Vol. 146, No. 8 — April 11, 2012
SOR/2012-64 March 29, 2012
AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES ACT
Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations
The Minister of Agriculture and Agri-Food, pursuant to subsection 4(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (see footnote a), hereby makes the annexed Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
Ottawa, March 29, 2012
Minister of Agriculture and Agri-Food
REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
1. The portion of items 1 and 2 of Part 1 of Schedule 3 to the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (see footnote 1) in column 2 is replaced by the following:
No previous violation or offence has been committed under the Act or regulation under which the particular penalty is being assessed in the five years preceding the day on which the violation subject to the assessment is committed.
One previous minor or serious violation has been committed under the Act or regulation under which the particular penalty is being assessed in the five years preceding the day on which the violation subject to the assessment is committed.
COMING INTO FORCE
2. 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
The purpose of the Agriculture and Agri-Food Administrative Monetary Penalties Act (the AMPs Act) is to enhance the enforcement options currently available in respect of seven statutes administered by the Canadian Food Inspection Agency (CFIA). The AMPs Act establishes an alternative to the existing penal system and supplements current enforcement measures such as prosecution.
Pursuant to the AMPs Act, the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AMPs Regulations) have been implemented to respond to violations of the Health of Animals Act and its regulations and the Plant Protection Act and its regulations. The AMPs Regulations currently set out provisions of these acts and their regulations, the contravention of which may result in the issuance of monetary penalties ranging from $500 to $15,000.
The AMPs Regulations also allow for the monetary penalties to be increased as a means of deterring repeat violations if the regulated party has a history of violations within a specified time (reference) period preceding the date of the violation being assessed. Amendments to the AMPs Regulations in October 2010 changed, among other things, the reference period used in the determination of repeat violation from three to five years. There are, currently, three categories of the factor (aggravation factor) used in determining the amount by which to increase a penalty as a result of repeat violation:
Category 1: An aggravation factor of 0 if there is no repeat violation in the previous three years.
Category 2: An aggravation factor of 3 if no more than one minor or serious repeat violation in the previous five years.
Category 3: An aggravation factor of 5 if the history in the previous five years is other than in the other two categories.
Prior to October 2010, a three-year reference period was used for all categories of the aggravation factor. In the amendments published in October 2010 a five-year reference period was adopted. However, an oversight led to this new reference period not being applied uniformly across all categories of the aggravation factor. This oversight, and the use of the phrase “no more than one” in the second category of the aggravation factor, may lead to an application problem in calculating the additional penalty amount for repeat violations.
These Regulations intend to address this oversight by harmonizing the five-year reference period and eliminate the ambiguity created by the phrase “no more than one” in the second category of the aggravation factor.
Description and rationale
This regulatory amendment would adopt a single reference period and create mutually exclusive classes of the aggravation factor used in determining additional monetary penalties for repeat violations.
This amendment would create a level playing field for all regulated parties and enhance the ability of the Regulations to deter repeat violations.
(1) Status quo — Do not amend the current AMPs Regulations
The status quo would not eliminate the oversight and the inherent risk of using multiple reference periods in determining the aggravation factor for repeat violations.
(2) Amend the AMPs Regulations (preferred option)
This option would address the oversight and eliminate the inherent risk of using multiple reference periods in determining the aggravation factor for repeat violations.
No consultations were carried out as this amendment corrects an oversight.
Implementation, enforcement and service standards
There are no enforcement or compliance issues with respect to this amendment. CFIA enforcement officers will be advised accordingly.
Regulatory Policy Officer
Regulatory, Legislative and Economic Affairs Directorate
Canadian Food Inspection Agency
1400 Merivale Road
S.C. 1995, c. 40