Vol. 148, No. 13 — June 18, 2014

Registration

SOR/2014-149 June 6, 2014

COASTAL FISHERIES PROTECTION ACT

Regulations Amending the Coastal Fisheries Protection Regulations

P.C. 2014-650 June 5, 2014

His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 6 (see footnote a) of the Coastal Fisheries Protection Act (see footnote b), makes the annexed Regulations Amending the Coastal Fisheries Protection Regulations.

REGULATIONS AMENDING THE COASTAL FISHERIES PROTECTION REGULATIONS

AMENDMENTS

1. The heading before section 2 of the French version of the Coastal Fisheries Protection Regulations (see footnote 1) is replaced by the following:

DÉFINITIONS

2. (1) The definition “observer” in section 2 of the Regulations is replaced by the following:

“observer” means a person who is designated as an observer by a Regional Director-General and is in possession of an identification card indicating that designation; (observateur)

(2) Section 2 of the Regulations is amended by adding the following in alphabetical order:

“NAFO Convention” means the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries; (Convention de l’OPAN)

3. (1) Subparagraph 5(1)(a)(i) of the Regulations is replaced by the following:

(2) Subsection 5(1) of the Regulations is amended by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

4. Section 19.3 of the Regulations is replaced by the following:

19.3 A protection officer may use force under section 8.1 of the Act only if the protection officer is proceeding lawfully and in accordance with the manner set out in sections 19.4 and 19.5 to arrest the master or other person in command of a foreign fishing vessel for the commission of an offence under section 3, paragraph 4(1)(a) or section 5.2 or 5.5 of the Act or of an offence set out in subparagraph 17(1)(a)(ii) of the Act.

5. (1) Subparagraph 21(2)(a)(i) of the French version of the Regulations is replaced by the following:

(2) Table III to section 21 of the Regulations is replaced by the following:

TABLE III

STATES

Item States
1. Cayman Islands

6. Sections 24 to 38 of the Regulations are replaced by the following:

24. (1) A fishing vessel of a participating state may fish in the NAFO Regulatory Area for fish of a stock set out in Annex I.A or I.B of the NAFO Measures only if the participating state is a party to the NAFO Convention.

(2) Despite subsection (1), a fishing vessel of a participating state that is not a party to the NAFO Convention may fish in the NAFO Regulatory Area for the fish referred to in that subsection if the fishing is done under an arrangement that is consistent with the NAFO Measures.

7. Section 41 of the Regulations is replaced by the following:

41. Sections 24 and 40 are designated as regulations whose contravention is prohibited under paragraph 5.3(a) of the Act.

8. The Regulations are amended by adding the following after section 46:

IMPLEMENTATION OF THE NAFO MEASURES

46.1 (1) A protection officer who is acting in the performance of their duties in relation to the NAFO Convention may exercise the enforcement powers set out in the NAFO Measures in the NAFO Regulatory Area with respect to

(2) The protection officer may exercise those enforcement powers in Canadian fisheries waters with respect to a foreign fishing vessel referred to in paragraph (1)(a) or (b).

9. The portion of section 47 of the Regulations before paragraph (a) is replaced by the following:

47. If a fishing vessel of a participating state is seized and, following a further investigation in port, the protection officer continues to have reasonable grounds to believe that an offence has been committed under section 24 or 40, Her Majesty in right of Canada may recover

10. Schedule IV to the Regulations is replaced by the Schedule IV set out in the schedule to these Regulations.

COMING INTO FORCE

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

SCHEDULE
(Section 10)

SCHEDULE IV
(Section 22)

Item Participating State
1. The Commonwealth of Australia
2. The Republic of Austria
3. The Commonwealth of the Bahamas
4. The People’s Republic of Bangladesh
5. Barbados
6. The Kingdom of Belgium
7. Belize
8. The Federative Republic of Brazil
9. The Republic of Bulgaria
10. Cook Islands
11. The Republic of Costa Rica
12. The Republic of Croatia
13. The Republic of Cyprus
14. The Czech Republic
15. The Kingdom of Denmark
16. The Kingdom of Denmark (in respect of the Faeroe Islands and Greenland)
17. The Republic of Estonia
18. The European Union
19. The Republic of Fiji
20. The Republic of Finland
21. The French Republic
22. The French Republic (in respect of Saint-Pierre and Miquelon)
23. The Federal Republic of Germany
24. The Republic of Guinea
25. The Hellenic Republic (Greece)
26. The Republic of Hungary
27. The Republic of Iceland
28. The Republic of India
29. The Republic of Indonesia
30. The Islamic Republic of Iran
31. Ireland
32. The Italian Republic
33. Japan
34. The Republic of Kenya
35. The Republic of Kiribati
36. The Republic of Korea
37. The Republic of Latvia
38. The Republic of Liberia
39. The Republic of Lithuania
40. The Grand Duchy of Luxembourg
41. The Republic of Maldives
42. The Republic of Malta
43. The Republic of the Marshall Islands
44. The Republic of Mauritius
45. The Federated States of Micronesia
46. The Principality of Monaco
47. The Kingdom of Morocco
48. The Republic of Mozambique
49. The Republic of Namibia
50. The Republic of Nauru
51. The Kingdom of the Netherlands
52. New Zealand
53. The Federal Republic of Nigeria
54. Niue
55. The Kingdom of Norway
56. The Sultanate of Oman
57. The Republic of Palau
58. The Republic of Panama
59. Papua New Guinea
60. The Republic of Poland
61. The Portuguese Republic
62. Romania
63. The Russian Federation
64. Saint Lucia
65. Saint Vincent and the Grenadines
66. The Independent State of Samoa
67. The Republic of Senegal
68. The Republic of Seychelles
69. Slovak Republic
70. The Republic of Slovenia
71. Solomon Islands
72. The Republic of South Africa
73. The Kingdom of Spain
74. The Democratic Socialist Republic of Sri Lanka
75. The Kingdom of Sweden
76. The Kingdom of Tonga
77. The Republic of Trinidad and Tobago
78. Tuvalu
79. Ukraine
80. The United Kingdom of Great Britain and Northern Ireland
81. The United Kingdom on behalf of Pitcairn, Henderson, Ducie and Oeno Islands, Falkland Islands, South Georgia and South Sandwich Islands, Bermuda, Turks and Caicos Islands, British Indian Ocean Territory, British Virgin Islands and Anguilla
82. The United States of America
83. The Oriental Republic of Uruguay

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Background

The Coastal Fisheries Protection Act (CFPA) and the Coastal Fisheries Protection Regulations (CFPR) are the principle enactments underpinning Fisheries and Oceans Canada’s enforcement activities directed at foreign fishing vessels in the high seas area managed by the Northwest Atlantic Fisheries Organization (NAFO) referred to as the NAFO Regulatory Area (NRA) and in other areas of the high seas managed by other regional fisheries management organizations. NAFO’s overall objective is to contribute, through consultation and cooperation, to the optimum utilization, rational management and conservation of the fishery resources of the Convention Area. The CFPR must be revised from time to time to ensure alignment with the NAFO Conservation and Enforcement Measures (NAFO Measures) as they are updated annually. The CFPR have not been amended since 2003.

Furthermore, the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) expressed concern regarding the ambulatory incorporation by reference of the NAFO Measures in the CFPR because the CFPA does not provide express authority for ambulatory incorporation by reference. Incorporation by reference is a drafting technique that includes a second document within another document by only mentioning the second document. There are two types of incorporation by reference: static and ambulatory. These amendments deal with the latter. Ambulatory incorporation by reference is when a regulation-making authority incorporates by reference future amendments to existing material, so that any change that is made to the incorporated material will automatically become part of the regulations.

As a result of measures adopted by NAFO in substantial conformity with the United Nations Fish Stocks Agreement (UNFA), which Canada strongly promoted, the international law regime applicable in the NRA has progressively developed. These amendments to the CFPR reflect this transition.

Issues

The following issues are addressed in the amendments to the CFPR:

  1. The NAFO Measures are amended regularly but the CFPR have not been amended since 2003. As a result, the numbering and details of certain provisions of the CFPR are out of date and inaccurate.
  2. The CFPR do not reflect the addition of new parties to UNFA since the CFPR were last amended.
  3. The SJCSR has requested that the CFPR be amended to eliminate ambulatory incorporation by reference.
  4. While Canadian fisheries protection officers are currently involved in inspections of NAFO member fishing vessels in the capacity of NAFO inspectors under the authority of NAFO, there is no express domestic legal authority for these inspections in the CFPR.
  5. Lack of clarity and conciseness in certain provisions of the CFPR could present challenges to Fisheries and Oceans Canada in enforcing the Regulations.

Objectives

The amendments are remedial and administrative in nature, and facilitate the enforcement of the NAFO Measures by clarifying the legal authority of protection officers serving in their capacity as NAFO inspectors.

Specifically, the objectives of the amendments are to

  1. Ensure that the CFPR are consistent with UNFA and the current NAFO Measures;
  2. Clarify the legal authority of protection officers to conduct NAFO inspections in the NRA and in Canadian fisheries waters;
  3. Respond to the concerns raised by the SJCSR by incorporating relevant prohibitions directly in the Regulations. While incorporation by reference cannot be entirely avoided, it is possible to limit the use of ambulatory incorporation by reference; and
  4. Simplify the implementation of the CFPR to make them more clear, more concise and easier to enforce.

Description

The amendments

“One-for-One” Rule

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

Small business lens

The small business lens does not apply to these amendments, as there are no costs to small business.

Rationale

These amendments have no economic impact or implications for business. The changes have no impact on annual compliance costs or savings of any single firm. These regulatory amendments have no impact on employment; no jobs will be lost or gained as a result. The amendments clarify legal authorities and are to a large extent remedial and administrative in nature. While the amendments solidify the legal basis of Canada’s enforcement activities in the NRA, there are no increased costs to Government, since the enforcement activities, including the number of inspections, do not change as result of these amendments.

The amendments update the domestic legal basis for Canada’s enforcement activities in the NRA and have no impact on international trade agreements or obligations.

The approach taken with the amendments will ensure fewer burdens are imposed on the Government than the former approach, which sought to align revisions to the CFPR with annual changes to the NAFO Measures. These amendments ensure that the CFPR are aligned with UNFA and the current NAFO Measures.

Implementation, enforcement and service standards

The Department is ensuring that the CFPR are aligned with developments in the NAFO Measures. As well as updating the Regulations, the amendments simplify the Regulations, ensuring ease of use by stakeholders.

The amendments to the CFPR to incorporate changes to the NAFO Measures are circulated to relevant regional Fisheries and Oceans Canada offices to ensure protection officers are made aware of the changes. They are typically not distributed to parties outside of the federal government, as the day-to-day enforcement of NAFO fisheries is based on the NAFO Measures. These amendments to the CFPR will not be distributed to NAFO participating states because these states have already been made aware of the revisions to the NAFO Measures.

Contacts

Brett Gilchrist
International Fisheries Officer
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: 613-991-0218
Fax: 613-993-5995
Email: brett.gilchrist@dfo-mpo.gc.ca

Froozan Housany
Regulatory Analyst
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: 613-993-2973
Fax: 613-990-0168
Email: froozan.housany@dfo-mpo.gc.ca