Canada Gazette, Part I, Volume 155, Number 28: Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999)
July 10, 2021
Statutory authority
Canadian Environmental Protection Act, 1999
Sponsoring department
Department of the Environment
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
Inadvertently, the proposed and final Formaldehyde Emissions from Composite Wood Products Regulations (the Formaldehyde Regulations) were published in the Canada Gazette, Part I and Part II, without the related proposed and final amendments to the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) [the Designation Regulations]. As a result, the penalties available to address non-compliance with respect to the Formaldehyde Regulations are not consistent with those available for similar regulations made under the Canadian Environmental Protection Act, 1999 (CEPA). Accordingly, the Minister of the Environment (the Minister) is proposing that the Administrator in Council add the prohibition provisions set out in the Formaldehyde Regulations to the schedule to the Designation Regulations.
Background
The Designation Regulations are a tool used by the Department of the Environment (the Department) to designate various regulatory provisions made pursuant to CEPA as being subject to the fine regime under the Environmental Enforcement Act. Specifically, any regulatory provisions listed in the schedule to the Designation Regulations are subject to a minimum fine and higher maximum fines, should there be a successful prosecution of an offence involving harm or risk of harm to the environment, or obstruction of authority. footnote 1 As of February 2021, there are regulatory provisions associated with 35 regulations listed on the schedule to the Designation Regulations, including several that were made under section 93 of CEPA, such as those related to the control of asbestos, volatile organic compounds, methane, and mercury.
Under section 93 of CEPA, the Minister of Health and the Minister of the Environment published the proposed Formaldehyde Regulations in the Canada Gazette, Part I. The final Formaldehyde Regulations were published in the Canada Gazette, Part II. Once they come into force, the Formaldehyde Regulations will prohibit the import, sale, and offer for sale of composite wood products that emit formaldehyde above established limits, on the basis that formaldehyde in indoor air can cause irritation of the eyes, nose, and throat, may worsen asthma symptoms (especially in children), and, at higher levels, is associated with cancer of the nasal passageways. Inadvertently, the proposed and final regulatory texts for the Formaldehyde Regulations in these publications did not include the proposed and final regulatory text for related amendments to add the prohibition provisions set out in the Formaldehyde Regulations to the schedule to the Designation Regulations, rendering the compliance and enforcement approach in the Formaldehyde Regulations inconsistent with those in similar regulations.
Objective
The objective of the proposed Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) [the proposed amendments] is to achieve consistency in the compliance and enforcement approach used by the Department across similar regulations by adding the prohibition provisions set out in the Formaldehyde Regulations to the schedule to the Designation Regulations, which would designate the Formaldehyde Regulations as being subject to a minimum fine and higher maximum fines, should there be a successful prosecution of an offence.
Description
The proposed amendments would add the prohibitions on the import, sale, and offer for sale of certain composite wood products as set out in the Formaldehyde Regulations to the schedule to the Designation Regulations.
Regulatory development
Consultation
The proposed amendments are administrative in nature and would not introduce any new regulatory requirements, thus no direct impacts on stakeholders are anticipated. Furthermore, amendments to the Designation Regulations were originally intended to be included in the Formaldehyde Regulations, as noted in the “Description” section of the proposed and final Regulatory Impact Analysis Statement for those Regulations. For these reasons, the Department did not conduct any formal pre-consultations on the proposed amendments. However, to promote awareness and increase transparency, the Department sent targeted emails to key stakeholders of the Formaldehyde Regulations (i.e. manufacturers and importers of composite wood products) in order to notify potentially interested parties of this publication and of the associated 75-day public comment period. The Department also informed the provincial and territorial governments about this publication through the CEPA National Advisory Committee footnote 2 via a letter, providing them with an opportunity to comment.
Modern treaty obligations and Indigenous engagement and consultation
An assessment of modern treaty implications conducted in accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation concluded that amendments adding the prohibition provisions set out in certain regulations to the schedule to the Designation Regulations do not introduce any new regulatory requirements and, therefore, do not result in any impact on modern treaty rights or obligations. As a result, specific engagement and consultations with Indigenous peoples were not undertaken. However, the prepublication comment period, which is open to all Canadians, is an opportunity for Indigenous peoples to provide feedback on the proposed amendments.
Instrument choice
Maintaining the status quo would mean that the penalties available to address non-compliance with respect to the Formaldehyde Regulations would remain inconsistent with those for similar regulations, and that the effectiveness with which the Department could promote compliance and enforce the Formaldehyde Regulations would remain compromised. The Department does not have non-regulatory mechanisms that could rectify this enforcement gap. Alternatively, the proposed amendments would correct the inconsistency and increase compliance and enforcement effectiveness through the use of a pre-existing regulatory tool. The Department proposes that the status quo is undesirable relative to the proposed amendments and, accordingly, is identifying an addition to the schedule to the Designation Regulations as the chosen instrument.
Regulatory analysis
Benefits and costs
The proposed amendments would not impose any regulatory requirements on businesses and, therefore, would not result in any incremental costs for stakeholders or the Government of Canada. The proposed amendments would ensure that the penalties available to address non-compliance with respect to the Formaldehyde Regulations are consistent with those available for similar regulations, and would increase the effectiveness with which the Department could promote compliance and enforce the Formaldehyde Regulations.
Small business lens
Analysis under the small business lens determined that the proposed amendments would not impact small businesses in Canada.
One-for-one rule
The one-for-one rule does not apply to the proposed amendments, as there would be no change in administrative costs or burden to business.
Regulatory cooperation and alignment
There is no regulatory cooperation or alignment component associated with the proposed amendments.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required, given that the proposed amendments would not alter the environmental objectives of the affected regulations.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this proposal.
Implementation, compliance and enforcement, and service standards
The proposed amendments would come into force upon their registration. The proposed amendments would not result in any new implementation, compliance, or enforcement implications, as they would only enhance the existing implementation, compliance, and enforcement regimes surrounding the Formaldehyde Regulations. There are no service standards associated with this proposal.
When enforcing the Formaldehyde Regulations under the proposed amendments, the enforcement tools to be applied would be determined by the enforcement officer based on a consideration of what is most appropriate in the circumstances. In cases involving minor situations of non-compliance, a warning, compliance order or ticket may be appropriate, and, in those cases, the increased fine regime would not apply. However, in cases where a violation of a prohibition under the Formaldehyde Regulations is considered a serious offence, prosecution may be the appropriate enforcement tool, and, in such cases, the increased fine regime would apply upon determination of guilt.
Contact
Matthew Watkinson
Director
Regulatory Analysis and Valuation Division
Department of the Environment
200 Sacré-Cœur Boulevard
Gatineau, Quebec
K1A 0H3
Email: ec.darv-ravd.ec@canada.ca
PROPOSED REGULATORY TEXT
Notice is given, pursuant to subsection 332(1) footnote a of the Canadian Environmental Protection Act, 1999 footnote b, that the Administrator in Council, pursuant to section 286.1 footnote c of that Act, proposes to make the annexed Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999).
Any person may, within 75 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Regulations or, within 60 days after the date of publication of this notice, file with the Minister a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to the Director, Forest Products and Fisheries Act, Environmental Protection Branch, Department of the Environment, 351 St. Joseph Boulevard, Gatineau, Quebec K1A 0H3 (email: ec.pflp-fpfa.ec@canada.ca).
A person who provides information to the Minister of the Environment may submit with the information a request for confidentiality under section 313 of that Act.
Ottawa, June 16, 2021
Julie Adair
Assistant Clerk of the Privy Council
Regulations Amending the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999)
Amendment
| Item | Column 1 Regulations |
Column 2 Provisions |
|---|---|---|
| 36 | Formaldehyde Emissions from Composite Wood Products Regulations |
(a) section 5 |
Coming into Force
2 These Regulations come into force on the day on which the Formaldehyde Emissions from Composite Wood Products Regulations come into force, but if they are registered after that day, they come into force on the day on which they are registered.