Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations: SOR/2020-14

Canada Gazette, Part II, Volume 154, Number 4

Registration
SOR/2020-14 January 28, 2020

AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES ACT

The Minister of Agriculture and Agri-Food, pursuant to subsection 4(1) ^{footnote a} of the Agriculture and Agri-Food Administrative Monetary Penalties Act ^{footnote b}, makes the annexed Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.

Ottawa, January 16, 2020

Marie-Claude Bibeau
Minister of Agriculture and Agri-Food

Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations

Amendments

• 1 Subsection 10(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations ^{footnote 1} is replaced by the following:

  10 (1) For the purpose of subsection 9(1) of the Act, and subject to subsection (2), a person named in a notice of violation shall pay the amount of the penalty by certified cheque or money order made payable to the Receiver General for Canada within 30 days after the day on which the notice is served.

• 2 Section 12 of the Regulations is replaced by the following:

  12 If a person is notified that the Minister refuses to enter into a compliance agreement, the time within which the person may pay the amount of the penalty or request a review by the Tribunal of the facts of the violation is 30 days after the day on which the notice is served. The request must be in writing.

• 3 Paragraphs 13(a) and (b) of the Regulations are replaced by the following:
  • (a) the time within which the person may request a review of the Minister’s decision by the Tribunal is 30 days after the day on which the notice is served and the request must be in writing;
  • (b) if the review is in respect of a penalty, the time within which the person may pay the penalty that the Minister has maintained or the corrected amount that the Minister has decided on is 30 days after the day on which the notice is served
• 4 Subsection 14(3) of the Regulations is replaced by the following:

  (3) If a request is sent by fax or other electronic means, a copy of the request shall be sent either by courier or registered mail within 48 hours after the time limit for making the request.

• 5 Section 15 of the Regulations is replaced by the following:

  15 A review by the Tribunal shall be conducted orally if the person named in the notice of violation requests that the review be oral.

• 6 The portion of item 13 of Division 2 of Part 1 of Schedule 1 to the French version of the Regulations in column 2 is replaced by the following:

  Article	Colonne 2 Sommaire
  13	Importer un animal réglementé avec un certificat ou un permis contenant un renseignement faux ou trompeur

• 7 The portion of item 14 of Division 2 of Part 1 of Schedule 1 to the Regulations in column 1 is replaced by the following:

  Item	Column 1 Provision of Health of Animals Regulations
  14	14(1)

• 8 Item 112 of Division 2 of Part 1 of Schedule 1 to the Regulations is replaced by the following:

  Item	Column 1 Provision of Health of Animals Regulations	Column 2 Short-form Description	Column 3 Classification
  112	57(b)(i)	Import bee feed without the required certificate	Minor
  112.1	57(b)(ii)	Fail to transport untreated bee feed directly to the approved establishment	Minor

• 9 Items 232 to 301 of Division 2 of Part 1 of Schedule 1 to the Regulations are replaced by the following:

  Item	Column 1 Provision of Health of Animals Regulations	Column 2 Short-form Description	Column 3 Classification
  232	138.1(1)	Fail to provide training or ensure that employees and agents or mandataries have received training in the prescribed manner	Serious
  233	138.2	Fail to have a contingency plan that establishes measures to be taken in the prescribed circumstances	Serious
  234	138.3(1)	Fail to assess an animal’s capacity to withstand loading, confinement, transporting and unloading in the prescribed manner	Very serious
  235	138.3(2)	Fail to monitor a confined or transported animal to assess its capacity to withstand the confinement or transport in the prescribed manner	Very serious
  236	139(1)	Load, confine or transport an unfit animal or cause one to be loaded, confined or transported	Very serious
  237	139(4)	Fail to, as soon as possible after an animal that is confined or transported becomes unfit, take reasonable measures in the prescribed manner and take the prescribed action	Very serious
  238	139(5)	Fail to, as soon as possible after an animal that is confined or transported on board a vessel becomes unfit, take reasonable measures in the prescribed manner or take the prescribed action	Very serious
  239	139.1(1)	Unload an unfit animal or cause one to be unloaded, for the purpose of humanely killing the animal, without meeting the prescribed requirements	Very serious
  240	139.2(3)	Fail to comply with an order made under section 139.2	Very serious
  241	140(1)	Load, confine, transport or unload a compromised animal or cause one to be loaded, confined, transported or unloaded, without meeting the prescribed requirements	Serious
  242	140(5)	Fail to, as soon as possible after an animal that is confined or transported becomes compromised, take reasonable measures in the prescribed manner or take the prescribed action	Serious
  243	140(6)	Fail to, as soon as possible after an animal that is confined or transported on board a vessel becomes compromised, take reasonable measures in the prescribed manner or take the prescribed action	Serious
  244	140.1(3)	Fail to comply with an order made under section 140.1	Very serious
  245	141(1)	Load, confine, transport or unload or cause to be loaded, confined, transported or unloaded, livestock, camelids or cervids of eight days of age or less without meeting the prescribed requirements	Very serious
  246	141(2)	Reload livestock, camelids or cervids of eight days of age or less after unloading them at their final destination	Serious
  247	142	Load, confine or transport or cause to be loaded, confined or transported, a lactating animal without its suckling offspring and without it being milked in the prescribed manner	Serious
  248	143(1)	Load, confine, transport or unload or cause to be loaded, confined, transported or unloaded, ruminants that are too young to be fed exclusively on hay and grain without meeting the prescribed requirement	Serious
  249	143(2)	Reload ruminants that are too young to be fed exclusively on hay and grain after unloading them at their final destination	Serious
  250	144(1)(a)	Beat, strike, whip or kick an animal during loading, confinement, transporting or unloading	Very serious
  251	144(1)(b)	Use a prod, whip or any driving device on an animal during loading, confinement, transporting or unloading, in a manner that is likely to cause the animal’s suffering, injury or death	Very serious
  252	144(1)(c)	Use a prod, whip or any driving device on an animal to make it move during loading, confinement, transporting or unloading if it does not have a clear path to move	Serious
  253	144(1)(d)	Apply an electric prod or device that has a similar effect to an animal, during loading, confinement, transporting or unloading, except in the prescribed circumstances and in the prescribed manner	Very serious
  254	144(1)(e)	Drag an animal during loading, confinement, transporting or unloading	Serious
  255	144(1)(f)	Lift an animal by its fleece, fur, feathers, head, neck, ears or horns or by one wing during loading, confinement, transporting or unloading	Serious
  256	144(1)(g)	Handle or lift an animal by its tail during loading, confinement, transporting or unloading	Serious
  257	144(1)(h)	Handle an animal in a way that is likely to cause its suffering, injury or death during loading, confinement, transporting or unloading	Very serious
  258	144(2)	When an animal is in a container, drop, kick or throw the container or handle it in a manner that is likely to cause the animal’s suffering, injury or death	Very serious
  259	145(1)	Fail to use, during loading or unloading of an animal, a fixed or movable ramp, gangway, chute, step or apparatus in the prescribed manner	Very serious
  260	145(2)	Load or unload, an animal, or cause one to be loaded or unloaded, using a fixed or movable ramp, gangway, chute, step or apparatus in a manner that is not prescribed and that does not meet the prescribed conditions	Very serious
  261	145(4)	Load or unload livestock or cervids, or cause them to be loaded or unloaded, using a ramp, gangway, chute or apparatus that has a slope that exceeds the one prescribed	Minor
  262	146	Load, confine, transport or unload, or cause to be loaded, confined, transported or unloaded, an animal that is likely to suffer, sustain an injury or die because of inadequate ventilation or exposure to meteorological or environmental conditions	Very serious
  263	146.1	Load, confine, transport or unload, or cause to be loaded, confined, transported or unloaded, an animal that is likely to suffer, sustain an injury or die because of exposure to anything that is toxic or noxious	Very serious
  264	147(1)	Load, confine or transport the prescribed animals, or cause them to be loaded, confined or transported, without providing the prescribed space	Very serious
  265	147(2)	Load, confine or transport an equine, or cause one to be loaded, confined, or transported, by land in a conveyance that has more than one deck	Very serious
  266	148(1)	Load an animal, or cause one to be loaded, in a manner that results in the conveyance or container becoming overcrowded, or confine or transport an animal, or cause one to be confined or transported, in a conveyance or container that is overcrowded	Very serious
  267	148.1	Transport an animal, or cause one to be transported, by air in a container that does not meet the referred stocking density guidelines	Serious
  268	149(1)	Load, confine, transport or unload, or cause to be loaded, confined, transported or unloaded, incompatible animals that are not isolated from one another	Very serious
  269	150(1)(a)	Load, confine or transport an animal, or cause one to be loaded, confined or transported, in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that is not suitable for the species of the animal	Serious
  270	150(1)(b)	Load, confine or transport an animal, or cause one to be loaded, confined or transported, in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that will not prevent the animal’s escape	Serious
  271	150(1)(c)	Load, confine or transport an animal, or cause one to be loaded, confined or transported, in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that does not provide adequate ventilation	Very serious
  272	150(1)(d)	Load, confine or transport an animal, or cause one to be loaded, confined or transported, in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that does not provide a floor that prevents the animal from tripping, slipping or falling	Serious
  273	150(1)(e)	Load, confine or transport an animal, or cause one to be loaded, confined or transported, in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that is likely to collapse or topple over	Serious
  274	150(1)(f)	Load, confine or transport an animal, or cause one to be loaded, confined or transported in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that has exposed bolt heads, angles or other projections	Serious
  275	150(1)(g)	Load, confine or transport an animal, or cause one to be loaded, confined or transported, in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that contains objects that are unsecured	Minor
  276	150(1)(h)	Load, confine or transport an animal, or cause one to be loaded, confined or transported in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that has insecure fittings	Serious
  277	150(1)(i)	Load, confine or transport an animal, or cause one to be loaded, confined or transported, in a conveyance or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that is not able to be cleaned	Minor
  278	150(1)(j)	Load, confine or transport an animal, or cause one to be loaded, confined or transported, in a conveyance and or container that is not designed, constructed, equipped, maintained or used in the prescribed manner and that does not allow the animal to be visible from outside the container or that does not have the prescribed sign or symbol	Minor
  279	150(3)	Load, confine or transport, or cause the loading, confinement or transport, of livestock, cervids, camelids or ratites in a conveyance or container whose floor is not strewn with the prescribed bedding material in the prescribed manner	Serious
  280	150(4)	Confine or transport an animal in a container that is not secured to the conveyance in the prescribed manner	Serious
  281	150(5)	Transport an animal, or cause one to be transported, by air in a container that does not meet the referred design and construction requirements	Serious
  282	151(1)(a)	Load, confine or transport livestock and poultry, or cause them to be loaded, confined or transported, in a vessel that is not equipped with the prescribed passageways	Minor
  283	151(1)(b)	Load, confine or transport livestock and poultry, or cause them to be loaded, confined or transported, in a vessel that is not equipped with the prescribed enclosed area or pen	Minor
  284	151(1)(c)	Load, confine or transport livestock and poultry, or cause them to be loaded, confined or transported, in a vessel that is not equipped with the prescribed lighting	Minor
  285	151(1)(d)	Load, confine or transport livestock and poultry, or cause them to be loaded, confined or transported, in a vessel that does not have on board the prescribed lighting equipment	Minor
  286	151(1)(e)	Load, confine or transport livestock and poultry, or cause them to be loaded, confined or transported, in a vessel that does not have on board the prescribed humane killing devices	Very serious
  287	151(1)(f)	Load, confine or transport livestock and poultry, or cause them to be loaded, confined or transported, in a vessel that does not have on board the prescribed quantity and type of supplies	Serious
  288	151(1)(g)	Load, confine or transport livestock and poultry, or cause them to be loaded, confined or transported, in a vessel that does not have on board the prescribed dispensing systems	Serious
  289	151(2)	Fail to have a person on board the vessel who is trained to use humane killing devices	Very serious
  290	151(3)	Fail to have an appropriate number of trained persons on board the vessel to provide for the care of livestock or poultry	Serious
  291	151(4)	Fail to have, in the prescribed manner, an appropriate quantity of feed and safe water on board the vessel	Very serious
  292	151(5)	Fail to store feed and safe water in the prescribed place and in the prescribed manner	Serious
  293	151.1	Fail to provide, in the prescribed circumstance, a veterinary inspector with the prescribed information at least 24 hours before departure	Minor
  294	151.2	Confine or transport livestock and poultry, or cause them to be confined or transported, on a vessel in the vicinity of an engine or a boiler room casing that is likely to cause them to suffer, sustain an injury or die and that is not covered and insulated in the prescribed manner	Serious
  295	152	Fail to determine the date, time and place where an animal was last fed, watered and rested at the time of loading the animal for transport	Serious
  296	152.1(1)	Load, confine or transport an animal or cause one to be loaded, confined or transported, without providing feed, safe water and rest in the prescribed manner	Very serious
  297	152.1(2)	Load, confine or transport an animal without monitoring it on a regular basis as prescribed	Very serious
  298	152.2(1)	Load, confine, transport or unload an animal, or cause one to be loaded, confined, transported or unloaded, without providing it with feed, safe water and rest within the prescribed intervals	Very serious
  299	152.2(2)	Load, confine, transport or unload newly hatched poultry, or cause them to be loaded, confined, transported or unloaded without, providing them with feed, safe water and rest within 72 hours after the time of hatching	Very serious
  300	152.2(3)	Load, confine, transport or unload prescribed animals, or cause them to be loaded, confined, transported or unloaded without providing them with feed, safe water and rest within the prescribed time	Very serious
  301	152.3(a)	Fail to ensure, in the prescribed circumstance, that the equipment used is designed, constructed and maintained to feed and water the animal	Serious
  301.1	152.3(b)	Fail to ensure, in the prescribed circumstance, that sufficient space is provided to allow all animals to lie down without lying on top of other animals	Serious
  301.2	152.3(c)	Fail to ensure, in the prescribed circumstance, that well-drained and clean floors are provided in the prescribed manner	Serious
  301.3	152.3(d)	Fail to ensure, in the prescribed circumstance, that sufficient straw or other bedding is provided in the prescribed manner	Serious
  301.4	152.3(e)	Fail to ensure, in the prescribed circumstance, that sufficient straw or other bedding is provided so that the animal is kept clean and dry	Minor
  301.5	152.3(f)	Fail to ensure, in the prescribed circumstance, that protection from meteorological and environmental conditions is provided in the prescribed manner	Very serious
  301.6	152.3(g)	Fail to ensure, in the prescribed circumstance that adequate ventilation is provided to the animal in the prescribed manner	Very serious
  301.7	153(1)	Leave an animal at a slaughter establishment or assembly centre without providing the consignee with a written notice that the animal has arrived and without providing a document that contains the prescribed information	Serious
  301.8	154(1)	Fail to make, in the prescribed circumstance, a record that includes the prescribed information for each shipment of animals	Minor
  301.9	154(2)	Fail to, as soon as possible, include in the record any changes to the information already provided or add the prescribed information	Minor
  301.91	154(3)	Fail to keep on board the conveyance the original record, or a copy of it, with each shipment of animals being transported	Minor
  301.92	155	Fail to send a document, as soon as possible after arrival at the destination, to the veterinary inspector at the port of embarkation with the prescribed information	Minor

• 10 The portion of item 3 of Division 1 of Part 2 of Schedule 1 to the Regulations in columns 1 and 2 is replaced by the following:

  Item	Column 1 Provision of Plant Protection Act	Column 2 Short Form Description
  3	7	Import, admit or export a thing referred to without meeting the prescribed conditions

• 11 Items 5, 6, and 40 of Division 4 of Part 2 of Schedule 1 to the Regulations are repealed.
• 12 The portion of items 3 and 4 of Part 2 of Schedule 3 to the Regulations in column 2 is replaced by the following:

  Item	Column 2 Intent or Negligence
  3	The violation subject to the assessment is committed through a negligent act and the circumstances set out in item 2 do not apply.
  4	The violation subject to the assessment is committed through an intentional act and the circumstances set out in item 2 do not apply.

Coming into Force

13 These Regulations come into force on the day on which the Regulations Amending the Health of Animals Regulations ^{footnote 2} come into force but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues

Further to the recent (February 20, 2019) publication of the Regulations amending the Health of Animals Regulations (amended HAR) respecting the transport of animals in Part II of the Canada Gazette, amendments to the Agriculture and Agri-Food Administrative Monetary Penalties Regulations (AMP Regulations) are required to enable a designated person to issue an administrative monetary penalty for the contravention of a provision in the amended HAR. The amended HAR come into force one year after their publication, allowing for a one-year transition period for regulated parties to adjust to the updated requirements. The AMP amendments are required to be in place on or before February 20, 2020.

The Standing Joint Committee for the Scrutiny of Regulations has identified inconsistencies between the Agriculture and Agri-Food Administrative Monetary Penalties Act (the AMP Act) and the AMP Regulations that are to be reconciled. Inconsistencies between timelines in the AMP Regulations and the Canada Agriculture Review Tribunal procedures also need to be aligned. Finally, consequential changes following the recent updated legislation to the Plant Protection Act and the Agricultural Growth Act need to be addressed in the AMP amendments.

Background

The amended HAR provide the requirements for the humane transport of all animals entering, transported within, or leaving Canada. The recent amendments to these Regulations establish clear, evidence-based and science-informed requirements that will improve animal welfare during transport, better align with international standards, and better reflect current industry practices. They contain a blend of prescriptive requirements (in which case the process or procedural requirements are defined) or outcome-based requirements (in which case the required outcome or level of performance is defined).

The amended HAR, as well as the Regulatory Impact Analysis Statement specific to these Regulations, were published in the Canada Gazette, Part II, on February 20, 2019.

The failure to comply with provisions of a statute or regulation is a failure to observe the public policy objectives of the regulation. Administrative monetary penalties are one of many tools available to the Canadian Food Inspection Agency (CFIA), which can authorize the issuance of a notice of violation (in the form of a warning or a monetary penalty), by a person designated by the Minister, in response to a contravention of a statutory or regulatory requirement. Non-compliance must be addressed, according to the public enforcement continuum, to meet the societal, economic, and environmental objectives of the requirements.

The AMP Act establishes, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient monetary penalty system for the enforcement of the agri-food acts and their respective regulations.

The AMP Act provides for the issuance of two types of notices of violation: a “Notice of Violation with Warning” and a “Notice of Violation with Penalty.” Violations are classified as “minor,” “serious,” or “very serious” based on relative risk of harm. The AMP Act sets out the maximum monetary penalty amount for each classification level and the AMP Regulations set out the amount of the penalty associated with each classification of violation.

Any regulation made in Canada on or after January 1, 1972, can be reviewed by the Standing Joint Committee for the Scrutiny of Regulations on the basis of 13 different criteria. Criteria include that the statutory instrument (e.g. regulation) “is defective in its drafting or for any other reason requires elucidation as to its form or purport” or “imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation.”

Objective

The objectives of the regulatory amendment are to

• enable the continued issuance of administrative monetary penalties (by persons designated by the Minister) for violations of the provisions in the amended HAR. This would help fulfill a public policy objective of the amended HAR, namely, that protecting animal welfare is important to the social, economic, and physical well-being of Canadians; and
• improve clarity and consistency of the AMP Regulations by making amendments further to recommendations identified by the Standing Joint Committee for the Scrutiny of Regulations, as well as necessary amendments required by the amended wording of the Plant Protection Act following the coming into force of the Agricultural Growth Act.

Description

(1) Amendments to designate as violations the provisions in the amended HAR

The designation of new violations in the AMP Regulations will align the short-form description in Schedule 1 with the provisions of the amended HAR, thereby enabling administrative monetary penalties to be issued, where required, for a violation of these provisions when the amended HAR come into force (February 20, 2020).

The AMP amendments will replace items 232 through 301 (inclusive) of Division 2 of Part 1 of Schedule 1 to the AMP Regulations with amended references to provisions of the amended HAR, as well as amended short form descriptions, and classifications. The new items will be numbered 232 to 301.92. There are currently 70 violations in Schedule 1 of the AMP Regulations that will be replaced as a result of the amended HAR. The AMP amendments contain 81 violations that will align with the amended HAR.

It is anticipated that the short-form descriptions of the AMP amendments will improve compliance and further facilitate consistent enforcement. This is in part due to the inclusion of additional classification-specific provisions. For example, some provisions in the amended HAR for which multiple conditions must be met (e.g. 150(1)) have a distinct violation for each condition that must be met. This is a result of the varying classifications of severity for each item associated with a condition in the amended HAR. Where a Part XII provision contains multiple conditions of the same severity (e.g. 144(2)), only one administrative monetary penalty item has been included in the AMP amendments.

To further improve the utility of administrative monetary penalties as a tool to promote compliance and meet the policy objective to improve animal welfare and reduce the risk of animal suffering, injury or death during transport, there are fewer violations categorized as “minor” and “serious,” while there are several more that have been classified as “very serious.” With the AMP amendments, there are 8 fewer violations classified as “minor” and 11 fewer violations classified as “serious,” while there are 29 more violations classified as “very serious.”

Examples of violations of the amended HAR that are classified as “minor” in the amendments include non-compliance with record-keeping requirements (e.g. items 301.8, 301.9, or 301.91 in the amendments). Violations that are classified as very serious include those having to do with non-compliance with the prescribed feed, water, and rest intervals (e.g. items 298, 299, and 300), or with transporting an animal that meets the definition in the amended HAR of “unfit” (e.g. 139(1)). As mentioned above, the classification of each violation takes into consideration the situation where relative risk of a non-compliance action would result in an animal being injured, suffering, or dying along the transportation continuum.

Overall, of the 81 violations included in the amendments, 14 are classified as “minor,” 34 have been classified as “serious,” and 33 have been classified as “very serious.”

Modifications have not been made to the current subsection 5(1) of the AMP Regulations, which set outs the amount of the penalty for each minor, serious, or very serious violation. Therefore, the penalty amounts for each classification of violation have not been changed.

The AMP amendments will come into force on February 20, 2020, which is the first anniversary of the day on which the amended HAR were published in the Canada Gazette, Part II, or on the day they are registered, in the event that registration takes place after February 20, 2020.

(2) Amendments for clarity and consistency

To make amendments for clarity and consistency, as well as address recommendations identified by the Standing Joint Committee for the Scrutiny of Regulations, the amendments will modify the AMP Regulations to

• repeal subsections 15(2) and 15(3) dealing with a review before the Canada Agricultural Review Tribunal;
• amend the short form description, in French only, of item 13 of Division 2 of Part 1 of Schedule 1, adding the words “ou un permis”;
• amend the provision referred to in item 14 of Division 2 of Part 1 of Schedule 1, from section 14 to subsection 14(1);
• create two separate violations in item 112 of Division 2 of Part 1 of Schedule 1;
• clarify, when the text in items 3 and 4 of Part 2 of Schedule 3 apply, the information that informs the calculations for establishing the total gravity value of serious or very serious violations, by adding the words “and the circumstances set out in item 2 do not apply” to the end of each;
• amend section 12 so that the time limit allocated to a person to pay a penalty or request a review by the Canada Agricultural Review Tribunal of the facts of the violation is increased from 15 days to 30 days after the day on which a notice of the Minister’s decision to refuse to enter in a compliance agreement is served;
• amend the time limit from 15 to 30 days in paragraphs 13(a) and 13(b); and
• indicate, by a minor amendment to subsection 14(3), that in the event of a request for review being made by fax or other electronic means, a copy must be sent within 48 hours after the time limit for making the request.

(3) Consequential amendments to the Plant Protection Act and the Plant Protection Regulations further to amendments made to the Agricultural Growth Act

An amendment to item 3 of Division 1 of Part 2 of Schedule 1 to the AMP Regulations is made to identify the provision as a violation to section 7 of the Plant Protection Act further to the amendments made under the Agricultural Growth Act. The short-form description is also amended for clarity.

Finally, items 5, 6, and 40 of Division 4 of Part 2 of Schedule 1 of the AMP Regulations, which pertain to sections 8 and 9 and subsection 46(3) of the Plant Protection Regulations, are repealed given that these provisions were repealed in the miscellaneous amendments to the regulations package (SOR/2017-94).

Regulatory development

Consultation

Contravention of the provisions of the Health of Animals Regulations (HAR) designated as violations have been a part of the administrative monetary penalties regime since the AMP Regulations were introduced in 1995.

From 2006 through 2017, the CFIA consulted with stakeholders on the amendments to Part XII of the HAR. All Canadians, including regulated parties, industry organizations, and animal welfare groups, were advised of the intention to publish the regulatory amendment and the anticipated implementation dates. In February 2019, the amended HAR were published in the Canada Gazette, Part II.

To coincide with this publication, the CFIA prepared a guidance document for regulated parties. The guidance document provides information to assist stakeholders with interpretation of the requirements contained within Part XII of the HAR, which in turn assists them in understanding the intent of the regulatory language and in maintaining compliance.

The AMP amendments have not been prepublished in the Canada Gazette, Part I. Administrative monetary penalties for violations of Part XII of the HAR currently exist and stakeholders are aware that a notice of violation may be issued for a contravention with a Part XII requirement. The remaining modifications are consequential in nature.

Modern treaty obligations and Indigenous engagement and consultation

No Indigenous peoples will be impacted by these regulatory amendments to update the AMP Regulations and align with the latest amendments to Part XII of the HAR.

Instrument choice

(1) Status Quo — Do not amend the current AMP Regulations.

This option would limit the enforcement measures available to the CFIA when addressing contravention of the provisions in the amended HAR once the one-year delay of the coming into force is over. At that time, the end result would be an outdated enforcement mechanism that does not align with the recently amended HAR. This option would also fail to resolve concerns of the Standing Joint Committee for the Scrutiny of Regulations. The AMP Regulations would also continue to be inconsistent with recent amendments to the Plant Protection Act and the Plant Protection Regulations. This is not a recommended option.

(2) Amend Division 2 of Part 1 of Schedule 1 to the AMP Regulations to only align with the recently amended HAR.

This option would amend the AMP Regulations to align with the amended HAR, but would not address the concerns raised by the Standing Joint Committee for the Scrutiny of Regulations, and consequential amendments necessitated by recent amendments to the Plant Protection Act and the Plant Protection Regulations.

This option would allow the continued issuance of administrative monetary penalties for the amended HAR when the delayed coming into force has concluded, and would permit effective operationalization and enforcement of that legislation. It would, however, leave recommendations made by the Standing Joint Committee for the Scrutiny of Regulations unaddressed. This is not the preferred option.

(3) Amend the AMP Regulations to align with recently amended HAR, and also address the concerns raised by the Standing Joint Committee for the Scrutiny of Regulations and the consequential amendments necessitated by recent amendments to the Plant Protection Act and the Plant Protection Regulations (preferred option).

This option would allow the continued issuance of administrative monetary penalties for the amended HAR when the delay for the coming into force for the amended HAR has been completed. As a result, it would enable the effective enforcement of the regulations that pertain to the transport of animals and the protection of animal welfare. This option would promote effective regulatory delivery by addressing both of the recommendations made by the Standing Joint Committee for the Scrutiny of Regulations, as well as the consequential amendment necessitated by recent amendments to the Plant Protection Act and the Plant Protection Regulations.

One-for-one rule

The one-for-one rule does not apply to these AMP amendments, as there is no change in administrative costs to business.

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.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for the AMP Regulations.

Rationale

The amended HAR provide clear requirements for animal transport to allow regulated parties to better understand what is required of them to be in compliance. They establish either prescriptive requirements (where the process or procedure requirements are defined) or outcome-based requirements (where the required outcome or level of performance is defined). They establish clear, evidence-based and science-informed requirements that better reflect animal needs and current industry practices and trends to improve animal welfare and reduce the risk of suffering during transport.

The amended HAR provide for a delayed coming into force of one year to allow regulated parties time to comply with the updated requirements. Amendments to the AMP Regulations are required to align with the amended HAR and to be able to proceed with an administrative monetary penalty in the event of a contravention to the updated provisions of the amended HAR. The AMP amendments are required to be in place on or before February 20, 2020, to enable the issuance of administrative monetary penalties.

The continued use of administrative monetary penalties provides the CFIA with more flexibility in resolving non-compliance by providing the CFIA with a supplemental enforcement tool. In cases of more severe non-compliance, or where there is a history or pattern of noncompliance for a given regulated party, the CFIA may recommend that penal proceedings be instituted. The CFIA has the discretion to select the appropriate regulatory response, based on the gravity of the non-compliance, considering factors such as the potential or actual harm, the compliance history of the regulated party and the intent, as determined by the person designated by the Minister.

Moreover, an administrative monetary penalty can hinder the financial incentive to engage in an activity that is not compliant with a regulatory requirement. It removes most financial benefit, advantage, or gain a person or business may have achieved by committing a violation. It helps encourage compliance and may discourage other regulated parties from committing violations.

The AMP amendments are aligned with the public policy objectives of the amended HAR amendments that precede them. The amended HAR clarify expectations, better reflect new science regarding the care and handling of animals during all phases of transport, and reduce the risk to animal welfare during loading, confinement, transport, and unloading. They contain more detail, modernize the regulatory language and remove obsolete, redundant or unnecessary requirements. The new short-form descriptions included in the AMP amendments are consistent with the wording used in the amended HAR.

Improved clarity from the amended HAR is anticipated to result in improved regulatory compliance. As a result of clearer expectations and requirements, the CFIA’s ability to enforce the requirements for those who are non-compliant will be improved.

The amended HAR also sought to improve animal welfare and reduce the risk of animal suffering during transport. The AMP amendments will effectively support this objective by increasing the overall number of violations, and increasing the number of items classified as “very serious” (from 4 to 33). The amendments to the AMP Regulations for violations related to the humane transport of animals will strengthen the existing enforcement regime.

Implementation, compliance and enforcement, and service standards

The amendments that pertain to the amended HAR will come into force on February 20, 2020, which is the first anniversary of the day on which the amended HAR were published in the Canada Gazette, Part II, or on the day they are registered, in the event that registration takes place on a day after February 20, 2020.

Animal welfare is important to all Canadians. For the CFIA, there is little tolerance for situations where non-compliance results in an animal being injured, suffering, or dying during transport. In instances where non-compliance is determined to result from intention, neglect, or lack of awareness of the requirements or where there is a pattern of non-compliance, appropriate enforcement action will be taken.

The CFIA has a program in place to enforce the amended HAR and operational resources are committed to enforce them. The CFIA inspection staff responds to instances of non-compliance on a day-to-day basis. Notices of violation may be issued for violations of the relevant act or regulations, as set out in section 7 of the AMP Act. Regulated parties can expect that any non-compliance as determined by the CFIA will be treated seriously by the CFIA and will be dealt with in a professional manner.

The CFIA has a published Compliance and Enforcement Operational Policy that outlines the CFIA’s approach to its compliance management activities. This approach includes assisting regulated parties in understanding their obligations to comply with legislative requirements, monitoring compliance, performing inspection activities, and describing the various tools available to the CFIA in response to a violation.

Using its existing resources, the CFIA will continue to monitor and enforce the Health of Animals Regulations by observing the transport of animals at strategic locations including, but not limited to, federally and provincially licenced abattoirs, assembly yards, airports, ports of entry (with the assistance of the Canada Border Services Agency), randomized roadside inspections, and auction markets. The CFIA will provide information and guidance to those involved in the transport of animals and, in accordance with the CFIA’s Compliance and Enforcement Operational Policy, will investigate suspected non-compliance. The CFIA will take appropriate enforcement actions in response to non-compliance cases, up to and including prosecution.

Publication of information pertaining to issued administrative monetary penalties on the CFIA’s website will continue to promote compliance. The CFIA prepares quarterly reports on its use of administrative monetary penalties as an enforcement measure. The experience of other agencies administering similar schemes shows that this approach is very effective in increasing compliance.

Contact

Please direct questions and enquiries to

Animal Welfare, Biosecurity and Assurance Programs Section
Canadian Food Inspection Agency
59 Camelot Drive
3rd Floor West, Room 229
Ottawa, Ontario
K1A 0Y9
Email: cfia.animaltransport-transportdesanimaux.acia@canada.ca