Vol. 139, No. 19 — September 21, 2005

Registration
SOR/2005-257 August 31, 2005

CUSTOMS TARIFF

Definition of "Settler" for the Purpose of Tariff Item No. 9807.00.00 Regulations

P.C. 2005-1498 August 31, 2005

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subparagraph 133(h)(i) of the Customs Tariff (see footnote a), hereby makes the annexed Definition of "Settler" for the Purpose of Tariff Item No. 9807.00.00 Regulations.

DEFINITION OF "SETTLER" FOR THE PURPOSE OF TARIFF ITEM NO. 9807.00.00 REGULATIONS

SETTLER

1. For the purpose of tariff item No. 9807.00.00, "settler" means any person who enters Canada with the intention of establishing, for the first time, a residence for a period of not less than 12 months, but does not include a person who enters Canada for the purpose of

(a) employment for a period not exceeding 36 months;

(b) studying at an educational institution; or

(c) performing preclearance activities on behalf of the Government of the United States under the terms of the Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America, signed January 18, 2001.

REPEAL

2. The Definition of "Settler" for the Purpose of Tariff Item No. 9807.00.00 Regulations (see footnote 1) is repealed.

COMING INTO FORCE

3. 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.)

Description

The Definition of "Settler" for the Purpose of Tariff Item No. 9807.00.00 Regulations, the Non-residents' Temporary Importation of Baggage and Conveyances Regulations and the Ships' Stores Regulations are being amended as a result of measures implemented in legislation (Bills C-23, C-24 and S-22).

On June 10, 1999, both the Minister of National Revenue and the Minister of Finance tabled a Notice of Ways and Means Motion increasing the duty and tax-free personal exemptions for Canadian residents returning to Canada who have been absent for seven days or more. The Notice also announced an increase, from 1.14 L to 1.5 L, in the amount of wine that may be imported by returning residents who have been absent for 48 hours or more, settlers, former residents of Canada and members of visiting NATO and Commonwealth armed forces. These changes have been accomplished through legislated amendments to specific tariff items in the List of Tariff Provisions set out in the schedule to the Customs Tariff (Bill C-24). As Canada has historically granted the same duty and tax-free entitlement on alcohol importation to all categories of travellers, a corresponding increase to the maximum quantity for wine imported by regular visitors to Canada is being implemented.

On June 29, 2000, An Act to modernize the Statutes of Canada in relation to benefits and obligations (Bill C-23) received Royal Assent. The Act amended 68 federal statutes to extend benefits and obligations to common-law same-sex partners on the same basis as common-law opposite-sex partners. As a result, regulatory amendments are required to ensure equal treatment under the law for common-law opposite-sex and common-law same-sex partners.

On January 18, 2001, the Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America was signed. It came into force on May 3, 2003. The Agreement is supported by the Preclearance Act (Bill S-22), which came into force on May 1, 2002. As a result, regulatory amendments are required to replace the words "Agreement between the Government of Canada and the Government of the United States of America on Air Transport Preclearance, dated May 8, 1974" with "Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America, signed January 18, 2001".

The above-mentioned legislative measures require amendments to the following regulations:

Definition of "Settler" for the Purpose of Tariff Item No. 9807.00.00 Regulations

These Regulations, as their title indicates, define the term "settler" for the purpose of tariff item No. 9807.00.00 in the List of Tariff Provisions set out in the Schedule to the Customs Tariff. The Regulations needed to be amended to reflect the coming into force of the Agreement on Air Transport Preclearance between the Government of Canada and the Government of the United States of America (supported by Bill S-22). Since spouses, common-law partners and dependants who enter Canada with the intention of establishing, for the first time, a residence for a period of not less than 12 months are settlers in their own right, the Regulations also needed to be amended to remove the reference to "spouse or dependants of a person" from the definition of "settler". In addition, the Regulations needed to be amended to remove unnecessary wording and modernize their content. Therefore, since they are made up of only one section, the Regulations are being repealed and replaced by new Regulations that implement the above-mentioned amendments.

Non-residents' Temporary Importation of Baggage and Conveyances Regulations

These Regulations outline the conditions under which non-residents may import their baggage and conveyances temporarily without the payment of duties. They are being amended to implement Bill C-23 to extend the benefits and obligations of non-residents to same-sex common-law partners. To that effect, a definition of "common-law partner", which refers to the definition included in the Income Tax Act, is being added to the Regulations. The Regulations are also being amended to increase the quantity limit on importation of wine from 1.14 L to 1.5 L. The existing maximum quantities applicable to spirits and beer, as well as that for a combined importation of both wine and spirits, are unchanged. In addition, they are being amended to reflect the coming into force of the Agreement on Air Transport Preclearance, to update their terminology, to reflect gender neutrality, and to ensure consistency with other instruments.

Ships' Stores Regulations

These Regulations outline the procedures for the delivery of ships' stores to ships and aircraft, and the conditions governing the issue and securing or sealing of ships' stores. Consequential amendments are being made to increase the quantity limit on wine from 1.14 L to 1.5 L in support of Bill C-24.

The above-mentioned regulatory amendments come within the framework of the governmental Smart Regulations initiative, which is a key instrument for achieving the Government's social, environmental and economic objectives. A cornerstone of the implementation of this initiative is improved "regulatory governance" and better cooperation and coordination among federal departments and with other levels of government. Not only do they ensure consistency with the federal approach taken in Bill C-23, Bill C-24 and Bill S-22, but they will simplify the customs clearance process, allow for consistency in the administration of these Regulations by the Canada Border Services Agency (CBSA), reduce customs administrative costs, and provide equal treatment to all Canadians.

As these regulatory amendments are made as a result of measures already implemented in the legislation, therefore are of a consequential nature, they were not considered a priority. Many factors have contributed to the delay in the processing of these proposals, amongst which are the federal election in November 2000, changes of ministers and the Public Service Re-arrangement of December 12, 2003, which required revisions to the instruments and supporting documents.

Alternatives

There are no acceptable alternatives to these amendments.

Amending these Regulations is the only means of providing equal treatment to same-sex common-law partners and a consistent treatment in the maximum quantities applicable to importations of wine under certain circumstances. Regulations also had to be amended to correct therein any reference to Agreement on Air Transport Preclearance.

In addition, not including same-sex common-law partners would be inconsistent with the Canadian Charter of Rights and Freedom.

These regulatory amendments are necessary to ensure consistency with the federal approach taken in Bill C-23, Bill C-24 and Bill S-22.

Benefits and Costs

Increase in quantity limit for wine:

The slight increase to the quantity limit for wine importations included in these amendments will result in minimal revenue losses. A uniform quantity limit will simplify customs clearance and allow for consistency in the administration of these Regulations by the CBSA. The regulatory amendments are in line with the increase announced on June 10, 1999. The changes will ensure common references to 1.5 L of wine, which will, in turn, reduce customs administrative costs.

Common-law same-sex partners:

The changes will have little impact on most Canadians. Those affected will be individuals in common-law partnerships, defined as two persons who are cohabiting in a conjugal relationship, having so cohabited for a period of at least one year. The amendments extend benefits to common-law same-sex partners on the same basis as common-law opposite-sex partners. Extending equal treatment under the law to common-law same-sex partners is not expected to add significantly to the costs of the administration of the Regulations by the CBSA.

Preclearance:

There are no costs or benefits attached to these regulatory amendments.

Consultation

Increase in quantity limit for wine:

With respect to the changes announced in the Notice of Ways and Means Motion on June 10, 1999, the Minister of National Revenue has engaged in consultations with the Minister of Finance, finance ministers from Ontario and those provinces who are participants in the Harmonized Sales Tax, as well as Members of Parliament who represent border communities. The associated press release also provided the public with an opportunity to comment on the announced increase in the quantity limit for wine importations. However, no comments were received in respect of this announcement.

Common-law same-sex partners:

With respect to the modernization of benefits and obligations, as these Regulations are primarily administrative in nature, consultations were undertaken only with the Department of Justice.

Preclearance:

As these amendments are consequential in nature, no consultations were undertaken.

Compliance and Enforcement

Increase in quantity limit for wine:

The regulatory amendments are in line with the increase announced on June 10, 1999 and the changes will ensure common references to 1.5 L of wine, which will foster voluntary compliance.

These changes will facilitate compliance, as the Regulations will now reflect the usual bottle sizes for wine. The amendments will also facilitate enforcement of the quantity limits for importations of wine, as they will ensure consistent limits for wine that will apply to all categories of persons entering Canada.

The current administrative procedures established by the CBSA are adequate to ensure compliance with these amendments.

Common-law same-sex partners and Preclearance:

The current administrative procedures established by the CBSA are adequate to ensure compliance with these amendments.

Contact

Mary Pontoni
Manager
Travellers Division
Canada Border Services Agency
191 Laurier Avenue West
Ottawa, Ontario
K1A 0L8
Telephone: (613) 954-7217
FAX: (613) 998-5584
E-mail: Mary.Pontoni@cbsa-asfc.gc.ca

Footnote a

S.C. 1997, c. 36

Footnote 1

SOR/90-226

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