relating to the importation of goods, immigration, agriculture and public health and safety applies to Canadian-bound travellers and goods in a preclearance area located in the U.S.

The PCA, 2016, includes a deeming provision that allows for existing Canadian legislation and regulations that apply to the entry of persons and the importation of goods into Canada, normally administered at a port of entry, to be administered in a preclearance area as if the traveller had entered and the goods had been imported into Canada. In other words, provisions that meet the definition of “preclearance legislation” are deemed to apply in preclearance operations outside Canada in the same manner they would apply in Canada. However, the deeming provision does not apply to immigration legislation and its regulations, hence the necessity to create these regulations to adapt the language in the IRPA and its corresponding regulations.

In addition, based on internal Government consultations, only minor changes were identified in non-immigration regulation. These regulations are necessary to adapt three regulations to apply in the preclearance area: the Returning Persons Exemption Regulations, the Tariff Exemption Orders 9807.00.00 and 9805.00.00, and the Plant Protection Regulations (PPR).

The PPR specifically lists all places of entry for plant inspections; therefore the PPR were adapted for the purposes of the PCA, 2016, to include the preclearance area within the list. Without this adaptation, preclearance would not be considered as a place to perform these inspections that are necessary for both traveller and commercial purposes. The Returning Persons Exemption Regulations, the Tariff Exemption Orders 9807.00.00 and 9805.00.00, for the most part, set out the application or exclusion of alcohol exemptions based on the provincial age of majority at the location of the importation. For the purposes of the PCA, 2016, these regulations were adapted to clarify the appropriate age of majority that will be applied in preclearance for the importation of alcohol. Without this regulation, it would be difficult to determine the age of majority for alcohol importation as preclearance is “outside of Canada” and not located in a province where the age of majority is determined.

Pilot project

The small and remote POE at Covey Hill, Quebec (QC), which is in a state of disrepair, will relocate its border operations to the U.S. side of the border by moving into an established U.S. facility at Cannon Corners, New York (NY). During this pilot, the CBSA will be processing travellers and conveyances on U.S. soil shortly before their entry to Canada. There is a distance of approximately 200 metres between the U.S. POE (Cannon Corners, NY) and the adjacent Canadian POE (Covey Hill, QC). The Canadian POE will be shuttered during the pilot.

The Government of Canada committed funding to the land preclearance pilot through Budget 2021. Under “Modernizing Travel and Trade at our Borders,” $7.4M was allocated towards the land preclearance pilot at Cannon Corners, NY. Funding is primarily focused on physical and information technology infrastructure requirements to accommodate the CBSA operation within the U.S. facility. The regulations will facilitate the implementation of the pilot by providing BSOs with the authority to perform immigration processing. While there are ongoing discussions with respect to the timing of the pilot project, it is expected that the pilot project will launch in early 2025 for two years. The implementation of the pilot is anticipated to demonstrate whether preclearance is a cost-effective and operationally viable option for replacing small and remote POEs with aging infrastructure. Should the land pilot project results indicate that preclearance is favourable, future preclearance sites would likely not require additional regulations.

Objective

The regulations allow the CBSA to perform its mandate in Canadian preclearance operations located in the U.S. by providing integrated border services that support national security and public safety priorities as well as facilitate the free flow of persons and goods, including animals and plants. In addition, the regulations ensure operations in the preclearance environment are as efficient and effective as the operations at the POE in Canada.

To meet both objectives, the regulations allow most immigration functions that currently exist for BSOs working in POEs to be performed by BSOs working in a preclearance area in the U.S. Through these authorities, BSOs will be able to better facilitate the flow of legitimate travellers and goods and increase the safety and security of Canada by preventing inadmissible people and goods prior entry into Canada, while still on U.S. soil. In addition, as done at a POE, the regulations ensure BSOs can apply the age of majority for the importation of alcohol and ensure the completion of plant inspections in preclearance areas. In this way, BSO authorities will mirror those at POEs and align with the CBSA mandate.

Description

The regulations address the legislative and regulatory issues that result from preclearance being applied outside Canada.

Grounds of inadmissibility for permanent residents and foreign nationals

Using authorities under the PCA, 2016, officers will be able to refuse to permit permanent residents and certain foreign nationals from proceeding through preclearance if found inadmissible on prescribed grounds found in the Preclearance in the United States regulations.

Should the officer believe the traveller is inadmissible based on the grounds prescribed in the regulations, the officer may write a report against that traveller pursuant to subsection 48(4) of the PCA, 2016 and the report will be subject to review by a Minister’s delegate pursuant to subsection 48(5) of the PCA, 2016. If the Minister’s delegate believes the report to be well founded, the traveller may be refused preclearance but will not be subject to a removal order regardless of the inadmissibility. These individuals may seek judicial review to challenge the officer’s decision. To align with the policy intent, it is necessary to specify the grounds of inadmissibility in the regulations, especially in the context of the limited Canadian enforcement powers in preclearance.

The regulations define the scope of this authority by specifying the grounds of inadmissibility that apply in preclearance and prescribe different grounds between permanent residents and certain foreign nationals (including permanent resident visa holders and protected persons).

The prescribed grounds of inadmissibility for persons seeking to enter Canada are limited to those which are set out in IRPA. There are no new grounds of inadmissibility. The preclearance grounds of inadmissibility were a result of extensive collaboration between the CBSA and IRCC. The CBSA and IRCC are collaborating on officer guidance in relation to the grounds. At a high level, these grounds were known during the drafting (and associated technical briefings) and ratification of the PCA, 2016.

As found in the regulations, if the Minister’s Delegate is of the opinion that an inadmissibility report against a permanent resident is well founded, preclearance may be refused for the following grounds: security grounds, human and international rights violations, serious criminality and organized criminality (respectively, sections 34, 35, 36(1) and 37 of IRPA.

Of note, if a permanent resident is refused or withdraws from preclearance and is otherwise able to travel to a conventional POE located in Canada, the current statutory right of entry under IRPA would still apply when they seek to enter at that POE.^{footnote 2} The preclearance decision is simply a refusal to allow the permanent resident to proceed to Canada through preclearance. It does not result in a referral to an admissibility hearing or the issuance of a removal order.

The same grounds of inadmissibility that apply to permanent residents will also apply to foreign nationals who are protected persons, with the addition of inadmissibility for sanctions under section 35.1 of IRPA. The grounds of inadmissibility for foreign nationals with a permanent resident visa are outlined in the regulations. All the grounds of inadmissibility apply to other foreign nationals, which is consistent at both preclearance and a POE.

Admissible travellers to enter Canada

The regulations allow BSOs to conduct examination processes of travellers at a preclearance area, in alignment with activities currently performed at POEs such as allowing all admissible travellers to enter Canada. No new requirements or activities are being introduced by these regulations.

If the traveller and goods are determined to be admissible, no further examination will then be required once the traveller arrives in Canada, unless otherwise directed by the officer.

Application for documents

The regulations prevent travellers who would normally need to apply for certain documents outside of Canada at embassies or consulates (such as a permit or visa), from doing so in a preclearance area. In other words, foreign nationals and permanent residents will continue to apply at embassies or consulates prior to entering Canada through a POE or through preclearance for travel documents, work permits, study permits and visas.

Conversely, the regulations allow travellers who can apply for certain documents at POEs, where that service is offered, to continue to do so in a preclearance area.

Customs exemption

The regulations ensure the appropriate age of majority is used in the Returning Persons Exemption Regulations, and Tariff Exemption Orders 9807.00.00 and 9805.00.00. The age of majority for the importation of liquor is based on the province or territory where the customs office is situated. As the Canadian preclearance area will be situated outside of Canada, the regulations authorize BSOs applying certain customs exemption to use the age of majority of the province, or territory, into which the alcohol will be entering Canada, by adapting the aforementioned regulations for the purposes of preclearance.

Plant Protection Regulations

The regulations adapt the Plant Protection Regulations for the purposes of preclearance, as the specific ports at which plant inspections can be completed are listed in the regulations themselves thereby limiting application at preclearance. The regulations adapt that list to include preclearance areas.

Future expansion

While the regulations support the pilot project at the Covey Hill, QC – Cannon Corners, NY border crossing, they are not site-specific. That is, the regulations provide Canada with the regulatory framework to expand traveller preclearance operations without further regulatory amendments. The expansion of preclearance operations in the U.S. is subject to future policy approval and agreement by the U.S.

Regulatory development

Consultation

Consultations prior to prepublication in the Canada Gazette, Part I

In advance of the regulatory proposal, the CBSA had limited engagement with non-government stakeholders and partners, although the CBSA engaged with the Customs and Immigration Union, the Canadian Bar Association as well as U.S. Customs and Border Protection (CBP) and the Department of Homeland Security (DHS). Stakeholders are generally aware that regulations are needed. In addition, when the Bill establishing PCA, 2016 underwent the parliamentary process, it was clear that immigration legislation needed to be adapted by regulations for the preclearance framework in order to capture the appropriate inadmissibility and ensure cohesion between both Acts.

In 2018 and 2019, the CBSA had significant and widespread consultation within the Government of Canada to identify necessary regulatory changes. In addition, other government departments were consulted prior to drafting the PCA, 2016 to ensure their programs’ compatibility with the policy objectives sought through preclearance.

Analysis from these consultations indicated that IRCC, the Canadian Food Inspection Agency (CFIA) and the Department of Finance are the only Government stakeholders impacted by the regulations, therefore consultations with all three departments were frequent during the development of this regulatory proposal.

As IRCC shares responsibility with the CBSA for the implicated areas of IRPA and its regulations, they were consulted extensively. The IRPA and its regulations make up the majority of this proposal, as they fall outside of the deeming provision. Therefore, the CBSA collaborated with IRCC throughout the development of this proposal to ensure the regulations and policy are also aligned with IRCC program goals, and to integrate perspectives on immigration processing in preclearance.

Prepublication in the Canada Gazette, Part I

During the prepublication period, the CBSA provided notice of the publication of the regulations to groups that could be affected by the regulatory proposal, such as the affected Indigenous communities, federal government partners, the Government of the United States, the Canadian Bar Association, and the Customs and Immigration Union. The notification to stakeholders played a key role in finalizing the regulatory proposal and aligned with the Agency’s plan for increased general and targeted engagement with stakeholders in advance of the regulations coming into force. The CBSA has been available for inquiries as required.

The proposal was initially prepublished for a 30-day comment period. At the request of the Canadian Bar Association, the Canadian Association of Refugee Lawyers and others, the CBSA extended the publication period by an additional 30 days, which meant that the regulations were available for public comment for 60 days, from December 16, 2023, to February 14, 2024. As part of the regulatory process, separate technical briefings were held with the Customs and Immigration Union and the Canadian Bar Association.

All comments, both in and out of scope, were published with no redactions. The CBSA received 33 comments from seven stakeholders. Of these, 20 comments were considered out-of-scope as they did not address preclearance, in any way, but rather commented on other CBSA programs or other port of entry processes. These comments were shared with the appropriate program areas and partners for their awareness and action as appropriate.

Below are 13 in-scope submissions alongside the CBSA response.

Benefits of preclearance

Four submissions outlined benefits of preclearance in terms of increased collaboration with the United States as well as cost savings through a decrease in compliance costs, admissibility hearings and deportations, as well as positive economic impacts through development and tourism. Another submission noted that preclearance will also ensure inadmissible and dangerous goods never enter Canada.

One submission outlined the potential for economic development through future preclearance expansion for cargo preclearance to generate supply chain resilience and global trade competitiveness, as well as highlighted the potential for preclearance in the air mode. In addition, there was a comment related to the potential benefits for small businesses with the introduction of preclearance. These comments were taken under advisement by the CBSA.

Considerations for preclearance

One submission requested more information on human resource management in a preclearance context. The LRMA outlines the coverage for dependents and the protections and accountabilities framework for preclearance officers. Any additional human resource considerations, such as housing and tax implications, will be addressed internally by the CBSA in consultation with the Customs and Immigration Union and the affected region.

Three submissions related to the protection of plants and animals in preclearance. The CBSA does not require additional regulations for plants and animals as the existing legislation, such as the Plant Protection Act and its Regulations as well as the Customs Act, will apply in Canadian preclearance as it does at POEs in Canada. These submissions were shared with the Canadian Food Inspection Agency for their information.

Another submission questioned whether preclearance would make travel more difficult for Indigenous border crossing. As outlined in the regulations, all Canadian citizens and persons registered under the Indian Act continue to enter by right, meaning they will not be referred for immigration purposes in the preclearance area, exactly like at a port of entry. No regulatory changes are required as a result of these submissions.

Limitations of preclearance

Two submissions identified concerns with the border process becoming more difficult as a result of preclearance. In response to these concerns, the CBSA website will be updated to address any differences between crossing at a port of entry and crossing at a Canadian preclearance area. Admissible travellers should not experience any changes to the way they are processed by the CBSA at preclearance in the U.S. In this way, Canadian preclearance could contribute to the Government’s goal of facilitating the flow of legitimate travellers and goods across the border.

The Canadian Bar Association requested that the CBSA delay the implementation of the proposed regulations to align with the independent review of the PCA, 2016. This review is part of a mandatory requirement outlined in the PCA, 2016. After careful consideration, the CBSA will not delay the Preclearance in the United States regulations to align with the independent review but will review the evaluation and recommendations of the report for any relevance to Canadian preclearance in the U.S. as well as evaluate the impacts of preclearance through the implementation of the pilot.

The Canadian Bar Association recommended amending the PCA, 2016 to clarify that the Canadian Charter of Rights and Freedoms is applicable to preclearance operations and guarantee access to Judicial Review by the Federal Court. An amendment to the PCA, 2016 is beyond the scope of this regulatory proposal. The CBSA has shared the submission with Public Safety Canada for its awareness. In terms of access to judicial review, permanent residents and foreign nationals who are refused entry to Canada through preclearance can seek judicial review of the decision. A refusal in preclearance would not result in a loss of status, generate an admissibility hearing or result in a removal order nor would it affect the permanent resident’s right to enter Canada should they subsequently seek to enter at a port of entry.

The Canada Bar Association recommended that the proposed regulations be amended to restrict an officer’s authority to question travellers, to specify protections for travellers seeking to enter Canada through preclearance and in particular those who withdraw or are refused, specifically to require officers to inform travellers of their rights, including their right to withdraw, and to require officers to provide travellers with documentation about their interactions in preclearance areas and the legal significance of this outcome. These recommendations have been carefully considered by the CBSA. In response, these items will be addressed through training of officers on withdraw provisions in preclearance as well as through signage and communications products. The CBSA will install signage specific to withdrawal at the pilot site. It is noteworthy that withdrawal provisions are in the LRMA and the PCA, 2016, not in the regulations.

Both the Canadian Bar Association and the Canadian Association for Refugee Lawyers requested that the CBSA generate more awareness regarding the legislative exclusion to make a refugee claim in preclearance and provide a clear process for claimants. In response, IRCC has provided the CBSA with officer guidance with respect to any travellers’ attempts to make a claim. In addition, the CBSA is exploring signage at the pilot site to make this exclusion known as well as advancing communication products that will outline that claims for refugee protection cannot be made in preclearance. Furthermore, the Canadian Bar Association recommended that the regulations require officers make a note on the claimants’ attempt to file a refugee claim in Global Case Management System (GCMS), and to give them a written confirmation of their attempt to do so. The CBSA considers this an operational matter to be addressed internally and in consultation with IRCC. The CBSA will consider options, outside of the regulations, and evaluate the impact of the legislative exclusion through the program delivery of the pilot.

Based on the assessment by the CBSA of each submission, it has been determined that comments will be addressed outside of making regulatory changes through program delivery, including internal policy development, officer training and guidance, and communications tools.

In addition, the CBSA will seek feedback from implicated stakeholders and partners should additional locations be considered for preclearance beyond the pilot as well as address, to the extent possible, any additional concerns expressed through the consultation process.

Modern treaty obligations and Indigenous engagement and consultation

No impacts on Indigenous peoples are anticipated as a result of the regulations.

As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted. The assessment examined the geographical scope and subject matter of the initiative in relation to modern treaties in effect and did not identify any potential federal modern treaty impacts or obligations. The Indigenous Affairs Secretariat within the CBSA was consulted on the regulatory proposal. The Agency will continue to assess potential impacts as new modern treaties are implemented.

The CBSA engaged with the indigenous partners in the region of the Covey Hill, QC pilot site with their self-governance protocols in mind and other Indigenous groups for this awareness in other regions. No comments were provided on the regulations as a result of this process.

Instrument choice

Failure to enact the regulations would result in the CBSA not being able to offer the full range of services intended for traveller preclearance and this would limit the CBSA’s ability to fully assess the operational benefits of preclearance during the proposed land preclearance pilot project. For example, the CBSA would not be authorized to make all the admissibility decisions concerning goods and people in preclearance that it is currently able to do in Canada. Without the regulations, preclearance under Part 2 of the PCA, 2016 would not fully meet its intended objectives and Canada would miss an opportunity to realize the full benefits of preclearance.

The deeming provision in the PCA, 2016 does not apply to IRPA as the PCA, 2016 specifically excludes IRPA from the definition of “preclearance legislation.” Instead, the PCA, 2016 provides that a traveller in a preclearance area who is seeking to enter Canada for the purposes of IRPA is outside Canada.^{footnote 3} The extraterritorial provisions of IRPA were not drafted with the intent of being applied in a preclearance area. Without regulations adapting provisions of the IRPA and its regulations, BSOs would lack the authorities necessary to process travellers at a preclearance area. The provision of these authorities can only be made through regulation. Therefore, no other instrument was considered.

Regulatory analysis

Benefits and costs

With the coming into force of both the LRMA and the PCA, 2016 in August 2019, Canada now has the framework and authorities to establish Canadian preclearance operations in the U.S.; therefore, the authority to establish preclearance operations exists independently of the preclearance regulations. As such, operational costs, as well as cost savings related to physical preclearance infrastructure are not being considered as part of the cost-benefit analysis associated with the regulations.

The regulations apply to a preclearance area, they do not purport to create a specific preclearance area. As such, any costing analysis related to establishing preclearance, as compared to a POE, such as renting or sharing space with the U.S. are irrelevant to the regulations.

In addition, the regulations merely adapt the POE authorities so that they can be administered at a preclearance area, they do not change authorities. The regulations also identify grounds of inadmissibility that apply at the preclearance area; these grounds are already established in IRPA. As such, there will only be minor costs directly and indirectly associated with the regulations such as training costs (for example the development of training materials, policy guidance documents and course delivery).

Baseline scenario

At a POE, which is inside Canada, a BSO conducts an examination of travellers and goods in order to determine their admissibility to Canada under Canadian legislation, including IRPA and its regulations. Where services are available, a BSO may issue additional documentation for permanent residents and foreign nationals who meet the requirements. The IRPA and its regulations outline the class of travellers for which documents can be issued at a POE and the class of travellers for which documents can only be issued outside of Canada. At a POE, under the IRPA, a BSO has the authority to prepare a report on permanent residents and foreign nationals who are believed to be inadmissible. Enforcement options under IRPA and its regulations are also available to CBSA officials at the POE including arrest and detention, issuance of a removal order in prescribed circumstances or referral of a report to an admissibility hearing. Under prescribed circumstances, at a POE, a BSO may direct the traveller to leave Canada, for example if the traveller is unable to be examined.

Absent the regulations, the preclearance area would be treated as “outside of Canada” for the purposes of immigration legislation and BSOs would not have access to POE examination authorities. Failure to enact the regulations would result in the CBSA not being able to offer the full range of services intended under preclearance. For example, the CBSA would not be authorized to make all admissibility decisions concerning goods and would not be able to make any admissibility decisions on people in preclearance as it is currently able to do in Canada at a POE.

Regulatory scenario

The regulations allow a BSO working in Canadian preclearance operations in the U.S. to conduct an examination of travellers and goods in order to determine their admissibility to Canada under Canadian legislation, including, IRPA and its regulations as well as the PCA, 2016.

With the preclearance regulations, immigration processing at preclearance will operate as it does today at a POE for those who enter by right and for admissible travellers that require an authorization to enter Canada. With the preclearance regulations, any documentation that is required before entering a POE is also required before entering preclearance. These documents are often obtained at an embassy or consulate prior to entering Canada. Under the same set of requirements, where services are available at that site, a BSO working in preclearance can issue documentation to select permanent residents and foreign nationals who can normally apply for this documentation at a POE.

In preclearance, the PCA, 2016 provides the authority for a BSO to prepare a report on permanent residents and foreign nationals who are believed to be inadmissible, similar to the authority in IRPA. As such, these regulations set out the IRPA grounds for inadmissibility for which the PCA, 2016 inadmissibility report can be prepared. Unlike the IRPA inadmissibility report at a POE, which can have immigration enforcement consequences (e.g. a removal order), the inadmissibility report under the PCA, 2016 can only result in a refusal to preclear the traveller to proceed to Canada. In Canadian preclearance, the traveller has not yet entered Canada, so they cannot leave or be removed from Canada. A BSO may direct a traveller to leave preclearance similar to at a POE. However, in this scenario or any scenario where the traveller is denied preclearance, leaves or withdraws, the traveller will remain in the U.S. and only leave the preclearance area.

The purpose of these regulations is to adapt IRPA and its regulations so that the provisions apply, as needed, in a preclearance area that is outside Canada. In addition, the regulations adapt the PPR, the Returning Persons Exemption Regulations, and Tariff Exemption Orders 9807.00.00 and 9805.00.00 to apply in preclearance as they apply at a POE. These preclearance regulations, which allow the CBSA to make admissibility determinations in preclearance, will facilitate the successful implementation of the preclearance pilot. Further, the successful implementation of the pilot will allow the CBSA to demonstrate whether preclearance is a cost-effective and operationally viable option. In addition, it will better position the Agency to complete an evidence-based plan for the strategic expansion of preclearance as the CBSA will be able to assess the operational impacts of BSOs performing immigration duties in preclearance.

Costs

There will be no costs for travellers crossing at preclearance areas. Currently, all individuals and goods are subject to an immigration and customs examination when seeking to enter Canada.

The incremental costs attributable to the regulations over a 10-year period starting in June 2024 and ending in May 2033 are monetized at $415,018^{footnote 4} (total present value) or $59,080 (annualized average). These costs consist of updating the CBSA and IRCC systems applications and training costs.

Benefits

The regulations support national security and public safety priorities as well as facilitate the free flow of legitimate persons and goods, including animals and plants.

Additionally, the regulations provide BSOs working in preclearance areas in the U.S. with the necessary authorities with respect to immigration processing, ensure application of the appropriate age of majority for the importation of alcohol, and clarify that plant inspections can be completed in preclearance areas. The CBSA will avoid the situation of allowing a foreign national to travel to Canada only to be referred inland for an admissibility hearing immediately upon arrival and then removed from Canada. This will lessen the need for inland enforcement activities such as investigations, arrests, warrant management, detention and removals thereby increasing safety and security as well as decreasing costs for government.

Small business lens

Analysis under the small business lens concluded that the regulations do not impact Canadian small businesses. The regulations only impact travellers at the preclearance site.

One-for-one rule

There is no incremental change in the administrative burden on business. While a new regulatory title is being introduced, it does not count as a new title under the rule.

Regulatory cooperation and alignment

The LRMA is reciprocal and enables preclearance to be established in either country, in all modes of travel. Article IX of the LRMA outlines joint commitments of both parties and Article XIII outlines a reciprocity obligation on both parties. Under Article I, the LRMA allows the immigration laws of the inspecting country to be exercised in the host country.

The U.S. passed legislation necessary to complete implementation of its LRMA obligations through the Promoting Travel, Commerce, and National Security Act of 2016, in December 2016. Canada’s implementing legislation, the PCA, 2016, received royal assent in December 2017. On August 15, 2019, the LRMA was ratified and the PCA, 2016 came into force, and representatives of Canada and the U.S. exchanged diplomatic notes to bring the LRMA into force in 2019. Upon entry into force, the PCA, 2016, both repealed and replaced the Preclearance Act from 1999.

Under the LRMA, information collected during preclearance operations, including statistical information and information necessary for administration of law (U.S. or Canadian law, as applicable) could be shared with the U.S. pursuant to applicable existing agreements or arrangements, or as otherwise authorized pursuant to Canadian laws or policies.

Effects on the environment

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. This proposal is unlikely to result in important environmental effects. Canada will use existing infrastructure located in the U.S. to perform examinations. There may exist minor positive environmental effects as it will avoid new construction in Canada.

Gender-based analysis plus

The regulations adapt Canadian POE authorities to apply to preclearance, it does not amend existing authority or introduce new authorities. As such, the regulations do not introduce any gender or diversity specific benefits. Any gender-based analysis plus (GBA+) impact stems from the nature of preclearance and not from the regulations. As preclearance will be occurring in U.S. territory, Canadian BSOs must adhere to U.S. policies and law as well as Canadian standards and law. As well, all individuals, including Canadian citizens and those registered under the Indian Act, remain subject to the laws of the U.S. in the preclearance area because they remain physically located in the U.S. at that moment.

The CBSA will work with its government counterparts to ensure that travellers are aware of any differences between crossing at a traditional POE and at a preclearance site. This will enable travellers to make informed decisions regarding how they cross the border. At the preclearance pilot site, the CBSA, in collaboration with the U.S., has prepared communications products, in both official languages (such as signage) to provide messaging that is clear, concise and appropriate in order to inform the travelling public that they are in Canadian preclearance in the U.S.

Implementation, compliance and enforcement, and service standards

Implementation

The regulations will come into force upon registration.

The CBSA works closely with its Government of Canada preclearance partners, including IRCC, on this initiative and will continue this collaboration and coordination for the effective and efficient implementation of the regulations.

The training component is important to ensure officers understand their authorities under the regulations, the PCA, 2016 and the LRMA. As such, in advance of the operationalization of the pilot, the CBSA will provide training to officers pertaining to the legislative and regulatory differences in operating outside of Canada. As outlined in the LRMA, the U.S. will provide training to Canadian officers on U.S. law related to preclearance.

The development of the regulations is a precondition toward implementing the Canadian preclearance pilot in the U.S. Upon pilot launch, the CBSA will perform ongoing analysis of the pilot operation and applicable data will assist to identify performance measurement and compliance frameworks of the regulations and, in the broader sense, of preclearance operations.

Canadian laws, including the Customs Act, the Access to Information Act and the Privacy Act, would apply to any information border services officers (BSOs) collect from travellers and goods in the preclearance operation. As per the LMRA, the inspecting party’s privacy laws and policies apply to subsequent handling of information that BSOs collect from travellers in the case of preclearance; this would be Canada’s laws and policies. Further, the CBSA would ensure the creation and maintenance of any necessary personal information banks applicable to Canadian preclearance operations. A Privacy Impact Assessment will be completed for Canadian preclearance operations prior to the launch of preclearance activities.

With the coming into force of the regulations and the subsequent implementation of the pilot, the CBSA will provide more information about the Canadian preclearance in coordination with the implicated partners in the Government of Canada and the Government of the U.S. This includes the creation of a website and external signage at the pilot site. The CBSA has increased efforts to inform industry partners through presentations at the Future Borders Coalition and the Eastern Border Transportation Coalition.

Compliance and enforcement

The same procedures that are currently in place at POEs are expected to be maintained in preclearance. Training is a significant component to reinforce both the regulations and the authorities, obligations, and limitations in the PCA, 2016 and the LRMA in situations where there will be deviation as a result of the regulations.

Service standards

It is expected that the preclearance environment will be as efficient and effective as the operations at POEs. Ongoing analysis of pilot operations and applicable data will assist to identify developing issues and inform any steps or strategies to be taken to mitigate them both for the regulations and in the broader sense.

Contact

Melissa Brannagan
Executive Director
Travellers Policy and Programs Directorate
Travellers Branch
Canada Border Services Agency
CBSA Preclearance General Mailbox: CBSA.Preclearance-Precontrole.ASFC@cbsa-asfc.gc.ca