Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations: SOR/2020-14

Canada Gazette, Part II, Volume 154, Number 4

Registration
SOR/2020-14 January 28, 2020

AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES ACT

The Minister of Agriculture and Agri-Food, pursuant to subsection 4(1) footnote a of the Agriculture and Agri-Food Administrative Monetary Penalties Act footnote b, makes the annexed Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.

Ottawa, January 16, 2020

Marie-Claude Bibeau
Minister of Agriculture and Agri-Food

Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations

Amendments

Coming into Force

13 These Regulations come into force on the day on which the Regulations Amending the Health of Animals Regulations footnote 2 come 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.)

Executive summary

Issues: On February 20, 2019, the Regulations amending the Health of Animals Regulations (amended HAR) related to animal transport were published in the Canada Gazette, Part II. The amended HAR provide for a one-year delay for the coming into force to allow regulated parties time to adjust to the updated requirements. The Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AMP Regulations) need to be amended to support the updated Part XII provisions and to allow for the issuance of administrative monetary penalties in the event of a contravention to the new animal transport provisions in the amended HAR.

Description: The amendments to the short form descriptions in Schedule 1 of the AMP Regulations will align the violations with the recently amended HAR. The amendments made to the AMP Regulations (AMP amendments) also address recommendations made by the Standing Joint Committee for the Scrutiny of Regulations, and include consequential amendments to align wording with separate changes made previously to the Plant Protection Act, and the Plant Protection Regulations further to amendments made under the Agricultural Growth Act (S.C. 2015, c. 2).

Rationale: Part XII of the amended HAR provides clear requirements for animal transport to allow regulated parties to better understand what is required of them to be in compliance with that part. Part XII establishes either prescriptive requirements (where the process or procedural requirements are defined) or outcome-based requirements (where the required outcome or level of performance is defined). Part XII establishes clear, evidence-based and science-informed requirements that better reflect animal needs and current industry practices and trends, improve animal welfare and reduce the risk of suffering during transport.

The designation of new violations related to animal transport in the AMP amendments will strengthen the existing enforcement regime in a number of ways. These AMP amendments will replace existing violations with new violations, for which administrative monetary penalties can be issued.

On the whole, 11 more violations have been added when compared to the current structure (from 70 to 81). There are fewer violations categorized as “minor” and “serious,” while several more violations have been classified as “very serious” to enhance the use of administrative monetary penalties to promote compliance and meet the policy objective to improve animal welfare and reduce the risk of suffering during transport.

Industry has generally demonstrated good regulatory compliance with the current Part XII of the Health of Animals Regulations (HAR). The amended HAR add to and improve the clarity of the requirements for animal transport, which is anticipated to result in improved regulatory compliance. It is anticipated that the AMP amendments will result in improved and consistent enforcement outcomes.

The one-for-one rule and small business lens do not apply. Regulated parties only incur additional costs if they violate statutory or regulatory provisions.

Issues

Further to the recent (February 20, 2019) publication of the Regulations amending the Health of Animals Regulations (amended HAR) respecting the transport of animals in Part II of the Canada Gazette, amendments to the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AMP Regulations) are required to enable a designated person to issue an administrative monetary penalty for the contravention of a provision in the amended HAR. The amended HAR come into force one year after their publication, allowing for a one-year transition period for regulated parties to adjust to the updated requirements. The AMP amendments are required to be in place on or before February 20, 2020.

The Standing Joint Committee for the Scrutiny of Regulations has identified inconsistencies between the Agriculture and Agri-Food Administrative Monetary Penalties Act (the AMP Act) and the AMP Regulations that are to be reconciled. Inconsistencies between timelines in the AMP Regulations and the Canada Agriculture Review Tribunal procedures also need to be aligned. Finally, consequential changes following the recent updated legislation to the Plant Protection Act and the Agricultural Growth Act need to be addressed in the AMP amendments.

Background

The amended HAR provide the requirements for the humane transport of all animals entering, transported within, or leaving Canada. The recent amendments to these Regulations establish clear, evidence-based and science-informed requirements that will improve animal welfare during transport, better align with international standards, and better reflect current industry practices. They contain a blend of prescriptive requirements (in which case the process or procedural requirements are defined) or outcome-based requirements (in which case the required outcome or level of performance is defined).

The amended HAR, as well as the Regulatory Impact Analysis Statement specific to these Regulations, were published in the Canada Gazette, Part II, on February 20, 2019.

The failure to comply with provisions of a statute or regulation is a failure to observe the public policy objectives of the regulation. Administrative monetary penalties are one of many tools available to the Canadian Food Inspection Agency (CFIA), which can authorize the issuance of a notice of violation (in the form of a warning or a monetary penalty), by a person designated by the Minister, in response to a contravention of a statutory or regulatory requirement. Non-compliance must be addressed, according to the public enforcement continuum, to meet the societal, economic, and environmental objectives of the requirements.

The AMP Act establishes, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient monetary penalty system for the enforcement of the agri-food acts and their respective regulations.

The AMP Act provides for the issuance of two types of notices of violation: a “Notice of Violation with Warning” and a “Notice of Violation with Penalty.” Violations are classified as “minor,” “serious,” or “very serious” based on relative risk of harm. The AMP Act sets out the maximum monetary penalty amount for each classification level and the AMP Regulations set out the amount of the penalty associated with each classification of violation.

Any regulation made in Canada on or after January 1, 1972, can be reviewed by the Standing Joint Committee for the Scrutiny of Regulations on the basis of 13 different criteria. Criteria include that the statutory instrument (e.g. regulation) “is defective in its drafting or for any other reason requires elucidation as to its form or purport” or “imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation.”

Objective

The objectives of the regulatory amendment are to

Description

(1) Amendments to designate as violations the provisions in the amended HAR

The designation of new violations in the AMP Regulations will align the short-form description in Schedule 1 with the provisions of the amended HAR, thereby enabling administrative monetary penalties to be issued, where required, for a violation of these provisions when the amended HAR come into force (February 20, 2020).

The AMP amendments will replace items 232 through 301 (inclusive) of Division 2 of Part 1 of Schedule 1 to the AMP Regulations with amended references to provisions of the amended HAR, as well as amended short form descriptions, and classifications. The new items will be numbered 232 to 301.92. There are currently 70 violations in Schedule 1 of the AMP Regulations that will be replaced as a result of the amended HAR. The AMP amendments contain 81 violations that will align with the amended HAR.

It is anticipated that the short-form descriptions of the AMP amendments will improve compliance and further facilitate consistent enforcement. This is in part due to the inclusion of additional classification-specific provisions. For example, some provisions in the amended HAR for which multiple conditions must be met (e.g. 150(1)) have a distinct violation for each condition that must be met. This is a result of the varying classifications of severity for each item associated with a condition in the amended HAR. Where a Part XII provision contains multiple conditions of the same severity (e.g. 144(2)), only one administrative monetary penalty item has been included in the AMP amendments.

To further improve the utility of administrative monetary penalties as a tool to promote compliance and meet the policy objective to improve animal welfare and reduce the risk of animal suffering, injury or death during transport, there are fewer violations categorized as “minor” and “serious,” while there are several more that have been classified as “very serious.” With the AMP amendments, there are 8 fewer violations classified as “minor” and 11 fewer violations classified as “serious,” while there are 29 more violations classified as “very serious.”

Examples of violations of the amended HAR that are classified as “minor” in the amendments include non-compliance with record-keeping requirements (e.g. items 301.8, 301.9, or 301.91 in the amendments). Violations that are classified as very serious include those having to do with non-compliance with the prescribed feed, water, and rest intervals (e.g. items 298, 299, and 300), or with transporting an animal that meets the definition in the amended HAR of “unfit” (e.g. 139(1)). As mentioned above, the classification of each violation takes into consideration the situation where relative risk of a non-compliance action would result in an animal being injured, suffering, or dying along the transportation continuum.

Overall, of the 81 violations included in the amendments, 14 are classified as “minor,” 34 have been classified as “serious,” and 33 have been classified as “very serious.”

Modifications have not been made to the current subsection 5(1) of the AMP Regulations, which set outs the amount of the penalty for each minor, serious, or very serious violation. Therefore, the penalty amounts for each classification of violation have not been changed.

The AMP amendments will come into force on February 20, 2020, which is the first anniversary of the day on which the amended HAR were published in the Canada Gazette, Part II, or on the day they are registered, in the event that registration takes place after February 20, 2020.

(2) Amendments for clarity and consistency

To make amendments for clarity and consistency, as well as address recommendations identified by the Standing Joint Committee for the Scrutiny of Regulations, the amendments will modify the AMP Regulations to

(3) Consequential amendments to the Plant Protection Act and the Plant Protection Regulations further to amendments made to the Agricultural Growth Act

An amendment to item 3 of Division 1 of Part 2 of Schedule 1 to the AMP Regulations is made to identify the provision as a violation to section 7 of the Plant Protection Act further to the amendments made under the Agricultural Growth Act. The short-form description is also amended for clarity.

Finally, items 5, 6, and 40 of Division 4 of Part 2 of Schedule 1 of the AMP Regulations, which pertain to sections 8 and 9 and subsection 46(3) of the Plant Protection Regulations, are repealed given that these provisions were repealed in the miscellaneous amendments to the regulations package (SOR/2017-94).

Regulatory development

Consultation

Contravention of the provisions of the Health of Animals Regulations (HAR) designated as violations have been a part of the administrative monetary penalties regime since the AMP Regulations were introduced in 1995.

From 2006 through 2017, the CFIA consulted with stakeholders on the amendments to Part XII of the HAR. All Canadians, including regulated parties, industry organizations, and animal welfare groups, were advised of the intention to publish the regulatory amendment and the anticipated implementation dates. In February 2019, the amended HAR were published in the Canada Gazette, Part II.

To coincide with this publication, the CFIA prepared a guidance document for regulated parties. The guidance document provides information to assist stakeholders with interpretation of the requirements contained within Part XII of the HAR, which in turn assists them in understanding the intent of the regulatory language and in maintaining compliance.

The AMP amendments have not been prepublished in the Canada Gazette, Part I. Administrative monetary penalties for violations of Part XII of the HAR currently exist and stakeholders are aware that a notice of violation may be issued for a contravention with a Part XII requirement. The remaining modifications are consequential in nature.

Modern treaty obligations and Indigenous engagement and consultation

No Indigenous peoples will be impacted by these regulatory amendments to update the AMP Regulations and align with the latest amendments to Part XII of the HAR.

Instrument choice

(1) Status Quo — Do not amend the current AMP Regulations.

This option would limit the enforcement measures available to the CFIA when addressing contravention of the provisions in the amended HAR once the one-year delay of the coming into force is over. At that time, the end result would be an outdated enforcement mechanism that does not align with the recently amended HAR. This option would also fail to resolve concerns of the Standing Joint Committee for the Scrutiny of Regulations. The AMP Regulations would also continue to be inconsistent with recent amendments to the Plant Protection Act and the Plant Protection Regulations. This is not a recommended option.

(2) Amend Division 2 of Part 1 of Schedule 1 to the AMP Regulations to only align with the recently amended HAR.

This option would amend the AMP Regulations to align with the amended HAR, but would not address the concerns raised by the Standing Joint Committee for the Scrutiny of Regulations, and consequential amendments necessitated by recent amendments to the Plant Protection Act and the Plant Protection Regulations.

This option would allow the continued issuance of administrative monetary penalties for the amended HAR when the delayed coming into force has concluded, and would permit effective operationalization and enforcement of that legislation. It would, however, leave recommendations made by the Standing Joint Committee for the Scrutiny of Regulations unaddressed. This is not the preferred option.

(3) Amend the AMP Regulations to align with recently amended HAR, and also address the concerns raised by the Standing Joint Committee for the Scrutiny of Regulations and the consequential amendments necessitated by recent amendments to the Plant Protection Act and the Plant Protection Regulations (preferred option).

This option would allow the continued issuance of administrative monetary penalties for the amended HAR when the delay for the coming into force for the amended HAR has been completed. As a result, it would enable the effective enforcement of the regulations that pertain to the transport of animals and the protection of animal welfare. This option would promote effective regulatory delivery by addressing both of the recommendations made by the Standing Joint Committee for the Scrutiny of Regulations, as well as the consequential amendment necessitated by recent amendments to the Plant Protection Act and the Plant Protection Regulations.

One-for-one rule

The one-for-one rule does not apply to these AMP amendments, as there is no change in administrative costs to business.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for the AMP Regulations.

Rationale

The amended HAR provide clear requirements for animal transport to allow regulated parties to better understand what is required of them to be in compliance. They establish either prescriptive requirements (where the process or procedure requirements are defined) or outcome-based requirements (where the required outcome or level of performance is defined). They establish clear, evidence-based and science-informed requirements that better reflect animal needs and current industry practices and trends to improve animal welfare and reduce the risk of suffering during transport.

The amended HAR provide for a delayed coming into force of one year to allow regulated parties time to comply with the updated requirements. Amendments to the AMP Regulations are required to align with the amended HAR and to be able to proceed with an administrative monetary penalty in the event of a contravention to the updated provisions of the amended HAR. The AMP amendments are required to be in place on or before February 20, 2020, to enable the issuance of administrative monetary penalties.

The continued use of administrative monetary penalties provides the CFIA with more flexibility in resolving non-compliance by providing the CFIA with a supplemental enforcement tool. In cases of more severe non-compliance, or where there is a history or pattern of noncompliance for a given regulated party, the CFIA may recommend that penal proceedings be instituted. The CFIA has the discretion to select the appropriate regulatory response, based on the gravity of the non-compliance, considering factors such as the potential or actual harm, the compliance history of the regulated party and the intent, as determined by the person designated by the Minister.

Moreover, an administrative monetary penalty can hinder the financial incentive to engage in an activity that is not compliant with a regulatory requirement. It removes most financial benefit, advantage, or gain a person or business may have achieved by committing a violation. It helps encourage compliance and may discourage other regulated parties from committing violations.

The AMP amendments are aligned with the public policy objectives of the amended HAR amendments that precede them. The amended HAR clarify expectations, better reflect new science regarding the care and handling of animals during all phases of transport, and reduce the risk to animal welfare during loading, confinement, transport, and unloading. They contain more detail, modernize the regulatory language and remove obsolete, redundant or unnecessary requirements. The new short-form descriptions included in the AMP amendments are consistent with the wording used in the amended HAR.

Improved clarity from the amended HAR is anticipated to result in improved regulatory compliance. As a result of clearer expectations and requirements, the CFIA’s ability to enforce the requirements for those who are non-compliant will be improved.

The amended HAR also sought to improve animal welfare and reduce the risk of animal suffering during transport. The AMP amendments will effectively support this objective by increasing the overall number of violations, and increasing the number of items classified as “very serious” (from 4 to 33). The amendments to the AMP Regulations for violations related to the humane transport of animals will strengthen the existing enforcement regime.

Implementation, compliance and enforcement, and service standards

The amendments that pertain to the amended HAR will come into force on February 20, 2020, which is the first anniversary of the day on which the amended HAR were published in the Canada Gazette, Part II, or on the day they are registered, in the event that registration takes place on a day after February 20, 2020.

Animal welfare is important to all Canadians. For the CFIA, there is little tolerance for situations where non-compliance results in an animal being injured, suffering, or dying during transport. In instances where non-compliance is determined to result from intention, neglect, or lack of awareness of the requirements or where there is a pattern of non-compliance, appropriate enforcement action will be taken.

The CFIA has a program in place to enforce the amended HAR and operational resources are committed to enforce them. The CFIA inspection staff responds to instances of non-compliance on a day-to-day basis. Notices of violation may be issued for violations of the relevant act or regulations, as set out in section 7 of the AMP Act. Regulated parties can expect that any non-compliance as determined by the CFIA will be treated seriously by the CFIA and will be dealt with in a professional manner.

The CFIA has a published Compliance and Enforcement Operational Policy that outlines the CFIA’s approach to its compliance management activities. This approach includes assisting regulated parties in understanding their obligations to comply with legislative requirements, monitoring compliance, performing inspection activities, and describing the various tools available to the CFIA in response to a violation.

Using its existing resources, the CFIA will continue to monitor and enforce the Health of Animals Regulations by observing the transport of animals at strategic locations including, but not limited to, federally and provincially licenced abattoirs, assembly yards, airports, ports of entry (with the assistance of the Canada Border Services Agency), randomized roadside inspections, and auction markets. The CFIA will provide information and guidance to those involved in the transport of animals and, in accordance with the CFIA’s Compliance and Enforcement Operational Policy, will investigate suspected non-compliance. The CFIA will take appropriate enforcement actions in response to non-compliance cases, up to and including prosecution.

Publication of information pertaining to issued administrative monetary penalties on the CFIA’s website will continue to promote compliance. The CFIA prepares quarterly reports on its use of administrative monetary penalties as an enforcement measure. The experience of other agencies administering similar schemes shows that this approach is very effective in increasing compliance.

Contact

Please direct questions and enquiries to

Animal Welfare, Biosecurity and Assurance Programs Section
Canadian Food Inspection Agency
59 Camelot Drive
3rd Floor West, Room 229
Ottawa, Ontario
K1A 0Y9
Email: cfia.animaltransport-transportdesanimaux.acia@canada.ca