Regulations Amending the Coastal Fisheries Protection Regulations: SOR/2019-218

Canada Gazette, Part II, Volume 153, Number 13

Registration

SOR/2019-218 June 17, 2019

COASTAL FISHERIES PROTECTION ACT

P.C. 2019-793 June 16, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 6 footnote a of the Coastal Fisheries Protection Act footnote b, makes the annexed Regulations Amending the Coastal Fisheries Protection Regulations.

Regulations Amending the Coastal Fisheries Protection Regulations

Amendments

1 Section 3 of the Coastal Fisheries Protection Regulations footnote 1 is replaced by the following:

3 For the purposes of subsections 7.6(4), 9(3), 16.01(2) and 16.2(3) of the Act, the prescribed period is three working days.

2 The Regulations are amended by adding the following after section 3:

Fisheries Management Organization

4 The following fisheries management organizations are prescribed for the purpose of paragraphs 5.6(1)(b) and (2)(b) of the Act:

3 (1) Subsection 5(1.11) of the Regulations is replaced by the following:

(1.11) The Minister shall not issue a licence under paragraph (1)(a) or subsection (1.1) unless the Minister determines that the Government of Canada has favourable fisheries relations with the government of the vessel’s flag state and, if the licence relates to a specific fishery, that the Government of Canada has favourable fisheries relations with the government of the vessel’s flag state with respect to that fishery.

(2) Section 5 of the Regulations is amended by adding the following after subsection (1.4):

(1.5) The Minister may refuse to issue a licence referred to in any of subsections (1.2) to (1.4) if he or she determines that one of the circumstances set out in paragraphs (1.12)(a) to (e) applies and that the flag state has taken insufficient measures to remedy the situation.

4 The Regulations are amended by adding the following after section 5:

Order Made by Flag State

5.1 (1) The Minister may, further to an order made by the flag state, issue a permit authorizing a foreign fishing vessel and its crew to enter Canadian fisheries waters for the purpose of verifying compliance with a law, measure or treaty referred to in subparagraph 6(a)(iii) of the Act.

(2) If the Minister issues a permit under subsection (1), he or she must advise both the flag state and the foreign fishing vessel and inform them of the permit’s conditions.

5 Section 7 of the Regulations is amended by adding the following after paragraph (f.1):

6 The heading before section 11 of the Regulations is replaced by the following:

Terms and Conditions of a Licence or Permit

7 (1) The portion of subsection 11(1) of the Regulations before paragraph (a) is replaced by the following:

11 (1) Every licence or permit in respect of a foreign fishing vessel is subject to the following terms and conditions:

(2) Paragraphs 11(1)(b) and (c) of the Regulations are replaced by the following:

(3) Paragraph 11(1)(h) of the Regulations is replaced by the following:

(4) Subsection 11(2) of the Regulations is replaced by the following:

(2) The master of a foreign vessel in respect of which a licence or permit has been issued shall not contravene or fail to comply with any condition of that licence or permit.

8 The Regulations are amended by adding the following after section 13:

Importation

13.01 For the purposes of sections 13.02 to 13.06, meat means any part of the fish except the head, eyes, roe, guts, bones and tail.

13.02 (1) For the purpose of subsection 5.6(3) of the Act, any of the following fish that is subject to measures established by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and that is imported must be accompanied by:

(2) The documents referred to in paragraph (1)(b) are not required in the case of Atlantic bigeye tuna that was caught by purse seiners or pole and line bait vessels and is destined principally for a cannery located in Canada.

13.03 For the purpose of subsection 5.6(3) of the Act, any importation of Patagonian toothfish or Antarctic toothfish must be accompanied by a catch document or a re-export certificate, as the case may be, that complies with the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Catch Documentation Scheme for Dissostichus spp. that is current at the time that the fish are caught.

13.04 For the purpose of subsection 5.6(3) of the Act, any importation of eastern Pacific bigeye tuna meat must be accompanied by a statistical document or a re-export certificate, as the case may be, that complies with the Inter-American Tropical Tuna Commission (IATTC) Bigeye Tuna Statistical Document Program that is current at the time that the fish are caught.

13.05 For the purpose of subsection 5.6(3) of the Act, any importation of southern bluefin tuna meat must be accompanied by a catch monitoring form or a re-export or export after landing of domestic product form, as the case may be, that complies with the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) Catch Documentation Scheme that is current at the time that the fish are caught.

13.06 (1) For the purpose of subsection 5.6(3) of the Act, any importation of Indian Ocean bigeye tuna meat must be accompanied by a statistical document or a re-export certificate, as the case may be, that complies with the Indian Ocean Tuna Commission (IOTC) Bigeye Tuna Statistical Document Programme that is current at the time that the fish are caught.

(2) The documents referred to in subsection (1) are not required in the case of Indian Ocean bigeye tuna that was caught by purse seiners or pole and line bait vessels and is destined principally for a cannery located in Canada.

9 Section 18.1 of the Regulations is replaced by the following:

18.1 When a protection officer on board an inspection vessel intends to board a fishing vessel of a state party to the Fish Stocks Agreement, the signal to be used by the inspection vessel is Signal SQ 3.

10 Section 22 of the Regulations and the heading before it are replaced by the following:

States Party to the Fish Stocks Agreement

22 The foreign states and organizations of foreign states set out in Schedule IV are states party to the Fish Stocks Agreement.

11 The heading “Implementation of the Agreement” before section 23 of the Regulations is replaced by the following:

Implementation of the Fish Stocks Agreement

12 Section 24 of the Regulations is replaced by the following:

24 (1) A fishing vessel of a state party to the Fish Stocks Agreement may fish in the NAFO Regulatory Area for fish of a stock set out in Annex I.A or I.B of the NAFO Measures only if the state party to the Fish Stocks Agreement is a party to the NAFO Convention.

(2) Despite subsection (1), a fishing vessel of a state party to the Fish Stocks Agreement that is not a party to the NAFO Convention may fish in the NAFO Regulatory Area for the fish referred to in that subsection if the fishing is done under an arrangement that is expressly contemplated by the NAFO Measures and in a manner that complies with this arrangement and the NAFO measures.

13 Section 40 of the Regulations is replaced by the following:

40 No fishing vessel of a state party to the Fish Stocks Agreement that is fishing in the waters referred to in subsection 39(1) shall have on board a bluefin tuna that weighs less than 3.2 kg.

14 The portion of section 42 of the Regulations before paragraph (a) is replaced by the following:

42 The Minister may authorize a state party to the Fish Stocks Agreement to take enforcement action in respect of a Canadian fishing vessel if there are reasonable grounds to believe the fishing vessel has contravened any measure

15 (1) Paragraph 46.1(1)(a) of the French version of the Regulations is replaced by the following:

(2) Paragraph 46.1(1)(b) of the Regulations is replaced by the following:

(3) Section 46.1 of the Regulations is amended by adding the following after subsection (2):

(3) The protection officer may detain fish unloaded in port from a foreign fishing vessel referred to in paragraph (1)(a) until the officer has received, from the flag state, the form or forms set out in Annex II.L of the NAFO Measures.

16 The portion of section 47 of the Regulations before paragraph (a) is replaced by the following:

47 If a fishing vessel of a state party to the Fish Stocks Agreement is seized and, following a further investigation in port, the protection officer continues to have reasonable grounds to believe that an offence has been committed under section 24 or 40, Her Majesty in right of Canada may recover

17 The heading “Participating State” in Schedule IV to the Regulations is replaced by “State Party to the Fish Stocks Agreement”.

Coming into Force

18 These Regulations come into force on the day on which the Port State Measures Agreement Implementation Act, chapter 18 of the Statutes of Canada, 2015, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Amendments to the Coastal Fisheries Protection Regulations (CFPR) are required to implement statutory changes in order to enable Canada’s ratification of the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA), and support the development of a strong international regime to combat illegal, unreported and unregulated (IUU) fishing. Additional amendments to the CFPR will allow for a more tailored approach with respect to access by foreign fishing vessels to Canadian fisheries waters, including Canadian ports, where the Government of Canada has unfavourable fisheries relations with the government of the flag state of the vessel, and will address issues raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR).

Background

Impact of IUU fishing

IUU fishing is generally considered to be fishing that contravenes conservation and management measures established by relevant national authorities or under international agreements or other arrangements. IUU fishing is often undertaken by rogue vessels that fly “flags of convenience” (e.g. vessels that fly the flag of states that do not have the capacity or willingness to enforce rules and regulations, with the intention to undertake IUU fishing).

IUU fishing is a global problem with significant economic, social, and environmental consequences. According to a 2009 study, footnote 2 the worldwide economic loss due to IUU fishing was estimated to be between US$10 and 23 billion annually. Fishing vessels that undertake IUU fishing often do not respect labour or human rights laws, thereby putting fishing crews at substantial risk. Further, IUU fishing undermines regional and global efforts to promote sustainable catch levels and manage the impacts of fishing on vulnerable marine ecosystems and the environment more generally. Certain species of fish are highly valued and are therefore subject to heavy IUU fishing pressure (e.g. a single Bluefin tuna can fetch over US$100,000 at auction), resulting, in the short-term, in high economic incentive to illegally capture certain species.

In Canadian fisheries waters, footnote 3 fishing and fishing-related activities are regulated through licences, reporting requirements (including retention of information requirements), at-sea surveillance and controls, footnote 4 and dockside monitoring and inspections, all in order to ensure compliance with legislative, regulatory and licence condition requirements. There are approximately 20 000 inshore and mid-shore Canadian fishing vessels that operate in Canadian fisheries waters, in addition to a smaller off-shore fleet. Canada also authorizes between 10 and 50 Canadian fishing vessels in any given year to operate on the high seas (beyond 200 nautical miles). While the Department of Fisheries and Oceans (DFO) seeks to ensure that the fishing activities it regulates do not contribute to IUU fishing, IUU fishing has nonetheless had negative impacts on the Canadian fishing industry, as it undermines the livelihoods of participants in regulated fisheries by distorting prices and profits along the seafood value chain.

PSMA and other international measures to combat IUU

The international community has been developing management tools to address IUU fishing at all stages of fishing operations, including vessel registration, fish harvesting, and fish trade (exports and imports). Actions taken in port (i.e. port state measures) are efficient and cost-effective compared to monitoring, control and at-sea surveillance activities (boarding and inspection, aerial surveillance) which, while necessary, are much more expensive. Measures taken in port significantly improve assurances that fish and seafood products entering the marketplace have been caught or acquired legally.

The Food and Agriculture Organization (FAO) of the United Nations is the only intergovernmental forum that has the mandate to negotiate global guidance instruments that promote sustainable fisheries. In November 2009, members of the FAO, including Canada, adopted the PSMA, footnote 5 which sets global minimum standards for actions that port states must take when a foreign vessel, known or suspected to have engaged in or supported (e.g. supply vessels) IUU fishing, seeks to enter port to discharge catch or use port services.

The PSMA entered into force on June 5, 2016, after 25 states and regional economic integration organizations (e.g. European Union) became parties. There are currently 60 parties to the PSMA. footnote 6

The key provisions of the PSMA include

Regional fisheries management organizations (RFMOs) are international organizations with a mandate to sustainably manage fishery resources in a defined area of the high seas, including straddling stocks (that straddle the high seas and waters under national jurisdiction) and highly migratory stocks. They implement conservation and management measures that are binding on their members, including enforcement and compliance rules.

Canada is a member of several RFMOs, such as the Northwest Atlantic Fisheries Organization (NAFO), the International Commission for the Conservation of Atlantic Tunas (ICCAT), the Inter-American Tropical Tuna Commission (IATTC), the Western and Central Pacific Fisheries Commission (WCPFC), the North Atlantic Salmon Conservation Organization (NASCO), the North Pacific Anadromous Fish Commission (NPAFC), and the North Pacific Fisheries Commission (NPFC).

Canada also has several bilateral treaties with the United States of America and a bilateral treaty with France (in respect of St. Pierre and Miquelon), which are recognized in the CFPR and which include enforcement and compliance requirements that Parties must fulfill. With Canada’s strong port State regime already in place for fishing vessels, few, if any, foreign vessels that engage in IUU fishing seek to enter Canadian ports (foreign fishing vessels that seek to enter Canadian ports are generally registered to states that are members of these RFMOs or to the United States).

Nonetheless, Canada supports the global approach to combatting IUU fishing and cooperation established by the PSMA, as a global approach helps to avoid shifting the problem of IUU fishing from one jurisdiction to another. The widespread adoption and implementation of the PSMA is affirmed by Canada as essential to consistently address IUU fishing across jurisdictions. For example, equivalent provisions in legislation across jurisdictions would enable flag states (where ships are registered) to call on port states to assist in enforcement against fishing vessels suspected of IUU fishing, especially where such vessels rarely, if ever, call at their home ports.

Measures needed for Canada to ratify the PSMA

Canada signed the PSMA in 2010 and has publicly stated its intention to ratify the PSMA. Accordingly, in 2015, Parliament passed the Port State Measures Agreement Implementation Act, which included various amendments to the Coastal Fisheries Protection Act (CFPA or “the Act”) footnote 7 to align the Act with the PSMA. Complementary amendments to the CFPR are being made to fully implement the PSMA and the statutory changes. Given that amendments to the Act have been brought into force, Canada will be in a position to seek ratification of the PSMA through an order in council once the amendments to the CFPR are brought into force.

With the coming into force of the Port State Measures Agreement Implementation Act, the CFPA has been amended to include:

The CFPR approach to port access and “favourable fisheries relations”

A departmental review of the existing provisions of the CFPR related to port state measures identified an additional issue with foreign vessel access to Canadian ports not related to the implementation and ratification of the PSMA. Subsection 5(1.11) of the CFPR provides that the Minister of Fisheries and Oceans shall not issue a licence authorizing foreign fishing vessel access to Canadian fisheries waters, including Canadian ports, unless the Minister determines that the Government of Canada has “favourable fisheries relations” with the government of the vessel’s flag state. This is an important provision that enables Canada to stand firm against certain states for a variety of reasons, including where states do little to discourage or address IUU fishing by vessels entitled to fly their flag. However, subsection 5(1.11) does not enable the Minister to authorize (i.e. license) port access to vessels from states where concerns are limited to certain fisheries only, but where otherwise “favourable fisheries relations” with that state may exist. The amendments to subsection 5(1.11) will avoid the “all or nothing” effect of the current Regulations and allow the Minister to take a more tailored approach to the port access issue.

Issues identified by the SJCSR

The amendments to subsection 24(2) and paragraph 46.1(1)(b) of the CFPR will address concerns expressed by the SJCSR regarding the lack of clarity concerning the criteria that must be met for an arrangement to be consistent with the NAFO Measures within the meaning of these provisions.

The SJCSR suggested that if it is intended that only arrangements expressly addressed by the NAFO Measures may be relied upon for the purposes of subsection 24(2) and paragraph 46.1(1)(b), then this should be more clearly stated. The amendments to these provisions are intended to address the SJCSR’s concerns and to clarify this point.

Objectives

The objectives of the amendments to the CFPR are to implement the statutory changes to the CFPA and support Canada’s ratification of the PSMA by:

In addition, the amendments provide a more tailored approach to decisions to allow access to Canadian ports where the Minister determines that Canada does not have favourable fisheries relations with the government of the vessel’s flag state, taking into account the specific fishery in which the vessel participates. The amendments will also address the concerns of the SJCSR concerning the need to clarify the term “consistent with the NAFO Measures” in subsection 24(2) and paragraph 46.1(1)(b) of the CFPR.

Description

The amendments to the CFPR include the following:

1. Information to be provided in licence application

The amendments establish additional information required to be submitted with an application for a licence by foreign vessels seeking to enter Canadian fisheries waters.

Currently, paragraphs 7(a) through (g) of the CFPR provide the information requirements. The amendments add to the current information requirements to better assist Government of Canada officials in assessing the appropriateness of granting an application by a foreign vessel to enter Canadian fisheries waters. New requirements may include information such as the last port of call and date of last port call of the vessel, confirmation of having a vessel monitoring system (VMS) on board the vessel, and the vessel master’s nationality.

This amendment applies to foreign fishing vessels only and will not affect Canadians or Canadian businesses.

2. Implementation of new permit regime

The amendments authorize the Minister of Fisheries and Oceans to issue a permit to a foreign fishing vessel to enter Canadian fisheries waters where the vessel is ordered to port by its flag state for enforcement purposes.

Currently, the CFPR provide that the Minister may authorize a foreign fishing vessel to enter Canadian fisheries waters for specific purposes (e.g. to purchase supplies, effect repairs or sell fish) where an application for a licence is made for the vessel. The amendments allow the Minister to authorize the vessel to enter Canadian fisheries waters where no application has been made by the foreign vessel but the vessel has been ordered to port by the flag state for enforcement purposes (e.g. for inspection).

This amendment applies to foreign fishing vessels only and will not affect Canadians or Canadian businesses.

3. Detention or seizure of fish

The amendments confer new powers on protection officers to detain fish brought into a Canadian port by a fishing vessel of a NAFO member state.

Currently, the NAFO Measures require the flag state contracting parties of a vessel that intends to land or tranship fish in the port of another Contracting Party to confirm certain information to indicate that the fish had been legally caught. The port state Contracting Party is required to refuse authorization for the vessel to land or tranship the fish if this confirmation has not been received. However, the port state may authorize all or part of a landing to go ahead in the absence of such confirmation, provided the fish is kept in storage under the control of the competent authorities of the port state pending receipt of the required confirmation from the flag state. The amendment will authorize protection officers to detain (i.e. take control of) the fish in these circumstances.

This amendment applies to foreign fishing vessels only and will not affect Canadians or Canadian businesses.

4. Prescribe RFMOs

The amendments prescribe RFMOs of which Canada is not a member (such as the Indian Ocean Tuna Commission or the Commission for the Conservation of Southern Bluefin Tuna) in order to establish import prohibitions related to the conservation or management measures of those RFMOs.

This amendment may affect certain Canadians or Canadian businesses such as importers who import fish or marine plants originating within high seas areas regulated by such RFMOs. If the fish or marine plant was caught contrary to the conservation or management measures of the RFMO, the importer could be subject to prosecution.

5. Implement trade tracking mechanisms

The amendments specify documentation required by prescribed “catch or statistical documentation schemes” footnote 8 to accompany the importation into Canada of specified fish and marine plants.

Canadian seafood and fish importers are currently required, under the authority of section 61 of the Fisheries Act, to provide Canadian officials with information required by catch or statistical documentation schemes established by RFMOs applicable to fish being imported. This information is currently required from seafood and fish importers on the basis of a request from a fishery officer under subsection 61(4) of the Fisheries Act. The amended CFPA, however, makes the importation of certain fish without the required catch or statistical documentation an offence, and ensures that there is a mechanism for importers to provide copies of the required documentation at the time of import. The amendments to the CFPR, which are authorized under the regulation-making provisions of the amended CFPA, will require that certain RFMO catch or statistical documentation be submitted upon importation.

These amendments may affect certain Canadians or Canadian businesses such as importers of fish and seafood products, since they could be subject to prosecution for contravention of the new prohibition in subsection 5.6(3) of the CFPA for importing fish without documentation required by regulation.

6. Presumption that flag state does not object

The amendments prescribe a limit of three working days for the flag state of a foreign fishing vessel to communicate its objection to a search, seizure or application for a forfeiture order.

The amended CFPA allows, within prescribed parameters, for the search of a foreign fishing vessel and the seizure or forfeiture of any fish or other things on board a foreign fishing vessel that was ordered to port by its flag state where, among other conditions, the foreign vessel’s flag state does not object to the search, seizure or forfeiture. The amended CFPA also provides that the foreign vessel’s flag state is “deemed to not object” where the protection officer has informed the flag state of the intended enforcement action and the flag state has not communicated its objection within the period prescribed by regulation. The amendments establish three working days as the period prescribed by regulation.

This amendment applies to foreign fishing vessels only and will not affect Canadians or Canadian businesses.

7. Vessels subject to bilateral treaties

The amendments create an exception that will, in certain circumstances, enable the Minister to refuse to issue a licence authorizing a foreign fishing vessel subject to a bilateral treaty to enter Canadian fisheries waters where the Minister would otherwise be required under subsection 5(1.2), 5(1.3) or 5(1.4) of the CFPR to issue the licence. footnote 9

Currently, the Minister is required to issue a licence authorizing a foreign fishing vessel subject to certain bilateral treaties with France or the United States to enter Canadian fisheries waters for any of the purposes set out in the treaty. The amendment will enable the Minister, taking into account any actions taken by the vessel’s flag state (France or the United States, as the case may be) with respect to that vessel, to refuse to issue a licence authorizing the vessel to enter Canadian fisheries waters where there are reasonable grounds to believe that: (a) the vessel is not licensed or otherwise authorized to engage in fisheries activities; (b) the vessel is not in compliance with relevant conservation and management measures; (c) the vessel is providing supplies to a foreign fishing vessel that is not in compliance with relevant conservation and management measures; (d) the proposed activity is not compatible with or will undermine relevant conservation and management measures; or (e) the proposed activity is not consistent with the sustainable use of fisheries resources or will contribute to excess harvesting or processing capacity.

This amendment applies to foreign fishing vessels only and will not affect Canadians or Canadian businesses.

8. Exception where foreign fishing vessel may be authorized to enter Canadian fisheries waters for enforcement purposes

The amendments enable the Minister to authorize a foreign fishing vessel to enter Canadian fisheries waters for enforcement purposes where the Minister is otherwise precluded from doing so under the Regulations.

Currently, the CFPR require the Minister to refuse to issue a licence authorizing a foreign fishing vessel to enter Canadian fisheries waters when there are reasonable grounds to believe that the vessel is not in compliance with relevant conservation and management measures, which would include vessels engaged in IUU fishing. The amendment will enable the Minister to permit such a vessel to enter Canadian fisheries waters for enforcement purposes.

This amendment applies to foreign fishing vessels only and will not affect Canadians or Canadian businesses.

9. Repeal paragraphs 12(1)(m) and 12.1(2)(b) of the CFPR

The amendments repeal provisions of the CFPR that duplicate provisions in the amended CFPA.

Currently, paragraph 12(1)(m) of the CFPR requires a master of a foreign fishing vessel operating under the authority of a licence while in Canadian fisheries waters to proceed forthwith at the request of a Regional Director General or a protection officer to a place at sea or port specified in the request, for the purpose of inspection. Paragraph 12.1(2)(b) requires the master of a foreign fishing vessel that has entered Canadian fisheries waters, while in those waters, at the request of a protection officer, to proceed to a location indicated by the officer for the purpose of inspection. These provisions will be superseded by the new section 7.3 of the amended CFPA, which authorizes a protection officer, for a purpose related to verifying compliance with the Act, to direct that any vehicle, including a foreign fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area, be stopped and moved to another location and to detain it for a reasonable time. Section 7.3 also provides that the person in charge of the vehicle shall comply with the directions.

10. Consequential amendments arising from the amendments to the definitions in the CFPA

The amendments change references to “participating state” to “state party to the Fish Stocks Agreement.” This will differentiate between the two international agreements that will now be referred to in the CFPA and CFPR: the PSMA and the United Nations Fish Stocks Agreement.

11. Favourable fisheries relations in relation to the fishery in which a vessel participates

The amendments will avoid the “all or nothing” effect of the current wording of subsection 5(1.11) of the CFPR and allow the Minister to take a more tailored approach to the port access issue.

The CFPR provide the authority for the Minister to grant foreign fishing vessels access to Canadian fisheries waters, including Canadian ports. Currently, subsection 5(1.11) of the CFPR provides that the Minister shall not issue a licence authorizing a foreign fishing vessel to enter Canadian fisheries waters unless the Minister determines that the Government of Canada and the government of the flag state of the vessel have “favourable fisheries relations.” This precludes the Minister from issuing a licence authorizing the vessel to enter Canadian fisheries waters (and ports) as long as any aspect of Canada’s fisheries relations with the vessel’s flag state remains unfavourable, even if the problem is with only one fleet (e.g. targeting a specific species of conservation concern). The amendment will enable the Minister to take a more tailored approach and base the decision to issue or refuse to issue a licence on a determination of favourable or unfavourable fisheries relations with respect to the particular fishery in which that vessel participates.

This amendment only applies to foreign fishing vessels and will not affect Canadians or Canadian businesses.

12. Respond to the concerns of the Standing Joint Committee for the Scrutiny of Regulations

The amendments address the SJCSR’s concerns and will further clarify the intent of subsection 24(2) and paragraph 46.1(1)(b) by amending the regulatory text from “arrangement that is consistent with the NAFO Measures” to “an arrangement that is expressly contemplated by the NAFO Measures.”

Currently, subsection 24(2) makes an exception for vessels fishing under an arrangement that is consistent with the NAFO Measures. Paragraph 46(1)(b) permits a protection officer to exercise enforcement powers set out in the NAFO Measures in the NAFO Regulatory Area with respect to a foreign fishing vessel that is authorized to fish under an arrangement that is consistent with the NAFO Measures.

“One-for-One” Rule

Implementing the trade tracking mechanisms will have marginal impacts on administrative costs for Canadian businesses who import fish or marine plants originating within high seas areas regulated by the relevant RFMOs. Only costs to importers/brokers of fish and seafood products have been identified. According to Canada Border Services Agency (CBSA) data, it is assumed that 140 importers/brokers will be affected by the requirements.

Section 61 of the Fisheries Act currently provides that “any person who purchases fish for the purpose of resale” may be required to provide information or keep records or other documents relating to various matters, such as the species of fish caught and the time and place at which it was caught, and “any other matter relating to the proper management and control of fisheries or the conservation and protection of fish.” This legal requirement to provide information is currently applied such that imported fish, upon arrival in Canada, could be prevented from going to market if it is not accompanied by the proper documentation. This can include certificates from catch documentation schemes or statistical documentation programs. The administrative burden of supplying this information is already present in existing law; however, these amendments to the CFPR are expected to increase that administrative burden on Canadian import/broker businesses by a total annualized administrative cost of $21,597 (in 2018 constant dollars), or an annualized administrative cost per business of $154 (in 2018 constant dollars), as a result of the addition of certain information requirement fields in the Integrated Import Declaration (IID) forms, which will be used when importing certain fish species.

Despite the change in the administrative requirement on Canadian business as a result of the amendments, these amendments are exempt from the application of the “One-for-One” Rule as it fulfills a non-discretionary obligation under the PSMA and other agreements to implement management measures adopted by various RFMOs of which Canada is a party. As a member of the ICCAT, the IATTC, and the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), which implement conservation and management measures that are binding on their members, including enforcement and compliance rules (including various catch documentation schemes and other data collection requirements), Canada is obligated to ensure that appropriate documentation is presented for the importation of certain fish.

Small business lens

Importers and brokers are included in the Fish and Seafood Product Wholesaler-Distributors industry in the North American Industry Classification System (NAICS 413140). According to the 2016 Canadian Business Counts for the Fish and Seafood Product Wholesaler-Distributors industry, there were a total of 918 small businesses and 22 medium and large businesses. Applying the same proportion to the 140 importers and brokers impacted by these amendments, 137 of the 140 businesses would be considered small businesses. Therefore, the total present value of the administrative costs on small business is estimated to be $148,439 over 10 years, or an annualized impact of $154 per small business. However, the small business lens does not apply to this proposal, as the anticipated incremental costs to business are well below the $1 million threshold.

Consultation

From October 26 to December 9, 2016, DFO conducted consultations on proposed amendments to the CFPR that took a two-pronged approach: a web-based consultation and a targeted outreach to specific key stakeholders. DFO posted information on the proposed amendments on its website and asked for feedback through a generic email inbox. The targeted consultations reached out to the governments of the provinces and territories, industry stakeholders and key partners in the federal government. The consultations were also promoted through the Department’s social media. Over the course of the six-week consultation, DFO received questions through email from one industry stakeholder and one province, and received comments from the Fisheries Council of Canada (FCC).

The comments from the FCC were generally supportive of the intent of the amendments (to combat IUU fishing), but the Council also expressed concerns about potential increased regulatory administrative burden at ports of entry, especially if more species are covered by catch documentation requirements in future.

The questions from Newfoundland and Labrador related specifically to whether the proposed amendments would affect exports and how the catch documentation schemes would fit in the regulations. DFO provided the Province with answers to these questions; the Province expressed no further concern and was satisfied with the answers.

Given that the comments received during this consultation period either sought clarification on the proposed amendments or expressed concern with potential future expansion of the amendments, DFO concluded that the proposed amendments did not require any changes based on stakeholder feedback.

In addition, DFO and Transport Canada (TC) reviewed the scope of the proposed amendments to determine whether there would be any overlap with TC regulations about port safety and security. The port state measures for foreign fishing vessels in the context of these amendments are to be distinguished from port state controls for diverse types of vessels under the TC Port State Control Program footnote 10, as they are being conducted for different purposes and there is very little risk of duplication. Coordination at the working level would happen as needed and on a case-by-case basis.

Separately, DFO engaged with key stakeholders on the proposed amendment that would authorize the Minister to make a determination of “favourable fisheries relations” with a state in general or with respect to a particular fishery. An email from DFO officials to targeted stakeholders sought comment on the proposed amendment between June 21, 2017, and July 5, 2017. A total of two comments were received, one from the Fisheries Council of Canada and one from the Province of Newfoundland and Labrador. Both comments were supportive of the proposed amendment.

In addition, a description of the proposed amendments has been published on the Department’s publicly accessible Acts and Regulations website (as part of the Forward Regulatory Plan) since 2014 (and updated semi-annually since). No comments were received on the proposal through this webpage.

On April 20, 2019, the proposed regulations were pre-published in the Canada Gazette, Part I, followed by a 30-day public comment period. Comments were received from the Standing Joint Committee for the Scrutiny of Regulations related to previous comments on subsection 24(2) and paragraph 41.1(b). These comments will be addressed in the final amendments. No other comments were received.

Rationale

Canada supports the global approach to combatting IUU fishing and cooperation established by the PSMA. The widespread adoption and implementation of the PSMA is affirmed by Canada as essential to consistently address IUU fishing across jurisdictions.

The amendments are necessary for Canada to fulfill its commitment to ratify the PSMA, a commitment made when Canada signed the PSMA in 2010.

The environmental effects of IUU fishing are well documented. IUU fishing undermines the sustainability of fish stocks, since those engaging in IUU fishing undermine national and regional efforts to manage fisheries sustainably and conserve marine biodiversity.

While the environmental benefits of the amendments to the CFPR are not quantifiable, making it more difficult to land IUU catches in Canada and in other countries with port state measures in place will further discourage IUU fishing on a global level and reduce its negative effects on the global marine environment.

Canadian fish harvesters and Canadian businesses involved in the import and export of fish and seafood products face unfair competition from cheap fish and seafood products originating from IUU fishing in the international seafood market. Canada’s fish and seafood industry is driven by exports (Canada exports an amount equivalent to 80% of its harvest) and cheaper IUU fishing products have the potential to significantly undermine Canadian success in the international fish and seafood market. Preventing illegally harvested fish and seafood products from entering the international market is anticipated to level the playing field for Canadian fish harvesters and Canadian businesses involved in the import and export of fish and seafood products.

IUU fishing has distorted prices and profits along the seafood value chain by keeping the market prices of the species lower than they would have been otherwise. The elimination of IUU fishing is therefore expected to correct the price distortions and result in some negligible price increases, which may have some distributional effects on Canadian consumers, retailers and restaurants. However, it is not possible to quantify these impacts at this time.

Furthermore, the amendments also streamline the CFPR by removing some noted redundancies as a result of the recent amendments to the CFPA, and provide added clarity with respect to the intent of certain provisions of the CFPR that are currently a concern for the Standing Joint Committee for the Scrutiny of Regulations.

Implementation, enforcement and service standards

The amendments come into force on the day on which they are registered.

The Regulations will be enforced by DFO protection officers and Canada Border Service Agency (CBSA) personnel, as appropriate. It is not anticipated that the monitoring or enforcement activities, as a result of these amendments, will require new funding beyond current budgetary allotments for DFO and the CBSA.

Currently, DFO undertakes a broad variety of monitoring and enforcement actions with respect to foreign fishing vessels both within Canadian fisheries waters and in international waters. Such activities will not be altered or impacted under the amendments. Rather, the amendments provide additional tools for the Government of Canada with respect to managing the entry into Canadian fisheries waters by foreign fishing vessels (e.g. information requirements for vessels entering Canadian fisheries waters) and additional tools that may be employed by the Government of Canada to further deter IUU fishing (e.g. permits for vessels directed to a Canadian port by flag states).

Contact

Renée Sauvé
Senior Director
Global and Northern Affairs Bureau
Fisheries and Oceans Canada
Telephone: 613‑990‑9325
Email: CFPR.Information.XNCR@dfo-mpo.gc.ca