Possession and Export of Elvers Regulations: SOR/2024-237

Canada Gazette, Part II, Volume 158, Number 26

Registration
SOR/2024-237 November 29, 2024

FISHERIES ACT

P.C. 2024-1263 November 29, 2024

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, makes the annexed Possession and Export of Elvers Regulations under subsection 43(1)^{footnote a} of the Fisheries Act ^{footnote b}.

TABLE OF PROVISIONS

Possession and Export of Elvers Regulations

Definitions

1 Definitions

Application

2 Application

Possession of Elvers

3 Prohibition — possession without a licence
4 Obtaining possession
5 Transferring possession of elvers
6 Licence to possess elvers

Export of Elvers

7 Prohibition — export without a licence
8 Licence to export elvers

Containers

9 Prohibition — combining elvers
10 Prohibition — seals, sealed containers

Retention of Records

11 Retention period

Application of Fishery (General) Regulations

12 Application of certain provisions

Consequential Amendments

13 Fishery (General) Regulations
14 Maritime Provinces Fishery Regulations
16 Ontario Fishery Regulations, 2007

Coming into Force

17 March 1, 2025

Possession and Export of Elvers Regulations

Definitions

Definitions

1 The following definitions apply in these Regulations.

CBSA: means the Canada Border Services Agency established under subsection 3(1) of the Canada Border Services Agency Act. (ASFC)
CFIA: means the Canadian Food Inspection Agency established by section 3 of the Canadian Food Inspection Agency Act. (ACIA)
commercial transporter: means a person whose commercial activity includes the transport of goods for others. (entreprise de transport)
Department: means the Department of Fisheries and Oceans. (ministère)
elver: means an American eel that is less than 10 cm in length. (civelle)

Application

Application

2 These Regulations apply to the possession of elvers in Canada and in Canadian fisheries waters, and to the export of elvers from Canada.

Possession of Elvers

Prohibition — possession without a licence

3 (1) Subject to subsection (2), it is prohibited for any person to be in possession of elvers except under the authority of a licence to possess elvers issued under these Regulations.

Exceptions

(2) Subsection (1) does not apply to the following persons in relation to the elvers that they possess in the following circumstances:

(a) a person who is in possession of elvers that the person caught under the authority of a licence issued under section 52 of the Fishery (General) Regulations or that another person caught under the authority of the same licence;
(b) a person who is in possession of elvers for the purpose of their transfer to an aquaculture facility or their release into fish habitat, as authorized under the Fisheries Act or under provincial legislation;
(c) subject to subsection (3), a person, other than a person referred to in paragraph (a), who is in possession of elvers that the person caught under the authority of a licence issued under the Fisheries Act or that another person caught under the authority of the same licence;
(d) a commercial transporter who is transporting elvers in the course of their business and who has no other right or interest, directly or indirectly, in the elvers;
(e) a person who is working at an airport, is engaged in the handling of goods intended for air transport and is in possession of elvers in the course of their duties;
(f) an operator of an aquaculture facility acting under the authority of an aquaculture licence as defined in section 1 of the Aquaculture Activities Regulations who is in possession of elvers for the purpose of cultivating them to grow to 10 cm or more in length;
(g) personnel of the CBSA, of the CFIA, of the Department or of a province, acting in the course of their duties; or
(h) a person who obtains possession of elvers as a result of a law enforcement officer acting in the course of their duties under federal or provincial legislation.

Exception — limit

(3) The exception set out in paragraph (2)(c) applies only while the person is in possession of elvers in the course of transporting them from the waters in which they were caught to a holding facility that is specified in the licence referred to in that paragraph.

Obtaining possession

4 It is prohibited for any person to obtain possession of elvers from anyone other than a person who is authorized to possess elvers under

(a) the authority of a licence issued under these Regulations; or
(b) an exception referred to in any of paragraphs 3(2)(a) to (e), (g) or (h).

Transferring possession of elvers

5 (1) It is prohibited for any person to transfer possession of elvers to anyone other than a person who is authorized to possess elvers under

(a) the authority of a licence issued under these Regulations; or
(b) an exception referred to in any of paragraphs 3(2)(b) or (d) to (h).

Persons authorized under the same licence

(2) Despite subsection (1), a person who possesses elvers that they caught under the authority of a licence referred to in paragraph 3(2)(a) or (c) — or that were caught by another person under the authority of the same licence — may transfer possession of those elvers to any other person who is authorized to fish under the same licence.

Licence to possess elvers

6 (1) The Minister may issue a licence authorizing a person to possess elvers.

Conditions

(2) The Minister may, for the proper management and control of fisheries and the conservation and protection of fish, specify in the licence any condition that is consistent with these Regulations, including conditions respecting any of the following matters:

(a) the location or the facility to which, manner in which and time at which elvers must be brought and stored;
(b) the information that the licence holder must provide to the Department;
(c) the manner in which, time at which and location from which the possession of elvers is permitted to be transferred;
(d) the transport of elvers;
(e) the containers that must be used to hold or transport elvers and their marking, labelling, sealing and unsealing, including by the licence holder, a fishery officer, a fishery guardian or personnel of the Department;
(f) the records that a licence holder must keep, including records respecting
- (i) the elvers that they possess at any time, the persons from whom they obtained possession of them and the persons to whom they transferred possession of them, and
- (ii) the quantity of elvers that died while in the licence holder’s possession and the circumstances of the deaths;
(g) the manner and form in which the records are to be kept and the times at which and the manner and form in which records and information are to be produced to the Department; and
(h) the verification, by a fishery officer, a fishery guardian or personnel of the Department, of any shipment of elvers, including the process of packaging them, the weight of the elvers and the total weight of the package.

Export of Elvers

Prohibition — export without a licence

7 (1) It is prohibited for any person to export elvers except under the authority of a licence to export elvers issued under these Regulations.

Prohibition — certain elvers

(2) It is prohibited for any person to export elvers that were caught illegally in Canadian fisheries waters or elvers whose possession was obtained from a person who was not authorized to possess them under these Regulations.

Licence to export elvers

8 (1) The Minister may issue a licence authorizing a person to export elvers.

Conditions

(a) the location and time at which elvers are permitted to be packaged for export;
(b) the information that the licence holder must provide to the Department;
(c) the information to declare to the CBSA respecting each shipment of elvers for export;
(d) the records that an export licence holder must keep, including records respecting the commercial transporter to which an export shipment has been entrusted, and the tracking number or similar information identifying that shipment; and
(e) the manner and form in which the records are to be kept and the times at which and the manner and form in which records and information are to be produced to the Department.

Containers

Prohibition — combining elvers

9 A person must not combine, in the same container

(a) eels that are less than 10 cm in length caught outside Canadian fisheries waters with elvers caught in those waters; or
(b) elvers legally caught in Canadian fisheries waters with elvers that were illegally caught in those waters.

Prohibition — seals, sealed containers

10 Subject to the conditions of a licence issued under these Regulations, a person must not unseal a container of elvers that has been sealed for export or tamper with its seal.

Retention of Records

Retention period

11 Any records that are required to be kept under the conditions of a licence issued under these Regulations must be retained for a period of at least five years after the day on which the licence expires or is cancelled.

Application of Fishery (General) Regulations

Application of certain provisions

12 The following provisions of the Fishery (General) Regulations apply — despite section 3 of those Regulations — for the purposes of these Regulations:

(a) sections 2, 4, 5, 8 to 11 and 14;
(b) subsection 15(1);
(c) sections 16, 17 and 21;
(d) subsections 22(2) to (6);
(e) section 24;
(f) paragraph 25(1)(a); and
(g) Part XI.

Consequential Amendments

Fishery (General) Regulations

13 Subsection 3(4) of the Fishery (General) Regulations ^{footnote 1} is amended by striking out "and" at the end of paragraph (l), by adding "and" at the end of paragraph (m) and by adding the following after paragraph (m):

(n) the Possession and Export of Elvers Regulations.

Maritime Provinces Fishery Regulations

14 (1) Section 37 of the Maritime Provinces Fishery Regulations ^{footnote 2} is amended by adding the following before subsection (1):

(0.1) Despite any provision in these Regulations, no person shall engage in recreational fishing for elvers.

(2) Section 37 of the Regulations is amended by adding the following after subsection (1.1):

(1.2) Subsection (1.1) does not apply to fishing for commercial purposes for elvers.

(1.3) No person shall engage in fishing for commercial purposes for elvers in the waters set out in column I of the table to this subsection by a method set out in column II during the close time set out in column III.

TABLE
Item	Column I Waters	Column II Method	Column III Close Time
1	Inland and tidal waters of Nova Scotia.	(1) Eel trap (2) Dip net (3) Any other method	(1) Jul. 31 to Mar. 1 (2) Jul. 31 to Mar. 1 (3) Jul. 31 to Mar. 1^{table 1 note *}
2	Inland and tidal waters of New Brunswick.	(1) Eel trap (2) Dip net (3) Any other method	(1) Jul. 31 to Mar. 1 (2) Jul. 31 to Mar. 1 (3) Jul. 31 to Mar. 1^{table 1 note *}
3	Inland and tidal waters of Prince Edward Island.	(1) Eel trap (2) Dip net (3) Any other method	(1) Jan. 1 to Dec. 31 (2) Jan. 1 to Dec. 31 (3) Jan. 1 to Dec. 31^{table 1 note *}
Table 1 Notes Table 1 Note ^{footnote } If a close time is in respect of more than one fishing method, that close time is deemed to be separately and individually fixed in respect of each of those fishing methods. Return to table 1 note referrer

15 The portion of subsection 37(2) of the Regulations before paragraph (a) is replaced by the following:

(2) Every person who fishes for eels, other than elvers, with an eel trap in the inland waters of Nova Scotia shall, during the period beginning at sunrise and ending at sunset,

Ontario Fishery Regulations, 2007

16 Subsection 7(3) of the Ontario Fishery Regulations, 2007 ^{footnote 3} is replaced by the following:

(3) Despite subsection (1), a person may possess an American eel if

(a) in the case of an eel that is 10 cm or more in length, the person has documentary evidence to show that the eel was lawfully obtained outside of Ontario; or
(b) in the case of an eel that is less than 10 cm in length, the possession is authorized under the Possession and Export of Elvers Regulations.

Coming into Force

March 1, 2025

17 These Regulations come into force on March 1, 2025.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The Fisheries Act and regulations prohibit fishing for American eel without a licence. High levels of harvesting without the required licence (henceforth referred to as unlawful harvesting) have prompted closures of the commercial American eel elver fishery in Nova Scotia and New Brunswick. Additional oversight is needed to better manage the fishery and conserve the species.

Description: New regulations require a licence to possess elver, subject to certain exceptions, and a licence to export elver. Through the conditions of these licences, additional requirements will be imposed related to the keeping of records to enable the traceability of elvers in Canada, as well as the sealing and labelling of containers of elver for export.

Rationale: The aim of the new regulations is to disincentivize and reduce unlawful harvesting by making it harder to possess, sell, and export unlawfully caught elver. Expanding oversight of the post-harvest export supply chain, enabling traceability, and introducing measures to differentiate legal versus illegal export shipments are intended to make it harder for unlawfully caught elver to enter the licensed export supply chain and easier to identify and act on illegal shipments. New regulatory requirements will allow a fishery officer to promptly determine whether an offence has occurred when someone is found to be in possession of elvers without a licence, which will help waterside enforcement as well.

Costs: The new regulations and their expected conditions of licence will impose incremental costs to businesses of approximately $0.5 million in the 10 years following the coming into force of the regulations, and government costs of $25.8 million over the same 10-year time frame, including for enforcement, training, administration, and the development of an information management system to support elver traceability.

Issues

The elver fishery is a highly lucrative industry that has experienced high levels of unlawful harvesting in recent years, resulting in fishery closures. Improved traceability is required to minimize the introduction of unlawfully harvested elver into the legal market and deter the possession and export of this elver.

A secondary issue addressed by this regulatory initiative is the gap in the Maritimes Provinces Fishery Regulations (MPFR) that has hindered DFO’s ability to use variation orders to adjust close times for the elver fishery without those close times collaterally affecting close time for fishing of larger eels.

Background

Elvers are juvenile eels, defined in the MPFR as being eels of the species Anguilla rostrata (commonly known as the American eel) less than 10 centimetres in length.

Over the past decade, the value of the elver fishery has increased exponentially and was valued at $38.5 million in 2022. It is now the most valuable (by weight) fish sold in Canada, selling at over $5,000 per kg at its peak.

The commercial elver fishery takes place in Nova Scotia and New Brunswick and fishing is authorized by way of a licence issued under the MPFR or the Aboriginal Communal Fishing Licences Regulations (ACFLR). In 2023, commercial licences were issued to the nine original licence holders of the fishery, eight under the MPFR and one under the ACFLR, and two interim licences were issued under the ACFLR to the Kespukwitk District First Nations in Nova Scotia and the Wolastoqey Nations in New Brunswick. Licence holders can name individuals authorized to fish under the licence; in 2023, more than 900 individuals were authorized to legally harvest elver under the 11 licences.

There have been increasing levels of elver harvesting without a licence in Nova Scotia and New Brunswick and widespread unauthorized sale and export. With this unlawful activity has come reports of violence, including assault and gun violence, robberies, death threats, property damage, and intimidation of local property owners. There have also been allegations of organized crime having an increasing influence in unlawful elver activities.

Several factors attract people to unlawfully fish elvers, most notably the high market value of elvers, even on the black market. Harvesting can be done at night, relatively easily with low-cost fishing gear, and harvest is easy to conceal. DFO estimates that, in recent years, as much or more elver has been caught unlawfully during a harvest season than the amount of the legal catch. Managing the unlawful harvest through riverside enforcement is challenging given the number of unlicensed harvesters fishing in a broad geographic area, and fishing predominately undertaken during the night in remote locations.

The market for elvers is driven by the export market to Asian countries. Elvers are typically shipped live, by air, within a short amount of time of harvest, and grown in aquaculture facilities in Asia for human consumption.

In 2020 and 2023, fisheries management orders were issued to shut down the licensed elver fishery partway through the harvest season due to conservation concerns for the species and violent confrontations posing a threat to the proper control and management of the fishery, as well as human safety. No elver fishing licences were issued for the 2024 season in anticipation of the same lawlessness and in the absence of new regulatory authorities. While the closures allow federal officials to more easily identify unauthorized fishers and seize unlawfully caught elver, they also mean that licensed harvesters, both Indigenous and non-indigenous, miss out on their expected income from catching their allocated quota of the resource.

Post-harvest export supply chain

The operators of holding facilities where elvers are deposited immediately after catch may themselves arrange the export of their elver to Asia, work with a commercial exporter, or decide to sell to intermediary buyers and exporters of elver. Most exports currently fly out of Nova Scotia, Quebec, and Ontario airports to Asia.

Objective

The objective of the new regulations is to improve the management of the elver fishery by providing additional oversight and strengthening the traceability of elver post-harvest until export and to increase enforcement options throughout the supply chain.

The intended outcome is to disincentivize and ultimately reduce unlawful harvesting by making it more difficult for an unauthorized harvester to possess, sell, and export their elver. Reducing unlawful harvesting also helps support the conservation of this species.

A secondary objective of the regulatory initiative is to enable DFO to use variation orders to adjust close times for elver fishing that do not collaterally affect fishing for larger eels.

Description

A. Regulations respecting the possession and export of elvers

The regulations define elver as American eel less than 10 centimetres in length.

The regulations prohibit the possession of elvers without a licence to possess elvers issued under the regulations. This prohibition does not apply to the following exceptions:

A person who holds a licence issued under the Fishery (General) Regulations to capture elvers for experimental, scientific, educational, aquatic invasive species control or public display purposes.
A person in possession of elvers that were caught under the authority of an elver fishing licence, while the individual is delivering these elvers from the river in which they were caught to a holding facility identified on the fishing licence. This means that the individuals designated to fish under an elver fishing licence do not need to obtain a possession licence to possess their harvested elver at the river or while en route to deposit the elver at the holding facility identified on the fishing licence. They also do not need a possession licence to transport elver caught by another harvester authorized under the same fishing licence to the holding facility. The operator of the holding facility, though, must obtain a possession licence, even if this person also holds an elver fishing licence.
A commercial transporter that has elver in their possession for transport but has no direct or indirect right or interest in the elver they are transporting.
Individuals working at an airport who handle goods for air transportation.
Persons in possession of elvers for the purpose of transferring them to an aquaculture facility or releasing them into fish habitat, as authorized under the Fisheries Act or provincial legislation.
Operators of a licensed aquaculture facility who are cultivating the elvers to lengths greater than 10 centimetres. It should be noted that an operator seeking to transfer elvers out of an aquaculture facility requires a possession licence under the regulations.
Persons possessing elvers as a result of a peace officer exercising their law enforcement powers.
DFO, Canada Border Services Agency (CBSA), Canadian Food Inspection Agency (CFIA) and provincial government employees who possess elver as part of their duties.

The regulations prohibit any person from obtaining possession of elver from anyone other than

A person who is authorized to possess elver under an elver possession licence;
A person holding a licence issued under the Fishery (General) Regulations to capture elvers for experimental, scientific, educational, aquatic invasive species control or public display purposes;
A person possessing elver for the purposes of transfer to an aquaculture facility or release into a fish habitat;
A person possessing elver caught under the authority of a licence under the Fisheries Act;
A commercial transporter who is transporting elver with no direct or indirect interest in the elver;
A person working at an airport, or personnel of DFO, CBSA, CFIA, or provincial governments acting in the course of their duties; or
A person possessing elver as a result of a law enforcement officer acting in the course of their duties.

In most cases, a licence is required to obtain and possess elver from these sources.

The regulations prohibit any person from transferring possession of elver to anyone other than

A person who is authorized to possess elver under an elver possession licence;
A person who is authorized under the Fisheries Act or provincial legislation to transfer elver to an aquaculture facility or release them into fish habitat;
A commercial transporter who is transporting elver with no direct or indirect interest in the elver;
An operator of an aquaculture facility who is cultivating the elvers to lengths greater than 10 centimetres;
A person working at an airport, or personnel of DFO or CBSA, acting in the course of their duties; or
A person who obtains elver as a result of a law enforcement officer acting in the course of their duties.

The regulations allow a person who possesses elver that they caught under the authority of an elver fishing licence or a licence issued under the Fishery (General) Regulations to capture elvers for experimental, scientific, educational, aquatic invasive species control or public display purposes to transfer possession of those elvers to another person authorized to fish under the same license.

The regulations allow the Minister to issue a licence authorizing the possession of elver.

The regulations enable the Minister to specify on an elver possession licence any condition of licence that is consistent with the regulations for the proper management and control of fisheries and the conservation and protection of fish. Licence conditions may include, but are not limited to, the following matters:

when, where, and how elver can be stored;
the information the licence holder must provide to DFO;
how, when, and from where elver can be transferred;
the transport of elvers;
the labelling, marking, sealing and unsealing requirements for containers used to hold or transport elvers;
the records the licence holder must keep to facilitate traceability and verification, including records on the elvers in their possession, the person they obtained them from, and the persons to whom they transferred them and the quantity of elvers that died in their possession and the circumstances;
how records must be kept and how and when records must be produced to DFO; and
the verification, by a fishery officer, a fishery guardian or personnel of the Department, of any shipment of elvers, including the process of packaging them, the weight of the elvers and the total weight of the package.

The regulations prohibit any person from exporting elver except under the authority of a licence issued under the regulations. There are no exemptions to this requirement.

The regulations prohibit the export of illegally caught elvers and elvers obtained from a person who is not authorized to possess them under the regulations.

The regulations allow the Minister to issue a licence to export elver.

The regulations enable the Minister to specify any condition on an elver export licence that is consistent with the regulations for the proper management and control of fisheries and the conservation and protection of fish. This includes, but is not limited to

where and when elvers can be packaged for export;
the information that the licence holder must provide to DFO;
the information that must be provided to the CBSA for each shipment of elvers for export;
what records must be generated and kept, including information about commercial transporters and tracking numbers; and
how records must be kept and how and when records must be produced to DFO.

It should be noted that an export licence does not authorize the licence holder to possess elver. Participants in the elver export supply chain wanting to both possess and export elver require both a possession licence and an export licence.

The regulations prohibit the combining in the same container of elvers that were lawfully harvested in Canada with elvers that were illegally caught in Canada.

The regulations prohibit the mixing of imported juvenile eels of any eel species with elver caught in Canada.

The regulations prohibit unsealing or tampering with the seal of a container of elver that has been sealed for export subject to conditions of licence that allow licensees to unseal a sealed container under certain conditions.

The regulations require that any records generated under a condition on possession and export licences be retained for at least five years beginning on the day the licence expires or is cancelled.

Application of certain provisions of the Fishery (General) Regulations. The regulations specify that the following provisions and requirements of the FGR additionally apply for the purposes of the elvers regulations:

requirement for licence holders to carry their licence on them when engaged in an activity to which the licence relates;
provisions enabling the Minister to require applicants for documents such as licences to submit any relevant information and provide declarations about the validity of provided information;
definitions;
provisions specifying how to interpret times and time periods and the expiry dates for issued documents that are valid for a calendar or fiscal year;
requirement for a licence holder to sign a licence in ink if the licence indicates a signature is required for it to be valid;
prohibition on the alteration and defacing of issued documents;
provisions related to the non-transferability of the licences and the non-conferring of future rights and privileges;
provisions setting out the process for obtaining a replacement licence or to change a name or address;
provisions enabling DFO to amend or cancel and replace a document on the request of the holder;
provisions empowering, and setting out process requirements for, the Minister to amend licence conditions; and
provisions setting out how the proceeds from penalties and the sale of forfeited articles are distributed upon the conviction of an offender.

B. Amendments to the MPFR

The regulations update the MPFR to add separate tables for the setting of close times for eels larger than 10 centimetres versus elvers.

The amendments to the MPFR explicitly prohibit recreational fishing for elvers.

The regulations amend an existing provision in the MPFR related to eel traps, to clarify that it does not apply to elver.

C. Amendment to the Ontario Fishery Regulations, 2007

The regulations make a consequential amendment to the Specially Protected Fish section of the Ontario Fishery Regulations, 2007, to include the requirement for any possession of American eel less than 10 centimetres in length to be authorized under the elvers regulations.

D. Amendment to the Fishery (General) Regulations

The regulations make a consequential amendment to add the elvers regulations to the list of regulations that prevail over the Fishery (General) Regulations in the event of inconsistency between the regulations.

Compared to the proposed regulations pre-published in the Canada Gazette, Part I, on June 29, 2024, the final regulations were modified as follows:

the list of potential licence conditions for possession licence holders has expanded to include matters related to the verification, by a fishery officer, a fishery guardian or personnel of the Department, of any shipment of elvers, including the process of packaging them, the weight of the elvers and the total weight of the package.
The analogous licence condition for export licence holders has been eliminated.
The proposed export licence condition related to the affixing of an identification number to a container of elvers to be exported, and the sealing, unsealing and marking of those containers, has been eliminated. DFO has determined that it is more appropriate to ascribe these elver packaging and sealing related responsibilities to possession licence holders who handle and possess the elvers being packaged.
personnel of the CFIA and provincial governments who possess elvers in the course of their duties were additionally exempted from the prohibition on possessing elvers without a licence.

Regulatory development

Consultation

Prior to prepublication in the Canada Gazette, Part I, DFO engaged with Indigenous groups, elver and larger eel harvesters, Provinces and Territories, other federal government departments (OGDs) and Canadians on the regulatory proposal. Engagement was conducted in several ways.

In September 2023, DFO discussed the potential for new regulations to control possession and export of elvers with the Elver Fishery Management Review Advisory Group, which represents non-Indigenous and Indigenous elver fishing licence holders, and other industry and environmental non-governmental stakeholders. In December 2023, DFO gave a detailed presentation on the regulatory proposal to the Advisory Group. The feedback during this session was positive, and licence holders shared valuable information about the elver supply chain and their business practices that is relevant to the development of licence conditions for the proposed possession and export licences, such as the information they record about transfers of elvers, how containers of elvers are sealed, and the process to export elvers.

In December 2023, DFO launched a web page to provide Canadians with information about the key elements of the regulatory proposal and seek their feedback by email. The comment period was open from December 8, 2023, to January 23, 2024. DFO promoted this comment period on social media and the Consulting with Canadians website and sent an email to several hundred contacts directing them to the website. The national email list included approximately 55 buyers of American eels in Nova Scotia, New Brunswick, and Quebec, 34 importers and exporters of eels, most in Ontario, and a large number of other organizations and individuals with known business ties to the elver fishery, plus First Nations outside Nova Scotia and New Brunswick who had expressed an interest in the conservation and management of eels through previous DFO-led consultations on the potential listing of American eels under the Species at Risk Act.

DFO received 30 email submissions about the regulatory proposal in response to the mailout and the web page.

The eight holders of 2023 elver fishing licences under the MPFR submitted a joint written response in support of the regulatory proposal but raised concerns about enforcement capacity and the lack of significant charges to deter unlawful fishing and sales. Thirteen other respondents, including the Fisheries Council of Canada, individual elver harvesters, adult eel harvesters, and private citizens, expressed similar concerns about enforcement capacity and penalties. They called on DFO to increase enforcement activities to prevent unlawful fishing activity and they expressed the view that the proposed regulations would only be effective if DFO adequately enforces them and administers penalties and fines that are proportional to the price of elvers. DFO agrees that adequate enforcement and appropriate penalties will be pivotal to the regulations having the desired effect.

Five private citizens recommended that DFO not open the elver fishery in 2024 to help rebuild the American eel population, and because, in their view, it is unlikely that the unlawful fishing and sales of elvers can be controlled even with new regulations. Fishery closures and other fishery management decisions are outside the scope of this regulatory initiative.

The remaining 11 respondents, which included adult eel licence holders and associations, aquaculture industry representatives, and private citizens, recommended in-season fisheries management changes related to gear and fishing times, called on DFO to prioritize conversations with Indigenous communities about access and rights-based fishing, requested that adult eel harvesters and aquaculture operations receive priority access to fish elvers, and requested more information about the regulatory proposal. Discussions about access and in-season fishery management decisions are outside the scope of this regulatory initiative. DFO continues to consult with Indigenous groups and stakeholders on these topics through established processes.

Throughout December 2023 and January 2024, DFO also sent targeted emails to 13 First Nations in Nova Scotia, 15 in New Brunswick, and 2 in Prince Edward Island that described the regulatory proposal, requested feedback on the proposal, and offered to meet to discuss the proposal. The recipient list included First Nations who have licences to fish elvers and those who have expressed an interest in elvers but to date have not had a licence to harvest them.

DFO met separately with 2023 fishing licence holders, Wolastoqey Nations in New Brunswick (WNNB) and the Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO), as well as Millbrook First Nation and the Peskotomuhkati Nation at Skutik, which have expressed an interest in the elver fishery, to present the regulatory proposal.

Through these consultation activities, two First Nations, one in New Brunswick and one in Prince Edward Island who are not involved in the elver supply chain, had no objections to the regulatory proposal.

WNNB expressed in writing that DFO should not introduce new regulations without first addressing their demand, as rights holders, for more access to the fishery. Other First Nations shared this view and told DFO in email exchanges or in meetings that before they consider discussing the proposed regulations, they want to discuss increased access to the elver fishery. The topic of access is outside the scope of this regulatory initiative and is being addressed through separate consultation activities.

Some First Nations also expressed the general view that the proposed possession and export licences would infringe their treaty rights to fish and to sell elvers and create a disproportionate burden on their elver fishing operations. DFO requires more details from First Nation partners on the anticipated impact to treaty rights and fishing operations to inform the regulatory design. Further, some representatives have indicated that DFO’s effort to engage with them to date have not constituted consultations and advised that draft regulations needed to be made available for comment to facilitate consultation. DFO committed to further engaging First Nation representative organizations and member communities directly to seek their views on the proposed regulations and better understand possible impacts. Some First Nations expressed frustration with DFO’s management of the elver fishery in past seasons, specifically the early closure of the fishery in 2023, which meant they were not able to catch their full quota.

DFO held three cross-agency meetings in 2023, with representatives of the CBSA, the Canadian Food Inspection Agency (CFIA), Environment and Climate Change Canada (ECCC), Transport Canada (TC) and the Provinces of Nova Scotia and New Brunswick to discuss ways to strengthen the oversight of the elver supply chain, including new regulations to control possession and export of elvers. The other federal government departments and the Provinces expressed support for a traceability system for the elver supply chain to deter sale and export of unlawfully harvested elvers.

In December 2023, DFO presented the regulatory proposal to the Provinces and Territories at a meeting of the Canadian Council of Fisheries and Aquaculture Ministers (CCFAM) Interjurisdictional Working Group (IWG). Provincial and territorial representatives expressed general support for the regulations. Their key points were to ensure adequate enforcement of the proposed regulations and to find ways to better enforce the elver fishery to control the unlawful fishing activity. DFO also met with representatives of the Province of Quebec to discuss the Province’s American eel Action Plan and their desire to ensure the regulatory proposal would not inadvertently impact the Province’s plan to stock elvers in provincial rivers. Provincial representatives were satisfied that the proposed exception to the prohibition on possessing elvers for the purpose of transfer and release into fish habitat adequately accommodates their restocking program goals.

Pre-publication in the Canada Gazette, Part I

The proposed regulations were pre-published in the Canada Gazette, Part I (CGI) on June 29, 2024, for a 70-day public comment period. DFO advised potentially interested parties, including the stakeholders contacted in December, to the opportunity to provide comments through emails sent on July 2, 2024, and reminders sent on August 8, 2024. In addition, a letter was sent on August 7, 2024, to eight potential exporters of elvers in Ontario for which DFO could not find an email address.

22 First Nations in Nova Scotia and New Brunswick who participate, or have expressed an interest in participating, in the elver fishery were sent emails on June 21, 2024, July 2, 2024, August 8, 2024, and August 30, 2024, requesting to meet to discuss the proposal.

Through the Online Regulatory Consultation System (ORCS), comments were received from 17 commenters, which included elver harvesters, concerned citizens, environmental non-governmental organizations, fisheries organizations, and one First Nation representative group. These can be viewed in the CGI publication. Fifteen (15) of the 17 commenters provided feedback that was supportive of the proposed regulations and/or measures to support the conservation of the species.

Four ORCS commenters requested amendments to the circumstances where a person is exempt from needing a possession licence. Concerns were raised that the exemptions targeting authorized fishers, commercial transporters, and aquaculture facility operators created loopholes that had the potential to be abused by allowing these categories of persons to lawfully possess elvers without being subject to DFO oversight through a possession licence. DFO considers the exemptions to be suitably targeted to minimize administrative burden on Canadian businesses without jeopardizing the desired outcomes of the regulations. The commercial transporters covered by the exemption are generally large multinational companies that have no direct or indirect right or interest in what they are transporting; they just transport packages from point A to point B. Asking such companies to get a possession licence would have little benefit unless they are also asked to verify whether a package contains elver, verify that the sender and recipient hold the proper licences to possess elver, and maintain records. Such verification and record-keeping activities would impose costs on the commercial transporter industry, which DFO considered disproportional to the expected benefit.

In the case of authorized fishers and aquaculture operators, DFO also considers the exemptions to be suitably targeted because these categories of persons must obtain separate licences to fish and engage in fish rearing activities, respectively. Thus, there are other licences in place to ensure these persons possess elvers lawfully and to restrict the scope of their authorized possession activities. DFO will monitor the suitability of these exemptions and, if found to be problematic, will seek to amend them in the future.

Five ORCS commenters called for DFO to impose tighter controls on imported elvers. Commenters highlighted that elver imports in Canada contribute to illegal elver harvesting activities in foreign countries and are used as a method to disguise exports of elvers that were illegally caught in Canadian waters. They requested that the regulations be used to restrict or ban the introduction of imported elver into the Canadian supply chain. While imported elver will be subject to the regulations, DFO had to ensure controls on imported elver are compatible with Canada’s trade agreement obligations and are authorized by the Fisheries Act. For these reasons, the regulations impose the same restrictions on the possession and export of imported elvers as elvers harvested domestically.

Based on comments received from the Provinces of Quebec and Ontario and the Canadian Food Inspection Agency (CFIA), the proposed regulations were modified to exempt employees of provincial governments and the Canadian Food Inspection Agency from needing a possession licence to possess elver in the course of their duties.

During the CGI comment period, DFO discussed the regulatory proposal, including anticipated conditions of licence, at three meetings of the Elver Fishery Management Review Advisory Group. No further feedback on the proposed regulations was received from existing fishing licence holders during these meetings. DFO also held bilateral meetings with six Indigenous groups representing 20 First Nations in Nova Scotia and New Brunswick who responded to DFO’s request to meet to discuss the proposal.

During these meetings, and subsequently through written feedback submitted directly to DFO by five Indigenous groups, First Nation representatives echoed earlier feedback that the proposed regulations infringe upon their treaty right to fish and sell fish in pursuit of a moderate livelihood, and maintained their position that First Nations should not need a licence to exercise their treaty rights. Four Indigenous groups also expressed the desire to self-govern their elver fishery and supply chain activities, including developing, implementing and enforcing their own elver fishery management and conservation plans and traceability measures. Further, two First Nations recommended that DFO keep the elver fishery closed until such a time that they have developed these nation-specific plans.

DFO considers the proposed regulatory scheme to be a necessary and proportional response to the lawlessness observed in the elver fishery in recent years. Without regulatory measures to improve traceability and enforcement in the elver fishery, DFO is of the view that the elver fishery cannot be opened in a safe and orderly manner in 2025 and there is a high likelihood the fishery would remain closed to all participants in 2025 and beyond. The Department does not consider continuing to pre-emptively close the elver fishery to be an acceptable approach because it would continue to have significant socioeconomic impacts, including on the ability of First Nations to exercise their asserted right to catch and sell elvers in pursuit of a moderate livelihood. Under the new regulations, First Nations will be able to continue to exercise their asserted moderate livelihood right to sell fish by obtaining a possession and export licence as necessary, and adhering to the conditions of these licences, similar to how they must obtain a licence and adhere to licence conditions to exercise their asserted right to fish elvers. Alternatively, those uninterested in obtaining a possession and export licence to participate in the post-harvest supply chain can elect to sell their authorized harvests, without any additional licence under the elvers regulations, to another party holding a possession licence, provided this other party is identified on their fishing licence. To enable DFO to identify and act on illegal shipments of elver, the Department must have near real-time, centralized access to data on the movement of lawfully caught elvers in Canada through to export and must be able to inspect and verify supply chain activities of all licence holders. Thus, requests by First Nations to develop their own traceability systems and enforcement protocols are not consistent with the regulatory objective and could not be accommodated.

Modern treaty obligations and Indigenous engagement and consultation

American eel is broadly distributed on Canada’s east coast, as far north as the mid-Labrador coast to English River near Postville. This overlaps with a modern treaty, the Labrador Inuit Land Claims Agreement (LILCA). It is unclear whether elvers, the juvenile life stage of American eel, are present in Labrador, or whether the American eel’s distribution in Labrador Inuit territory occurs solely at later life stages through migration. At present, there is no commercial licence to harvest elvers issued within Nunatsiavut.

As per the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted on this regulatory initiative. The assessment concluded that implementation of this regulatory initiative would likely not have an impact on the rights, interests or self-government provisions of the Labrador Inuit Land Claims Agreement. On December 18, 2023, DFO sent a letter to the Torngat Joint Fisheries Board inviting them to provide feedback on the regulatory proposal and requesting a response by January 5, 2024. No response was received by the requested response date, nor in the several months following. DFO will continue to respect the consultation obligations set out in this implicated modern treaty.

Instrument choice

Only a regulatory solution was considered because of its enforceability. Regulations allow DFO to impose enforceable requirements, including via licence conditions, and impose consequences for non-compliance. When selecting the approach for the regulatory solution, DFO examined what the State of Maine did in response to their similar issue of widespread unauthorized elver harvesting. In discussions with DFO, Maine officials credited their post-harvest control framework as a primary cause for successfully bringing control to their fishery, a framework that is similarly focused on regulating the possession of elver by dealers (buyers, sellers and exporters), tracking inventories and transfers, and inspecting and sealing exports.

Regulatory analysis

The socio-economic impacts related to the regulatory initiative are framed around the concept of cost and benefit analysis, regional economic impacts, and the distribution of economic impacts. This approach is consistent with the one followed in other analyses undertaken by DFO and is aligned with Treasury Board of Canada Secretariat (TBS) requirements for a regulatory impact analysis. Incremental impacts are estimated by comparing a baseline scenario against the regulatory scenario.

Reference hereafter to the “regulatory initiative” encompasses both the regulations and the expected requirements stemming from licence conditions.

Benefits and costs

Analytical framework

Due to data limitations and uncertainties, not all of the identified costs are quantified and monetized and are discussed qualitatively as appropriate. The general Cost-Benefit Analysis (CBA) framework for the present analysis is based on the following:

A time frame of 10 years is used, covering 2025 to 2034;
A “with and without” approach is adopted to estimate the positive and negative incremental impacts of the regulatory initiative;
All monetized impacts are expressed in 2023 dollars and discounted using a 7% discount rate; and
Incremental costs are estimated for industry including possession licence holders, operators of holding facilities and exporters, and government.

The cost-benefit analysis report is available on DFO’s website.

Baseline and regulatory scenario

The baseline scenario includes existing regulations for commercial fishing which govern commercial fishing licences to allow elver harvesting. Subsequent to harvest, elvers are deposited in holding facilities, where facility operators arrange for their export by air to Asian countries or sell them to intermediary buyers or exporters. However, under the baseline scenario, there are no licences that manage the possession of elvers at the holding facilities and the export of elvers.

Under the regulatory scenario, additional licences are required for businesses and individuals to possess and export elvers. The regulatory initiative also imposes requirements to keep elvers harvested in Canada and imported elvers in separate tanks at the holding facilities. Therefore, these requirements impose incremental costs.

Incremental costs

Industry

Incremental costs of the regulatory initiative are borne primarily by possession licence holders which includes holding facility operators, while a minor portion is incurred by export licence holders.

Changes to the industry costs compared to CGI

The incremental costs estimated and presented in CGI have been revised by the Department based on an improved understanding of the reporting and recordkeeping requirements that are anticipated to be placed on stakeholders to achieve the traceability objectives. Some of the key adjustments that have been made are as follows:

some of the reporting costs and the container costs that were originally ascribed to export licence holders at CGI are now borne by holding facilities operated by possession licence holders. These costs do not reflect additional costs compared to CGI, rather they represent a shift from one type of licence holder to another, and are reflected in the relevant sections below;
to estimate the reporting costs in CGI, it was assumed that reporting would be required on a daily basis (e.g. daily reporting of inventory); however, this assumption has been revised and is now based on the number of export events that would occur in a year. The shift was made due to a better understanding of the functioning of the traceability information management system being developed, which will automate the generation of certain information, reducing the reporting requirements that were previously envisioned; and
the possession licence holder will need less time to prepare and submit reports because the traceability information management system will automatically populate certain information and provide drop down options to select.

As a result of these changes, due to lower reporting costs estimates the total administrative costs to industry have decreased substantially and the revised incremental compliance and administrative costs borne by each group are presented below.

Possession licences

Individuals needing to obtain a possession licence to possess elvers will incur administrative costs to complete the licence application. It is estimated that a total of 93 possession licences will be issued based on the following assumptions:

The number of holding facilities, each of which needs a possession licence, is estimated to be 60;
Exporters are estimated to be 35, however, approximately 80% or 28 exporters would need a possession licence as not all exporters are likely to be in possession of elvers; and
An additional five possession licences have been added to the above to account for uncertainty in these estimates.

Further the cost estimate of the regulatory initiative on possession licence holders is based on the time to complete the licence application of ½ hour at an average wage of $33.55/hour.

The present value of the total incremental costs for possession licence holders is estimated to be approximately $11,700 for 93 possession licences over the 10-year analysis period, with an annualized value of approximately $1,700.

Holding facilities

Most possession licence holders will operate a holding facility, such as a permanent structure with tanks to keep the elver alive. All holding facilities must be operated under the authority of a possession licence. The incremental costs to holding facilities include (a) upgrades to the facility necessary to keep Canadian-caught and imported elvers separate, (b) reporting costs associated with the handling and export of domestic elvers, and reporting costs associated with the import and subsequent handling and export of foreign elvers, (c) recordkeeping requirements (e.g. getting ready for audits, inspections, and investigations), (d) labelling costs to label Canadian-caught and imported elvers, and (e) container costs to segregate Canadian-caught and imported elvers.

The key assumptions for the analysis of the impacts of the regulatory initiative on possession licence holders to operate holding facilities are as follows:

The total number of holding facilities is estimated to be 60, comprising of 17 facilities in Nova Scotia and New Brunswick, and 30 in Ontario. As this is a relatively unknown business, an additional 13 holding facilities have been assumed to account for the possibility of additional holding facilities;
Impacts on holding facilities related to costs for upgrading these facilities are based on:
- Purchase of one additional tank for holding facilities that need to segregate domestic and foreign elvers. It is assumed that 20% or 12 holding facilities need upgrading;
- The cost of a holding tank is assumed to be $1,000 per tank; and
- The upgrade costs are one-time costs and incurred by the holding facilities in year 1;
Reporting costs are associated with the handling and export of Canadian-caught elvers (based on an estimate of 82 events per year and 4.5 hours for reporting per event); and the import and subsequent handling and export of foreign elvers (based on an estimate of 200 events per year and 4.75 hours for reporting per event). The time estimates for these events include all associated reporting tied to the possession of elvers in furtherance to their export.
Activities related to record-keeping take about 10 hours per season;
Labelling costs for holding tanks associated with the segregation of elvers is assumed to be a one-time cost of $100 per holding facility. The only information requirement for the label is for it to be marked with “Foreign Elvers.” As such, once purchased, the label can be used multiple times.
The cost of containers needed to segregate foreign elvers is assumed to be $15 per container and it is further assumed that 300 containers would be needed per year; and
The average wage rate of $33.55/hr is used for estimating the reporting and record-keeping costs.

Based on the above, Table 1 presents the detailed incremental costs to be incurred by holding facility operators.

Table 1: Present value of incremental costs to holding facilities
(In 2023 $, discounted at 7% over 10 years)
Description of costs	Estimated costs (CGI)	Estimated costs (CGII)	Change from CGI to CGII
Upgrades to holding facilities	$12,000	$12,000	$0
Reporting costs	$1,891,020	$234,802	$-1,656,218
Recordkeeping costs	$151,282	$151,282	$0
Labelling costs	$6,000	$6,000	$0
Container costs	$0	$33,819	$33,819
TOTAL COST	$ 2,060,302	$437,902	$-1,622,400

Note: Values may not sum to total due to rounding.

In addition, holding facilities may incur negligible maintenance costs for the additional tanks. This includes testing and monitoring water parameters, periodic water changes, and tank cleaning. These activities are carried out on all tanks not just the newly installed ones, therefore the costs to the facility operators are anticipated to be marginal.

The present value of the total incremental costs for holding facilities is estimated to be approximately $0.4 million for the 60 facilities over the 10-year analysis period with an annualized value estimated to be approximately $62,000.

Export licences

Elver exporters will incur costs related to the completion of the export licence application.

The estimated number of exporters is 35 comprised of 29 existing exporters, 3 potential new exporters, and 3 commercial harvesters. It is further estimated that the time to complete the licence application is ½ hour at an average wage of $33.55/hour.

The present value of total incremental cost to 35 export licence holders is estimated to be approximately $4,400 over the 10-year period with an annualized value of approximately $630. Elver exporters may additionally incur negligible incremental reporting costs to comply with conditions on their export licences to provide their elver export licence number and DFO-assigned export shipment ID to previously optional fields in CBSA export declarations.

Government costs

DFO will incur costs to administer the regulatory initiative and to conduct compliance and enforcement activities, and CBSA will incur negligible incremental costs to assist DFO in these activities as needed. The present value of the total cost to government is estimated to be $25.8 million over the 10-year analysis period with an annualized value of $3.7 million.

The government costs include

Information Management (IM) system to streamline the mandatory reporting of information about the possession and transfer of elvers by licence holders (fishery, possession and export) and strengthen DFO’s ability to track the movement of elvers from authorized fisheries in Canada through the supply chain to the point of export. It will be supported by training and guidance materials for the industry and is estimated to cost approximately $11.3 million;
Costs for enforcement including holding facility inspections, verification and sealing of shipments for export, investigations, prosecutions, and training of enforcement officers. This cost is estimated to be approximately $6.3 million;
Costs for oversight, engagement, training, and administrative expenses, including communications and training for licence holders, compliance promotion including costs for developing and distributing guidance documentation (such as fact sheets and web material), and legal and other administrative expenses. This cost is estimated to be approximately $5.6 million; and
The cost to develop licence application forms and develop the new possession and export licence regime, as well as annual costs for the review and approval of licence applications, issuing licences, and for the review and analysis of traceability reports submitted by licence holders, and related supply chain oversight costs. This cost is estimated to be approximately $2.5 million.

Amendments to MPFR, Ontario Fishery Regulations (OFR) and Fishery (General) Regulations (FGR)

The amendment to the MPFR to enable DFO to close rivers to elver fishing by variation order without the closure affecting larger eel fishing benefits DFO by facilitating the separate management of these two fisheries. It is not expected to bring a quantifiable benefit to the large eel fishery because DFO has not used section 37(1) of the MPFR to close elver fishing in recent years owing to the collateral impacts it would have had on larger eel fishing. Introducing the prohibition on recreational fishing for elver does not have an impact on anyone because recreational fishing is not currently allowed nor was it anticipated in the future. The other consequential amendments to the OFR and FGR do not result in any incremental impacts on stakeholders as they are being undertaken to ensure that the requirements under the elvers regulations are aligned with the requirements of these other regulations.

Summary of the cost-benefit analysis

In summary, the regulatory initiative imposes total incremental costs of approximately $0.5 million with an annualized value of $64,600 to industry, and $25.8 million with an annualized value of $3.7 million to the government.

The regulatory initiative does not result in any incremental benefits.

Table 2 summarizes the incremental costs.

Table 2: Monetized incremental costs (in 2023 $, discounted at 7% over 10 years)
Impacted stakeholder	Description of cost	Base year	Mid year	Final year	Total present value	Annualized value
Government	Total	$2,794,074	$1,811,796	$1,291,786	$25,765,513	$3,668,429
Industry	Time to complete possession licence application	$1,560	$1,190	$849	$11,724	$1,669
	Holding facility upgrades	$12,000	-	-	$12,000	$1,709
	Holding facility reporting	$31,243	$23,835	$16,994	$234,802	$33,430
	Holding facility record-keeping	$20,130	$15,357	$10,949	$151,282	$21,539
	Holding facility labelling costs	$6,000	-	-	$6,000	$854
	Holding facility export containers	$4,500	$3,433	$2,448	$33,819	$4,815
	Time to complete export licence application	$587	$448	$319	$4,412	$628
	Total Industry Costs	$76,021	$44,264	$31,559	$454,039	$64,645
All stakeholders	TOTAL COSTS	$2,870,095	$1,856,060	$1,323,345	$26,219,552	$3,733,074

Note: Values may not sum to total due to rounding.

Sensitivity analysis

Due to the uncertainty around the number of estimated possession licence holders and the number of holding facilities requiring an upgrade, an analysis was undertaken to assess the impact of changes to these two groups. To account for this uncertainty, we extended the analyses to 139 possession licence holders (46 more possession licence holders than the ones estimated above). These include 59 buyers in Nova Scotia and New Brunswick, 41 buyers in Ontario, 35 exporters, and 4 commercial fishing licence holders. In addition, the number of holding facilities that may need upgrades was doubled, from 12 to 24, to account for the uncertainty.

As a result of the changes to possession licence and holding facility upgrades, the total incremental cost to industry increases by approximately $18,000, an increase of less than four percent. The main contributor to the increase in total costs to businesses is due to the increase in the number of holding facilities needing upgrades which accounts for 67% of the increase in costs.

Small business lens

Businesses regulated under the new regulations all fall in the category of small businesses. The incremental costs anticipated from the regulatory initiative on small businesses include costs incurred for application of possession and export licences, reporting and recordkeeping. However, these costs do not impose any significant burden on small businesses (see Table 3 below). The regulatory initiative is the least burdensome option for small businesses as it allows for the opportunity for continued involvement in the elver fishery, without undermining the objectives of the regulatory initiative.

Table 3: Costs (in 2023 $, discounted at 7% over 10 years)
Administrative or compliance	Description of cost	Present value	Annualized value
Administrative	Time to complete licence application for possession and export licences, and holding facility reporting and recordkeeping costs	$402,220	$57,266
Compliance	Holding facility upgrades, holding facility container labelling, extra export containers	$51,819	$7,378
Total	Total costs	$454,039	$64,644

One-for-one rule

The one-for-one rule applies as the regulatory initiative imposes incremental administrative costs on businesses. The proposal is considered burden IN under the rule, and a new regulatory title (title in) is introduced.

The new administrative requirements relate to (i) licence applications (for possession and export activities), (ii) reporting activities (related to the handling and export of Canadian-caught elvers, and to the import and subsequent handling and export of foreign-caught elvers), and (iii) seasonal record-keeping activities. As such, the regulations would result in an annualized administrative total cost of $19,075.

As per the Red Tape Reduction Regulations, the assessment of administrative impacts was conducted for a period of ten years commencing from registration. All values listed in this section are presented in 2012 dollars, discounted to 2012 at a rate of 7%.

Table 4: Administrative Costs (constant 2012 Canadian $, PV base year 2012)
Description	Amount
Annualized Administrative Costs	$19,075
Annualized Administrative Costs Per Business	$101

Regulatory cooperation and alignment

The regulatory initiative is not related to a work plan or commitment under a formal regulatory cooperation forum.

Effects on the environment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was completed to determine whether the implementation of the regulatory initiative may result in important environmental effects. It was determined that the regulatory initiative may result in important positive environmental effects if the intended outcome of reduced unlawful fishing is achieved.

Reduced total fishing pressure on elvers will help to conserve the population of American eels. Unauthorized fishing activity is more likely to damage sensitive fish habitat and disregard the mitigating measures imposed on licensed elver fishers, including caps on the amount of elver that can be taken from any individual river and gear placement restrictions intended to reduce bycatch and allow some elvers to pass. Therefore, reducing unauthorized fishing activity may have a positive ecological impact beyond just reducing the total amount of elver harvested in Canada. The regulatory initiative helps support Goal 15 of the Federal Sustainable Development Strategy, which is to protect and recover species and conserve Canadian biodiversity. It also helps support Goal 14: Preserve and protect Canada’s oceans, in particular target 14.4 about effectively regulating harvesting and ending overfishing, illegal, unreported, and unregulated fishing activities.

Gender-based analysis plus

The demographic group that is anticipated to be most impacted by the regulations is predominantly male, over the age of 45, and does not hold a post-secondary diploma or degree. The other key demographic group would be Indigenous communities, particularly as discussions about access and allocation in this fishery continue. These groups would also benefit from the anticipated result of the regulations, which is to return proper control and management to the fishery.

Rationale

The immediate impact of the regulations is establishing a clear, enforceable offence relating to the unauthorized possession of elvers in Canada. The regulations make it an offence to possess elver without a possession licence, with limited exemptions primarily for those harvesting elvers under a fishing licence. This will have an immediate impact because fishery officers and other enforcement personnel can promptly determine whether an offence has occurred when someone is found to be in possession of elvers. In contrast, with the existing offence of possession of fish caught in contravention of the Fisheries Act or its regulations, enforcement personnel must engage in time and resource-intensive investigation activities to prove that the possessed elvers were caught unlawfully. The regulations are expected to result in more possession-related infractions, which will provide a general deterrent to anyone operating outside the regulated fishery.

Implementation of the regulatory initiative is expected to make it harder for unauthorized harvesters to find willing buyers for their elver, because licensed participants in the elver distribution chain will be subject to inspection and verification, making it riskier for them to handle unlawfully harvested elver. Unlicensed exporters who try to operate outside the new licensing framework will also find it harder to export their containers which lack the new measures (e.g. sealing, unique identifier) being introduced to differentiate legal versus illegal elver exports arriving at the airport. As unauthorized harvesters experience challenges finding willing buyers and exporters, it is assumed that this may cause many unauthorized harvesters to cease harvesting elver. These losses are not considered in the cost-benefit analysis because they lack standing as they arise from an unlawful activity.

Applicability of the regulations to imported juvenile eels

Elvers are imported into Canada from other countries, such as Haiti, the Dominican Republic, and Cuba, predominantly for re-export to Asian markets. The regulations include requirements and prohibitions applicable to imported elver because the transit of foreign elvers through Canada provides an opportunity to launder and disguise elvers that were caught unlawfully in Canada, as unlawfully caught elver could be mixed in with these exports of imported elver. Under the regulations, imports of juvenile eels from other countries may continue but imported elver are subject to the regulations, including requirements related to needing possession and export licences. To facilitate traceability and tracking of Canadian-caught elvers, licence holders will be required to keep domestic elver and imported eels less than 10 centimetres in length, regardless of species, separated within their facilities and during export, and separately track inventories and transfers of domestic versus imported elver.

Implementation, compliance and enforcement, and service standards

Implementation

The regulations respecting the possession and export of elver and the amendments to the MPFR, Ontario Fishery Regulations, 2007 and Fishery (General) Regulations come into force on March 1, 2025, rather than on registration as proposed at prepublication. DFO has determined that a March 1 coming into force is needed to help provide for an orderly transition to the new licensing framework. The additional time will ensure that DFO can support new licence holders through compliance promotion measures to familiarize new entrants with the requirements. It will also allow those who require new licences time to ask questions and apply for and obtain the appropriate licence(s) before the regulations come into force on March 1.

Interested parties may apply to DFO for an elver possession or export licence under the regulations. More information on the application process and obligations of licensees is available on DFO’s website.

DFO will issue possessions and export licences for a validity period of one year, and licensees need to obtain a new licence each year.

DFO does not intend to limit the number of new possession and export licences, which means they will be issued to all eligible applicants. The two criteria to apply for a licence are that an applicant must not be in default of a payment for a fine in relation to a contravention under the Fisheries Act, and that any holding facilities to be identified on a possession licence must be located at a fixed location and may not be a private dwelling.

Conditions of licence

Some elements of the new possession and export control framework will be implemented through specifying terms and conditions on licences. This approach allows flexibility and adaptability as the industry changes and oversight needs evolve.

On coming into force of the regulations, DFO expects to impose conditions on possession licences that

require licence holders to clearly label all domestic elver shipments with the following information: contents “Live Juvenile Eels (Elvers),” wet weight of elvers (kgs), and possession licence numbers of the sender and domestic recipient;
require licence holders with holding facilities to report on all transfers in and transfers out as they occur, including the sources of incoming elver and the destinations and transporters of outgoing elver. The conditions of licence for possession licence holders who do not operate a facility are not anticipated to include reporting requirements;
require licence holders to notify DFO 48 hours in advance of when they expect to prepare a shipment for export and provide the anticipated weight of the elvers, anticipated date of export, and the anticipated transporter and airport of export;
describe the requirements that must be met to prepare a package of elvers for export, including related to sealing and labelling;
restrict the number of persons who are authorized under a possession licence to possess elvers offsite of the possession licence holder’s holding facility for the purposes of transport;
require licence holders to notify DFO in advance of taking possession of imported elver at an international airport or a customs-controlled Canada-United States land border crossing.

DFO expects to impose conditions on export licence holders that require exporters to input certain information into their export declaration to CBSA including, their export licence number and DFO-issued shipment identification number.

Compared to the anticipated licence conditions outlined in the CGI RIAS, the above licence conditions differ as follows:

The conditions related to notifying DFO 48 hours in advance of packaging a shipment for export and requirements for such packaging events (i.e. the third and fourth bullets in the list above) were transferred from export licences to possession licences. Preparing a shipment of elvers for export requires one to possess elver, and not all export licence holders will also have a possession licence to possess elvers. Therefore, it is more appropriate for possession licence holders to be responsible for requirements related to packaging, sealing and verification of export shipments.
The condition restricting the number of persons authorized to possess elvers offsite is new. DFO will allow holding facility operators to authorize individuals to transport elvers offsite under their possession licence, rather than to require these employees to get their own possession licence; however, the holding facility must limit the number of individuals it authorizes for offsite transport to keep a level of control over the activity.
The condition requiring possession licence holders to notify DFO in advance of taking possession of imported elver is new. It was added in response to concerns expressed during consultations about the importance of tracking what is being imported to reconcile the sources of all exports.
The previously proposed licence condition restricting the times of year a possession licence holder may possess Canadian-caught elver was eliminated based on feedback during consultations that it is already common business practice to export these elvers in a limited timeframe following harvest.

The performance of the new regulations will primarily be assessed by monitoring levels of observed and reported unlawful fishing activity, which inform DFO’s estimates of the level of unauthorized harvests. These data will be compared to baseline levels of observed and reported unlawful fishing activity in the years before the regulations come into effect to assess the impact of the new licensing scheme on unlawful harvest. In addition, the reporting conditions of possession and export licences will be used to track and compare the quantity of elvers reported for export against reporting data from fishing licence holders on harvest quantities. These data, and any additional management measures targeting the elver harvest, will be used to assess whether traceability and enforcement efforts are effective at deterring the introduction of unlawfully harvested elver into the regulated supply chain.

Compliance and enforcement

DFO will continue to allocate its fishery officers, as needed, to and within DFO Regions to ensure the proper management and control of fisheries. To enforce the new regulations along the elver distribution chain, reallocated officers will be made available to support the inspections of holding facilities and the packaging of elvers for export. Through implementing this regulatory initiative, DFO will gain additional insight into the overall lawful and unlawful elver supply chain, which will improve its intelligence-gathering efforts and ultimately allowing it to better direct its enforcement resources in future seasons.

Licensed participants

DFO will regularly analyze the records provided by licence holders and periodically conduct on-site inspections and verification activities to verify compliance with the regulations. In particular, DFO, aided by an information management system, will scrutinize the transfer and inventory records of all licence holders together, to track the movement of elver within the licensed supply chain and verify compliance with provisions restricting from whom elvers may be obtained and to whom they may be transferred, among other things. During on-site activities, DFO will verify that the quantity of elvers on-site matches the data reported and will verify compliance with the requirements to keep domestic and imported elver separated.

DFO will oversee elver export shipment sealing events to verify export quantities through on-site presence at elver holding facilities at this critical stage of the export supply chain. Export shipment sealing events will improve DFO’s understanding of export data and deter falsification of in-season reporting data on holding facility transfers and exports. Fishery officers will verify the weight and contents of the export shipment, oversee its packaging, apply a tamper-proof seal, and label the shipment container with a unique DFO-issued export shipment number. DFO plans to use an intelligence-supported, risk-based approach to determine which export packaging events fishery officers will attend.

Collectively, the on-site activities will send a clear message to all industry participants that the regulations are being strictly enforced and serve to promote regulatory compliance.

Those who try to operate outside of the regulations

The regulations will help DFO identify and act against unlawful actors. DFO’s ability to act on information and complaints of unlawful possession and export will be enhanced by being able to lay charges for possession or export of elver without the required licence, compared to relying on existing prohibitions requiring evidence that the elver were originally unlawfully caught. Consistent sealing and labelling standards for export shipments will improve enforcement officer ability to distinguish between legal and illegal elver shipments.

DFO will continue to conduct targeted riverside monitoring and enforcement activities during the elver fishery in Atlantic Canada.

Coordination with CBSA

CBSA will continue to carry out current activities, including sharing intelligence data with DFO, participating in ad hoc examinations including coordinated blitzes with DFO, sharing import and export data to enable DFO to review reporting records from licence holders and conduct post-export compliance verification, and detaining shipments and notifying DFO enforcement officers when suspicious shipments for export are identified. These activities fall within CBSA’s day-to-day operations in fulfillment of their mandate.

Penalties

As regulations pursuant to the Fisheries Act, penalties for offences to the regulations include fines and imprisonment for repeat offenders. Under the Fisheries Act, non-compliance with terms and conditions of a licence may result in fines of up to $100,000 for an offence punishable on summary conviction or up to $500,000 for an indictable offence. A person who contravenes the regulations may be liable for a fine up to $100,000 for a first offence punishable on summary conviction. Subsequent offences punishable on summary conviction may result in a fine of up to $100,000 or imprisonment for a term not exceeding one year, or both. For an indictable offence, the first offence may result in a fine of up to $500,000, and subsequent offences may result in a fine of up to $500,000 or imprisonment for a term not exceeding two years, or both.

Non-compliance with terms or conditions of licences may result in fines of up to $100,000 for an offence punishable on summary conviction, or up to $500,000 for an indictable offence. A fishery officer also has the option to issue a ticket with a $750 fine to licence holders for contraventions of licence conditions.

Contact

Marc Clemens
Manager
Domestic Fisheries Policy
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: DFO.Elver-Civelle.MPO@dfo-mpo.gc.ca

Possession and Export of Elvers Regulations: SOR/2024-237

TABLE OF PROVISIONS

Possession and Export of Elvers Regulations

Definitions

Application

Possession of Elvers

Export of Elvers

Containers

Retention of Records

Application of Fishery (General) Regulations

Consequential Amendments

Coming into Force

Possession and Export of Elvers Regulations

Definitions

Application

Possession of Elvers

Export of Elvers

Containers

Retention of Records

Application of Fishery (General) Regulations

Consequential Amendments

Fishery (General) Regulations

Maritime Provinces Fishery Regulations

Table 1 Notes

Ontario Fishery Regulations, 2007

Coming into Force

REGULATORY IMPACT ANALYSIS STATEMENT

Executive summary

Issues

Background

Post-harvest export supply chain

Objective

Description

A. Regulations respecting the possession and export of elvers

B. Amendments to the MPFR

C. Amendment to the Ontario Fishery Regulations, 2007

D. Amendment to the Fishery (General) Regulations

Regulatory development

Consultation

Pre-publication in the Canada Gazette, Part I

Modern treaty obligations and Indigenous engagement and consultation

Instrument choice

Regulatory analysis

Benefits and costs

Analytical framework

Baseline and regulatory scenario

Incremental costs

Industry

Possession licences

Holding facilities

Export licences

Government costs

Amendments to MPFR, Ontario Fishery Regulations (OFR) and Fishery (General) Regulations (FGR)

Summary of the cost-benefit analysis

Sensitivity analysis

Small business lens

One-for-one rule

Regulatory cooperation and alignment

Effects on the environment

Gender-based analysis plus

Rationale

Applicability of the regulations to imported juvenile eels

Implementation, compliance and enforcement, and service standards

Implementation

Conditions of licence

Compliance and enforcement

Licensed participants

Those who try to operate outside of the regulations

Coordination with CBSA

Penalties

Contact