Vol. 145, No. 21 — October 12, 2011
SOR/2011-209 September 30, 2011
Regulations Amending the Designated Provisions Regulations and the Regulations Concerning Information Required by Foreign States
P.C. 2011-1114 September 29, 2011
His Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 4.83 (see footnote a) and paragraphs 7.6(1)(a) (see footnote b) and (b) (see footnote c) of the Aeronautics Act (see footnote d), hereby makes the annexed Regulations Amending the Designated Provisions Regulations and the Regulations Concerning Information Required by Foreign States.
REGULATIONS AMENDING THE
DESIGNATED PROVISIONS REGULATIONS
AND THE REGULATIONS CONCERNING
INFORMATION REQUIRED BY FOREIGN STATES
DESIGNATED PROVISIONS REGULATIONS
1. Schedule 4 to the Designated Provisions Regulations (see footnote 1) is replaced by the Schedule 4 set out in Schedule 1 to these Regulations.
BY FOREIGN STATES
2. Sections 1 and 2 of the Regulations Concerning Information Required by Foreign States (see footnote 2) are replaced by the following:
Landing in a foreign state
1. For the purposes of section 4.83 of the Aeronautics Act, in the case of an aircraft that is due to land in a foreign state, the information set out in Schedules 1 and 2 relating to persons on board or expected to be on board the aircraft may be provided to a competent authority in that foreign state if the state and authority are set out in Schedule 3. However, the information set out in Schedule 2 may be provided only on request.
United States overflight
2. For the purposes of section 4.83 of the Aeronautics Act, in the case of an aircraft that is due to fly over the United States, the information set out in Schedule 4 relating to passengers on board or expected to be on board the aircraft may be provided to the United States Department of Homeland Security.
3. Item 1 of Schedule 3 to the Regulations is replaced by the following:
1. United States, Department of Homeland Security
4. The Regulations are amended by adding, after Schedule 3, the Schedule 4 set out in Schedule 2 to these Regulations.
COMING INTO FORCE
5. These Regulations come into force on the day on which they are registered.
DESIGNATED PROVISIONS OF THE ACT
INFORMATION ABOUT THE PASSENGERS
AND INFORMATION FROM THE PASSENGER
NAME RECORD — OVERFLIGHTS
- The full name
- The date of birth
- The gender
- The redress number or known traveller number
- The number of the passport
- The country that issued the passport
- The expiry date of the passport
- The International Air Transport Association (IATA) airport code — place of origination
- The International Air Transport Association (IATA) airport code — port of first arrival
- The air carrier code
- The flight number
- The aircraft departure date
- The aircraft departure time
- The aircraft arrival date
- The scheduled aircraft arrival time
- The reservation control number
- The record sequence number
- The record type
- The passenger update indicator
- The traveller reference number
(This statement is not part of the Regulations.)
Issue and objectives
Under the United States (U.S.) Secure Flight program, (see footnote 3) air carriers will be required to share certain identified passenger information, for flights transiting continental U.S. airspace to a third country, with the U.S. the Department of Homeland Security (DHS) approximately 72 hours prior to departure. For reservations created within 72 hours of departure, this information must be submitted as soon as possible.
Air carriers could choose to comply with Secure Flight and the Personal Information Protection Electronics Documents Act (PIPEDA) by obtaining the informed consent of all passengers before sending their personal information to the U.S. Government. However, developing such a system would result in significant costs to air carriers and potential delays to passengers. If consent were not given, air carriers could not comply with PIPEDA and the Secure Flight.
Section 4.83 of the Aeronautics Act allows air carriers to share air passenger information in accordance with the Secure Flight program, and was amended on March 23, 2011 to specifically expand the application to include flights transiting U.S. airspace. To reflect this amendment to the Act, consequential amendments to the existing Regulations Concerning Information Required by Foreign States (the Regulations) are necessary as, currently, the information requirements within apply to aircraft due to land in a foreign state but do not specifically address the “overflight” portion of section 4.83 of the Aeronautics Act.
The Regulations Amending the Designated Provisions Regulations and the Regulations Concerning Information Required by Foreign States (the Amendments) will allow Canadian air carriers to comply with the “overflight” provisions of the Secure Flight program in accordance with the Aeronautics Act and Canadian privacy laws and will ensure that the privacy rights of travellers are balanced with new U.S. air transportation security measures.
Flights between two Canadian cities that enter U.S. airspace will not fall under the Secure Flight program. For all other flights that overfly the continental U.S. territory, Canadian air carriers will be required by U.S. law to transmit to DHS each passenger’s full name, date of birth, gender, and other passport information and itinerary details as required by the Secure Flight Final Rule. (see footnote 4)
In accordance with the recent legislative amendments to section 4.83 of the Aeronautics Act, the Amendments will
- Specify what passenger information may be collected by Canadian air carriers and what foreign authorities it may be shared with for flights landing in a foreign state and for flights flying over U.S. airspace. A new Schedule IV will be added to specify the information for flights flying over U.S. airspace. The existing schedule that lists passenger information for aircraft landing in a foreign state will remain the same;
- Amend Schedule 3 by replacing the U.S. Customs Commissioner with the U.S. Department of Homeland Security; and
- Add new monetary penalties for air carriers to the Designated Provisions Regulations if they do not inform passengers that their passenger information will be shared with the U.S.
Benefits and costs
Regulatory changes will have almost no negative financial impact on Canadian air carriers. Air carriers will be required to provide a privacy notice to customers prior to the collection of their information and in most cases already have the infrastructure in place to do so.
However, if air carriers were not able to comply with the Secure Flight Program and denied access to U.S. airspace, the financial impact to air carriers could be severe. It would not be feasible for any Canadian air carrier to continue to fly to southern destinations as they would have to significantly alter flight routes to arrive at their final destination without going through U.S. airspace.
The Amendments will also alleviate operation burdens that an “informed consent” system required by PIPEDA would create. The Amendments will also provide air carriers with clarity on what information can be shared with DHS.
In terms of securing the personal information of air passengers, the U.S. Transportation Security Administration (TSA) has stated that it takes the security of personal information very seriously and has put in place the highest set of security protocol standards to protect the personal information of all passengers. (see footnote 5) The type of information collected will be limited to the items stipulated in the Regulations, and all data will be destroyed seven days after the completion of travel for all persons not identified as potential threats. Potential matches will be stored in DHS databases for up to seven years, and confirmed matches will be stored for 99 years.
Throughout 2009 and 2010, Public Safety Canada consulted with representatives of the aviation industry, other Government departments, and other interested stakeholders such as the Office of the Privacy Commissioner of Canada. Both government partners and industry stakeholders expressed their view that the regulations needed to be updated in order to comply with Secure Flight and Canadian laws.
Government departments/agencies that were consulted included
- Transport Canada;
- Office of the Privacy Commissioner of Canada;
- Justice Canada;
- Royal Canadian Mounted Police;
- Canadian Security Intelligence Service; and
- Canada Border Service Agency.
Other stakeholders that were consulted included industry groups, such as
- the National Airlines Council of Canada; and
- the Advisory Group on Aviation Security. (see footnote 6)
The House Standing Committee on Transportation, Infrastructure and Communities held several meetings during November and December of 2010 which examined Bill C-42 in detail and heard views from witnesses. The participants included
- Public Safety officials;
- Transport Canada officials;
- the Privacy Commissioner;
- the Tourism Industry Association of Canada;
- the Canadian Civil Liberties Association;
- the Canadian Council on American-Islamic Relations; and
- representatives from the Greater Toronto Airport Authority.
Implementation, enforcement and service standards
Transport Canada provides rigorous oversight and enforcement of the Aeronautics Act and its related legislative instruments through a national network of aviation security inspectors.
Transport Canada’s philosophy on enforcement stresses promoting compliance as the preferred means of achieving a secure aviation environment. Where compliance is not achieved or where there are flagrant violations, enforcement action may be taken in the form of administrative monetary penalties, charges of offences punishable by summary conviction or indictable offences or the cancellation, suspension or revocation of Canadian Aviation Documents.
To promote compliance with the amended Regulations Concerning Information Required by Foreign States, a regular cycle of inspections of security activities is conducted at airports at a frequency based on risk assessment. Transport Canada has an inspection program in place in all regions of the country, including on-site security inspectors at eight international airports, which include regular inspections, daily monitoring of security activities and investigation of complaints. Inspection and enforcement practices are documented in the Transport Canada Inspection and Enforcement Manual. These Regulations will follow the Transport Canada inspection program.
Under the Aeronautics Act, the maximum monetary penalty that can be assessed for the contravention of a regulation is $5,000 for individuals and $25,000 for corporations.
Administrative monetary penalty schemes established under the Aeronautics Act for aviation security are similar to those under this Act for aviation safety as well as those contained in the Marine Transportation Security Act and the Canada Shipping Act, 2001, all of which are administered by Transport Canada. Other federal departments and agencies, including Health Canada and Agriculture and Agri-Food Canada, also rely on administrative monetary penalty schemes as an alternative to enforcing regulatory offences in the criminal courts.
Performance measurement and evaluation
Section 4.83 of the Aeronautics Act specifies that a review of the over flight provisions of the section must be undertaken within five years, at which time a review of the Regulations will also take place.
Regulatory Planning and Services
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S.C. 2011, c. 9, s. 2
S.C. 2004, c. 15, s. 18
S.C. 2004, c. 15, s. 18
R.S., c. A-2
See Secure Flight Final Rule at www.tsa.gov/assets/pdf/secureflight_final_rule.pdf.
A complete list of the Secure Flight passenger data requirements can be found on pages 64023 and 64024 of the Secure Flight Final Rule.
These security protocols can be found in the Privacy Impact Assessment for the Secure Flight Program or in the System of Records Notice at www.tsa.gov/assets/pdf/sorn_secureflight.pdf.
The Advisory Group on Aviation Security (AGAS), established by Transport Canada in 2005, is a national level consultative group that exchanges views on issues related to aviation security policy, strategy, regulatory and program priorities.