Vol. 148, No. 15 — July 16, 2014
SOR/2014-173 June 24, 2014
AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES ACT
Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations
The Minister of Health, pursuant to subsection 4(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (see footnote a), makes the annexed Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
Ottawa, June 20, 2014
Minister of Health
REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS
1. Schedule 1 to the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (see footnote 1) is amended by adding the following after Part 2:
MEAT INSPECTION ACT AND MEAT INSPECTION REGULATIONS, 1990
DIVISION 1 MEAT INSPECTION ACT
(R.S., c. 25 (1st Supp.))
Provision of Meat Inspection Act
|1.||3(2)||Operate a registered establishment without a licence||Very serious|
|2.||5(a)||Apply or use a meat inspection legend without authorization||Very serious|
|3.||5(b)||Advertise, sell or possess for such a purpose a thing bearing, or in connection with which it is used, the meat inspection legend without authorization||Very serious|
|4.||6(a)||Apply or use any legend, word, mark, symbol or design likely to be mistaken for the meat inspection legend||Very serious|
|5.||6(b)||Advertise, sell or possess for such a purpose a thing bearing, or in connection with which it is used, any legend, word, mark, symbol or design likely to be mistaken for the meat inspection legend||Serious|
|6.||7||Export a meat product without meeting requirements||Serious|
|7.||8||Send or convey a meat product interprovincially without meeting requirements||Serious|
|8.||9(1)||Import a meat product without meeting requirements||Serious|
|9.||9(2)||Fail to deliver an imported meat product for inspection||Very serious|
|10.||9(3)(a)||Possess an imported meat product that has been unlawfully imported||Very serious|
|11.||9(3)(b)||Possess an imported meat product that has not been delivered to a registered establishment for inspection||Very serious|
|12.||10(1)(a)||Advertise, sell or possess for such a purpose a meat product that has been unlawfully imported||Very serious|
|13.||10(1)(b)||Advertise, sell or possess an imported meat product that has not been delivered to a registered establishment for inspection||Serious|
|14.||10(2)(a)||Advertise, sell or possess for such a purpose a meat product that has been conveyed interprovincially without meeting the prescribed standards or without being packaged and labelled as prescribed||Serious|
|15.||10(2)(b)||Advertise, sell or possess for such a purpose a meat product bearing, or in connection with which it is used, the meat inspection legend without meeting the prescribed standards or without being packaged and labelled as prescribed||Serious|
|16.||13(2)||Fail to give all reasonable assistance or to furnish information to the inspector||Serious|
|17.||14(1)||Obstruct or hinder inspector or make a false or misleading statement to inspector||Very serious|
|18.||14(2)||Remove, alter or interfere with an item seized or detained by an inspector without authority||Very serious|
DIVISION 2 MEAT INSPECTION REGULATIONS, 1990
Provision of Meat Inspection Regulations, 1990
|1.||2.1||Fail to submit a document in writing in the prescribed manner||Minor|
|2.||4||Identify as edible a meat product that does not comply with prescribed requirements||Very serious|
|3.||22.1||Fail to prepare meat products in accordance with prescribed process control requirements||Serious|
|4.||26(1)||Identify for use as animal food a meat product that does not comply with prescribed requirements||Serious|
|5.||29(11)||Transfer a licence to another person||Minor|
|6.||29(12)||Fail to keep and retain records of specific activities or procedures||Serious|
|7.||30.1(1)||Fail to develop, implement and maintain control programs and procedures as prescribed||Very serious|
|8.||30.1(2)||Fail to keep records relevant to the prescribed control programs and procedures||Very serious|
|9.||30.2||Fail to operate a shared inspection program or a post-mortem examination program as prescribed||Serious|
|10.||31||Fail to make available to an inspector any food animal, meat product or thing used in connection with a food animal or meat product||Very serious|
|11.||34(1)||Fail to possess and maintain equipment and material necessary to operate the establishment||Very serious|
|12.||34(2)||Fail to develop, implement or maintain a written sanitation program||Serious|
|13.||34(2.2)||Fail to keep records of monitoring and verification activities and corrective or preventative actions||Serious|
|14.||34(10)||Fail to develop, implement or maintain pest control program as prescribed||Serious|
|15.||43.1||Prepare a food that is a mixture of a fish product and a meat product in a registered establishment||Serious|
|16.||56(1)(a)||Fail to clean and sanitize hands as prescribed||Serious|
|17.||56(1)(b)||Fail to keep clothing sanitary as prescribed||Serious|
|18.||56(2)||Fail to adhere to hygienic practices||Serious|
|19.||56(3)||Fail to wear clothing and footwear that are sound, clean and in a sanitary condition||Serious|
|20.||56(4)||Fail to wear a hair covering or a beard and moustache covering||Minor|
|21.||56(5)||Spit, chew gum, smoke or consume tobacco products or consume food||Serious|
|22.||56(6)||Wear an object or use a substance that may fall into or contaminate a meat product or ingredient||Serious|
|23.||57(1)||Fail to ensure that person with medical condition does not work in an area where there is a risk of contamination||Very serious|
|24.||57(2)||Fail to report symptoms of condition that could be transmitted through a meat product||Very serious|
|25.||57.1(1)||Fail to ensure that personnel are trained or qualified to perform their duties||Serious|
|26.||57.1(2)||Fail to develop, carry out and keep up-to-date a written training program as prescribed||Minor|
|27.||57.1(4)||Fail to keep records of the training of personnel as prescribed||Minor|
|28.||57.2||Fail to carry out control programs as prescribed||Serious|
|29.||58(1)||Fail to ensure that low-acid meat product is thermally processed until commercial sterility is achieved||Very serious|
|30.||59(a)||Fail to keep a written description of scheduled process and recipe of processed low-acid meat product||Very serious|
|31.||59(b)||Fail to keep a written description of scheduled process and recipe of processed low-acid meat product for at least three years||Very serious|
|32.||59(c)||Fail to keep in an establishment a written description of operation and maintenance procedures for units of thermal processing equipment as prescribed||Very serious|
|33.||59(d)||Fail to keep in an establishment a written description of a low-acid meat product recall procedure||Very serious|
|34.||59(e)||Fail to produce on inspector’s request a written statement regarding scheduled process||Very serious|
|35.||59(f)||Fail to retain records containing the prescribed minimum information for product history for at least three years||Minor|
|36.||59(g)||Fail to notify an inspector when a low-acid meat product is to be recalled||Very serious|
|37.||60||Fail to ensure that a low-acid meat product packaged in a hermetically sealed container is processed as prescribed||Very serious|
|38.||60.1(1)||Fail to investigate or notify an inspector when a meat product might constitute a risk to public health or might not meet requirements of Regulations||Very serious|
|39.||60.1(2)||Fail to immediately notify the President when investigation indicates a meat product constitutes a risk to the public health||Very serious|
|40.||60.2(1)||Fail to develop, implement or maintain written procedures for the recall as prescribed||Serious|
|41.||60.2(2)||Fail to develop and maintain product distribution records||Serious|
|42.||60.2(3)||Fail to review product recall procedures or to conduct a product recall simulation at least once a year||Minor|
|43.||60.2(4)||Fail to make available to the inspector the product recall procedures, the product recall simulation results and the product distribution records for the prescribed minimum period||Very serious|
|44.||60.3||Fail to prepare the written procedures as prescribed or to maintain prescribed records for receiving, insvestigating and responding to complaints||Minor|
|45.||67(1)||Fail to perform ante-mortem examination of a bird under supervision of official veterinarian, as prescribed||Serious|
|46.||67(4)||Fail to present a bird at the request of an inspector for ante-mortem inspection||Very serious|
|47.||67(5)||Fail to wait for an inspector’s requested ante-mortem inspection and authorization before slaughtering a bird||Very serious|
|48.||67(8)||Fail to comply with instructions from an official veterinarian||Very serious|
|49.||68||Fail to comply with instructions from an official veterinarian that a food animal must be condemned or held and segregated||Very serious|
|50.||73||Fail to ensure that every food animal designated as held is segregated and identified as being held or any carcass derived from it is identified as being held||Serious|
|51.||80(a)||Use of equipment or instrument for restraining, slaughtering or rendering unconscious any food animal by a person who is not competent to do so without sujecting the animal to avoidable distress or avoidable pain||Serious|
|52.||80(b)||Use of equipment or instrument on any food animal in condition, manner or circumstances that might subject the animal to avoidable distress or avoidable pain||Serious|
|53.||82||Fail to ensure that the blood and parts of a food animal carcass are identified as prescribed||Serious|
|54.||83(1)||Fail to ensure that the carcass of a food animal and all the blood harvested for processing as edible meat product are presented for examination or inspection||Very serious|
|55.||83(4)||Fail to comply with instructions from an official veterinarian||Very serious|
|56.||85(1)||Fail to ensure that the carcass of, parts of the carcass of, or blood harvested from a food animal identified as condemned is handled as prescribed||Serious|
|57.||86(1)||Fail to ensure that a condemned part of the carcass of a food animal is removed from the carcass and handled as prescribed||Serious|
|58.||88(b)||Without an inspector’s consent, treat as condemned a meat product identified as being held||Serious|
|59.||89||Fail to ensure that meat product is packaged and labelled as prescribed||Serious|
|60.||121||Identify as edible a meat product intended for export that does not meet the requirements of the importing country and is not packaged and labelled as prescribed||Very serious|
|61.||122(1)||Fail to package and label a meat product intended for export in accordance with the requirements of the importing country or as prescribed||Serious|
|62.||122(2)||Fail to ensure that a meat product produced for export, that does not meet the requirements for an edible meat product in Canada, is packaged and labelled as prescribed and is labelled as being for export||Minor|
|63.||122.2||Fail to follow the prescribed procedure for the return to Canada of a meat product that was exported from Canada||Serious|
|64.||124||Fail to present a meat product to an inspector for verification at the time and place of its removal||Serious|
|65.||130(1)||Remove or alter an official seal or tag without authorization||Very serious|
|66.||131(1)||Fail to provide the inspector with requested samples||Very serious|
2. The portion of paragraph 3(a) of Part 3 of Schedule 3 to the Regulations in column 2 is replaced by the following:
|3.||(a) serious or widespread harm to human, animal or plant health or the environment;|
COMING INTO FORCE
3. These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues and objectives
When the Agriculture and Agri-Food Administrative Monetary Penalties Act (AMPs Act) was passed in 1995, the intention was to create administrative monetary penalties (AMPs) violations for all of the agri-food statutes listed in the Act; however, this was to be phased in over a number of years. The administration of the three statutes (Health of Animals Act, Plant Protection Act and the Pest Control Products Act) for which administrative penalties are currently available has yielded valuable insights into the use and the applicability of administrative penalties making now an opportune time to expand AMPs to the Meat Inspection Act and the Meat Inspection Regulations, 1990.
The Canadian Food Inspection Agency (CFIA) acts and regulations provide many options for responding to non-compliance, including administrative monetary penalties. These are outlined in the CFIA’s Compliance and Enforcement Operational Policy. The CFIA may respond with, for example, education, written warnings, seizure and detention of product or prosecution when non-compliance is found, depending on the nature of the contravention and the compliance history of the contravener.
These amendments also correct an oversight in Part 3 of Schedule 3. In the current version of this part of the Regulations, “harm to human health” was omitted from one of the items used in determining the extent to which a penalty is adjusted. This omission, if not addressed, could compromise the deterrent objective of this portion of the Regulations.
Description and rationale
The purpose of the AMPs Act is to enhance the enforcement options currently available in respect of seven statutes administered by the Canadian Food Inspection Agency (the Canada Agricultural Products Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Meat Inspection Act, the Plant Protection Act, and the Seeds Act), and one statute (the Pest Control Products Act) administered by Health Canada. The AMPs Act establishes an alternative to the existing penal system and supplements current enforcement measures such as prosecution.
Pursuant to the AMPs Act, the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AMPs Regulations) have been implemented to respond to violations of the Health of Animals Act and Regulations, the Plant Protection Act and Regulations, and the Pest Control Products Act and Regulations. The AMPs Regulations currently set out provisions of these three acts and their regulations, the contravention of which may result in the issuance of warnings or monetary penalties which range from $500 to $10,000. In addition, the AMPs Regulations authorize compliance agreements with persons who commit violations whereby administrative monetary penalties can be reduced or cancelled if persons agree to take appropriate steps to ensure future compliance with the law and these steps include monetary expenditures. There are also appeal mechanisms available to persons who commit violations.
This regulatory proposal will add provisions of the Meat Inspection Act and the Meat Inspection Regulations, 1990, to Schedule 1 to the AMPs Regulations, thereby enabling the issuance of administrative monetary penalties for violation of these provisions. It will also amend paragraph 3(a) of Part 3 of Schedule 3, by including harm to human health as a factor used in determining the total gravity value used in adjusting penalties. Research on AMPs has confirmed that AMPs are appropriate when the following elements are present:
- the regulator has stronger sanctions at their disposal but the monetary penalties can be used to moderate a harsher response;
- speedy adjudication to the enforcement scheme is important;
- specialized knowledge (for example technical expertise) and Agency expertise in the resolution of disputed issues is needed;
- issues of law are rare; and
- consistency of outcome is important.
The ability to use administrative monetary penalties allows the CFIA to be more strategic and proactive in its enforcement approach. Currently, when faced with non-compliance in the meat hygiene sector, the CFIA can either suspend or cancel a licence or registration (which prohibits the regulated party from operating) or recommend prosecution. The Public Prosecution Service of Canada decides whether to pursue the case in the courts. With AMPS, the CFIA has full authority to decide when to issue a monetary penalty. CFIA officials can now work in conjunction with industry associations to act on specific non-compliance issues. The CFIA can advertise in industry newsletters that it and the industry associations are concerned with certain kinds of non-compliance and that when a violation is found, immediate action will be taken.
The experience of other agencies administering similar schemes shows that this approach is very effective in increasing compliance.
Neither the “One-for-One” Rule nor the small business lens requirements apply to this proposal.
(1) Status Quo — Do not amend the current AMPs Regulations
This option does not enable administrative penalties as an additional compliance and enforcement tool for the Meat Inspection Act and the Meat Inspection Regulations, 1990 for the CFIA.
(2) Amend the AMPs Regulations (preferred option)
This option would create AMPs violations for the Meat Inspection Act and the Meat Inspection Regulations, 1990, and provide greater flexibility in compliance and enforcement tools in the meat hygiene sector.
The Beef and Cattle Producers Advisory Committee (BCPAC) was advised of this regulatory proposal in spring 2013 and have communicated it to their membership.
The amendments were prepublished in the Canada Gazette, Part I, on February 22, 2014, followed by a 30-day comment period during which interested parties were invited to submit comments concerning the amendments. The CFIA received a request to extend the comment period to April 7, and this request was granted. The CFIA received eight written submissions from two meat processors and six industry associations. There was also an editorial published in the Calgary Herald that was supportive of the expansion of AMPs into the meat sector. The CFIA has reviewed each of the comment submissions and provides the following responses to the concerns that were raised:
- Why proceed with the expansion of AMPs now? Why not wait until publication of the regulations under the Safe Food for Canadians Act and cover all food?
- To date, the CFIA has not used AMPs in the context of food safety. The CFIA plans to introduce AMPs in different phases. Experience gained through the implementation of AMPs in the meat sector will guide its implementation in other food commodities.
- How will the implementation of these amendments work? How and when will the new penalties be applied and how will consistent application be ensured?
- The Regulations will come into force on the day on which they are registered.
- The CFIA is developing an implementation strategy and will consult with industry on this strategy.
- Given that CFIA inspection staff in the meat sector have not previously had access to AMPs as an enforcement tool, time for training and education will be needed prior to notices of violation being issued. This will ensure consistent implementation of AMPs.
- Consultation was lacking prior to the publication of the amendments.
- As mentioned above, there was formal notification of the intention to move to AMPs in the meat sector provided to BCPAC. The Government of Canada also made a public announcement on November 21, 2013, about its intent to introduce AMPs for meat sector. In addition, the Government’s plans to move forward with the use of AMPs as an enforcement tool in the food sector were signalled clearly in the passage of the Safe Food for Canadians Act.
- The CFIA will consult with industry on the development of the implementation strategy for AMPs.
- How do the classification levels correspond to fine levels? Should the penalty not be proportionate to the infraction? Won’t this impact unfairly on small business?
- The penalties linked to each classification level are set through the AMPs Act, which sets out the maximum amounts allowable for each classification level, and the AMPs Regulations, which sets the penalty amount for each classification level.
- The AMPs legislation also provides for the penalty amounts to be varied based on harm, history and intent.
- AMPs are an enforcement tool intended to encourage compliance with regulatory requirements regardless of the size of business.
- How do these amendments relate to some of the other initiatives that the CFIA has undertaken, including inspection modernization, compliance promotion and transparency?
- Administrative monetary penalties are an additional option to respond to non-compliance, and the CFIA acts and regulations provide many options for responding to non-compliance.
- The expansion of AMPs to the meat sector is aligned with the CFIA modernization agenda, as it provides an additional enforcement resource in the modernized inspection regime.
- Publication of information pertaining to issued AMPs on the Agency Web site will promote compliance by acting as a deterrent.
The “One-for-One” Rule does not apply to this amendment, as there are no associated administrative costs or savings.
Small business lens
The small business lens does not apply to these amendments, as there are no costs on small business.
Implementation, enforcement and service standards
The regulatory amendment will be communicated to inspectors and investigators.
This amendment does not change any requirements for regulated parties. There will be no adjustments to the current CFIA Compliance and Enforcement Operational Policy. No additional resources will be required.
Dr. Parthiban Muthukumarasamy
Meat Programs Division
Canadian Food Inspection Agency
1400 Merivale Road, Tower 1, Floor 4, Room 228
Mr. Doug Milne
Enforcement and Investigation Services
Canadian Food Inspection Agency
1431 Merivale Road, Floor 3, Room 118