Canada Gazette, Part I, Volume 146, Number 51: Regulations Amending the Port Authorities Operations Regulations

December 22, 2012

Statutory authority

Canada Marine Act

Sponsoring department

Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Background

In January 2012, the Oshawa Harbour Commission was established as a Canadian port authority, under subsection 10(1) of the Canada Marine Act.

The Canada Marine Act gives Canadian port authorities the general duty to take appropriate measures for the maintenance of order and the safety of persons and property at their ports, and powers to control ship traffic for the purposes of promoting safe and efficient navigation and environmental protection. The Port Authorities Operations Regulations (the Regulations) provide a framework within which these duties and powers are to be carried out. In particular, they set up a scheme that enables the port authorities to authorize certain activities in respect of the navigable waters and the works and activities on properties managed, held, or occupied by the port.

In addition, the proposed amendment would make linguistic changes to paragraph 27(1)(b) and paragraph 31(1)(c) to make the French and English versions consistent.

Objectives

The proposed amendment is to enable the Oshawa Port Authority to carry out its duty to maintain the safe and orderly operation of the port.

This proposed amendment will also make the French and English versions of paragraph 27(1)(b) and paragraph 31(1)(c) of the Regulations consistent with one another.

Issue

The proposed regulatory amendment is part of the transition measures resulting from the establishment of the former Oshawa Harbour Commission as a Canadian port authority. While the port was a harbour commission, its safe and orderly operation was regulated by the Harbour Commissions Act and the associated Regulations, the Oshawa Harbour Commission By-Laws. A transition measure in the Canada Marine Act allows these By-Laws to remain in effect for 12 months following the establishment of the Oshawa Port Authority.

As a Canadian port authority, the port’s safe and orderly operation will be regulated by the CanadaMarine Act and associated Regulations, in line with all other Canadian port authorities.

Housekeeping amendments to paragraph 27(1)(b) and paragraph 31(1)(c) of the Regulations are also proposed to ensure that the English and French versions are consistent with one another.

Description

The port’s authorities and requirements relating to the safe and orderly operation of the port have been implemented under the Harbour Commissions Act and the Oshawa Harbour Commission By-Laws. The proposed amendment to the Regulations would not change the requirements concerning the safe and orderly operation of the port but would change the instrument under which these authorities are exercised.

Schedule 1 of the Regulations contains lists of port activities that are either prohibited or require special authority to carry out. There is a separate list of activities for each Canadian port authority.

The proposed amendment to these Regulations would add a new part to Schedule 1 that would contain the activity list for the Oshawa Port Authority; indicate whether an activity is prohibited or permitted; and if permitted, determine how authorization is provided.

As well, housekeeping amendments are proposed to respond to the recommendation of the Standing Joint Committee for the Scrutiny of Regulations concerning paragraphs 27(1)(b) and 31(1)(c) of the Port Authorities Operations Regulations. The changes that are being proposed seek to make the versions equivalent in both languages by changing the French text to make it clear that the provisions apply to any person who “is unable to comply with the conditions” (section 27) or if “any person covered by an authorization fails to comply with a condition of the authorization” (section 31). The current French version applies only where all persons covered by an authorization are unable to comply or fail to comply with the conditions.

Consultation

Transport Canada consulted management of the Oshawa Port Authority in August 2012 with respect to the proposed amendment to Schedule 1 of the Regulations, which resulted in the proposed activities list for the port.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

No incremental cost to small business is expected as the proposed regulatory amendments are to change the instrument through which the Oshawa Port Authority exercises its authority to maintain the safe and orderly operation of the port, and to make the English and French versions consistent with one another in certain sections of the Regulations.

Rationale

The proposed regulatory amendment would only change the instrument under which the port’s authorities are exercised by changing the current authority under the Harbour Commissions Act to the authority under the Port Authorities Operations Regulations.

The status quo is not an option as the Oshawa Port Authority must adhere to the same legal regime as all other Canadian port authorities. Including the Oshawa Port Authority in the Regulations will subject the port to a nationally established standard for safety and order at Canadian port authorities and allow the port to discharge its duties to meet this standard.

In order to maintain accuracy and consistency in regulations concerning Canadian port authorities, rectifying the linguistic issues identified by the Standing Joint Committee for the Scrutiny of Regulations in paragraph 27(1)(b) and paragraph 31(1)(c) is necessary.

Implementation, enforcement and service standards

There are no additional requirements related to the implementation of the proposed regulatory amendment. The Minister of Transport has designated port employees as enforcement officers with respect to Canadian port authorities and the Canada Marine Act, including the Regulations. Part 4 of the Canada Marine Act provides enforcement officers with powers of inspection, search and seizure, detention and removal of ships, and sale and removal of goods.

Section 126 provides that a person is guilty of an offense if the person obstructs or hinders an enforcement officer. Section 127 of the Canada Marine Act provides that a person who contravenes the Regulations is guilty of an offence and liable to a fine of not more than $5,000, in the case of an individual, and of not more than $50,000, in the case of a corporation. It further provides, however, that no person shall be found guilty of such an offence if the person establishes that the person exercised due diligence to prevent its commission.

Contact

Tim Meisner
Director General
Marine Policy
Transport Canada
Place de Ville, Tower C, 25th Floor
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Fax: 613-998-1845
Email: OPAregulations-APOreglements@tc.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 62(1) (see footnote a) of the Canada Marine Act (see footnote b), proposes to make the annexed Regulations Amending the Port Authorities Operations Regulations.

Interested persons may make representations to the Minister of Transport with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must be in writing and cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be sent to Tim Meisner, Director General, Marine Policy, Department of Transport, Place de Ville, Tower C, 25th Floor, 330 Sparks Street, Ottawa, Ontario K1A 0N5 (fax: 613-998-1845; e-mail: OPAregulations-APOreglements@tc.gc.ca).

Ottawa, December 13, 2012

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE PORT AUTHORITIES OPERATIONS REGULATIONS

AMENDMENTS

1. Paragraph 27(1)(b) of the French version of the Port Authorities Operations Regulations (see footnote 1) is replaced by the following:

  • b) la mention « X » figure à la colonne 2 et la personne ou l’une quelconque des personnes qui seraient visées dans l’autorisation n’est pas en mesure de respecter les conditions affichées ou indiquées sur des formulaires pour l’exercice de l’activité en vertu de l’article 25.

2. Paragraph 31(1)(c) of the French version of the Regulations is replaced by the following:

  • c) la personne ou l’une quelconque des personnes visées dans une autorisation ne respecte pas les conditions rattachées à l’autorisation;

3. Schedule 1 to the Regulations is amended by adding the following after Part 6:

PART 6.1

OSHAWA PORT
Item

Column 1

Activity

Column 2

Authorization by posted signs or forms (section 25)

Column 3

Authorization
to a person (section 27)

Column 4

Prohibited (section 6)
1. conducting a diving operation   X  
2. carrying out hot work   X  
3. conducting salvage operations   X  
4. placing, storing, handling or transporting dangerous goods, industrial waste or pollutants   X  
5. bunkering or fuelling   X  
6. releasing or transhipping refuse or other similar material or substance   X  
7. carrying out
  • (a) an oil transfer operation, a chemical transfer operation or a liquefied gas transfer operation between ships
  • (b) a liquefied natural gas (LNG), liquefied petroleum gas (LPG) or gas vapour transfer
    X


X		  
8. conducting a dredging operation   X  
9. excavating or removing any material or substance   X  
10. setting off a flare or other signalling device   X  
11. placing or operating a light or day marker   X  
12. placing, altering, removing or relocating an aid to navigation, buoy, mooring, float, picket, mark or sign   X  
13. casting adrift a ship, log or other object     X
14. bringing railway rolling stock onto the property managed, held or occupied by the port authority   X  
15. building, placing, rebuilding, repairing, altering, moving or removing any structure or work on, in, over, under, through or across land or water   X  
16. fishing
  • (a) in a designated area under a scientific permit issued by the Department of Fisheries and Oceans
  • (b) in a designated area without a scientific permit issued by the Department of Fisheries and Oceans
  • (c) anywhere else















X		   X



X 		 
17. conducting a race, regatta, trial, demonstration, organized event or similar activity   X  
18. causing a fire or explosion, conducting blasting or setting off fireworks     X
19. placing a placard, bill, sign or device   X  
20. selling or offering for sale goods or services   X  
21. distributing circulars, leaflets or advertising materials   X  
22. engaging in any form of solicitation   X  
23. engaging in any type of recreational water activity
  • (a) in a navigation channel or in the vicinity of a commercial dock
  • (b) anywhere else
 
X


X		    
24. venturing out onto ice     X
25. travelling at a reduced rate of speed so as to not cause damage by bow-wave or wash to other crafts, tows, wharfs or structures or to any work or person X    

COMING INTO FORCE

4. These Regulations come into force on the day on which they are registered.

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