Canada Gazette, Part I, Volume 152, Number 22: Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations (Penalties and Schedules)

June 2, 2018

Statutory authority
Agriculture and Agri-Food Administrative Monetary Penalties Act

Sponsoring department
Department of Health

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations do not correctly reference the new offences and the amended provisions of the 2016 Pest Control Products Act (PCPA).

Compliance and enforcement officers have indicated that the existing monetary penalties established in the regulations 17 years ago no longer serve as an effective deterrent for non-compliance with the PCPA.

Background

In December 2013, Canada agreed with other World Trade Organization members to adopt the new Trade Facilitation Agreement (TFA). The TFA was formally adopted by the General Council on November 27, 2014, enabling the domestic implementation process to begin. Canada committed to implementing the legislative changes necessary to meet its obligations under the TFA.

Amendments to the Food and Drugs Act, Hazardous Products Act, Radiation Emitting Devices Act, Pest Control Products Act, Canada Consumer Product Safety Act and consequential amendments to the Agriculture and Agri-Food Administrative Monetary Penalties Act as well as regulatory amendments under some of the above-mentioned statutes, were identified by Health Canada as necessary to implement articles 10.8.1 (Rejected Goods) and 11.8 (Freedom of Transit) of the TFA. Amendments to these statutes were proposed in Bill C-13 and also included amendments to the Canadian Environmental Protection Act, 1999 administered by Environment and Climate Change Canada. Bill C-13 received royal assent on December 12, 2016.

The amendments to the PCPA restructured the compliance and enforcement provisions and included new offences related to compliance with inspectors' orders, such as the failure to remove non-compliant products from Canada.

The Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations were first established in 2001 and were updated in 2010 to include contraventions of the Pest Control Products Sales Information Reporting Regulations and the Pest Control Products Incident Reporting Regulations. The Regulations serve as an enforcement tool to address non-compliance with the PCPA.

The monetary penalty regime can address a range of compliance issues: some relatively minor (such as incorrectly filling out paperwork), and some more severe (such as misuse of a pest control product).

Objectives

The proposed amendments to Part 1 of Schedule 1 of the Regulations would add the new offences as eligible violations for monetary penalties and update the existing provision references to reflect the TFA-related changes to the PCPA, including their short-form descriptions and violation classifications. The updated Regulations would allow the use of the administrative monetary penalties (AMPs) to address non-compliance with the TFA-related provisions of the PCPA.

The proposed amendments would also increase the monetary penalties to a level that would make them an effective deterrent to non-compliance as was done by the Canadian Food Inspection Agency in 2010.

The proposal also includes administrative corrections to four items in the schedule that are not related to the TFA. These amendments are necessary to ensure that non-compliance with the conditions established by the Minister during the cancellation of a registration can be proceeded with by way of monetary penalties.

Description

TFA-related amendments to existing items in Part 1 of Schedule 1

The following changes to existing items of Part 1 of Schedule 1 of the Regulations are being proposed to update the short-form descriptions or provision references to the recently amended PCPA. The change to the classification of the item referencing subsection 46(2) is not directly related to the TFA, but was done to ensure consistency with similar violations under the PCPA.

Column 1

Provision of the PCPA

Column 2

Short-form Description

Column 3

Classification

Comments
6(1) Manufacture, possess, handle, store, transport, import, distribute or use a pest control product that is not registered or otherwise authorized Very serious Short-form description amended to reflect the updated language in the PCPA.
6(3) Store, import, export or distribute a pest control product not packaged or labelled in accordance with the regulations or, if it is registered, the conditions of registration Serious Short-form description amended to reflect the updated language in the PCPA.
6(7) Package, label or advertise a pest control product in a way that is false, misleading or likely to create an erroneous impression Serious Short-form description amended to reflect the updated language in the PCPA. Classification changed from "minor" to "serious" to be consistent with subsection 6(3).
46(1) Resist or obstruct an inspector or make a false or misleading statement to an inspector who is exercising powers or performing duties or functions under the Pest Control Products Act Very serious Short-form description amended to reflect the updated language in the PCPA.
46(2) Fail to make records available to an inspector on request Very serious While not directly related to the changes made to the PCPA by the TFA, to ensure consistency in the application of the AMPs program, the classification of this item has been changed from "serious" to "very serious" to be consistent with the classification of 48(1)(c) in this schedule. Providing records to an inspector is considered integral to the regulatory program.

New TFA-related additions to Part 1 of Schedule 1

The proposal would add the new items listed below to Part 1 of Schedule 1. The new items have been classified based on the following definitions and determinations made by Health Canada's pesticide compliance and enforcement program to ensure consistent application of the monetary penalty program and to ensure the regulatory integrity of the legislation.

Column 1

Provision of the PCPA

Column 2

Short-form Description

Column 3

Classification

Comments
6(8.1) Alter, destroy or falsify a document required to be kept, maintained or provided Very Serious Altering, falsifying or destroying documents that are required to be kept under the PCPA is considered to be an egregious contravention of the legislation. Classified as "very serious" because official documents are considered integral to the regulatory program.
6(8.2)(a) Alter a document issued or made — or in any manner given — under the Pest Control Products Act Very Serious Altering documents issued under the PCPA is considered to be an egregious contravention of the legislation. Classified as "very serious" because official documents are considered to be integral to the regulatory program.
6(8.2)(b) Have in possession or use a document issued or made — or in any manner given — under the Pest Control Products Act that has been altered Serious Possession or use of official documents issued under the PCPA is considered to be integral to the regulatory program. Classified as "serious" because a person may not knowingly be in possession of an altered document.
6(8.3) Have in possession or use any document not issued or made — or in any manner given — under the Pest Control Products Act that so resembles a document issued or made — or in any manner given — under that Act that is likely to be mistaken for such a document Serious Possession or use of official documents issued under the PCPA is considered to be integral to the regulatory program. Classified as "serious" because a person may not knowingly be in possession of unofficial documents.
48(1)(c) Fail to comply with an order to present any pest control product or other thing for inspection in any manner and under any conditions that the inspector considers necessary to conduct an inspection Very Serious Compliance with an inspector's order is considered to be integral to the regulatory program. Classified as "very serious" for purposely not complying with an inspector's order during an inspection.
48(1)(d) Fail to comply with an order to move a means of transport to a place where the inspector can enter it Very Serious Compliance with an inspector's order is considered to be integral to the regulatory program. Classified as "very serious" for purposely not complying with an inspector's order to move a means of transport to a place to facilitate an inspection.
48(1)(d.3) Fail to comply with an order to move the pest control product or other thing or, for any time that may be necessary, not to move it or to restrict its movement Very Serious Compliance with an inspector's order is considered to be integral to the regulatory program. Classified as "very serious" due to the potential risks to human health or the environment and purposely not following an inspector's orders.
48(1)(d.7) Fail to comply with an order given to any person in the place being inspected to establish their identity to the inspector's satisfaction Serious Compliance with an inspector's order is considered to be integral to the regulatory program. Classified as "serious" rather than "very serious" because there is a lower risk to human health or the environment for failure to comply with an order to a person to establish their identity.
51(1) Fail to comply with an order to provide, on the date, at the time and place and in the manner specified by the inspector, the document, information or sample specified by the inspector Serious Compliance with an inspector's order is integral to the regulatory program. Classified as "serious" rather than "very serious" because there is a lower risk to human health or the environment for non-compliance with an order to provide documentation or samples.
53(1)(b) Fail to comply with an order to store or move a pest control product Very Serious Compliance with an inspector's order is considered to be integral to the regulatory program. Classified as "very serious" due to the potential risks to human health or the environment for non-compliance with an order to store or move a pest control product.
53(1)(c) Fail to comply with an order to dispose of a seized pest control product or other thing that is perishable Very Serious Compliance with an inspector's order is considered to be integral to the regulatory program. Classified as "very serious" due to the potential risks to human health or the environment for non-compliance with an order to dispose of a seized pest control product.
53(1)(d) Fail to comply with an order to dispose of a seized pest control product or other thing that endangers human health or safety or the environment Very Serious Compliance with an inspector's order is considered to be integral to the regulatory program. Classified as "very serious" due to the potential risks to human health or the environment for non-compliance with an order to dispose of a seized pest control product that poses an immediate threat to people or the environment.
54(1) Fail to comply with an order to remove a non-compliant pest control product from Canada, or, if removal is not possible, to destroy it Very Serious Compliance with an inspector's order is considered to be integral to the regulatory program. Classified as "very serious" due to the potential risks to human health or the environment for non-compliance with an order to remove a non-compliant pest control product from Canada.

Administrative changes to Part 1 of Schedule 1

Subsections 21(4) and 22(3) and paragraphs 21(5)(a) and (b) authorize the Minister to impose conditions during the cancellation of a registration. The reference to the offence for violations of these provisions is found in subsection 31(2). The proposed amendment would correctly reference subsection 31(2) as the violation for non-compliance with subsections 21(4) and 22(3) and paragraphs 21(5)(a) and (b).

Column 1

Provision of the PCPA

Column 2

Short-form Description

Column 3

Classification

Comments
31(2) Fail to comply with a condition imposed by the Minister under subsection 21(4) of the Pest Control Products Act Serious Corrected the reference to the offence for violations of these provisions.
31(2) Fail to comply with a condition imposed by the Minister under paragraph 21(5)(a) of the Pest Control Products Act with respect to the continued possession, handling, storage, distribution or use of stocks of a pest control product in Canada at the time of cancellation of its registration Serious Corrected the reference to the offence for violations of these provisions.
31(2) Fail to comply with the requirement to recall and dispose of a pest control product, the registration of which is cancelled, in the manner specified by the Minister under paragraph 21(5)(b) of the Pest Control Products Act Very serious Corrected the reference to the offence for violations of these provisions.
31(2) Fail to comply with a condition imposed by the Minister under subsection 22(3) of the Pest Control Products Act Serious Corrected the reference to the offence for violations of these provisions.
New TFA-related additions to Part 2 of Schedule 1

Column 1

Provision of the PCPR

Column 2

Short-form Description

Column 3

Classification

Comments
3.2(1) Fail to ensure that the required documents accompany the shipment of the pest control product during transport through Canada or during any short-term storage in Canada in the prescribed manner Very serious Compliance with the requirement to provide information for use by Canadian workers and for use in response to accidents involving in-transit pest control products is integral to the regulatory program. Classified as "very serious" due to the potential risks to human health or the environment for non-compliance with this requirement.
3.2(2) to (8) Fail to ensure that the required documents accompany the shipment of the pest control product during transport through Canada or during any short-term storage in Canada Very serious Compliance with the requirement to provide safety information for use by Canadian workers and for use in response to accidents involving in-transit pest control products is integral to the regulatory program. Classified as "very serious" due to the potential risks to human health or the environment for non-compliance with this requirement.
3.2(9) Fail to ensure that the packaging of the pest control product is constructed in the prescribed manner Very serious Classified as "very serious" due to the potential risks to human health or the environment.
3.2(10) Fail to store or transport the pest control product separately from food or feed or in such a way as to avoid the possible contamination of the food and feed Very serious Classified as "very serious" due to the potential risks to human or animal health.
3.3 Fail to provide information to the Minister on request and in the manner requested Very serious Classified as "very serious" due to non-compliance with the ministers' request for information that is considered to be integral to the regulatory program.

Increase in monetary penalties

The Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations (AMPs Regulations) assign monetary penalties for the contravention of certain provisions of the PCPA and the Pest Control Products Regulations (PCPR). The AMPs Regulations set out the violations in respect of which provisions of the PCPA or PCPR the penalty is issued, the maximum amount of the penalty, and the options for payment. Specifically, AMPs can be issued in response to contraventions of provisions of the PCPA and PCPR that are established in the schedules of the AMPs Regulations or in contravention of any order made by the Minister under the PCPA. These orders are written notices that direct a person to take specific actions. Furthermore, AMPs can also be issued to persons who refuse or neglect to perform any duty imposed by or under the PCPA.

Currently, the penalties for violations committed in the course of business for which a Notice of Violation (NOV) is issued are $500 for a minor violation, $2,000 for a serious violation, and $4,000 for a very serious violation. In the case of individuals committing violations, otherwise than in the course of business, the penalties in the Regulations are currently set at $100 for a minor violation, $200 for a serious violation and $400 for a very serious violation.

When determining the penalty for a particular case of non-compliance, compliance history, the degree of intent or negligence and the harm that was or could be done by the violation are considered. Once a penalty has been determined and issued through an NOV, it must be paid within the time frame specified by the Regulations. Persons who submit payment within 15 days of receiving the NOV only have to pay half of the original penalty. The majority of violators have been benefiting from this incentive and paying maximum penalties of only $2,000.

On average, Health Canada issues 11 penalties per year under these Regulations. In certain instances, multiple NOVs have been issued for repeat violations. Given the low monetary value of the applicable penalties for today's environment (when inflation is accounted for) compared to when the Regulations first came into force in 2001, the penalty may not be significant enough to deter people from violating the PCPA and its requirements.

Consequently, the proposed amendment would raise these penalties for violations committed in the course of business to $1,300 for a minor violation, $6,000 for a serious violation, and $10,000 for a very serious violation. For an individual committing a violation as defined under this Act, the proposal would increase the penalties to $500 for a minor violation, $800 for a serious violation and $1,300 for a very serious violation.

Benefits and costs

Benefits

This proposed amendment is expected to assist Health Canada in promoting compliance with the PCPA and its requirements, which will in turn benefit the health of Canadians and their environment. Over the longer term, it is expected that the proposed increase will act as a deterrent for non-compliance and persuade persons and businesses to comply with the PCPA.

Furthermore, Canadians will benefit from this increase because they can expect more responsive actions to non-compliance. The experiences of other agencies and branches within the health portfolio administering similar AMPs regimes have demonstrated that significant penalties contribute to increasing compliance over time.

Costs

Annual cost to industry

There are no additional costs to industry for implementing these Regulations

"One-for-One" Rule

Regulatory changes that amend penalties or implement an Administrative Monetary Penalty (AMPs) regime are considered out of scope of the "One-for-One" Rule.footnote1

Small business lens

The small business lens does not apply to this proposal, as there are no administrative or implementation costs imposed on small business resulting from the proposed amendments.

Consultation

Health Canada consulted with stakeholders on the proposal during a webinar on December 5, 2017. No comments on the proposal were received from stakeholders during the consultation or during the comment period.

Rationale

Administrative monetary penalties are an effective compliance and enforcement tool that assists Health Canada to promote compliance with the requirements of the Pest Control Products Act, which, in turn, benefits the health and safety of Canadians.

To enable the use of monetary penalties for contraventions of the new TFA-related provisions in the Pest Control Products Act and Pest Control Products Regulations, amendments to the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations are necessary to

Implementation, enforcement and service standards

Under the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations, Health Canada may issue administrative monetary penalties as an alternative enforcement measure to encourage compliance with the Pest Control Products Act. The Regulations apply to violations of the Pest Control Products Act, Pest Control Products Regulations, Pest Control Products Incident Reporting Regulations and the Pest Control Products Sales Information Reporting Regulations.

Health Canada will use its existing compliance promotion tools to communicate the proposed amendments to regulated parties. This amendment does not change any requirements for regulated parties. There will be no adjustments to the current compliance and enforcement strategy and no additional resources will be required.

Contact

Jordan Hancey
Health Canada
Pest Management Regulatory Agency
Policy, Communications and Regulatory Affairs Directorate
2720 Riverside Drive
Ottawa, Ontario
K1A 0K9
Email: HC.pmra.regulatory.affairs-affaires.reglementaires.arla.SC@canada.ca

PROPOSED REGULATORY TEXT

Notice is given that the Minister of Health, pursuant to subsection 4(1)footnotea of the Agriculture and Agri-Food Administrative Monetary Penalties Actfootnoteb, proposes to make the annexed Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations (Penalties and Schedules).

Interested persons may make representations concerning the proposed Regulations within 75 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jordan Hancey, Section Head, Regulatory Affairs and Applied Analysis, Policy and Regulatory Affairs Division, Policy, Communications and Regulatory Affairs Directorate, Pest Management Regulatory Agency, Department of Health, Postal Locator 6607, 2720 Riverside Drive, Ottawa, Ontario K1A 0K9 (email: HC.pmra.regulatory.affairs-affaires.reglementaires.arla.SC@canada.ca).

Ottawa, May 1, 2018

Ginette Petitpas Taylor
Minister of Health

Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations (Penalties and Schedules)

Amendments

1 Section 5 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulationsfootnote2 is replaced by the following:

5 (1) The amount of the penalty in respect of a violation committed by an individual otherwise than in the course of a business and that is not committed to obtain a financial benefit is

(2) The amount of the penalty in respect of a minor violation committed by a person in the course of a business or in order to obtain a financial benefit is $1,300.

(3) The amount of the penalty in respect of a violation committed by a person in the course of a business or in order to obtain a financial benefit is $6,000 for a serious violation and $10,000 for a very serious violation, with adjustments, if any, determined in accordance with column 2 of Schedule 2 for each total gravity value as established in accordance with section 6 and set out in column 1 of that Schedule.

2 The portion of item 1 of Part 1 of Schedule 1 to the Regulations in column 2 is replaced by the following:
Item

Column 2

Short-form Description*

1 Manufacture, possess, handle, store, transport, import, distribute or use a pest control product that is not registered or otherwise authorized
3 The portion of item 3 of Part 1 of Schedule 1 to the Regulations in column 2 is replaced by the following:
Item

Column 2

Short-form Description*

3 Store, import, export or distribute a pest control product not packaged or labelled in accordance with the regulations or, if it is registered, the conditions of registration
4 The portion of item 6 of Part 1 of Schedule 1 to the Regulations in columns 2 and 3 is replaced by the following:
Item

Column 2

Short-form Description*

Column 3

Classification

6 Package, label or advertise a pest control product in a way that is false, misleading or likely to create an erroneous impression Serious
5 Items 8 to 11 of Part 1 of Schedule 1 to the Regulations are replaced by the following:
Item

Column 1

Provision of the Pest Control Products Act

Column 2

Short-form Description*

Column 3

Classification

8 6(8.1) Alter, destroy or falsify a document required to be kept, maintained or provided Very serious
9 6(8.2)(a) Alter a document issued or made — or in any manner given — under the Pest Control Products Act Very serious
10 6(8.2)(b) Have in possession or use a document issued or made — or in any manner given — under the Pest Control Products Act that has been altered Serious
11 6(8.3) Have in possession or use any document not issued or made — or in any manner given — under the Pest Control Products Act that so resembles a document issued or made — or in any manner given — under that Act that is likely to be mistaken for such a document Serious
6 Part 1 of Schedule 1 to the Regulations is amended by adding the following after item 13:
Item

Column 1

Provision of the Pest Control Products Act

Column 2

Short-form Description*

Column 3

Classification

13.1 31(2) Fail to comply with a condition imposed by the Minister under subsection 21(4) of the Pest Control Products Act Serious
13.2 31(2) Fail to comply with a condition imposed by the Minister under paragraph 21(5)(a) of the Pest Control Products Act with respect to the continued possession, handling, storage, distribution or use of stocks of a pest control product in Canada at the time of cancellation of its registration Serious
13.3 31(2) Fail to comply with the requirement to recall and dispose of a pest control product, the registration of which is cancelled, in the manner specified by the Minister under paragraph 21(5)(b) of the Pest Control Products Act Very serious
13.4 31(2) Fail to comply with a condition imposed by the Minister under subsection 22(3) of the Pest Control Products Act Serious
7 The portion of item 14 of Part 1 of Schedule 1 to the Regulations in column 2 is replaced by the following:
Item

Column 2

Short-form Description*

14 Resist or obstruct an inspector or make a false or misleading statement to an inspector who is exercising powers or performing duties or functions under the Pest Control Products Act
8 The portion of item 15 of Part 1 of Schedule 1 to the Regulations in column 3 is replaced by the following:
Item

Column 3

Classification

15 Very serious
9 Part 1 of Schedule 1 to the Regulations is amended by adding the following after item 15:
Item

Column 1

Provision of the Pest Control Products Act

Column 2

Short-form Description*

Column 3

Classification

15.1 48(1)(c) Fail to comply with an order to present any pest control product or other thing for inspection in any manner and under any conditions that the inspector considers necessary to conduct an inspection Very serious
15.2 48(1)(d) Fail to comply with an order to move a means of transport to a place where the inspector can enter it Very serious
15.3 48(1)(d.3) Fail to comply with an order to move the pest control product or other thing or, for any time that may be necessary, not to move it or to restrict its movement Very serious
15.4 48(1)(d.7) Fail to comply with an order given to any person in the place being inspected to establish their identity to the inspector's satisfaction Serious
10 Part 1 of Schedule 1 to the Regulations is amended by adding the following after item 16:
Item

Column 1

Provision of the Pest Control Products Act

Column 2

Short-form Description*

Column 3

Classification

17 51(1) Fail to comply with an order to provide, on the date, at the time and place and in the manner specified by the inspector, the document, information or sample specified by the inspector Serious
17.1 53(1)(b) Fail to comply with an order to store or move a pest control product Very serious
17.2 53(1)(c) Fail to comply with an order to dispose of a seized pest control product or other thing that is perishable Very serious
17.3 53(1)(d) Fail to comply with an order to dispose of a seized pest control product or other thing that endangers human health or safety or the environment Very serious
11 The portion of item 18 of Part 1 of Schedule 1 to the Regulations in column 2 is replaced by the following:
Item

Column 1

Provision of the Pest Control Products Act

Column 2

Short-form Description*

Column 3

Classification

18 53(4) Remove, alter or interfere with, without an inspector's authorization, a pest control product or other thing seized and detained Very serious
18.1 54(1) Fail to comply with an order to remove a non-compliant pest control product from Canada, or, if removal is not possible, to destroy it Very serious

12 Item 1 of Part 2 of Schedule 1 to the Regulations is renumbered as item 1.5.

13 Part 2 of Schedule 1 to the Regulations is amended by adding the following before item 1.5:
Item

Column 1

Provision of the Pest Control Products Regulations

Column 2

Short-form Description*

Column 3

Classification

1 3.2(1) Fail to ensure that the required documents accompany the shipment of the pest control product during transport through Canada or during any short-term storage in Canada in the prescribed manner Very serious
1.1 3.2(2) to (8) Fail to ensure that the required documents accompany the shipment of the pest control product during transport through Canada or during any short-term storage in Canada Very serious
1.2 3.2(9) Fail to ensure that the packaging of the pest control product is constructed in the prescribed manner Very serious
1.3 3.2(10) Fail to store or transport the pest control product separately from food or feed or in such a way as to avoid the possible contamination of the food or feed Very serious
1.4 3.3 Fail to provide information to the Minister on request and in the manner requested Very serious

Coming into Force

14 (1) These Regulations, except sections 12 and 13, come into force on the day on which they are published in the Canada Gazette, Part II.

(2) Sections 12 and 13 come into force on the day on which sections 2 and 3 of the Pest Control Products Regulations (Goods not intended for the Canadian Market) come into force but, if these Regulations are registered after that day, those sections come into force on the day on which these Regulations are registered.