Vol. 151, No. 11 — May 31, 2017
Registration
SOR/2017-94 May 19, 2017
SEEDS ACT
PLANT BREEDERS’ RIGHTS ACT
HEALTH OF ANIMALS ACT
PLANT PROTECTION ACT
Regulations Amending and Repealing Certain Canadian Food Inspection Agency Regulations (Miscellaneous Program)
P.C. 2017-549 May 19, 2017
His Excellency the Governor General in Council, on the recommendation of the Minister of Agriculture and Agri-Food, makes the annexed Regulations Amending and Repealing Certain Canadian Food Inspection Agency Regulations (Miscellaneous Program), pursuant to
- (a) subsection 4(1) (see footnote a) of the Seeds Act (see footnote b);
- (b) section 75 (see footnote c) of the Plant Breeders’ Rights Act (see footnote d);
- (c) section 64 (see footnote e) of the Health of Animals Act (see footnote f); and
- (d) section 47 (see footnote g) of the Plant Protection Act (see footnote h).
Regulations Amending and Repealing Certain Canadian Food Inspection Agency Regulations (Miscellaneous Program)
Seeds Act
Seeds Regulations
1 The definition pommes de terre de semence Choix du sélectionneur in section 45 of the French version of the Seeds Regulations (see footnote 1) is replaced by the following:
pommes de terre de semence Choix du sélectionneur Pommes de terre de semence qui proviennent directement d’une semence véritable ou de tubercules sélectionnés et qui sont cultivées afin d’évaluer le potentiel de la variété pour une éventuelle utilisation commerciale. (Breeder’s Selection seed potatoes)
2 Subsection 47.11(4) of the Regulations is replaced by the following:
(4) A person who sells or transfers Nuclear Stock seed potatoes shall identify those seed potatoes with a seed potato tag or a certificate provided by an inspector that indicates that the seed potatoes are Nuclear Stock seed potatoes.
3 The portion of item 4 of the table to subsection 47.2(3) of the French version of the Regulations in column 1 is replaced by the following:
| Article |
Colonne 1 |
|---|---|
4 |
Total — jambe noire et flétrissements |
4 The portion of item 4 of the table to subsection 47.3(3) of the French version of the Regulations in column 1 is replaced by the following:
| Article |
Colonne 1 |
|---|---|
4 |
Total — jambe noire et flétrissements |
5 The portion of item 4 of the table to subsection 47.4(3) of the French version of the Regulations in column 1 is replaced by the following:
| Article |
Colonne 1 |
|---|---|
4 |
Total — jambe noire et flétrissements |
6 The portion of item 4 of the table to subsection 47.5(3) of the French version of the Regulations in column 1 is replaced by the following:
| Article |
Colonne 1 |
|---|---|
4 |
Total — jambe noire et flétrissements |
7 The portion of item 4 of the table to subsection 47.6(3) of the French version of the Regulations in column 1 is replaced by the following:
| Article |
Colonne 1 |
|---|---|
4 |
Total — jambe noire et flétrissements |
8 The portion of item 4 of the table to subsection 47.7(3) of the French version of the Regulations in column 1 is replaced by the following:
| Article |
Colonne 1 |
|---|---|
4 |
Total — jambe noire et flétrissements |
9 The portion of item 4 of the table to subsection 47.8(3) of the French version of the Regulations in column 1 is replaced by the following:
| Article |
Colonne 1 |
|---|---|
4 |
Total — jambe noire et flétrissements |
10 Paragraph 49(1)(d) of the French version of the Regulations is replaced by the following:
- d) dans le cas d’une culture issue de pommes de terre de semence Élite II, Élite III, Élite IV et Fondation n’ayant pas été produites par le producteur, la preuve que ces pommes de terre ont été soumises à des essais en laboratoire et reconnues exemptes de la Clavibacter michiganensis subsp. sepedonicus;
11 Subsection 60.1(1) of the French version of the Regulations is replaced by the following:
60.1 (1) L’inspecteur peut en tout temps réinspecter les pommes de terre de semence et doit retenir celles qui n’ont pas été classées conformément à l’article 48 ou qui ne satisfont pas aux normes énoncées aux paragraphes 48.1(2) à (10).
Plant Breeders’ Rights Act
Plant Breeders’ Rights Regulations
12 Section 4 of the Plant Breeders’ Rights Regulations (see footnote 2) and the heading before it are repealed.
Health of Animals Act
Health of Animals Regulations
13 Subsection 49(2) of the Health of Animals Regulations (see footnote 3) is replaced by the following:
(2) The number of carcasses that a person may import into Canada shall be the number indicated on the hunting permit described in paragraph (1)(b).
14 Paragraph 160(2)(b) of the Regulations is replaced by the following:
- (b) contain such conditions as are necessary to prevent the introduction of communicable disease into Canada or into any other country from Canada and the spread of communicable disease within Canada.
Plant Protection Act
Plant Protection Regulations
15 Sections 8 and 9 of the Plant Protection Regulations (see footnote 4) are repealed.
16 Subsection 16(1) of the Regulations is replaced by the following:
16 (1) An inspector may conduct an investigation or survey of a place or any thing in that place in order to detect pests or biological obstacles to the control of pests and to identify areas in which a pest or biological obstacle to the control of a pest is or could be found.
17 The heading before section 20 and sections 20 and 21 of the Regulations are replaced by the following:
Prohibiting or Restricting the Use of a Place
20 (1) Where an inspector has reasonable grounds to believe that a place is infested, the inspector may prohibit or restrict the use of the place.
(2) A prohibition or restriction under subsection (1) shall be communicated by sending or personally delivering a written notice to the occupier or owner of the place or, where the inspector cannot, after the exercise of due diligence, find the occupier or owner, by posting the notice at the place in question.
(3) A prohibition or restriction under subsection (1) takes effect immediately on the communication or posting of the notice and continues during the period specified in the notice or, where no period is specified, indefinitely.
Prohibiting or Restricting Activities
21 (1) Where an inspector has reasonable grounds to believe that a thing is a pest, is infested with a pest or constitutes a biological obstacle to the control of a pest, the inspector may, in writing, for the purpose of detecting, eradicating or preventing the spread of the pest or biological obstacle,
- (a) prohibit or restrict any activity in respect of the thing indefinitely or during a specified period; and
- (b) specify conditions respecting the prohibition or restriction.
(2) A prohibition or restriction referred to in subsection (1) shall be communicated by sending or personally delivering a written notice to the owner or person having the possession, care or control of the thing or, where an inspector cannot, after the exercise of due diligence, find the owner or that other person, by posting the notice on the thing.
(3) A prohibition or restriction under subsection (1) takes effect immediately on the communication or posting of the notice and continues during the period specified in the notice or, where no period is specified, indefinitely.
18 Subsection 26(2) of the Regulations is repealed.
19 Subsection 46(3) of the Regulations is repealed.
20 Paragraphs 58(3)(a) and (b) of the French version of the Regulations are replaced by the following:
- a) d’une part, qu’il traite ou nettoie le navire;
- b) d’autre part, qu’il traite ou déplace toute chose se trouvant sur ou dans le navire ou en dispose, notamment par destruction.
21 The portion of section 59 of the Regulations before paragraph (a) is replaced by the following:
59 If before, during or after the loading or unloading of grain or a grain product aboard or from a conveyance, an inspector believes on reasonable grounds that the conveyance, grain or grain product is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest, any inspector may require the owner or the person having the possession, care or control of the conveyance
22 Paragraph 59(a) and (b) of the French version of the Regulations are replaced by the following:
- a) d’une part, qu’il traite ou nettoie le véhicule, le grain ou le produit du grain;
- b) d’autre part, qu’il traite ou déplace toute chose trouvée sur ou dans le véhicule, le grain ou le produit du grain ou en dispose, notamment par destruction.
23 Section 60 of the Regulations is replaced by the following:
60 Where the Minister or an inspector believes on reasonable grounds that a conveyance or a facility used for any activity undertaken in respect of any thing that requires a Canadian Phytosanitary Certificate, a Canadian Phytosanitary Certificate for Re-export or any other phytosanitary document is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest, any inspector may require the owner or person having the possession, care or control of the conveyance or facility
- (a) to treat or clean the conveyance or the facility; and
- (b) to treat, move or dispose of any thing found on or in the conveyance or in the facility.
Phytophthora Ramorum Compensation Regulations
24 The Phytophthora Ramorum Compensation Regulations (see footnote 5) are repealed.
Coming into Force
25 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The Standing Joint Committee for the Scrutiny of Regulations (SJCSR) has identified a number of technical issues with the Plant Breeders’ Rights Regulations, the Plant Protection Regulations, the Phytophthora Ramorum Compensation Regulations, the Seeds Regulations and the Health of Animals Regulations and has recommended that these regulations be amended to address these issues.
Furthermore, as a result of amendments made to the Plant Protection Act and the Plant Breeders’ Rights Act by the Agricultural Growth Act, similar technical amendments must be made to the Plant Protection Regulations and the Plant Breeders’ Rights Regulations so that their wording and authority is consistent with that of the enabling legislation.
Finally, through the implementation and enforcement of the Seeds Regulations, the Canadian Food Inspection Agency’s (CFIA) operational staff has noted discrepancies between the English and French text of some provisions. These discrepancies could result in a different interpretation and application of a single provision if read in one language as opposed to the other. As a result, minor amendments are required to align the English and French text.
Objectives
The amendments have the following objectives:
- to repeal obsolete or spent regulatory provisions which have no current application;
- to correct a discrepancy between the French and English versions;
- to harmonize the regulations with the enabling statutes;
- to add clarity and consistency to regulatory provisions;
- to correct typographical or grammatical errors;
- to eliminate redundancies between regulations and the enabling acts; and
- to correct or repeal provisions that are ultra vires.
Description
Amendments to the Plant Breeders’ Rights Regulations:
- Through the Agricultural Growth Act, amendments were made to the definition of “country of the Union” in subsection 2(1) of the Plant Breeders’ Rights Act. This amendment took away the authority for the Plant Breeders’ Rights Regulations to prescribe “countries of the Union.” Therefore, section 4 of the Plant Breeders’ Rights Regulations is spent and is being repealed. “Countries of the Union” are now defined exclusively in subsection 2(1) of the Plant Breeders’ Rights Act.
Amendments to the Plant Protection Regulations:
- Sections 8 and 9 of the Plant Protection Regulations prohibit the inappropriate use and possession of documents issued under the Plant Protection Act or the Plant Protection Regulations. The Agricultural Growth Act introduced prohibitions respecting documents, including prohibitions relating to the inappropriate use and possession of documents, to the Plant Protection Act via sections 36.1 and 36.2. As a result, sections 8 and 9 of the Plant Protection Regulations are redundant (e.g. spent) and are being repealed.
- Subsection 16(1) of the Plant Protection Regulations provides that an inspector may enter a place to conduct an investigation or survey. Concerns have been raised by the SJCSR that this subsection is not authorized by the Plant Protection Act. In the amendments to subsection 16(1), an inspector will continue to have the authority to conduct an investigation or survey; however, the authority for entering places will be removed, because it is already provided for in section 25 of the Plant Protection Act.
- Currently, sections 20 and 21 of the Plant Protection Regulations allow an inspector to prohibit or restrict the use of a place or an activity for the purposes of detecting, eradicating or preventing the spread of a pest or biological obstacle if the Minister or an inspector believes on reasonable grounds that the place or thing is (or is suspected of being) infested or contains or is suspected of containing a biological obstacle to the control of a pest. Changes made to the Plant Protection Act as part of the Agricultural Growth Act broadened the relevant regulation-making authorities to address comments of the SJCSR concerning the legitimacy of sections 20 and 21 of the Plant Protection Regulations. Subsections 47(3) and 47(4) of the Plant Protection Act now authorize the making of provisions similar to sections 20 and 21 of the Plant Protection Regulations. Therefore, it is necessary for these provisions to be repealed and re-enacted under the new enabling authority. In re-enacting these provisions, the text will be amended to bring the wording in line with the authorities provided for in subsections 47(3) and 47(4) of the Plant Protection Act.
- Through the Agricultural Growth Act, amendments were made to subsection 32(1) of the Plant Protection Act to remove the 180-day maximum detention period limit. As a result of these amendments to the Plant Protection Act, subsection 26(2) of the Plant Protection Regulations, which pertains to the period of detention for things seized and detained under the Act, is spent and is being repealed.
- Subsection 46(3) of the Plant Protection Regulations prevents the misuse of movement certificates by prohibiting regulated parties from substituting the item authorized by the movement certificate with another thing. Through the Agricultural Growth Act, the Plant Protection Act was amended to include a similar prohibition in section 36.1. As a result, subsection 46(3) of the Plant Protection Regulations is redundant (e.g. spent) and is being repealed.
- Sections 59 and 60 of the Plant Protection Regulations are being amended to remove authorities for inspecting conveyances and facilities and for halting the loading or unloading of conveyances. These authorities are provided in the Plant Protection Act and are therefore redundant (e.g. spent) in the Plant Protection Regulations.
- The term “notamment par destruction” is being added to the end of paragraphs 58(3)(b) and 59(b) in the French version of the Plant Protection Regulations for consistency with the Plant Protection Act.
Repeal of the Phytophthora Ramorum Compensation Regulations:
- The SJCSR has raised concerns with the necessity of the record-keeping requirements in section 5 of the Phytophthora Ramorum Compensation Regulations, as well as the ability to enforce this requirement. Furthermore, concerns were raised by the SJCSR regarding a possible overlap in Schedule I, which outlines compensation rates for plants disposed from the inventory of a business. Applications for compensation under these Regulations were due no later than December 31, 2012; therefore, the entire Regulations are considered spent and can be repealed, thereby resolving the SJCSR’s concerns.
Amendments to the Seeds Regulations:
- There is a modification of the definition of “pommes de terre de semence choix du sélectionneur” in section 45 of the French version of the Seeds Regulations to correct a grammatical error and make it consistent with the English definition. As it is currently drafted, the French version refers to seed potatoes that are selected and grown for the purpose of evaluation as a potential variety for commercial use. The intent is that it is the tubers that are selected, not the seed potatoes. The amendment reflects that “sélectionnés” qualifies the masculine noun “tubercules.”
- Correcting a discrepancy between the English and French text of item 4 in the tables to subsections 47.2(3), 47.3(3), 47.4(3), 47.5(3), 47.6(3), 47.7(3) and 47.8(3). As currently written, the French version of the tables record the percentage of viruses independently, as well as within the count of blackleg and wilts. The intent of the tables is to record the percentage of blackleg and wilts and the percentage of viruses, independently, to determine the proper grade of the seed potatoes. As a result, the use of the French tables leads to a virus being double counted, which could indirectly result in seed potatoes being downgraded to a lower class, or potentially being decertified if the virus load is high enough. Verification has determined that, between 2014 and 2016, only one case of French interpretation resulted in the improper downgrading of the seed potatoes.
- As currently written, subsection 47.11(4) of the Seeds Regulations prohibits the sale of Nuclear Stock seed potatoes without a tag or certificate. The SJCSR has raised concerns that the provision lacks the required enabling authority from the Seeds Act, as the Act does not authorize the making of regulations respecting this aspect of the sale of seed. The amendments to subsection 47.11(4) of the Seeds Regulations will continue to require a tag or certificate for the sale of Nuclear Stock seed potatoes; however, the requirement will come under the authority of paragraph 4(1)(h.1) of the Seeds Act, which authorizes the making of regulations prescribing information that shall be given in labelling seeds for sale.
- The French version of paragraph 49(1)(d) currently refers to the French equivalent of “crop,” while the English version refers to “seed potatoes.” The subsection is being amended to align the French text with the English text.
- A discrepancy exists between the English and French versions of subsection 60.1(1) with respect to the use of “may” and “shall.” An amendment is being made to the French text to align it with the English text and use the French equivalent to “shall.”
Amendments to the Health of Animals Regulations:
- Section 49 of the Health of Animals Regulations regulates the import of game animal carcasses from the United States. Subsection 49(2) establishes limits to the number of carcasses that a person may import. The SJCSR considers subsection 49(2) to be vague as it simply refers to limits established in applicable legislation but does not specify which legislation. What is meant is the limits established by the hunting permit, as referenced in paragraph 49(1)(b) of the Regulations. Subsection 49(2) is being amended to add clarity to indicate that the limit is the number on the hunting permit indicated in paragraph 49(1)(b).
- Paragraph 160(2)(b) is currently written subjectively, in that it refers to what the Minister considers “advisable” to prevent the introduction of communicable disease. To provide clarity, paragraph 160(2)(b) is being amended to be recast in more objective terms by referring to what conditions are “necessary.”
“One-for-One” Rule
The “One-for-One” Rule will apply to the proposal because there will be one regulatory title repealed (the Phytophthora Ramorum Compensation Regulations). However, there will be no change in administrative burden for business because those Regulations are spent and no longer in effect.
Small business lens
The small business lens does not apply to these amendments, as there are no costs to small business.
Rationale
The amendments are in response to the SJCSR review of the regulations, as well as recent amendments to various acts which require amendments to harmonize regulations with the enabling legislation, and to respond to issues identified by CFIA staff through their implementation and enforcement of the regulations.
The decision to repeal the Phytophthora Ramorum Compensation Regulations is supported by an increase in scientific and technical knowledge since the first occurrence of the pathogen in Canada in the early 2000s. This knowledge indicates that the impact of this pest can be dramatically reduced by following good agricultural practices at the nursery level. Industry has also supported this approach. Furthermore, applications for compensation under these Regulations were due no later than December 31, 2012.
The amendments being made as a part of this package help to correct or improve the regulatory base, and do not impose any costs on the government or stakeholders.
Contact
Tracey Boyd-Brown
Regulatory, Legislative and Economic Affairs Division
Canadian Food Inspection Agency
1400 Merivale Road
Ottawa, Ontario
K1A 0Y9
Telephone: 613-773-5521
Fax: 613-773-5692
Email: legislation@inspection.gc.ca
- Footnote a
S.C. 2015, c. 2, s. 76 - Footnote b
R.S., c. S-8 - Footnote c
S.C. 2015, c. 2, s. 50 - Footnote d
S.C. 1990, c. 20 - Footnote e
S.C. 2015, c. 2, s. 95 - Footnote f
S.C. 1990, c. 21 - Footnote g
S.C. 2015, c. 2, s. 108 - Footnote h
S.C. 1990, c. 22 - Footnote 1
C.R.C., c. 1400 - Footnote 2
SOR/91-594 - Footnote 3
C.R.C., c. 296; SOR/91-525, s. 2 - Footnote 4
SOR/95-212 - Footnote 5
SOR/2007-135