FEDERAL REG

SOR/2017-94: Certain Canadian Food Inspection Agency Regulations (Miscellaneous Program) — Regulations Amending and Repealing Seeds Act Plant Breeder’s Rights Act Health of Animals Act Plant Protection Act

REGISTRATION OF FEDERAL REGULATION - VIA PART II OF THE GAZETTE

Registered
May 19, 2017


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Standing Joint Committee for the Scrutiny of Regulations (SJCSR) has identified a number of technical issues with the Plant Breeders’ Rights Regulations, the Plant Protection Regulations, the Phytophthora Ramorum Compensation Regulations, the Seeds Regulations and the Health of Animals Regulations and... (Click for more)


Published on June 1, 2017

Bill Summary

SOR/2017-94: Certain Canadian Food Inspection Agency Regulations (Miscellaneous Program) — Regulations Amending and Repealing Seeds Act Plant Breeder’s Rights Act Health of Animals Act Plant Protection Act

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Standing Joint Committee for the Scrutiny of Regulations (SJCSR) has identified a number of technical issues with the Plant Breeders’ Rights Regulations, the Plant Protection Regulations, the Phytophthora Ramorum Compensation Regulations, the Seeds Regulations and the Health of Animals Regulations and has recommended that these regulations be amended to address these issues. Furthermore, as a result of amendments made to the Plant Protection Act and the Plant Breeders’ Rights Act by the Agricultural Growth Act, similar technical amendments must be made to the Plant Protection Regulations and the Plant Breeders’ Rights Regulations so that their wording and authority is consistent with that of the enabling legislation. Finally, through the implementation and enforcement of the Seeds Regulations, the Canadian Food Inspection Agency’s (CFIA) operational staff has noted discrepancies between the English and French text of some provisions. These discrepancies could result in a different interpretation and application of a single provision if read in one language as opposed to the other. As a result, minor amendments are required to align the English and French text. Objectives The amendments have the following objectives: to repeal obsolete or spent regulatory provisions which have no current application; to correct a discrepancy between the French and English versions; to harmonize the regulations with the enabling statutes; to add clarity and consistency to regulatory provisions; to correct typographical or grammatical errors; to eliminate redundancies between regulations and the enabling acts; and to correct or repeal provisions that are ultra vires. Description Amendments to the Plant Breeders’ Rights Regulations: Through the Agricultural Growth Act, amendments were made to the definition of “country of the Union” in subsection 2(1) of the Plant Breeders’ Rights Act. This amendment took away the authority for the Plant Breeders’ Rights Regulations to prescribe “countries of the Union.” Therefore, section 4 of the Plant Breeders’ Rights Regulations is spent and is being repealed. “Countries of the Union” are now defined exclusively in subsection 2(1) of the Plant Breeders’ Rights Act. Amendments to the Plant Protection Regulations: Sections 8 and 9 of the Plant Protection Regulations prohibit the inappropriate use and possession of documents issued under the Plant Protection Act or the Plant Protection Regulations. The Agricultural Growth Act introduced prohibitions respecting documents, including prohibitions relating to the inappropriate use and possession of documents, to the Plant Protection Act via sections 36.1 and 36.2. As a result, sections 8 and 9 of the Plant Protection Regulations are redundant (e.g. spent) and are being repealed. Subsection 16(1) of the Plant Protection Regulations provides that an inspector may enter a place to conduct an investigation or survey. Concerns have been raised by the SJCSR that this subsection is not authorized by the Plant Protection Act. In the amendments to subsection 16(1), an inspector will continue to have the authority to conduct an investigation or survey; however, the authority for entering places will be removed, because it is already provided for in section 25 of the Plant Protection Act. Currently, sections 20 and 21 of the Plant Protection Regulations allow an inspector to prohibit or restrict the use of a place or an activity for the purposes of detecting, eradicating or preventing the spread of a pest or biological obstacle if the Minister or an inspector believes on reasonable grounds that the place or thing is (or is suspected of being) infested or contains or is suspected of containing a biological obstacle to the control of a pest. Changes made to the Plant Protection Act as part of the Agricultural Growth Act broadened the relevant regulation-making authorities to address comments of the SJCSR concerning the legitimacy of sections 20 and 21 of the Plant Protection Regulations. Subsections 47(3) and 47(4) of the Plant Protection Act now authorize the making of provisions similar to sections 20 and 21 of the Plant Protection Regulations. Therefore, it is necessary for these provisions to be repealed and re-enacted under the new enabling authority. In re-enacting these provisions, the text will be amended to bring the wording in line with the authorities provided for in subsections 47(3) and 47(4) of the Plant Protection Act. Through the Agricultural Growth Act, amendments were made to subsection 32(1) of the Plant Protection Act to remove the 180-day maximum detention period limit. As a result of these amendments to the Plant Protection Act, subsection 26(2) of the Plant Protection Regulations, which pertains to the period of detention for things seized and detained under the Act, is spent and is being repealed. Subsection 46(3) of the Plant Protection Regulations prevents the misuse of movement certificates by prohibiting regulated parties from substituting the item authorized by the movement certificate with another thing. Through the Agricultural Growth Act, the Plant Protection Act was amended to include a similar prohibition in section 36.1. As a result, subsection 46(3) of the Plant Protection Regulations is redundant (e.g. spent) and is being repealed. Sections 59 and 60 of the Plant Protection Regulations are being amended to remove authorities for inspecting conveyances and facilities and for halting the loading or unloading of conveyances. These authorities are provided in the Plant Protection Act and are therefore redundant (e.g. spent) in the Plant Protection Regulations. The term “notamment par destruction” is being added to the end of paragraphs 58(3)(b) and 59(b) in the French version of the Plant Protection Regulations for consistency with the Plant Protection Act. Repeal of the Phytophthora Ramorum Compensation Regulations: The SJCSR has raised concerns with the necessity of the record-keeping requirements in section 5 of the Phytophthora Ramorum Compensation Regulations, as well as the ability to enforce this requirement. Furthermore, concerns were raised by the SJCSR regarding a possible overlap in Schedule I, which outlines compensation rates for plants disposed from the inventory of a business. Applications for compensation under these Regulations were due no later than December 31, 2012; therefore, the entire Regulations are considered spent and can be repealed, thereby resolving the SJCSR’s concerns. Amendments to the Seeds Regulations: There is a modification of the definition of “pommes de terre de semence choix du sélectionneur” in section 45 of the French version of the Seeds Regulations to correct a grammatical error and make it consistent with the English definition. As it is currently drafted, the French version refers to seed potatoes that are selected and grown for the purpose of evaluation as a potential variety for commercial use. The intent is that it is the tubers that are selected, not the seed potatoes. The amendment reflects that “sélectionnés” qualifies the masculine noun “tubercules.” Correcting a discrepancy between the English and French text of item 4 in the tables to subsections 47.2(3), 47.3(3), 47.4(3), 47.5(3), 47.6(3), 47.7(3) and 47.8(3). As currently written, the French version of the tables record the percentage of viruses independently, as well as within the count of blackleg and wilts. The intent of the tables is to record the percentage of blackleg and wilts and the percentage of viruses, independently, to determine the proper grade of the seed potatoes. As a result, the use of the French tables leads to a virus being double counted, which could indirectly result in seed potatoes being downgraded to a lower class, or potentially being decertified if the virus load is high enough. Verification has determined that, between 2014 and 2016, only one case of French interpretation resulted in the improper downgrading of the seed potatoes. As currently written, subsection 47.11(4) of the Seeds Regulations prohibits the sale of Nuclear Stock seed potatoes without a tag or certificate. The SJCSR has raised concerns that the provision lacks the required enabling authority from the Seeds Act, as the Act does not authorize the making of regulations respecting this aspect of the sale of seed. The amendments to subsection 47.11(4) of the Seeds Regulations will continue to require a tag or certificate for the sale of Nuclear Stock seed potatoes; however, the requirement will come under the authority of paragraph 4(1)(h.1) of the Seeds Act, which authorizes the making of regulations prescribing information that shall be given in labelling seeds for sale. The French version of paragraph 49(1)(d) currently refers to the French equivalent of “crop,” while the English version refers to “seed potatoes.” The subsection is being amended to align the French text with the English text. A discrepancy exists between the English and French versions of subsection 60.1(1) with respect to the use of “may” and “shall.” An amendment is being made to the French text to align it with the English text and use the French equivalent to “shall.” Amendments to the Health of Animals Regulations: Section 49 of the Health of Animals Regulations regulates the import of game animal carcasses from the United States. Subsection 49(2) establishes limits to the number of carcasses that a person may import. The SJCSR considers subsection 49(2) to be vague as it simply refers to limits established in applicable legislation but does not specify which legislation. What is meant is the limits established by the hunting permit, as referenced in paragraph 49(1)(b) of the Regulations. Subsection 49(2) is being amended to add clarity to indicate that the limit is the number on the hunting permit indicated in paragraph 49(1)(b). Paragraph 160(2)(b) is currently written subjectively, in that it refers to what the Minister considers “advisable” to prevent the introduction of communicable disease. To provide clarity, paragraph 160(2)(b) is being amended to be recast in more objective terms by referring to what conditions are “necessary.” “One-for-One” Rule The “One-for-One” Rule will apply to the proposal because there will be one regulatory title repealed (the Phytophthora Ramorum Compensation Regulations). However, there will be no change in administrative burden for business because those Regulations are spent and no longer in effect. Small business lens The small business lens does not apply to these amendments, as there are no costs to small business. Rationale The amendments are in response to the SJCSR review of the regulations, as well as recent amendments to various acts which require amendments to harmonize regulations with the enabling legislation, and to respond to issues identified by CFIA staff through their implementation and enforcement of the regulations. The decision to repeal the Phytophthora Ramorum Compensation Regulations is supported by an increase in scientific and technical knowledge since the first occurrence of the pathogen in Canada in the early 2000s. This knowledge indicates that the impact of this pest can be dramatically reduced by following good agricultural practices at the nursery level. Industry has also supported this approach. Furthermore, applications for compensation under these Regulations were due no later than December 31, 2012. The amendments being made as a part of this package help to correct or improve the regulatory base, and do not impose any costs on the government or stakeholders. Contact Tracey Boyd-Brown Regulatory, Legislative and Economic Affairs Division Canadian Food Inspection Agency 1400 Merivale Road Ottawa, Ontario K1A 0Y9 Telephone: 613-773-5521 Fax: 613-773-5692 Email: [email protected] Footnote a S.C. 2015, c. 2, s. 76 Footnote b R.S., c. S-8 Footnote c S.C. 2015, c. 2, s. 50 Footnote d S.C. 1990, c. 20 Footnote e S.C. 2015, c. 2, s. 95 Footnote f S.C. 1990, c. 21 Footnote g S.C. 2015, c. 2, s. 108 Footnote h S.C. 1990, c. 22 Footnote 1 C.R.C., c. 1400 Footnote 2 SOR/91-594 Footnote 3 C.R.C., c. 296; SOR/91-525, s. 2 Footnote 4 SOR/95-212 Footnote 5 SOR/2007-135

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