Registration

SOR/2008-250  September 4, 2008

AERONAUTICS ACT

Regulations Amending the Identity Screening Regulations

P.C. 2008-1590  September 4, 2008

Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, Infrastructure and Communities, pursuant to sections 4.71 (see footnote a) and 4.9 (see footnote b) of the Aeronautics Act (see footnote c), hereby makes the annexed Regulations Amending the Identity Screening Regulations.

REGULATIONS AMENDING THE IDENTITY SCREENING REGULATIONS

AMENDMENTS

1. Subsection 3(1) of the Identity Screening Regulations (see footnote 1) is replaced by the following:

3. (1) An air carrier shall, before issuing a boarding pass to any person who appears to be 18 years of age or older, screen the person by comparing his or her name with the names of persons specified to the air carrier by the Minister under paragraph 4.81(1)(b) of the Act.

2. Section 5 of the Regulations is replaced by the following:

BOARDING GATE

5. (1) An air carrier shall, at a boarding gate, screen any person who appears to be 18 years of age or older by asking the person for a restricted area identity card, for one piece of government-issued photo identification that shows his or her name or for two pieces of government-issued identification each of which shows his or her name.

(2) If the name on the restricted area identity card or the identification is not the same as the name on the person’s boarding pass, the air carrier shall compare the name on the restricted area identity card or the identification with those of persons specified to the air carrier by the Minister under paragraph 4.81(1)(b) of the Act.

(3) If the name on the restricted area identity card or the identification is the same as that of a person specified to the air carrier, the air carrier shall ask the person for one piece of government-issued photo identification that, in addition to showing his or her name, shows his or her date of birth and gender or for two pieces of government-issued identification, at least one of which shows his or her name, date of birth and gender.

(4) If the name, date of birth and gender on the identification are the same as those of a person specified to the air carrier, the air carrier shall immediately so inform the Minister.

3. The heading before section 9 and sections 9 and 10 of the Regulations are replaced by the following:

CURRENCY OF INFORMATION

9. An air carrier shall ensure that any system it uses to comply with sections 3 to 5 uses only the most up-to-date information provided to the air carrier by the Minister respecting persons specified to the air carrier by the Minister under paragraph 4.81(1)(b) of the Act.

10. If the Minister informs an air carrier that a person is no longer specified under paragraph 4.81(1)(b) of the Act, the air carrier shall immediately remove all information respecting that person from any system it uses to comply with sections 3 to 5.

PROTECTION OF INFORMATION

11. No person shall, in respect of a person specified to an air carrier by the Minister under paragraph 4.81(1)(b) of the Act,

(a) disclose any information respecting the specified person that was provided to the air carrier by the Minister for the purposes of these Regulations, including the person’s name, date of birth, gender and the fact that he or she is, or was, specified; or

(b) use the information for any purpose other than complying with sections 3 to 5.

12. An air carrier shall ensure that

(a) access to information respecting persons specified to the air carrier by the Minister under paragraph 4.81(1)(b) of the Act is restricted to air carrier employees, agents or contractors who require the access to carry out their duties; and

(b) access by those employees, agents or contractors is limited to the extent necessary to carry out those duties.

13. (1) An air carrier shall keep an updated list of all employees, agents or contractors of the air carrier who have access to all information respecting all the persons specified to the air carrier by the Minister under paragraph 4.81(1)(b) of the Act.

(2) The air carrier shall provide the list to the Minister on reasonable notice given by the Minister.

COMING INTO FORCE

4. 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.)

Issue and objectives

On June 18, 2007, Identity Screening Regulations (ISR) came into force requiring air carriers to compare the names of passengers flying in, to or out of Canada against the names of persons specified to the air carrier by the Minister, which is the central element of the Passenger Protect Program.

Since implementation, Transport Canada, in close collaboration with stakeholders, agreed that enhancements are required to improve facilitation, transparency and compliance. The following is a brief overview of the enhancements:

(1) Remove the requirement for passengers who appear to be under the age of 18 to present identification (currently a Ministerial Exemption).

(2) Remove the requirement for air carriers to verify name, gender and date of birth at the boarding gate, and require that carriers verify name only with one government-issued photo identification document or two non-photo government-issued identification documents.

(3) Include the Restricted Area Identity Card (RAIC) as an acceptable non-government identification document for presentation at the boarding gate.

(4) Incorporate in the ISR, salient elements of the voluntary Memorandum of Understanding (MOU) currently signed by air carriers, which include the following:

(a) using the most up-to-date names of persons specified to the air carrier by the Minister for the purpose of the Passenger Protect Program and prohibiting the air carrier from using any name of a person specified to the air carrier by the Minister for any other purpose (e.g. their own corporate use);

(b) removing any name no longer specified under the Passenger Protect Program from any air carrier system and prohibiting air carriers from using old names of persons specified to the air carrier by the Minister for any other purpose;

(c) ensuring the names of persons specified to the air carrier by the Minister are not disclosed by air carriers and that the names of persons specified to the air carrier by the Minister are accessed only by those who need access to this information in order to carry out their duties; and

(d) maintaining a list of airline personnel who have access to the names of persons specified to the air carriers by the Minister, and providing the list of personnel to Transport Canada, upon request.

(5) Designate monetary penalties (i.e. administrative fines) as a more effective and efficient means to enforce these Regulations.

Description and rationale

Amendments to the ISR

The ISR came into force on June 18, 2007, to implement the Passenger Protect Program, which added another layer of security to Canada’s aviation security system. The following adjustments or enhancements to the ISR are required to make the Passenger Protect Program more efficient:

Identification document requirements

Currently, sections 3 and 5 of the ISR require air carriers to request any persons who appear to be 12 years of age or older to present government-issued identification. On June 18, 2007, upon the coming into force of these Regulations, a Ministerial Exemption was issued to air carriers to remove their obligations to ask passengers from 12 years to 18 years of age to present identification. The amendments would embed into the Regulations this exemption by changing the age requirement in sections 3 and 5 accordingly. This would affect domestic flights, as travel abroad requires passengers to have identity documents. This amendment takes into account the low risk persons younger than 18 represent, the difficulty those persons have in obtaining the type of identification document required under the Regulations, and the mobility limitations a lack of proper identification can cause for domestic flights within Canada.

Currently, section 5 of the ISR requires passengers to present at the boarding gate one piece of government-issued identification with a photo that shows name, date of birth and gender (e.g., a driver’s licence or a passport), or two pieces of government-issued identification documents without a photo, at least one of which shows name, date of birth and gender (e.g., a birth certificate). It is worthwhile to note that the focus for date of birth and gender is to differentiate from someone whose name is similar to the name of an individual specified to the air carrier by the Minister. This issue would have had to be resolved prior to receiving a boarding pass and entering the restricted area of an airport. Veri-fying each passenger’s date of birth and gender requires a more detailed examination of passengers’ identification documents and causes delays at the boarding gate. This requirement has proven to be excessive, as the intent to present an identification document at the boarding gate is only to confirm that the holder of a boarding pass is the person to whom it was issued.

The amendments will allow air carriers to verify a passenger’s identification document at the boarding gate using only the name of the passenger. This will facilitate air carriers’ transactions with passengers as the examination of the boarding pass and document is faster and improves passenger flow during the boarding procedures. The boarding pass does not contain date of birth and gender; therefore, verifying these features at the boarding gate increased only security marginally.

The amendments will also list the RAIC as an acceptable type of ID to be presented at the boarding gate under the Passenger Protect Program. The RAIC is a smart card issued to airport employees that uses biometric technology to authenticate the identity of persons requiring access to restricted areas at designated Canadian airports. The RAIC is not a government-issued identification document, but in order to be in possession of a RAIC, the holder must be in possession of a Transportation Security Clearance, which represents the successful completion of the Royal Canadian Mounted Police and the Canadian Security Intelligence Service background checks. RAIC holders are workers at an airport, such as pilots and flight attendants, who access restricted areas and use the aviation system on a regular basis. These amendments will allow air carriers to accept this card as identification at the boarding gate when these individuals are travelling in Canada.

Implementing elements of the MOU in the ISR

Presently, under the Passenger Protect Program, air carriers are expected to enter into a MOU with Transport Canada prior to being granted access to the names of persons specified to the air carrier by the Minister. The MOU, although voluntary, ensures that, in addition to the obligation to not disclose or use information received from the Minister inappropriately, access to the systems owned by the air carriers are for those who need the information to carry out their duties and those systems are updated with the most recent information available to them from the Department. The MOU is not a regulatory requirement and, as such, the Department cannot take enforcement action for non-compliance. The amendments—to include elements of the MOU in the ISR—would provide the government with the ability to take enforcement action against air carriers for breach of these elements. The Privacy Commissioner also encouraged the government to include these privacy elements in the ISR.

Amendments to the Designated Provisions Regulations (DPR)

The DPR are made pursuant to subsection 7.6(1) of the Aeronautics Act and identify regulations and orders that may be enforced by the government by means of an administrative monetary penalty. The existing DPR does not list or designate any provisions of the ISR. Consequently, all enforcement actions require prosecution in criminal courts. The designation of a provision in the DPR will allow Transport Canada’s inspectors to issue monetary penalties to air carriers that do not comply with the ISR. This route of enforcement is preferable to both the government and to air carriers, as it ensures that non-compliance to administrative requirements is dealt with at a lesser cost. It gives the government more flexibility over enforcement to encourage voluntary compliance and is a more expeditious means of enforcing certain provisions of the ISR than if violations were prosecuted through the court system.

The only provision excluded from these amendments is section 11 of the ISR, which deals with the disclosure and safeguarding of confidential information pertaining to specified persons. Non-compliance with this section could result in a summary conviction through the federal court system. The rationale for not designating this provision is based on the nature and severity of the offence, as well as the need to create a strong deterrent to disclose the names of persons specified to the air carrier by the Minister.

The amendments to the DPR will only affect air carriers since the obligations imposed by the ISR do not rest on aviation employees or passengers.

Consultation

The amendments were developed using feedback from informal consultations and input from stakeholders. Key participants in the consultation process included the Canadian Air Transport Security Authority, aerodrome operators, air carriers, industry associations and labour groups who agreed with the proposed changes. The Office of the Privacy Commissioner (OPC) was also consulted and additional input was received from Canadians through the IPSOS/REID Passenger Protect Program Identification Document Requirement Assessment that took place in January.

IPSOS/REID Passenger Protect Program Identification Document Requirement Assessment and Transport Canada responses

According to the IPSOS/REID Passenger Protect Program Identification Document Requirement Assessment (the Survey), over three quarters of those with children aged 10 to 18 possess the identification document required for their child to travel by air. Based on the Survey findings, one in five persons with children sees the ISP as a significant obstacle to air travel for their child when travelling domestically. Since the purpose of the ISP is to increase security, in view of the low risk that children represent, the further obstacles to travelling families is an unintended result.

OPC concerns and Transport Canada

On January 23, 2008, Transport Canada met with the OPC to provide an update on the Passenger Protect Program specifically and to discuss amendments to the ISR and the DPR. Until now, important aspects of privacy protection were contained in a MOU between Transport Canada and the air carriers. The OPC had expressed concern that, in light of the fact that some air carrier personnel who would have access to information respecting persons specified to the air carrier by the Minister did not have a Transportation security clearance, the MOU would not provide a sufficient deterrent to stop air carrier personnel from the unwarranted disclosure of personal information. The OPC welcomed the enhancement of the Passenger Protect Program by the inclusion of privacy protection in the ISR, which was previously in the MOU. Also, the OPC was satisfied that designation of administrative monetary penalties of certain provisions to the Regulations would strengthen the ISR.

These amendments were pre-published in the Canada Gazette, Part I, on May 24, 2008, for a 30-day comment period. The Department also updated their Passenger Protect Web site to inform readers that amendments to the regulations were being proposed and included a link to the amendments on the Canada Gazette Web site. The department received one comment from Air Canada supporting the amendments.

Implementation, enforcement and service standards

In all cases, the enforcement response by Transport Canada’s inspectors is tailored to achieve both compliance and deterrence. Administrative monetary penalties are generally imposed only as a last recourse where other enforcement tools cannot achieve that objective. Other enforcement options include warnings (oral and written), assurances of compliance, and the suspending or cancelling of Canadian aviation documents.

The tool to be used in any particular instance will depend upon the following:

(a) seriousness of the contravention;

(b) circumstances when it was committed (e.g., whether it was committed wilfully or deliberately);

(c) seriousness of any consequences;

(d) compliance record of the offender; and

(e) willingness of the offender to take measures to ensure compliance in the future.

Under the Aeronautics Act, the maximum monetary penalty that can be assessed for the contravention of a regulation is $5,000 in the case of an individual and $25,000 in the case of a corporation. In selecting an appropriate monetary penalty, an enforcement matrix is used by Transport Canada’s security inspectors. The matrix consists of fixed amounts according to whether contraventions are committed by an individual or a corporation, whether it is a repeat or first offence. This matrix provides guidance to Transport Canada’s security inspectors on the appropriate application of penalties and promotes national consistency in the enforcement of aviation security regulations. All penalties would be reviewed by the Regional Director of Transportation Security and Emergency Preparedness in their respective regions.

The enforcement matrix must be used to determine appropriate monetary penalties for contraventions of designated provisions. However, circumstances of a particular case may indicate a need to assess a higher penalty and therefore deviate from the matrix. Any deviation from the matrix would be reviewed and approved by the Director of Security Operations in headquarters.

After a notice of assessment of monetary penalty is served or sent, full payment of the specified penalty is required within 30 days. However, if the individual/corporation disagrees with the fine, the individual/corporation can request that the Transportation Appeal Tribunal of Canada (the Tribunal), a quasi-judicial tribunal, review the facts of the alleged contravention or the amount of the penalty.

The Tribunal will give an opportunity to the individual/ company to present evidence and make representations. The burden of proving the infraction rests with the Minister. If the Tribunal determines that a contravention did indeed occur, it will issue a certificate specifying the amount of the penalty to be paid by the individual/corporation. This certificate, once registered, has the same force of law as a judgement from the Federal Court and the amount of penalty is collectable as a debt due to Her Majesty.

It is worthwhile to note that 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 (for regulations they administer) as an alternative to enforcing regulatory offences in the criminal courts.

By way of comparison at the international level, the United States imposes a maximum penalty of $10,000 for individuals and a maximum of $25,000 for corporations per violation of its aviation security regulations. Similar to the enforcement matrix used by Transport Canada, the U.S. Transportation Security Administration uses the Sanction Guideline Table to determine appropriate monetary penalty for contraventions. A range of factors, including prior violations and mitigating circumstances is also considered in selecting an appropriate penalty.

Contact

Sandra Miller
Chief
Regulatory Planning and Services
Regulatory Affairs — Security
Transport Canada
330 Sparks Street
Place de Ville, Tower C, 13th Floor
Ottawa, Ontario
K1A 0N5
Telephone: 613-998-9605
Fax: 613-990-5046
Email: millers@tc.gc.ca

Footnote a
S.C. 2004, c. 15, s. 5

Footnote b
S.C. 1992, c. 4, s. 7

Footnote c
R.S., c. A-2

Footnote 1
SOR/2007-82

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