Vol. 149, No. 12 — June 17, 2015

Registration

SOR/2015-121 May 29, 2015

FISHERIES ACT

Aquatic Invasive Species Regulations

P.C. 2015-633 May 28, 2015

His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to subsections 34(2), 36(5) and 43(1) (see footnote a) and (2) (see footnote b) of the Fisheries Act (see footnote c), makes the annexed Aquatic Invasive Species Regulations.

AQUATIC INVASIVE SPECIES REGULATIONS

INTERPRETATION

Definitions

1. The following definitions apply in these Regulations.

“Act”
« Loi »

“Act” means the Fisheries Act.

“aquatic invasive species”
« espèce aquatique envahissante »

“aquatic invasive species” means a species set out in Part 2 or 3 of the schedule.

“indigenous”
« indigène »

“indigenous”, in respect of an aquatic species, means that the species originated naturally in a particular region or body of water.

GENERAL

List of aquatic invasive species

2. For the purpose of subsection 43(3) of the Act, the list of aquatic invasive species is the list set out in Parts 2 and 3 of the schedule.

Estimate of costs

3. Before publishing proposed regulations made under subsection 43(3) of the Act, the Minister must provide the President of the Treasury Board with an estimate of the costs of their implementation.

Designation of species

4. A reference in these Regulations to an aquatic invasive species or family of aquatic invasive species by its common name as set out in column 1 in Part 2 or 3 of the schedule is to be read as a reference to the scientific name of that species or family of species that is set out in column 2.

Inconsistency with other regulations

5. In the event of an inconsistency between these Regulations and any other regulations made under the Act, these Regulations prevail to the extent of the inconsistency.

PROHIBITIONS

Prohibition against importation

6. It is prohibited for any person to import members of a species set out in Part 2 of the schedule, including any genetic material capable of propagating the species, into the applicable area set out in column 4 of that Part, unless the member is in the condition, if any, set out in column 3.

Prohibition against possession

7. It is prohibited for any person to possess members of a species set out in Part 2 of the schedule, including any genetic material capable of propagating the species, within the applicable area set out in column 5 of that Part, unless the member is in the condition, if any, set out in column 3.

Prohibition against transportation

8. It is prohibited for any person to transport members of a species set out in Part 2 of the schedule, including any genetic material capable of propagating the species, within the applicable area set out in column 6 of that Part, unless the member is in the condition, if any, set out in column 3.

Prohibition against release

9. It is prohibited for any person to release, or engage in any activity that may lead to the release of, members of a species set out in Part 2 of the schedule, including any genetic material capable of propagating the species, into a body of water frequented by fish within the applicable area set out in column 7 of that Part, unless the member is in the condition, if any, set out in column 3.

Prohibition against introduction of non-indigenous species

10. It is prohibited for any person to introduce an aquatic species into a particular region or body of water frequented by fish where it is not indigenous unless authorized to do so under federal or provincial law.

EXEMPTIONS

Exemption for certain persons

11. Sections 6 to 9 do not apply to fishery officers or fishery guardians carrying out their duties under these Regulations or to any other person acting under their direction.

Exemption for emergencies

12. Sections 6 to 10 do not apply to persons operating any vehicles, vessels or aircraft engaged in emergency, search and rescue or firefighting operations.

Exemption for authorized purposes

13. (1) If the purpose of the importation, possession, transportation or release of members of a species set out in Part 2 of the schedule is for scientific, educational or aquatic invasive species control purposes, sections 6 to 9 do not apply

Permit, licence or authorization required

(2) The employees or persons exempted under subparagraphs (1)(a)(i) to (iii) must hold the applicable permits, licences and authorizations issued under the following provisions:

Exemption for licence holder

14. Section 7 does not apply to a person holding a fishing licence who has caught a member of a species set out in Part 2 of the schedule if that person takes immediate measures to destroy the member in a manner that ensures that it and any genetic material capable of propagating the species cannot survive.

Exemption — certain diploid grass carp

15. (1) Section 7 does not apply, in respect of the possession of diploid grass carp, to persons employed by the Aquaculture Centre of Excellence at Lethbridge College and Alberta Agriculture and Rural Development, or persons under their direction, if they hold a fish research licence issued under subsection 12(1) of the Fisheries (Alberta) Act of Alberta and if the diploid grass carp are possessed for the purpose of culturing triploid grass carp.

Exemption — triploid grass carp

(2) Sections 7 and 8 do not apply, in respect of the possession and transportation of triploid grass carp, to persons holding a cultured fish licence issued under subsection 12(1) of the Fisheries (Alberta) Act of Alberta.

Exemption for holder of cultured fish licence

16. Section 9 does not apply to persons holding a cultured fish licence issued under subsection 12(1) of the Fisheries (Alberta) Act of Alberta in respect of the release of grass carp — that have been confirmed as triploid grass carp — for the purpose of vegetation control, in a body of water on privately owned land that is isolated from other bodies of water in a manner that ensures that the grass carp will not adversely affect — in any other body of water — other fish, fish habitat or the use of fish.

Exemption if otherwise regulated

17. (1) Sections 6 to 10 and directions given under subsections 22(2), 26(1) and 27(1), do not apply

Exemption for some vessels

(2) A fishery officer or fishery guardian must not take the measures referred to in subsection 25(1) in respect of

Definition of “biofouling”

(3) For the purpose of subsections (1) and (2), “biofouling” means the accumulation of aquatic organisms such as micro-organisms, plants and animals on surfaces and structures that are immersed in or exposed to the aquatic environment.

PRESCRIBED PERSONS

Prescribed persons

18. The following persons are prescribed under paragraph 36(5)(f) of the Act:

COMPLIANCE AND ENFORCEMENT

CONTROL AND ERADICATION

Definition of “Minister”

19. (1) For the purpose of this section and sections 27 and 28, “Minister” means any of the persons listed in section 18.

Purposes

(2) The Minister may take a measure referred to in subsection (3)

Control activities

(3) Despite any other regulations made under the Act, the Minister may authorize the deposit of deleterious substances belonging to one of the classes of deleterious substances authorized under section 21 and provide directions for their deposit in any water or place referred to in subsection 36(3) of the Act.

Exemption for aquaculture activities

(4) Subsection (3) does not apply in respect of aquaculture activities if the deposit of a deleterious substance is otherwise authorized under the Act.

Licensed fishing for aquatic invasive species

20. Despite any other regulations made under the Act, the Minister and any provincial minister having jurisdiction over fisheries may license fishing for any species referred to in subsection 19(2) in the places referred to in that subsection.

Authorized deleterious substances

21. The following classes of deleterious substances are authorized for the purpose of paragraph 36(4)(b) of the Act and subsections 19(3) and 27(1):

MEASURES AND DIRECTIONS

Notification regarding non-indigenous species

22. (1) A fishery officer or fishery guardian may notify a person, directly or through a public notice, that an aquatic species is not indigenous in a particular region or body of water frequented by fish.

Directions to stop introduction

(2) In the event that the unauthorized introduction of an aquatic species into a particular region or body of water frequented by fish where it is not indigenous is imminent or in the process of occurring, a fishery officer may give a direction to a person

Definitions

23. The following definitions apply in sections 25 to 27 and 29.

“carrier”
« porteur »

“carrier” means anything, other than a conveyance or structure, that is a host to, or that facilitates the movement of, a species set out in Part 2 or 3 of the schedule.

“conveyance or structure”
« moyen de transport ou structure »

“conveyance or structure” means a conveyance or structure that is a host to, or that facilitates the movement of, a species set out in Part 2 or 3 of the schedule.

Limitations

24. A fishery officer or fishery guardian may take a measure set out in section 25 or give a direction set out in section 26 only

Measures

25. (1) A fishery officer or fishery guardian or a person acting under their direction may

Reasonable assistance

(2) A person must give all reasonable assistance requested by the fishery officer or the fishery guardian to enable them to carry out the measures set out in subsection (1) and must provide any information requested by them that is relevant to the measures if the person

Directions

26. (1) Subject to subsection (2), a fishery officer may give a written direction requiring a person

Persons subject to direction

(2) The direction may be given only to a person who

Exemption from fishing licence

(3) If a direction given under paragraph (1)(d) requires the use of fishing as a means to destroy members of a species set out in Part 2 or 3 of the schedule, the person to whom the direction is given is exempted from the requirement to hold a licence to fish for that species.

Exemption while under direction

(4) If a direction given under subsection (1) requires a person to be in possession of or to transport a member of a species set out in Part 2 of the schedule, that person is exempted from sections 7 and 8 to the extent necessary to fulfill the requirements of the direction.

Use of deleterious substance

27. (1) The Minister may give a written direction requiring the deposit of a deleterious substance belonging to one of the classes of deleterious substances authorized under section 21

Persons subject to direction

(2) The direction may be given only to a person who

Exemption while under direction

(3) If a direction given under subsection (1) requires a person to be in possession of or to transport a member of a species set out in Part 2 of the schedule, that person is exempted from sections 7 and 8 to the extent necessary to fulfill the requirements of the direction.

Requirements

28. (1) The measures set out in subsections 19(2) and (3) and 25(1) and the directions given in accordance with subsections 22(2), 26(1) and 27(1) must not be taken or given unless

Deleterious substance

(2) If a measure or direction referred to in subsection (1) involves the deposit of a deleterious substance,

Contents of directions

29. (1) Directions given under subsection 26(1) or 27(1) must

Further contents

(2) Directions given under subsection 27(1) must also

Requirements

30. (1) Every person to whom a direction is given under subsection 22(2), 26(1) or 27(1)

Prohibition

(2) It is prohibited for any person to enter an area

CONSEQUENTIAL AMENDMENTS

MANITOBA FISHERY REGULATIONS, 1987

31. (1) The portion of subsection 16(1) of the Manitoba Fishery Regulations, 1987 (see footnote 1) before paragraph (a) is replaced by the following:

16. (1) No person shall possess live fish or live fish eggs unless authorized

(2) Subsections 16(2) and (2.1) of the Regulations are replaced by the following:

(2) No person shall, unless authorized, bring into Manitoba, possess in Manitoba or release into any waters of Manitoba live fish or live fish eggs of a species set out, in respect of Manitoba, in Part 2 of the schedule to the Aquatic Invasive Species Regulations.

32. Subparagraph 25(1)(e)(ii) of the Regulations is replaced by the following:

33. Schedule IX to the Regulations is repealed.

FISHERY (GENERAL) REGULATIONS

34. Subsection 3(4) of the Fishery (General) Regulations (see footnote 2) is amended by striking out “and” at the end of paragraph (k), by adding “and” at the end of paragraph (l) and by adding the following after paragraph (l):

35. The headings before section 50 and sections 50 to 52 of the Regulations are replaced by the following:

PART VII

FISHING FOR EXPERIMENTAL,
SCIENTIFIC, EDUCATIONAL, AQUATIC
INVASIVE SPECIES CONTROL OR
PUBLIC DISPLAY PURPOSES

INTERPRETATION

50. In this Part, “licence” means a licence to fish for experimental, scientific, educational, aquatic invasive species control or public display purposes.

LICENCE

51. No person shall fish for experimental, scientific, educational, aquatic invasive species control or public display purposes unless authorized to do so under a licence.

52. Despite any provisions of any of the Regulations listed in subsection 3(4), the Minister may issue a licence if fishing for experimental, scientific, educational, aquatic invasive species control or public display purposes would be in keeping with the proper management and control of fisheries.

36. Subsection 53(2) of the Regulations is replaced by the following:

(2) There is no fee for a licence to fish for experimental, scientific, educational or aquatic invasive species control purposes.

ONTARIO FISHERY REGULATIONS, 2007

37. (1) The definition “invasive fish” in subsection 1(1) of the Ontario Fishery Regulations, 2007 (see footnote 3) is repealed.

(2) Subsection 1(1) of the Regulations is amended by adding the following in alphabetical order:

“invasive species” means a species that is set out, in respect of Ontario, in Part 2 of the schedule to the Aquatic Invasive Species Regulations. (espèce envahissante)

38. Section 6 of the Regulations and the heading before it are replaced by the following:

INVASIVE SPECIES

6. (1) No person shall possess, transport or release members of an invasive species without a licence issued under subsection (2).

(2) The provincial Minister may issue a licence to a person to possess, transport or release invasive species in specified quantities if

39. Section 12 of the Regulations is replaced by the following:

12. A person, other than a person fishing under a commercial fishing licence, who catches a fish, other than an invasive species, the retention or possession of which is prohibited by these Regulations, shall immediately return the fish to the waters from which it was caught and, if the fish is alive, release it in a manner that causes the least harm to that fish.

40. Subsection 29(1) of the Regulations is replaced by the following:

29. (1) No person shall use as bait, or possess for use as bait, an invasive species or a live fish that is not a species of baitfish.

41. Part 3 of Schedule 1 to the Regulations is repealed.

COMING INTO FORCE

Registration

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

SCHEDULE
(Sections 1, 2, 4 and 6 to 9, subsection 13(1), section 14, paragraph 19(2)(a), section 23, paragraphs 24(b) and 25(2)(a), subsections 26(3) and (4) and paragraph 27(1)(a) and subsection 27(3))

PART 1

INTERPRETATION

Definitions

1. The following definitions apply in this schedule.

“boundary waters”
« eaux limitrophes »

“boundary waters” has the same meaning as in the Preliminary Article of the Treaty relating to Boundary Waters and Questions arising along the Boundary between Canada and the United States as set out in Schedule 1 to the International Boundary Waters Treaty Act.

“transboundary waters”
« eaux transfrontalières »

“transboundary waters” means those waters that, in their natural channels, flow across the international boundary between Canada and the United States.

Geographic coordinates

2. The geographic coordinates in this schedule are in reference to the North American Datum 1983 (NAD83).

PART 2

SPECIES SUBJECT TO PROHIBITIONS AND CONTROLS
Item Column 1



Common Name		 Column 2



Scientific Name		 Column 3



Condition		 Column 4


Area — Importation Prohibited		 Column 5

Area — Possession Prohibited		 Column 6

Area — Transportation Prohibited		 Column 7

Area — Release Prohibited
1. Grass carp Ctenopharyngodon idella Dead and eviscerated Canada Canada Canada Canada
2. Bighead carp Hypophthalmichthys nobilis Dead and eviscerated Canada Canada Canada Canada
3. Silver carp Hypophthalmichthys molitrix Dead and eviscerated Canada Canada Canada Canada
4. Black carp Mylopharyngodon piceus Dead and eviscerated Canada Canada Canada Canada
5. Zebra mussel Dreissena polymorpha   Canada, except in
  • (a) the transboundary waters in Ontario, downstream of the bridge crossing the Pigeon River located at 48°00′05.1″N 89°35′06.8″W;
  • (b) the boundary waters of the Canadian Great Lakes and connecting waterways, between the location of the bridge and the boundary between Ontario and Quebec; and
  • (c) the boundary and transboundary waters in Quebec
 British Columbia, Alberta, Saskatchewan and Manitoba British Columbia, Alberta, Saskatchewan and Manitoba British Columbia, Alberta, Saskatchewan and Manitoba
6. Quagga mussel Dreissena bugensis   Canada, except in
  • (a) the transboundary waters in Ontario, downstream of the bridge crossing the Pigeon River located at 48°00′05.1″N 89°35′06.8″W;
  • (b) the boundary waters of the Canadian Great Lakes and connecting waterways, between the location of the bridge and the boundary between Ontario and Quebec; and
  • (c) the boundary and transboundary waters in Quebec
 British Columbia, Alberta, Saskatchewan and Manitoba British Columbia, Alberta, Saskatchewan and Manitoba British Columbia, Alberta, Saskatchewan and Manitoba
7. Any species of the snakehead family Any species of the family Channidae Dead and eviscerated   Ontario Ontario Ontario
8. Ruffe Gymnocephalus cernua Dead   Ontario and Manitoba Ontario and Manitoba Ontario and Manitoba
9. Rudd Scardinius erythropthalmus Dead   Ontario and Manitoba Ontario and Manitoba Ontario and Manitoba
10. Round goby Neogobius melanostomus Dead   Ontario and Manitoba Ontario and Manitoba Ontario and Manitoba
11. Tubenose goby Proterorhinus semilunaris Dead   Ontario and Manitoba Ontario and Manitoba Ontario and Manitoba
12. Sea lamprey Petromyzon marinus Dead   Manitoba Manitoba Manitoba
13. Arctic lamprey Lethenteron camtschaticum Dead   Manitoba Manitoba Manitoba
14. Siberian sturgeon Acipenser baerii Dead   Manitoba Manitoba Manitoba
15. Russian sturgeon Acipenser gueldenstaedtii Dead   Manitoba Manitoba Manitoba
16. Thorn sturgeon Acipenser nudiventris Dead   Manitoba Manitoba Manitoba
17. Sterlet sturgeon Acipenser ruthenus Dead   Manitoba Manitoba Manitoba
18. Stellate sturgeon Acipenser stellatus Dead   Manitoba Manitoba Manitoba
19. Beluga sturgeon Huso huso Dead   Manitoba Manitoba Manitoba
20. Pallid sturgeon Scaphirhynchus albus Dead   Manitoba Manitoba Manitoba
21. Shortnose sturgeon Acipenser brevirostrum Dead   Manitoba Manitoba Manitoba
22. Shovelnose sturgeon Scaphirhynchus platorynchus Dead   Manitoba Manitoba Manitoba
23. Paddlefish Polyodon spathula Dead   Manitoba Manitoba Manitoba
24. Spotted gar Lepisosteus oculatus Dead   Manitoba Manitoba Manitoba
25. Longnose gar Lepisosteus osseus Dead   Manitoba Manitoba Manitoba
26. Shortnose gar Lepisosteus platostomus Dead   Manitoba Manitoba Manitoba
27. Bowfin Amia calva Dead   Manitoba Manitoba Manitoba
28. Alewife Alosa pseudoharengus Dead   Manitoba Manitoba Manitoba
29. Gizzard shad Dorosoma cepedianum Dead   Manitoba Manitoba Manitoba
30. Rainbow smelt Osmerus mordax Dead   Manitoba Manitoba Manitoba
31. Bitterling All species of the genera Rhodeus and Tanakia Dead   Manitoba Manitoba Manitoba
32. Carp bream Abramis brama Dead   Manitoba Manitoba Manitoba
33. Schneider or Chub Alburnoides bipunctatus Dead   Manitoba Manitoba Manitoba
34. Barbel Barbel barbus Dead   Manitoba Manitoba Manitoba
35. Crucian carp Carassius carassius Dead   Manitoba Manitoba Manitoba
36. Gudgeon Gobio gobio gobio Dead   Manitoba Manitoba Manitoba
37. Red shiner Cyprinella lutrensis Dead   Manitoba Manitoba Manitoba
38. Utah chub Gila atraria Dead   Manitoba Manitoba Manitoba
39. European chub Leuciscus cephalus Dead   Manitoba Manitoba Manitoba
40. Orfe or Ide Leuciscus idus Dead   Manitoba Manitoba Manitoba
41. Common dace Leuciscus leuciscus Dead   Manitoba Manitoba Manitoba
42. Czekanowski’s minnow Phoxinus czekanowskii Dead   Manitoba Manitoba Manitoba
43. Swamp minnow Phoxinus perenurus Dead   Manitoba Manitoba Manitoba
44. Eurasian minnow Phoxinus phoxinus Dead   Manitoba Manitoba Manitoba
45. Kutum Rutilus frisii Dead   Manitoba Manitoba Manitoba
46. Roach Rutilus rutilus Dead   Manitoba Manitoba Manitoba
47. Tench Tinca tinca Dead   Manitoba Manitoba Manitoba
48. Vimba Vimba vimba Dead   Manitoba Manitoba Manitoba
49. White cloud minnow Tanichthys albonubes Dead   Manitoba Manitoba Manitoba
50. Lake chubsucker Erimyzon sucetta Dead   Manitoba Manitoba Manitoba
51. Stone loach Barbatula barbatula Dead   Manitoba Manitoba Manitoba
52. Oriental weatherfish Misgurnus anguillicaudatus Dead   Manitoba Manitoba Manitoba
53. Walking catfish Clarias batrachus Dead   Manitoba Manitoba Manitoba
54. White catfish Ameiurus catus Dead   Manitoba Manitoba Manitoba
55. Yellow bullhead Ameiurus natalis Dead   Manitoba Manitoba Manitoba
56. Slender madtom Noturus exilis Dead   Manitoba Manitoba Manitoba
57. Margined madtom Noturus insignis Dead   Manitoba Manitoba Manitoba
58. Brindled madtom Noturus miurus Dead   Manitoba Manitoba Manitoba
59. Freckled madtom Noturus nocturnus Dead   Manitoba Manitoba Manitoba
60. Northern madtom Noturus stigmosus Dead   Manitoba Manitoba Manitoba
61. Flathead catfish Pylodictis olivaris Dead   Manitoba Manitoba Manitoba
62. Wels catfish Silurus glanis Dead   Manitoba Manitoba Manitoba
63. Western mosquitofish Gambusia affinis Dead   Manitoba Manitoba Manitoba
64. Fourspine stickleback Apeltes quadracus Dead   Manitoba Manitoba Manitoba
65. Threespine stickleback Gasterosteus aculeatus Dead   Manitoba Manitoba Manitoba
66. Blackspotted stickleback Gasterosteus wheatlandi Dead   Manitoba Manitoba Manitoba
67. Bullhead or Miller’s thumb Cottus gobio gobio Dead   Manitoba Manitoba Manitoba
68. White perch Morone americana and hybrids Dead   Manitoba Manitoba Manitoba
69. Yellow bass Morone mississippiensis and hybrids Dead   Manitoba Manitoba Manitoba
70. Striped bass Morone saxatilis and hybrids Dead   Manitoba Manitoba Manitoba
71. Green sunfish Lepomis cyanellus Dead   Manitoba Manitoba Manitoba
72. Orangespotted sunfish Lepomis humilis Dead   Manitoba Manitoba Manitoba
73. Longear sunfish Lepomis megalotis Dead   Manitoba Manitoba Manitoba
74. Northern sunfish Lepomis peltastes Dead   Manitoba Manitoba Manitoba
75. Zander Sander lucioperca Dead   Manitoba Manitoba Manitoba
76. Volga pikeperch Sander volgensis or Sander marinus Dead   Manitoba Manitoba Manitoba
77. Snakehead Channa argus Dead and eviscerated   Manitoba Manitoba Manitoba
78. European stream valvata Valvata piscinalis Dead   Manitoba Manitoba Manitoba
79. Chinese mystery snail Cipangopaludina chinensis Dead   Manitoba Manitoba Manitoba
80. New Zealand ud snail Potamopyrgus antipodarum Dead   Manitoba Manitoba Manitoba
81. Mud bithynid Bithynia tentaculata Dead   Manitoba Manitoba Manitoba
82. Big-eared radix Radix auricularia Dead   Manitoba Manitoba Manitoba
83. Asian clam Corbicula fluminea Dead   Manitoba Manitoba Manitoba
84. Greater european peaclam Pisidium amnicum Dead   Manitoba Manitoba Manitoba
85. Henslow peaclam Pisidium henslowanum Dead   Manitoba Manitoba Manitoba
86. European fingernail clam Sphaerium corneum Dead   Manitoba Manitoba Manitoba
87. Spiny water flea Bythotrephes cederstroemi Dead   Manitoba Manitoba Manitoba
88. Fish hook water flea Cercopagis pengoi Dead   Manitoba Manitoba Manitoba
89. Rusty crayfish Orconectes rusticusi Dead   Manitoba Manitoba Manitoba

PART 3

SPECIES SUBJECT TO CONTROLS ONLY IN AREAS WHERE THEY ARE NOT INDIGENOUS
Item Column 1

Common Name		 Column 2

Scientific Name
1. Club tunicate Styela clava
2. Vase tunicate Ciona intestinalis
3. Golden Star tunicate Botryllus schlosseri
4. Violet tunicate Botrylloides violaceus
5. Didemnum Didemnum vexillum
6. Bloody red shrimp Hemimysis anomala
7. European green crab Carcinus maenas
8. Chinese mitten crab Eriocheir sinensis
9. Smallmouth bass Micropterus dolomieu
10. Largemouth bass Micropterus salmoides
11. Northern pike Esox lucius
12. Pumpkinseed Lepomis gibbosus
13. Walleye Sander vitreus
14. Yellow perch Perca flavescens

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Aquatic invasive species (AIS) are aquatic organisms that, upon introduction to areas or waters where they do not originate naturally, could have harmful effects on fish or fish habitat in Canada or the use of fish by Canadians. AIS have the potential to thrive in the absence of predators and to radically alter host habitat, rendering it inhospitable for indigenous species. If established in ecosystems, AIS can significantly affect local fisheries; reduce biodiversity; cause reductions in, or extinctions of, populations of indigenous fish; degrade water and habitats; alter infrastructure; introduce disease; and reduce recreational opportunities. The main pathways for the introduction or spread of invasive species include shipping, recreational and commercial boating, the use of live bait in fishing, the aquarium/water garden trade, live food fish, unauthorized introductions and transfers, and canals and water diversions.

Before the Aquatic Invasive Species Regulations (the Regulations) were brought into force, there was a patchwork of inconsistent regulations and policies to address risks posed by AIS at various levels of government across Canada. There was no comprehensive, national AIS regulatory framework. Provinces and territories have put in place some regulations in their respective jurisdictions or are administering federal regulations to control specific invasive species or to manage the introduction of live fish more broadly. Generally, provincial regulatory schemes address matters under their jurisdiction, including property and civil rights, and therefore establish rules on the possession, sale, stocking, etc., of species within their boundaries. This has resulted in inconsistency across the country. In addition, there were some important gaps that could only be filled through federal regulations, such as prohibitions against the interprovincial movement of AIS or their importation into Canada.

Another gap was the lack of a clear and comprehensive power to authorize the deposit of deleterious substances to control AIS. The federal Fisheries Act requires that these types of deposits be authorized through regulation. While other regulations, such as the Fish Toxicant Regulations can be used to address “pests” more generally, they are not ideal as they contain conditions that may not always be appropriate for AIS control activities (e.g. requirements to restock), and they do not apply across Canada.

There have been many new aquatic invaders in Canadian waters since the mid-1980s: currently, approximately 185 alien species are present in the Great Lakes. (see footnote 4) The risk continues to grow as other potentially harmful non-indigenous species have begun to encroach on Canada’s ecosystems. Asian Carps (see footnote 5) have been widely recognized as posing a significant looming threat to the Great Lakes. These fish have already caused profound damage in the United States where they have reduced native fish and mussel populations — some of which are endangered. The ongoing expense of managing the spread of AIS demonstrates that the cost of prevention is far less than the cost of control and mitigation measures, which often require significant time and effort to generate tangible results. For example, Canada has worked bilaterally with the United States to manage the Sea Lamprey Control Program in the Great Lakes. This Program has been successful and is essential to the protection of the valuable commercial, recreational, and Aboriginal fisheries of the Great Lakes with an estimated value in the billions of dollars. However, ongoing suppression of Sea Lampreys requires a substantial effort costing $25 million per year (approximately $8 million of which is paid by Canada) and is indicative of the potential economic consequences associated with AIS.

The total projected costs arising from damages caused by AIS are difficult to estimate as they include direct and indirect costs and are reflected in market and non-market variables. Nevertheless, AIS have been demonstrated to have significant environmental impacts and economic costs for humans. An examination of three published studies (see footnote 6) that included over 100 species suggested that the average costs associated with each invasive species within North America ranged from $14 million to $39 million annually. Associated costs included the control and management of the invasive species, losses in biodiversity and intrinsic ecosystem values, and economic costs associated with commercial and industrial activities that are dependent on water and aquatic ecosystems (e.g. fishing, tourism, hydroelectricity, and marine transportation).

To address the risks associated with AIS, the Regulations will provide federal and provincial governments with a range of tools required to prevent the introduction of AIS to Canada, to respond to an invasion and to manage the spread of established AIS.

Background

As a party to the United Nations Convention on Biological Diversity, the Government of Canada is committed to the prevention, control or eradication of invasive species that threaten ecosystems, habitat, and indigenous species.

The House of Commons Standing Committee on Fisheries and Oceans (the Committee) produced a report in 2003 on aquatic invasive species in Canada. The report recommended two key actions to improve the Canadian regulatory framework concerning the management and control of aquatic invasive species. It recommended that (a) regulations applicable to aquatic invasive species be consolidated within a comprehensive set of federal regulations; and (b) regulations prohibiting live Asian Carps in Canada under the Fisheries Act be developed. In a subsequent 2013 report on the situation in the Great Lakes, the Committee recommended that the Government of Canada expand efforts to restrict the spread of aquatic invasive species into Canada, especially Asian Carps.

The Government of Canada and its provincial and territorial counterparts introduced An Invasive Alien Species Strategy for Canada (IAS Strategy) in 2004. This strategy is aimed at reducing the risk of invasive species to the environment, economy and society, and promoting environmental values such as biodiversity and sustainability.

Within this strategy, an action plan was developed in 2004 by the federal/provincial/territorial Canadian Council of Fisheries and Aquaculture Ministers: A Canadian Action Plan to Address the Threat of Aquatic Invasive Species (the Action Plan). The Action Plan calls for the prevention of unwanted introduction, early detection of potential invaders, rapid response to prevent the establishment of aquatic invasive species, and management to contain those species that have already become established.

Budget 2010 allocated $4 million per year to Fisheries and Oceans Canada (DFO) to continue the implementation of the IAS Strategy as well as for the maintenance and enhancement of advances made in the previous five years in terms of AIS activities.

In order to achieve the objectives of the Action Plan, Fisheries and Oceans Canada is introducing regulations to provide a targeted, national suite of regulatory tools under the federal Fisheries Act to prevent the introduction of aquatic invasive species into Canadian waters, and control and manage their establishment and spread, if introduced.

Objectives

The Minister of Fisheries and Oceans Canada has the responsibility to protect fish and their habitat under the Fisheries Act. As part of A Canadian Action Plan to Address the Threat of Aquatic Invasive Species, Fisheries and Oceans Canada is introducing the Aquatic Invasive Species Regulations under the Fisheries Act. The objectives of these Regulations are

Description

The Regulations provide a comprehensive set of provisions and authorities to manage the threat of aquatic invasive species through a flexible risk-tiered approach. The Regulations address AIS by classifying them into three categories:

The selection of the species included in the Schedule to the Regulations was informed by consulting scientific literature, fishery managers, stakeholders, and risk assessments completed by the Centre of Expertise for Aquatic Risk Assessment. Existing lists of species from the Manitoba Fishery Regulations, 1987 and the Ontario Fishery Regulations, 2007 were used to determine the majority of species listed in the Regulations which are subject to prohibitions only in Manitoba and Ontario, respectively. In the future, the appropriateness of expanding prohibitions against these species into other geographic regions will be considered. The Regulations also include measures to address Asian Carps, and Zebra and Quagga mussels. These species were already highly regulated under provincial laws but there were some important gaps, such as regulating their importation, that are now filled by the Regulations.

In the future, aquatic species, including plants, invertebrates and vertebrates, could be added to or removed from the Regulations through subsequent amendments to the Regulations. As required by the applicable federal directives, this process will be informed by biological and socio-economic risk assessments and will include consultations with interested and affected parties and cost-benefit analyses. Given that the Minister of Fisheries and Oceans Canada and the Governor in Council are both authorized to vary the list of AIS in the Schedule to the Regulations, a provision has been added to the Regulations stipulating that before publishing draft regulations to add or remove species from the list of aquatic invasive species or to vary the geographic areas to which the Regulations apply, the Minister of Fisheries and Oceans Canada must provide the President of the Treasury Board with an estimate of the resulting costs.

Prohibitions
(1) Species listed in Part 2 of the Schedule: species subject to prohibitions and control activities

The Regulations establish prohibitions against the importation, possession, transportation, and/or release of the 89 aquatic invasive species listed in Part 2 of the Schedule. The prohibitions described below apply to members of the species as well as to any genetic material capable of propagating them, such as larvae, eggs, sperm, spat or other cells or tissues.

Prohibitions applying to each listed species are outlined in the Schedule, clearly identifying the species, the prohibited activity, areas within which the prohibitions apply, and any conditions which could exempt the species from the prohibitions (e.g. if the individual member of the species were dead and/or eviscerated). The purpose of Part 2 of the Schedule is to tailor specific prohibitions to specific species and geographic areas.

Which prohibitions apply is determined based on the biological and socio-economic impacts that a particular species may pose and the particular geographic area under threat. Pathways of introduction are also considered. For example, if a species is involved in international trade in the live food or the pet industry, there may be a need to impose import restrictions. The costs and benefits associated with including a particular species in Part 2 of the Schedule will be assessed on a case-by-case basis. The impact of the prohibitions on the activities of Canadians will be weighed against the benefits that would arise from preventing the introduction or spread of a particular aquatic invasive species. The costs and benefits associated with the species included in Part 2 of the Schedule are discussed in the “Rationale” section.

Finally, these species will also be subject to control and eradication measures in the geographic area where they are prohibited and in other areas where they are not indigenous and may cause harm. For example, the Snakehead, whose possession, transport and release is prohibited in Ontario and Manitoba, could be controlled anywhere in Canada where it is not indigenous and could cause harm.

Summary of prohibited species

Asian Carps

The prohibition against importation, possession, transportation and release in Canada applies to four species of Asian Carps (Grass, Bighead, Silver and Black carps), unless they are dead and eviscerated. Evisceration is considered necessary to make sure that the fish is dead. The biology of these resistant species makes them capable of surviving out of water for a period of time and, in the past, Asian Carps transported on ice were found to be still alive after being iced. The requirement for evisceration presents conclusive evidence of death and therefore ensures clarity for the purposes of enforcing compliance with the Regulations.

Zebra and Quagga mussels

The Regulations prohibit the importation of Zebra and Quagga mussels into Canada. This means that conveyances (excluding vessels longer than 24 m — see below for the rationale for this exemption) or equipment fouled with Zebra or Quagga mussels could be denied entry into Canada. An exemption is provided for travel across transboundary waters in Quebec and in Ontario (i.e. waters through which the border with the United States passes in the Great Lakes east of the Pigeon River [located at the western end of Lake Superior] all the way to Quebec). This exemption is provided because these waters are already infested with Zebra and Quagga mussels, and, therefore it is not reasonable to require persons to ensure their vessels are free of mussels while moving back and forth across transboundary waters. However, overland importation of Zebra and Quagga mussels is prohibited across Canada.

Prohibitions against possession, transportation and release apply in the western provinces only (British Columbia, Alberta, Saskatchewan and Manitoba), where the mussels are not yet established. This complements existing restrictions already in place across the western provinces with respect to possession and transport of these species. Individuals are therefore already required to undertake activities such as cleaning fouled vessels to stay in compliance with these existing provincial prohibitions.

There are no restrictions against the possession or transportation of Zebra and Quagga mussels east of Manitoba. Zebra and Quagga mussels are freshwater species; their distribution to the east is limited by the salinity of the St. Lawrence Seaway east of Île d’Orléans (Orleans island) [where the ecosystem changes into a marine ecosystem]. They are not currently present in the fresh waters of the Atlantic provinces, and neither are they in Maine or New Hampshire. The inclusion of prohibitions against the possession and transport of Zebra and Quagga mussels in the Regulations has been initially limited to the western provinces as biological risk assessment work has already been completed for this region of Canada. In the future, the prohibitions could be extended to other regions in Canada if deemed appropriate.

The prohibition-exception approach proposed for Zebra and Quagga mussels is intended to prevent their introduction into uninfested areas, while allowing activities to continue in areas where they are already established. Furthermore, in areas where Zebra and Quagga mussels have become well established, with little potential for control or eradication, prohibiting activities related to those aquatic invasive species may not create a net benefit to Canadians, as it may negatively affect social, economic and cultural activities in the Great Lakes and the St. Lawrence Seaway.

Species listed in the Manitoba Fishery Regulations, 1987 and the Ontario Fishery Regulations, 2007

Out of the 89 species listed in Part 2 of the Schedule, 83 are already prohibited under the Manitoba Fishery Regulations, 1987 and the Ontario Fishery Regulations, 2007 made under the federal Fisheries Act. They have been included in the Regulations in order to consolidate federal AIS provisions. These 83 species are only subject to possession, transport and release prohibitions in either Manitoba, Ontario, or both. They are not subject to import restrictions or prohibitions against possession or transportation in other parts of Canada.

Overall, the status quo is maintained with respect to these 83 species as they are simply being transferred from regionally specific federal fisheries management regulations to the AIS Regulations for consolidation purposes; therefore, there is no new incremental impact.

Based on future risk assessments, public consultations, and cost-benefit analyses, these prohibitions could be extended to other parts of Canada, if appropriate. This would be accomplished through a future regulatory amendment.

(2) Species listed in Part 3 of the Schedule: species subject to control when present in areas where they are not indigenous

The Regulations also list 14 species in Part 3 of the Schedule. Some of these species are indigenous to parts of Canada but have the potential to be invasive in other parts. These species may be subject to control and eradication activities only in areas where they are not indigenous and may cause harm. These species are not subject to prohibitions against importation, transportation, possession or release in specific geographic areas.

For example, the Yellow Perch (Perca flavescens) and the Walleye (Sander vitreus) are two species that are indigenous in some parts of Canada, but that are considered invasive elsewhere in the country. The indigenous distribution of the Yellow Perch extends through most of central and eastern Canada, where its fishing is valued, but it represents a significant risk to native species in British Columbia. The situation with the Walleye is similar. It is indigenous in many areas in Canada and a valued species for sport fishing; nevertheless, it does not originate naturally in British Columbia, Yukon and most of the eastern provinces. The Regulations accommodate these situations by giving the regulators the authority to implement management actions to target the risks posed by these species in specific areas of Canada.

It is prohibited for any person who is not authorized by a federal or provincial law to introduce the species listed in Part 3 of the Schedule into a particular region or body of water frequented by fish where they are not indigenous. This prohibition will not affect ongoing stocking activities, i.e. in lakes or aquaculture facilities, even in areas where a species is not indigenous. If there has been historic stocking of particular species in an area, or if the risks posed by a particular species are low, these activities can continue as long as they have been authorized under federal or provincial law.

The purpose of Part 3 of the Schedule is to inform the public that control activities may be pursued with respect to these species when they are present in areas where they are not indigenous. Part 3 of the Schedule also allows for the species to be subject to control measures when prohibitions relating to their possession, transport, or import may not be appropriate due to potential significant impact on stakeholder activities. Such species will be subject to control provisions, while work is underway to assess whether they should be added to Part 2 of the Schedule where they would be subject to prohibitions. This offers a level of protection while analysis is done to determine which prohibitions would apply in what geographic region, and under what conditions.

(3) Aquatic species not listed but recognized as not indigenous in a particular region or body of water frequented by fish

The Regulations also incorporate some limited control provisions relating to non-indigenous species that are not listed. These provisions ensure that Canada’s fisheries and aquatic ecosystems can be better protected in circumstances where potentially harmful species have not been individually prescribed in the Regulations.

Under the Regulations, it is prohibited for any person who is not authorized by a federal or provincial law to introduce aquatic species into a particular region or body of water frequented by fish where they are not indigenous.

This provision is similar to provisions found currently in the Fishery (General) Regulations and other fisheries regulations that already prohibit unauthorized release and transfer of fish.

In order to provide greater certainty with regard to which species are considered non-indigenous in a given area, a fishery officer or fishery guardian may notify a person, directly or through a public notice that an aquatic species is not indigenous in a particular region or body of water frequented by fish. This would aid individuals in complying with the Regulations.

Exemptions from the prohibitions

Recognizing that the importation, transportation, possession and release into a body of water frequented by fish of members of species set out in Part 2 of the Schedule may be acceptable under certain circumstances, the Regulations include exemptions to the prohibitions.

(1) Fishery officers or fishery guardians

Prohibitions do not apply to fishery officers or fishery guardians carrying out their duties under the Regulations and to any persons acting under their direction.

(2) Emergency vehicles, vessels and aircrafts

Prohibitions do not apply to persons operating any vehicles, vessels or aircraft engaged in emergency, search and rescue or firefighting operations.

(3) Science, education or aquatic invasive species control

Exemptions are provided for specific groups of people for the purposes of scientific research, education or aquatic invasive species control only when relevant permits listed in the Regulations have been obtained. This allows for these activities to continue under regimes which assess risks and put in place mitigation measures to diminish the risk of unwanted introduction and spread of the species. Examples of activities granted exemptions include research regarding aquatic invasive species that could take place in an accredited laboratory or post-secondary institution, or an educational display on aquatic invasive species within a publicly accessible aquarium.

(4) Provincial ministry or federal department

Exemptions from importation, transportation, possession and release prohibitions are also granted to employees of a provincial ministry or federal department with a mandate to manage or control AISs when so doing for scientific, educational or control purposes.

(5) Exemption for person under direction

If a direction issued under the Regulations, by either a minister or a fishery officer, requires a person to be in possession of or to transport a member of a species listed in Part 2 of the Schedule, the person to whom the direction was issued is exempt from the prohibitions against possession and transport in sections 7 and 8 to the extent necessary to fulfill the requirements of the direction.

(6) Alberta sterile Grass carp program

The Regulations provide targeted exemptions in Alberta for the production of sterile (triploid) Grass carp by Lethbridge College for the purpose of vegetation control, when authorized under the Fisheries (Alberta) Act. This carp is sterile, produced under controlled conditions in a laboratory and sold in Alberta for release into water bodies for its capacity to eat large amounts of unwanted aquatic vegetation. Risks associated with the sterile Grass carp program would continue to be managed and mitigated through a variety of conditions put in place by the Government of Alberta, including a requirement that the sterile carp be released into a body of water on privately owned land that is isolated from other bodies of water. Since these introduced carps are sterile, they cannot establish reproducing populations within their host water bodies. This exemption scheme was designed in consultation with provinces, territories and stakeholders. The exemption means that the sterile Grass carp program may continue to operate in Alberta under the same conditions as are currently in place, but the use of the sterile Grass carp is limited to vegetation control. The exemption eliminates opportunities for expansion of this program into other regions.

(7) Ballast Water Control and Management Regulations and biofouling of a vessel over 24 m

To ensure no duplication of regulatory requirements is imposed by the Regulations, exemptions are granted in respect of

The prohibitions to import, possess, transport and release would not apply to the above-mentioned persons. Also, in respect of these situations, a fishery officer would not have the authority to take measures, and the prescribed ministers and fishery officers would not have the authority to issue directions to such persons.

These exemptions are provided because the management of ballast water and sediments is the responsibility of Transport Canada and is well managed under the Ballast Water Control and Management Regulations made under the Canada Shipping Act. Since the introduction of these Regulations in 2006, no new invasive species attributed to ballast water release or transoceanic shipping in general have been recorded in the Great Lakes.

Biofouling on large vessels is currently addressed globally through the International Maritime Organization (IMO). Through the IMO, Canada has supported the development of the 2011 Guidelines for the Control and Management of Ships’ Biofouling to Minimize the Transfer of Aquatic Invasive Species which are expected to greatly assist in reducing the risk of invasions from biofouling. Canada has also supported a five-year evaluation process launched by the IMO to determine the success of its voluntary guidelines.

Vessels over 24 m in length remain subject to the Regulations for matters not related to biofouling. However, the Regulations require that the Minister of Transport or a marine safety inspector must be consulted before a measure or direction can be issued affecting such large vessels. For example, a commercial vessel importing a prohibited species as cargo is subject to the Regulations.

Control and eradication
(1) Ministerial measures

The prescribed persons — the Minister of Fisheries and Oceans and the provincial and territorial ministers listed in section 18 of the Regulations — have the authority to authorize the deposit of deleterious substances, after they have taken into account the impact of the deposit and considered the use of alternative methods.

Moreover, the Minister of Fisheries and Oceans Canada and any provincial minister with jurisdiction over the fisheries have the authority to license fishing to control AIS.

These measures apply in respect of a species set out in Part 2 and Part 3 of the Schedule as well as non-listed species when present in areas where they are not indigenous. The measures could be used to prevent the introduction or spread of the species, to control or eradicate the species, or to treat or control the members of the species.

Before authorizing such deposits, in non-emergency situations, a prescribed minister has to notify the departments or agencies of the Government of Canada or the government of any province or municipality of potential significant impact on activities under their jurisdiction so that officials may cooperate and coordinate to ensure efficiency and effectiveness of the authorization. The minister must also consider alternative measures and the possible impact of the deposit on fish, fish habitat or the use of fish.

The Regulations only allow the deposit of drugs and pest control products in compliance with the legislation enforced by Health Canada and the Pest Management Regulatory Agency. Health Canada’s Healthy Environments and Consumer Safety Branch conducts pre-manufacture and pre-import assessments of the potential environmental risk of drugs under the New Substances Notification Regulations made under the Canadian Environmental Protection Act, 1999. Health Canada’s Pest Management Regulatory Agency conducts environmental and human health risk assessments of pest control products in accordance with the Pest Control Products Act and its regulations. The Regulations complement the existing regulation of drugs and pest control products by regulating their deposit into waters for the purposes of controlling aquatic invasive species.

In order to avoid duplication of regulatory requirements, the above-mentioned ministerial powers, related to the control or eradication of species and to the treatment or destruction of fish, do not apply in respect of aquaculture activities that are otherwise authorized under the Fisheries Act.

Most ministers listed in the Regulations have assumed a role in fisheries management and, therefore, have agreed to assume the role of controlling aquatic invasive species in line with their existing fisheries management objectives. More information on this is available in the “Implementation, enforcement and service standards” section of this statement.

(2) Ministerial directions

Prescribed ministers would have the authority to issue written directions, in respect of any species set out in Part 2 and Part 3 of the Schedule, requiring a person to treat or destroy members of the species or a carrier, (see footnote 8) or to treat a conveyance or structure (see footnote 9) where a member of the species is found, by depositing a deleterious substance for the purpose of preventing the introduction or spread of the species or to control or eradicate the species. It is important to note that directions can only be issued with respect to the species listed in the Schedule. The majority of these species are listed in Part 2 of the Schedule and are already subject to prohibitions and enforcement actions (such as inspection, seizure, etc.). The directions allow for the flexibility to apply preventative measures before risks are amplified, instead of restricting available compliance tools to the enforcement of prohibitions after an AIS is introduced. This represents a proactive and balanced approach to addressing AIS, as corrective measures could prevent an introduction from occurring before far more aggressive measures are needed or there is no longer potential for control or eradication.

Only prescribed ministers would have the ability to issue these directions. They would be required to take into account alternative measures and the possible impact of the deposit on fish, fish habitat and the use of fish before issuing a direction. Before directing such deposits, a prescribed minister, in a non-emergency situation, has to notify the departments or agencies of the Government of Canada or the government of any province or municipality of potential significant impact on activities under their jurisdiction so that officials may cooperate and coordinate to ensure efficiency and effectiveness of the direction. In addition, directions would have a limited duration and would only be issued to certain individuals, i.e. the person in possession of the AIS or in possession of a carrier, conveyance or structure or who owns the place where the AIS are located or the person who has engaged in an activity that may lead or has led to the introduction or spread of the species. Further, issuing a direction would be possible only in cases where it does not compromise public safety, the safety of vessels and persons on board, and after consultations with the interested/affected governments have taken place. Directions could not be issued in respect of ballast water and sediments or biofouling of a vessel that is over 24 m.

(3) Fishery officers and fishery guardians — Notifications and directions to stop introduction

These provisions of the Regulations aim to prevent the introduction of a non-indigenous species to a body of water even when the species is not listed in the Regulations. A fishery officer or a fishery guardian will be able to notify a person or the public that an aquatic species is not indigenous in a particular region or body of water. If a fishery officer sees that an introduction is imminent (ready to take place) or in the process of occurring, he/she may issue a direction prohibiting a person from engaging in the activity, or order the person to cease engaging in an activity that may cause the introduction of a species. Issuing these directions would be possible only in cases where they do not compromise public safety, the safety of vessels and persons on board, and in non-emergency situations where the direction may have a significant impact on activities under the jurisdiction of various governments, after notifying the governmental body managing that activity.

(4) Species set out in the Schedule — Measures and directions from fishery officers and guardians

Under the Regulations, a fishery officer, a fishery guardian or a person operating under their direction will be able to take measures, and a fishery officer will be able to issue directions in cases where doing so is required, as follows:

It is important to note that because these directions can only be issued with respect to species listed in the Schedule, the majority of these species are listed in Part 2 and are already subject to prohibitions and enforcement actions (inspection, seizure, etc.). The directions allow for the flexibility to apply preventative measures, instead of being limited to the enforcement of prohibitions after an introduction has occurred. This is a key aspect of addressing AISs, as corrective measures could prevent an introduction from occurring before it is too late.

A fishery officer or a fishery guardian or a person acting under their direction could take the following measures:

A fishery officer could issue a written direction requiring a person to

Further, taking these measures or issuing these directions would be possible only in cases where

(5) Content of directions

Directions issued either by a fishery officer or by a prescribed person must contain the information set out in the Regulations. This includes, among other things, the description of the species, the reasons for the direction and the requirements specified in the directions. These directions have to establish the time period in respect of which they are applicable, up to a maximum of 15 days with an extension of up to a maximum of 90 days.

(6) Requirements for persons to whom a direction is addressed

Every person to whom a direction is issued under these Regulations

Inconsistency with other regulations

In the event of an inconsistency between these Regulations and any other regulations made under the Fisheries Act, these Regulations would prevail to the extent of the inconsistency.

Consequential amendments

As these Regulations aim to bridge existing gaps, remove duplication and streamline the regulatory framework to manage AIS in Canada, some consequential amendments are required.

The Manitoba Fishery Regulations, 1987 and the Ontario Fishery Regulations, 2007 made under the federal Fisheries Act are amended to repeal their list of invasive species (these species are transferred to Part 2 of the Schedule of the Regulations).

The Fishery (General) Regulations is also amended to allow for the issuance of aquatic invasive species control licences. This allows fishing to be used as a means of AIS control.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as the Regulations will not impose any new administrative burden on regulated communities. No new permits will be required under the Regulations to pursue authorized activities. The Regulations only reference existing federal and provincial permits, authorizations, and legislative and regulatory schemes that individuals must comply with in order to qualify for exemptions, sometimes in addition to other conditions listed in the Regulations. Such conditions do not include any new permits, reporting or record-keeping requirements, or other processes that could be considered an administrative burden. These existing requirements have to be satisfied at present regardless of the AIS Regulations.

Small business lens

The small business lens does not apply to the Regulations, as the costs to small business are not significant. Small businesses are not disproportionately affected by the Regulations. In most cases, the prohibitions on the species initially included in the Regulations already exist in other federal and/or provincial regulations, such that no new regulatory costs are identified (see the “Rationale” section).

Consultation

Policy consultation

Starting in 2012, Fisheries and Oceans Canada held a series of consultations on its intent to regulate aquatic invasive species. Various engagement tools were used beginning in November 2012 to capture the views of Canadians:

Over 240 people have either personally received material or participated in the face-to-face meetings, and 571 people responded to the online survey. The participants and respondents came from various groups and entities including representatives of federal, provincial and territorial governments, Aboriginal groups, municipalities, shipping industry, hydropower industry, commercial and recreational fishers, recreational boaters, aquarium trade, aquaculture, conservation groups, and research institutions.

Feedback was generally positive and indicated support for the regulatory initiative. Most stakeholders requested that additional measures be put in place to protect against AIS, including higher fines/tougher penalties, pressure washing stations, and more authority for enforcement officials. There was a call for alignment between federal and provincial regulatory frameworks and coordination between jurisdictions including internationally and inter-provincially. In addition, many stakeholders felt that there were gaps in the current regulatory framework that needed to be addressed, such as the need to reduce the risk of AIS spreading through vectors such as cruise ships, feed/bait, fish processing, the aquarium trade, etc. There was particular mention of boating activity as a vector for invasive species introduction and spread and many stakeholders want to see this vector addressed effectively. The Regulations do not include provisions relating to specific activities but do include prohibitions against importation, possession, transportation and release. Individuals would need to comply with these prohibitions regardless of the activity in which they are involved.

There was some concern expressed that a lengthy process to evaluate and approve AIS control activities may impede response to invasions. To address this issue, the Regulations allow for enforcement officials to issue directions to prevent introduction and spread of listed species and also unauthorized introduction of any non-indigenous species. With respect to chemical control activities, the Regulations rely on existing Health Canada processes for assessing and registering/approving drugs and pesticides so that action can be taken using products that have already been deemed acceptable for use under specific conditions.

Stakeholders, specifically in the Atlantic and Pacific regions, expressed concern that the Regulations as proposed would not include many marine species upon entry into force. Generally, there was a desire to see more species listed in the Regulations. The initial list of species by no means represents all potential AIS threats in Canada. However, the Regulations provide a foundational framework that can be strengthened over time. The DFO, provinces and territories would be identifying new species for inclusion in the Regulations, as needed, through future amendments. This would be done according to an assessment of risk of the species arriving, surviving, establishing and their potential impact. Once a new species is identified for potential inclusion in the Regulations, consultation and cost benefit analysis would be pursued prior to listing. The species currently listed in the Regulations are largely limited to those that were regulated federally, (though administered provincially) through the Ontario Fishery Regulations, 2007 and the Manitoba Fishery Regulations, 1987. Asian Carps have also been included in the initial list of species due to the immediate and significant threat they pose to Canada’s aquatic ecosystems and also to address the current lack of import regulation for these species.

The Government of Canada invested $15.3 million over five years in 2012 for the Asian Carp Initiative and the inclusion of Asian Carps in the initial list of species in the Regulations is part of a broad binational effort to prevent these species from entering the Great Lakes. Zebra and quagga mussels have also been added to the initial list as these species were identified as high risk by western provinces and to address current gaps in import restrictions. As these species are already regulated in western provinces, there was minimal additional assessment necessary to add them to the Regulations. Species listed on Part 2 of the Schedule represent species which have been assessed as moderate to high risk in some parts of Canada. The inclusion of species such as green crab and tunicates responds to concerns heard during consultations about the lack of measures to control these species currently.

During public sessions on the regulatory intent, there were questions raised about definitions of terms such as “harm” and “aquatic invasive species.” There were also discussions about how best to regulate AIS. These views were considered in the development of the Regulations. Definitions have been included where appropriate. Some stakeholders asserted that the regulatory framework should take a “reverse onus” approach and include blanket prohibitions against all live aquatic species and then identify a list of acceptable species. This approach was not taken as it may have resulted in restrictions on activities and species when no significant risk is posed by a given species or where costs outweigh the benefits of the application of regulatory measures. In addition, some stakeholders felt that specific activities/pathways should be directly referenced in the Regulations. This approach was not taken as it would be difficult to enumerate all potential activities that could lead to the introduction or spread of AIS. Instead, the broader categories of prohibitions against importation, possession, transportation, and release were used. This approach generates a similar outcome as it requires compliance with prohibitions regardless of the activity being undertaken.

With respect to implementation of the Regulations, stakeholders suggested the need for education and public awareness campaigns to help promote compliance. There was also some concern expressed regarding capacity to implement and enforce the Regulation at the provincial and federal level and the need for more resources to support implementation. The DFO and the provinces and territories will continue to work together to facilitate the implementation of the Regulations. Focus will be on high risk species, pathways of introduction and geographic areas. Many jurisdictions already have very effective education and outreach programs in place to increase public awareness about this issue and these efforts would continue.

Some concern was expressed by the agricultural sector in Alberta, as well as Lethbridge College, regarding the proposal to prohibit Asian Carps in the Regulations. On the other hand, there was a strong desire expressed by other stakeholders and provincial governments to fully prohibit all Asian Carps throughout Canada and require their evisceration in order to facilitate enforcement action and minimize any risk of introduction of these species. The Government of Canada considers Asian Carps to be a significant risk to the Great Lakes and is investing $15.3 million over five years on prevention, early warning, response, and management activities Considering the risk posed by these species and stakeholder views, the approach taken has been to prohibit importation, transportation, possession, and release of Asian Carps in Canada unless they are dead and eviscerated. However, due to the safeguards put in place in the Lethbridge College program whereby all grass carp are produced as triploid (sterile) and individually tested, an exemption has been included for the use of these fish if licensed under the Fisheries (Alberta) Act. This exemption is limited to the use of these fish for vegetation control purposes only. The Regulations therefore do limit Lethbridge College from selling sterile grass carp into the live food market and from expanding the sale of these fish into other provinces.

Stakeholders, including recreational and commercial fishers, expressed a desire to see action to address the issue of introduction and spread of AIS by boating activities. Persons involved in boating and shipping activities asked questions regarding how the Regulations would impact these activities. As each species is considered for addition to the Regulations, the pathway of introduction as well as the potential impact of the regulatory provisions, such as prohibitions against transport, would be evaluated and consulted upon. There may be instances in highly infested areas where it may not be feasible to include prohibitions against certain species. This is reflected in the exemption applied to the importation of Zebra and Quagga mussels in transboundary waters in Ontario and Quebec. The Regulations also provide exemptions for vessels in compliance with existing ballast water regulations and for biofouling of large vessels (over 24 m). The latter exemption would facilitate continued commercial shipping activities and recognizes the implementation of voluntary guidelines to address risks associated with biofouling. For activities involving smaller vessels, the current prohibitions are likely to result in minimal impact (see “Rationale” section below).

Some individuals involved in fishing activities raised the possibility that a species may be considered invasive in one region while it is indigenous somewhere else. This reality has led to a more flexible regulatory framework that is adaptable to local situations. The Regulations do not include specific prohibitions, such as possession or importation, for these species in specific geographic regions but do prohibit their unauthorized introduction anywhere in Canada where they are not indigenous. For example, the Yellow perch (Perca flavescens, listed in Part 3) is a fish that is indigenous to the St-Lawrence River watershed where fishing for the species is highly valued but they are considered invasive in other parts of Canada, such as British Columbia. The Regulations provide the opportunity for enforcement officials to take measures and issue directions to control these species but only where they are deemed both non-indigenous and may result in harm to fish, fish habitat or the use of fish.

The DFO also conducted an online survey to gauge interest and views on AIS and the regulatory proposal. The survey results showed

Multijurisdictional committee for the development of the draft Regulations

In addition to external consultations with various stakeholders, Fisheries and Oceans Canada worked collaboratively with provincial and territorial jurisdictions through the National Aquatic Invasive Species Committee (NAISC), a working-level task group under the Canadian Council of Fisheries and Aquaculture Ministers to develop the Regulations. Members of the committee were involved through the development of the Regulations and will remain involved in the implementation of the proposed Regulations.

Participation of federal departments

Other federal departments provided input as they have a role in the application of the Regulations:

Comments received following prepublication of the proposed Regulations in the Canada Gazette, Part I

The Regulations were published in the Canada Gazette, Part I, on December 6, 2014 (Vol. 148, No. 49), for a 30-day public comment period. Comments were received from individuals and groups, including the hydroelectric industry, the shipping industry, conservation non-governmental organizations, and the general public.

In total, 24 submissions were received and taken into consideration. The comments were generally positive, with no respondents disputing the threat posed by AIS. The majority of respondents indicated they were in support of the Regulations including respondents from the hydro industry, private citizens, non-government organizations, and invasive species councils. The nature of the comments received in the submissions ranged from technical elements of the Regulations to issues around implementation. The following summarizes the comments received and the DFO’s responses.

List of species in the Regulations

There were several questions regarding how the lists of species in the Schedule were made, and on how and what species would be listed in the future. These questions were mainly raised by non-government organizations, the hydro-electric industry and regional/municipal governments.

The initial list of species in Part 2 of the Schedule largely represents species currently listed in the Manitoba Fishery Regulations, 1987 and the Ontario Fishery Regulations, 2007. The objective was to consolidate existing lists under a single federal regulation. Asian Carps and Zebra and Quagga mussels were added to the list because, although these species are already highly regulated under provincial laws, there were some important gaps, such as the inability to regulate imports, that are now filled by the Regulations. The 14 species listed in Part 3 of the Schedule were identified based on risk assessments completed by the Centre of Expertise for Aquatic Risk Assessment.

In the future, aquatic species, including plants, invertebrates and vertebrates, could be added to or removed from either Part 2 or 3 of the Schedule through subsequent regulatory amendments. This process would be informed by biological and socio-economic assessments, including the probability of arrival, survival, establishment and spread of the species and its potential impacts. Once species posing significant risk have been identified, a determination will be made regarding which prohibitions, geographic areas, and conditions would be appropriate. Future amendments to the Regulations, to add or remove species from the Schedule or vary the places where the Regulations apply, would be undertaken in accordance with the requirements of the federal regulatory process, which includes cost-benefit analysis and consultation with affected and interested parties.

There was a recommendation by a non-government organization that provinces and territories be involved in the listing process and that a clear mechanism be in place for emergency listing of new species. The National AIS Committee under the Canadian Council of Fisheries and Aquaculture Ministers will be working together through this forum to coordinate implementation of the Regulations, including identification and analysis of species before they are proposed for listing. It is recognized that it may sometimes be necessary to expedite the listing process to address a significant or acute risk. This will be done, when appropriate, through a regulatory amendment, balancing the need to complete the requirements associated with listing the species through the federal regulatory process.

Species listed in Part 3

A non-governmental organization suggested that it could be beneficial to include geographic regions where these species are indigenous so as to provide greater clarity as to where the prohibition of unauthorized introductions would apply.

The distribution of species changes over time, and species could be indigenous to one watershed in the province, but not to another. Therefore, the DFO is of the view that describing regional boundaries in the Regulations is not the best approach to addressing this as the list would require continual updates and would have to be very extensive. Other tools, such as biological surveys, species distribution maps, databases, and public outreach material would be more accurate in describing the native distributions of specific species or identifying areas where specific species are considered non-indigenous. These tools are already used by the DFO, provinces, and non-governmental organizations to inform the public about non-indigenous species in a particular area. The Regulations also include provisions allowing enforcement officials to provide notification either directly to a person or through a public notice that an aquatic species is not indigenous in a particular region or body of water frequented by fish. This can also help highlight areas where species are not indigenous.

Aquatic species not listed but recognized as not indigenous in a particular region or body of water frequented by fish

Under the Regulations, it is prohibited for any person who is not legally authorized to introduce aquatic species into a particular region or body of water frequented by fish where they are not indigenous. Comments from the hydroelectric industry indicated that this prohibition could be more effective if all targeted species were listed in the Schedule. The expectation is that the list of species subject to specific prohibitions in specific geographic areas contained in the Regulations will grow over time. However, the DFO is of the view that a more general prohibition against the introduction of any non-indigenous species will ensure that Canada’s fisheries and aquatic ecosystems can be better protected in circumstances where potentially harmful species have not been individually prescribed in the Regulations. This may be the case with respect to new threats that have not yet been listed or when species are not in pathways but are transported outside their natural range. This provision is similar to, and builds upon, provisions found currently in the Fishery (General) Regulations and other fisheries regulations that already prohibit unauthorized release and transfer of fish.

Others (e.g. the hydroelectric industry and a non-government organization) commented that, in particular circumstances, it might be acceptable to introduce non-indigenous species. For example, it might be acceptable if the introduction is a result of an activity that has been authorized, such as scientific research. The Regulations do not prohibit all introductions; only unauthorized introductions are prohibited. Not all non-indigenous species will be invasive or pose an unacceptable risk. Therefore, if the risk is determined to be low, acceptable or can be mitigated, a provincial or federal government could continue to authorize the introduction. If the introduction is authorized, the prohibition does not apply. To avoid potential misinterpretation and to clarify this, the wording in section 10 of the Regulations was improved to make sure that the intent is better communicated. The new wording links the concept of authorization to the introduction. This link was not clear in the previous version of the Regulations. The wording of subsection 22(2) was also improved by adding the word “unauthorized.”

Penalties associated with the Regulations

Some commenters requested more information about the consequences of infractions to the Regulations. Section 78 of the Fisheries Act establishes the punishments to which every person who contravenes these Regulations is exposed. Fines and imprisonment are possible.

There was a suggestion from a non-governmental organization that fines be directed to the Environmental Damages Fund. However, the Fisheries Act only allows fines received as a result of penalties issued for offences committed under section 40 of the Act to be deposited in this fund. This does not include funds generated as a result of penalties collected for offences under the Regulations. The majority of funds collected in respect of penalties for offences are deposited in the Consolidated Revenue Fund.

Exemption for emergencies

There were some comments from non-governmental organizations that the Regulations should address activities involving float planes and firefighting equipment, which can spread invasive species. It is recognized that these activities can serve as vectors for the transport of invasive species from one place to another. However, it is also recognized that it is important to allow emergency response activities to proceed in an effective and efficient manner. To address this issue, an exemption for persons operating vehicles, vessels or aircraft which are actively engaged in emergency, search and rescue or firefighting operations has been added to the final version of the Regulations. There is still an expectation that these types of vehicles would be subject to the prohibitions in the Regulations outside of periods when engaged in an emergency situation. Several provinces are developing guidance on how emergency response activities can be undertaken while minimizing the threat of incidental introduction or spread of aquatic invasive species.

Exemption for scientific research

Researchers have asked if they will require a federal permit to be exempt from prohibitions where certain species are incidentally caught as part of research activities. A provision to the Regulations has been added exempting persons possessing a member of a species set out in Part 2 of the Schedule if the member is caught during a licensed fishing activity provided the person is taking immediate measures to destroy the member, in a manner that ensures it, and any genetic material from which that species could be propagated, cannot survive.

Additions to prescribed persons in relation to the control and eradication measures

Comments from the hydroelectric industry recommended inclusion of the Ontario Ministry of Environment and Climate Change (OMECC) to the list of persons prescribed as begin able to authorize deposits to control AIS. After discussion with the Province of Ontario, it was determined that the OMECC would continue to be responsible for administering the Pesticides Act of Ontario to manage pesticide use in Ontario and that the Minister of Fisheries and Oceans or the Minister of Ontario’s Ministry of Natural Resources and Forestry would be responsible for authorizing the deposits under the Regulations. The Minister responsible for Parks Canada was also added to the list of prescribed persons in relation to the control and eradication measures to reflect the agency’s role in managing fisheries issues within federal protected areas.

Permits, licences or authorizations issued under the Canada National Parks Act were also added to the list of permits that are recognized for scientific, educational and AIS control exemptions in the Regulations.

Ballast water and sediments

Submissions from the shipping industry sought clarifications on the ballast water exemptions. The management of ballast water and sediments is the responsibility of Transport Canada. The ballast water and sediments of Canadian vessels and vessels that are not Canadian vessels and are in waters under Canadian jurisdiction are exempted from the Regulations. This includes vessels that operate exclusively in waters under Canadian jurisdiction and in the United States waters of the Great Lakes Basin or the French waters of the islands of Saint-Pierre and Miquelon. Language in the Regulations has been clarified to reflect this intent.

Definition of “imminent” with respect to powers to issue direction to stop introductions

There was a comment seeking a definition of the terms “imminent or in the process of occurring” in relation to introduction of species that could be subject to directions. A definition was not included in the Regulations because the general meaning of the term imminent, “ready to take place,” reflects the intent of the provision.

Directions and measures

Stakeholders from the hydroelectric and shipping industries expressed some concern over the potential impact of the measures or direction powers in the Regulations, particularly over their potential to interfere or overlap with other requirements that may be placed on activities by other levels of government. The measures and directions powers are bound by certain limitations: they must be, for a specific purpose, outlined in the Regulations (e.g. prevent the introduction or spread of AIS), public safety cannot be compromised, Transport Canada must be consulted if large vessels are involved, conveyances or structures cannot be ordered to be destroyed, directions are only valid for a specific amount of time, and the alternatives and impact of the direction to deposit deleterious substances need to be considered prior to the issuance of directions.

However, for added assurance, a requirement for the Minister, fishery officers and fishery guardians to notify, in non-emergency situations, government agencies with jurisdiction over the impacted activity before issuing a direction has been added to the Regulations. This will allow for coordination and cooperation between relevant government agencies that may be involved in an activity impacted by the directions. The intent of the measures and directions powers are that they be used only when necessary, and in a manner that has minimal unintended consequences in order to respond rapidly and effectively to an invasive threat in a timely manner. Prevention will be the focus of efforts with respect to invasive species. But when this fails, early detection and rapid response is the next course of action to prevent the establishment of AIS that may be impossible to control in the long term. Cooperation with other governments when issuing directions will be pursued, where relevant, to ensure coordination amongst agencies and to minimize burden on stakeholders.

The hydroelectric industry recommended inclusion of a provision in the Regulations making persons who are engaged in any activity that has led, or may lead, to the introduction or spread of a listed species subject to fishery officer and ministerial directions powers. This category of persons has been added to the list of persons to which fishery officers and the ministerial directions powers apply. This is in addition to persons in possession of a member of the species or a carrier, conveyance or structure where a member of the species is found and persons who are in charge of a carrier, conveyance or structure or who own or occupy the land, building or place where a member of the species is found.

A non-governmental organization (NGO) sought clarity on the authorities granted to fishery officers when enforcing the Regulations. The Fisheries Act provides fishery officers with their enforcement authorities, which includes (among other things) the ability to undertake inspections, search and seizure, and information gathering. These enforcement authorities are applicable to the Regulations, meaning fishery officers are authorized to undertake compliance and enforcement activities in association with the Regulations.

Control products

An NGO in the agriculture sector commented on the amount of time it takes to approve pesticide products and whether this would hinder their availability for use to control AIS.

Health Canada’s Healthy Environments and Consumer Safety Branch conducts pre-manufacture and pre-import assessments of the potential environmental risk of drugs under the New Substances Notification Regulations made under the Canadian Environmental Protection Act, 1999. Health Canada’s Pest Management Regulatory Agency conducts environmental and human health risk assessments of pest control products in accordance with the Pest Control Products Act and its regulations. The AIS Regulations only authorize the use of control products that are compliant with these existing frameworks. These management regimes include stringent science-based evaluation of products and can take time depending on the complexity of the product and information available, etc. No changes are being proposed to these processes.

There was also a comment from a private citizen seeking to ensure that operations under the current Sea Lamprey Control Program would be able to continue under the Great Lakes Fishery Commission. The Regulations provide clear and comprehensive authority under the Fisheries Act for the use of chemicals to control Sea Lamprey which supports the ongoing efforts to manage this species in the Great Lakes.

Implementation of the Regulations

Some stakeholders, including private citizens, and NGOs, felt that it will be a challenge to implement these Regulations with a coordinated approach considering the complex legal framework in place to manage activities related to the AIS issue and the diversity of Canadian ecosystems. Several comments supported the dedication of increased funding for implementation of the Regulations and AIS management activities more broadly, such as public education and outreach, control activities, and partnerships. There were also several comments recommending federal-provincial-territorial cooperation in the implementation of the Regulations.

The DFO acknowledges these challenges and continues to make considerable investments to address them. The DFO spends $8.1 million per year to support the Sea Lamprey Control Program, and in 2012, it invested $17.5 million over five years on prevention, early warning, rapid response, management and control activities related to Asian Carps. An additional $2 million per year is dedicated on an ongoing basis to support the development of a regulatory framework; to undertake scientific research on high priority species and pathways; to monitor for new introductions and spread; to contribute to ballast water monitoring; to support biological risk assessments; to conduct socio-economic analysis; and, to communicate to key stakeholders.

The DFO has also worked collaboratively with provincial and territorial jurisdictions through the National Aquatic Invasive Species Committee, a working-level task group under the Canadian Council of Fisheries and Aquaculture Ministers, to develop the Regulations and will continue to work together to coordinate implementation activities, such as enforcement, compliance promotion, and identification of species for listing in the Regulations.

There was also a recommendation from a non-governmental organization that DFO work with other partners, such as academia and conservation organizations on the issue of AIS. The DFO currently partners with the Invasive Species Centre and works with organizations such as the Ontario Federation of Anglers and Hunters on invasive species management. The DFO will continue to look for partnership opportunities to help leverage resources and effectively manage AIS.

Rationale

Before the Regulations, Canada’s regulatory framework to address aquatic invasive species consisted of a patchwork of regulations, under federal or provincial legislation, which included prohibitions in respect of the possession, transport, culture or sale of particular species. There was little consistency across this patchwork of legislation with regard to prohibited species, regulatory language or requirements. The Regulations now provide national consistency across the different regimes.

Furthermore, the lack of import prohibitions that can be enforced at the Canadian border was a significant gap that is now filled by the Regulations. In addition, the Fisheries Act requires that regulations made under the Act authorize the deposit of deleterious substances into Canadian fisheries waters; the Regulations establish such a framework for these substances to be authorized for AIS control purposes.

Although public awareness campaigns and education are important tools to deal with the threat posed by AISs, they are not always sufficient to change behaviour and they are not enforceable measures. For example, although measures such as the “Clean, Drain and Dry” educational campaigns are effective at raising public awareness about the issue of spreading AIS through recreational boating activities, they are not always enough to prevent invasions. The arrival of Zebra mussels in Lake Winnipeg as well as observations by provincial officials of boats infested with Zebra mussels moving across the border into jurisdictions such as British Columbia and Alberta have raised new concerns and demonstrate the need for regulatory tools in addition to educational material. In light of the increasing number of AIS, clear prohibitions and enforcement tools, including restrictions at borders, are needed.

The overall net benefits of the Regulations are substantial. Harmonizing existing regulations and regulatory tools allow for more effective and efficient prevention, management and control of AIS in Canada. In addition, the prohibition on introducing non-indigenous species in Canadian waters will help prevent or reduce the potential for AIS to establish themselves and prevent significant environmental and/or economic impacts, such as costs associated with the control and management of invasive species, losses in biodiversity and intrinsic ecosystem values, and economic costs associated with commercial and industrial activities that are dependent on water and aquatic ecosystems (e.g. fishing, tourism, hydroelectricity, marine transportation).

Challenges exist in transferring costs from a known establishment of an invasive species to a potential or new establishment (of the same or a different species), because of the complex interrelationships between different species, ecosystems and dependent communities and economies. Nonetheless, examined studies suggest that the benefits of avoiding the costs associated with the introduction of a non-indigenous species can be upwards of millions of dollars per species. The benefits and costs of the Regulations were assessed separately for (a) each species listed in the Schedules and (b) other regulatory provisions. Species were assessed in “batches” according to the rationale for the listings; however, net benefits should be considered as applying on a species-by-species basis.

Ministerial authorities and fishery officer powers would be applied on a case-by-case basis; incremental benefits and costs cannot be evaluated absent specific cases. It is expected that application activities would have minimal impacts as a result of the limitations on the use of directions, the fact that they relate primarily to species already prohibited and for which enforcement actions could be taken, and the requirement to take into account impact and alternative measures before issuing a direction.

Species listed in Part 2 of the Schedule
(1) Prohibitions against species currently in the Manitoba Fishery Regulations, 1987 and the Ontario Fishery Regulations, 2007

Listing the identified species as AIS in the Regulations will not result in any incremental benefits or costs as these species are already prohibited in the Ontario Fishery Regulations, 2007 and the Manitoba Fishery Regulations, 1987. These are federal regulations made under the Fisheries Act but that apply in Ontario and Manitoba, respectively. These species have been removed from the Ontario Fishery Regulations, 2007 and the Manitoba Fishery Regulations, 1987 and included in the AIS Regulations in order to consolidate the federal regulation of aquatic invasive species into an overarching, national AIS Regulation.

The 83 species listed in the Ontario Fishery Regulations, 2007 and the Manitoba Fishery Regulations, 1987 are also subject to the general prohibition in the Regulations against unauthorized introduction in areas where they are not indigenous. However, these restrictions already exist through prohibitions against release without a permit in the Ontario Fishery Regulations, 2007 and through the extensive list of prohibited species in Manitoba. Therefore, there is little to no incremental impact or cost associated with this prohibition.

(2) Prohibitions against Asian Carp species

Asian Carps are currently not present in Canada; however, the likelihood of their arrival into Canada from the Chicago Area Waterway System is high. Once established in Lake Michigan, Asian Carps could reach the connected Great Lakes basin and Canadian waters in fewer than five years. If established in Canadian waters, Asian Carps may cause significant economic damage to commercial fisheries, aquaculture and recreational boating and fishing, as well as environmental damage to ecosystems and biodiversity.

The listing of Asian Carps as invasive in Part 2 of the Schedule of the Regulations would have net benefits for Canadians. Incremental costs are expected to be low, with costs mainly associated with limited trade impacts as a result of prohibitions on live carp imports. The prohibition will not impact any trade or activity related to fresh or frozen Asian Carps. The listing is assumed to only affect businesses in provinces that do not already prohibit the importation of live Asian carps. At present, only the Province of Alberta does not prohibit the importation of live Asian carps. Trade costs are estimated as very low as the average Alberta trade in all live carp (including but not limited to Asian carp) was $48,000 between 2009 and 2013; in 2013, no live carp imports were reported in Alberta. Therefore, the total incremental cost of import restrictions on live Asian Carps in Canada is estimated to be very low.

The requirement for evisceration of Asian Carps in the Regulations is not expected to materially increase costs for Canadians. Most dead and non-eviscerated Asian Carps are imported from the United States in aerated holding tanks that are drained at the border and then shipped to fresh food markets where the fish are eviscerated before being sold to the consumer. This means that evisceration costs are already borne by businesses at the point of sale. However, as a potential compliance consequence of the Regulations, the evisceration and associated costs may have to be incurred at the point of initial shipment (United States aquaculture sites). Although eviscerating Asian carp may increase import prices, such increases can be expected to be offset by reduced evisceration costs within Canada.

The prohibition against the importation of Asian Carps is enforceable at the Canadian border. The Canada Border Services Agency (CBSA) will be able to deny entry into Canada of these species as part of the existing customs declaration process. DFO and the provinces are already working with the CBSA to obtain information about imports of aquatic species into Canada to support the CBSA in its enforcement of prohibitions at the border through activities, such as helping its officials identify species or providing them with directions for cleaning.

The listing of Asian Carps in the Regulations will help prevent their establishment in Canada, thus preventing the potentially significant costs associated with the control and management of these species if they arrived and were established in Canada, as well as the negative environmental and economic impacts.

(3) Prohibitions against Zebra and Quagga mussels

Once Zebra and Quagga mussels are established, they can clog water intake and delivery pipes, infest hydropower infrastructure, adhere to boats and pilings, produce toxins that kill fish and birds and contaminate drinking water, compete for food with native species and deplete food sources for fish. In terms of ecological and economic impacts, Zebra and Quagga mussels are thought to be two of the most destructive aquatic species to have invaded North American fresh waters.

Listing Zebra and Quagga mussels as invasive in Part 2 of the Schedule in the Regulations has net benefits for Canadians. It helps prevent their establishment in western Canada, thus preventing the potentially significant costs associated with the control and management of these species as well as potential negative economic, environmental and social impacts. The economic costs associated with Zebra and Quagga mussel invasions are estimated to be in the tens of millions of dollars annually.

Incremental costs for stakeholders as a result of prohibitions relating to Zebra and Quagga mussels will be minimal because the possession of these species was already prohibited for the most part under existing regulations [the Controlled Alien Species Regulation in British Columbia, the General Fisheries (Alberta) Regulation in Alberta, the Fisheries Regulations in Saskatchewan and the Manitoba Fishery Regulations, 1987 in Manitoba]. Therefore, the Regulations will only serve to complement these existing provincial schemes and provide consistency across jurisdictions in the language used to prohibit the possession, transport and release of these species.

The new incremental change relates to the addition of a prohibition against the importation of Zebra and Quagga mussels into Canada (except in transboundary waters in Ontario and Quebec). In order to comply with the Regulations, individuals would be required to inspect their boats or equipment, and wash and drain them if necessary before transporting them into Canada (subject to the exception noted above). These compliance requirements are not expected to increase costs to businesses or the public in western Canada since the same compliance activities must be undertaken to meet existing provincial requirements in western provinces. Only the timing and jurisdiction of enforcement activities are expected to change: the Canada Border Services Agency (CBSA) could deny entry into Canada of prohibited species at the border, rather than possession, transport and sale prohibitions being enforced within a specific province. This will facilitate enforcement as the border will provide a specific point at which compliance will be monitored. It also increases predictability for the public as the import prohibition will be applied nationally, across Canada, as opposed to depending on varying provincial regulatory schemes.

East of Manitoba, there may be some additional costs incurred as a result of the import prohibition on Zebra and Quagga mussels, although these are expected to be minimal. As Zebra and Quagga mussels are not in commerce, these costs will be limited to those borne by individuals having to ensure trailered recreational boats or equipment are not fouled with mussels crossing the Canadian border in eastern Canada. However, there are some current regulations prohibiting the possession of live fish (e.g. Nova Scotia’s Live Fish Possession Regulations) and the unauthorized release of live fish generally [e.g. section 55 of the Fishery (General) Regulations] that already encourage people to clean their fouled vessels and equipment to stay in compliance with these rules. In the United States, Zebra mussels are listed as injurious wildlife under the federal Lacey Act, which makes it illegal to import, export, or transport these species between states without a permit. This means that individuals crossing the Canadian border would already have had to clean, drain, and dry their vessels or equipment.

In addition, many recreational boat users clean, drain and dry their vessels as part of good maintenance and also as a result of extensive educational campaigns relating to this activity as a best practice to prevent the introduction and spread of invasive species. Therefore, despite the lack of regulations specifically prohibiting the possession or transport of Zebra and Quagga mussels east of Manitoba, in Ontario, Quebec, and all Atlantic provinces, “clean, drain, dry” information is disseminated to the public by either the federal or provincial government to encourage these activities. As these vessels are out of the water at the time of overland transport, cleaning can be accomplished relatively simply by rinsing, scrubbing or pressure-washing a watercraft, trailer, or gear. Drying the watercraft and gear completely between trips, allowing the wet areas of the boat to air dry, leaving compartments open, and sponging out standing water can also prevent the transport of AIS. Therefore, although there may be some costs associated with cleaning trailered vessels for individuals crossing the Canadian border in eastern Canada, these are not likely to be considered significant. Conversely, the import prohibition is expected to benefit Canadians, as it would mean that these species cannot enter the country, thereby reducing the risk of introduction and spread in areas where Zebra and Quagga mussels have not yet been established. In addition, the import prohibition facilitates enforcement as it provides a clear physical point where officials can perform inspections on boats and equipment and enforce the prohibition.

(4) Other regulatory provisions

The Regulations also include powers for fishery officers and ministers to issue directions to prevent the introduction and spread of, and control or eradicate, AIS. Given that these authorities would be applied on a case-by-case basis, incremental benefits and costs cannot be evaluated absent specific cases. There are also limitations on the powers to issue these directions established under sections 26 and 27 of the Regulations. They can only be issued with respect to species listed in the Schedule. The majority of these species are prohibited (i.e. listed in Part 2) and are therefore already subject to prohibitions and enforcement actions (inspection, seizure, etc.). The directions allow preventative measures to be taken, instead of relying on enforcement of prohibitions after an introduction has occurred. This is a key aspect of addressing AIS, as corrective measures could prevent an introduction from occurring before it is too late. In addition, directions have a limited duration and can only be issued to certain individuals, i.e. the person in possession of the AIS, a carrier, a conveyance or a structure, or the person who owns the place where the AIS is located. Finally, there is a requirement for enforcement officials to notify, in a non-emergency situation, departments or agencies of the Government of Canada or the government of any province or municipality whose activities could be significantly impacted before taking measures or issuing directions. This would allow for jurisdictions to cooperate and coordinate, if necessary, on how to issue the direction in the most effective and minimal manner possible. The issuance of directions must also be undertaken in a manner that is reasonable and consistent with the principles of natural justice. In other words, the decision must be based upon relevant considerations, avoid arbitrariness and be made in good faith. The powers to issue directions are similar in nature to the activities fisheries officers can undertake when enforcing compliance with the Fisheries Act and its regulations, i.e. inspections, seizures, corrective measures.

Implementation, enforcement and service standards

Historically, the provincial and territorial governments have played a key role in the administration and enforcement of the federal Fisheries Act. Soon after the enactment of the Constitution Act, 1867, the federal government started to conclude agreements with the provinces, providing them with the authority to manage the fisheries in their province. All of the inland provinces, from Alberta to Quebec, have been delegated fisheries management responsibilities. The coastal provinces are responsible for aspects of fisheries management mainly dealing with freshwater species.

The Department of Fisheries and Oceans (DFO) will therefore work with federal, provincial and territorial partners to administer and enforce the Regulations.

The DFO will implement the Regulations where it has retained day-to-day management of fisheries. In 2012, the Canadian Council of Fisheries and Aquaculture Ministers agreed that jurisdictions that have assumed fisheries management responsibilities would take on the administration and enforcement of the Regulations. To coordinate this multi-jurisdictional approach, the DFO will continue to work with the National Aquatic Invasive Species Committee to oversee the implementation, the administration and the enforcement of the Regulations.

The federal Minister of Fisheries and Oceans and the appropriate provincial ministers prescribed in the Regulations would be provided with the ability to license fishing for aquatic invasive species and/or to authorize or direct the use of deleterious substances to control or eradicate aquatic invasive species.

The DFO’s fishery officers and cross-designated enforcement officers (such as provincial conservation officers) have the authority established under the Fisheries Act (e.g. under sections 49 to 51) to enforce the Regulations and exercise the direction powers noted in the Regulations.

The prohibition against importation will be enforced by the CBSA. The DFO will work with the CBSA to develop a Customs Notice and a D Memorandum, which are used to inform individuals involved in importation activities of the new prohibitions. The departments will also work to develop an operational bulletin to distribute to border services officers, and, if appropriate or necessary, procedures for officers may be incorporated into standard operating procedures. These activities will be completed to coincide with the coming into force of the Regulations (i.e. upon registration).

Contacts

Tracy Kerluke
Manager
Aquatic Invasive Species
Department of Fisheries and Oceans
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: AISReg-EAEReg@dfo-mpo.gc.ca

Peter Ferguson
Manager
Regulatory Affairs
Department of Fisheries and Oceans
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: AISReg-EAEReg@dfo-mpo.gc.ca