ARCHIVED — Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations

Warning This Web page has been archived on the Web.

Archived Content

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Vol. 144, No. 19 — September 15, 2010

Registration

SOR/2010-191 September 2, 2010

AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES ACT

The Minister of Health, pursuant to subsection 4(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (see footnote a) and the Order Transferring from the Minister of Agriculture and Agri-Food to the Minister of Health the powers, duties and functions under the Agriculture and Agri-Food Administrative Monetary Penalties Act in relation to the Pest Control Products Act (see footnote b), hereby makes the annexed Regulations Amending the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations.

Ottawa, August 31, 2010

LEONA AGLUKKAQ
Minister of Health

REGULATIONS AMENDING THE AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES REGULATIONS RESPECTING THE PEST CONTROL PRODUCTS ACT AND REGULATIONS

AMENDMENTS

1. The title of the French version of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations (see footnote 1) is replaced by the following:

RÈGLEMENT SUR LES SANCTIONS ADMINISTRATIVES PÉCUNIAIRES EN MATIÈRE D’AGRICULTURE ET D’AGROALIMENTAIRE (LOI SUR LES PRODUITS ANTIPARASITAIRES ET SES RÈGLEMENTS)

2. Section 2 of the Regulations is replaced by the following:

2. The contravention of any of the following provisions is a violation that may be proceeded with in accordance with the Act:

(a) a provision of the Pest Control Products Act that is set out in column 1 of Part 1 of Schedule 1;

(b) a provision of the Pest Control Products Regulations that is set out in column 1 of Part 2 of Schedule 1;

(c) a provision of the Pest Control Products Sales Information Reporting Regulations that is set out in column 1 of Part 3 of Schedule 1; and

(d) a provision of the Pest Control Products Incident Reporting Regulations that is set out in column 1 of Part 4 of Schedule 1.

3. Section 5 of the English version of the Regulations is replaced by the following:

5. (1) The amount of the penalty in respect of a violation committed by an individual otherwise than in the course of a business and that is not committed to obtain a financial benefit is

(a) $100, for a minor violation;

(b) $200, for a serious violation; and

(c) $400, for a very serious violation.

(2) The amount of the penalty in respect of a minor violation committed by a person in the course of a business or in order to obtain a financial benefit is $500.

(3) The amount of the penalty in respect of a violation committed by a person in the course of a business or in order to obtain a financial benefit is $2,000 for a serious violation and $4,000 for a very serious violation, with adjustments, if any, determined in accordance with column 2 of Schedule 2 for each total gravity value as established in accordance with section 6 and set out in column 1 of that Schedule.

4. Subparagraph 6(a)(ii) of the French version of the Regulations is replaced by the following:

(ii) la nature de l’intention ou de la négligence du contrevenant, laquelle est mentionnée à la colonne 2 de la partie 2 de l’annexe 3,

5. (1) The portion of subsection 8(1) of the Regulations before paragraph (a) is replaced by the following:

8. (1) Service of a document originating from the Minister or service of a notice of violation on an individual named in the document or notice may be made

(2) Subparagraph 8(1)(a)(ii) of the Regulations is replaced by the following:

(ii) if the individual is not at the last known address or usual place of residence at the time of service, to someone who appears to be an adult member of the same household at that address or residence and the day on which the document is left with the member of the household is deemed to be the day on which the document is served; or

(3) Paragraph 8(1)(b) of the Regulations is replaced by the following:

(b) by sending a copy of it by registered mail, by courier or by electronic means, including electronic registered mail and fax, to the last known address or usual place of residence of the individual.

(4) Paragraph 8(2)(a) of the French version of the Regulations is replaced by the following:

a) par envoi d’une copie du document par courrier recommandé, par messagerie ou par télécopieur au siège ou à l’établissement de la personne ou de son mandataire;

6. Subsection 10(1) of the Regulations is replaced by the following:

10. (1) For the purposes of subsection 9(1) of the Act and subject to subsection (2), any payment shall be paid within 30 days after the day on which the notice is served.

7. Sections 12 and 13 of the Regulations are replaced by the following:

12. For the purposes of subsections 11(1) and 13(2) of the Act, any payment of the amount of the penalty and any request for a review by the Tribunal shall be made within 15 days after the day on which the notice of the Minister’s decision is served and any such request shall be made in writing.

13. Section 12 also applies to any request for a review under subsection 12(2) of the Act.

8. (1) Subsection 14(1) of the Regulations is replaced by the following:

14. (1) A person may make a request referred to in section 11, 12 or 13 by delivering it by hand or by sending it by registered mail, by courier or by electronic means, including electronic registered mail and fax, to a recipient and place authorized by the Minister.

(2) Paragraph 14(2)(a) of the French version of the Regulations is replaced by the following:

a) la date à laquelle la demande est livrée au destinataire autorisé, si elle est livrée en mains propres;

(3) Paragraph 14(2)(c) of the Regulations is replaced by the following:

(c) the date on which the fax or other electronic transmission is received.

9. Section 15 of the Regulations is replaced by the following:

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

10. Schedule 1 to the Regulations is replaced by the Schedule 1 set out in the schedule to these Regulations.

11. The portion of items 1 to 3 in column 2 of Part 1 of Schedule 3 to the Regulations is replaced by the following:

Item

Column 2

History

1.

There were no previous violations or convictions under an agri-food Act in the five-year period immediately before the violation.

2.

There was no more than one previous minor or serious violation and no convictions under an agri-food Act in the five-year period immediately before the violation.

3.

The history of violations or convictions under agri-food Acts in the five-year period immediately before the violation is other than the history described in item 1 or 2.

12. The portion of items 3 and 4 in column 2 of Part 2 of Schedule 3 to the Regulations is replaced by the following:

Item

Column 2

Intent or Negligence

3.

The violation subject to the assessment is committed through a negligent act and item 2 does not apply.

4.

The violation subject to the assessment is committed through an intentional act and item 2 does not apply.

COMING INTO FORCE

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

SCHEDULE
(Section 10)

SCHEDULE 1
(Sections 2 to 4)

PEST CONTROL PRODUCTS ACT AND REGULATIONS

PART 1

PEST CONTROL PRODUCTS ACT
(S.C. 2002, c. 28)

Item

Column 1

Provision of the Pest Control Products Act

Column 2




Short-form Description*

Column 3




Classification

 1.

6(1)

Manufacture, possess, handle, store, transport, import, distribute or use an unregistered pest control product

Very serious

 2.

6(2)

Manufacture, import, export or distribute a registered pest control product contrary to the conditions of registration

Very serious

 3.

6(3)

Store, import, export or distribute a pest control product not packaged in accordance with the regulations and the conditions of registration

Serious

 4.

6(5)(a)

Handle, store, transport, use or dispose of a pest control product in a way that is inconsistent with the regulations

Very serious

 5.

6(5)(b)

Handle, store, transport, use or dispose of a registered pest control product in a way that is inconsistent with the directions on the label recorded in the Register

Very serious

 6.

6(7)

Package or advertise a pest control product in a way that is false, misleading or likely to create an erroneous impression

Minor

 7.

6(8)

Manufacture, possess, handle, store, transport, distribute, use or dispose of a pest control product in a way that endangers human health or safety or the environment

Very serious

 8.

21(4)

Fail to comply with the conditions set by the Minister

Serious

 9.

21(5)(a)

Fail to comply with the conditions of continued possession, handling, storage, distribution or use of stocks of a pest control product in Canada at the time of cancellation of its registration

Serious

10.

21(5)(b)

Fail to comply with the requirement to recall and dispose of a pest control product, the registration of which is cancelled, in the manner specified

Very serious

11.

22(3)

Fail to comply with the conditions of cancellation or amendment of the registration

Serious

12.

30(1)(b)

Knowingly provide false or misleading information in response to a notice

Very serious

13.

31(1)

Fail to comply with the conditions of registration

Very serious

14.

46(1)

Resist or wilfully obstruct an inspector or make a false or misleading statement to an inspector

Very serious

15.

46(2)

Fail to make records available to an inspector on request

Serious

16.

50(1)

Fail to give an inspector all reasonable assistance or to provide an inspector with the required information

Serious

17.

53(1)(b)

Fail to comply with a requirement in a notice respecting removal

Very serious

18.

53(4)

Remove, alter or interfere with, without an inspector’s written authorization, a pest control product or other thing seized and detained

Very serious

19.

57(1)

Fail to comply with a requirement in a notice respecting measures to stop an activity or thing involved in a contravention or to prevent further contravention

Very serious

20.

59(2)(a)

Fail to comply with a requirement in a notice respecting measures to reduce or eliminate risks

Very serious

* The short-form descriptions are provided in order to facilitate the use of these Regulations. In the case of any discrepancy, the legislative provision shall prevail over the short-form description.

PART 2

PEST CONTROL PRODUCTS REGULATIONS
(SOR/2006-124)

Item

Column 1

Provision of the Pest Control Products Regulations

Column 2




Short-form Description*

Column 3




Classification

 1.

21

Use a word or expression on a package or in any advertisement that states or implies that the Government of Canada promotes, endorses or recommends the use of a pest control product

Minor

 2.

35

Fail to show the conditions of registration that relate to the distribution on the documents that accompany the shipment

Minor

 3.

36

Import a pest control product without a signed declaration setting out the required information

Minor

 4.

41(6)

Distribute a foreign product imported under an own-use import certificate

Very serious

 5.

44

Use a foreign product imported for own use in a manner that is inconsistent with the conditions on the own-use import certificate

Very serious

 6.

59

Fail to post at research sites signs that meet the requirements

Minor

 7.

60(1)

Fail to ensure that a pest control product that is used in research is accompanied by an experimental label

Serious

 8.

60(2)

Fail to have an experimental label that meets requirements

Serious

 9.

61(a)

Fail to supply every researcher and cooperator involved with a copy of the experimental label, which must be the approved experimental label if a research authorization certificate or research notification certificate has been issued

Serious

10.

62

Handle, store, transport, use or dispose of a pest control product in a way that is inconsistent with the research plan or the directions on the experimental label

Very serious

11.

63

Fail to keep research records that contain the required information

Minor

12.

65

Fail to return an unused unregistered pest control product to the manufacturer

Minor

13.

66

Fail to return an unused registered pest control product to the manufacturer

Minor

14.

67

Distribute a pest control product that is used in the conduct of research otherwise than in accordance with section 65 or 66

Serious

15.

69(b)

Where a microbial agent was used under the authority of a research notification certificate, sell meat, milk or eggs, or crops from a research site, that may contain residues as a result of research

Very serious

16.

70(b)

Where a semiochemical was used in research otherwise than in accordance with the Regulations, sell meat, milk or eggs, or crops from a research site, that may contain residues as a result of research

Very serious

* The short-form descriptions are provided in order to facilitate the use of these Regulations. In the case of any discrepancy, the legislative provision shall prevail over the short-form description.

PART 3

PEST CONTROL PRODUCTS SALES INFORMATION REPORTING REGULATIONS
(SOR/2006-261)

Item

Column 1

Provision of the Pest Control Products Sales Information Reporting Regulations

Column 2




Short-form Description*

Column 3




Classification

1.

3

Fail to submit the report on sales information of a pest control product annually and to include in it the required information

Serious

2.

7

Fail to submit the report on or before June 1 of the year following the calendar year covered by the report

Serious

3.

8

Fail to provide available sales information on a pest control product within 15 days after the Minister requests it

Very serious

4.

10

Fail to keep all original records and supporting data that relate to the sales information included in a report for six years or fail to submit records and data to the Minister on request

Minor

5.

11

Fail to submit sales information of a product, within 60 days after the Minister requests it, in a report prepared by an independent auditor qualified under the laws of a province

Serious

* The short-form descriptions are provided in order to facilitate the use of these Regulations. In the case of any discrepancy, the legislative provision shall prevail over the short-form description.

PART 4

PEST CONTROL PRODUCTS INCIDENT REPORTING REGULATIONS
(SOR/2006-260)

Item

Column 1

Provision of the Pest Control Products Incident Reporting Regulations

Column 2




Short-form Description*

Column 3




Classification

 1.

6(1)

Fail to file an incident report in English or French

Serious

 2.

6(2)

Fail to provide a summary of the study, in English or in French, at the prescribed time

Minor

 3.

7

Fail to file a complete and accurate incident report, in accordance with the time limits specified, about an incident that occurs in Canada

Serious

 4.

8

Fail to file a complete and accurate incident report, in accordance with the time limits specified, about an incident that occurs in the United States if the incident fits within any of the categories specified

Serious

 5.

9

Fail to file a complete and accurate incident report, in accordance with the time limits specified, about an incident whose effects are identified in a scientific study

Serious

 6.

10

Fail to file an incident report within 15 days after receipt of information about any incident in the categories specified

Very serious

 7.

11(1)

Fail to file an incident report before the end of the next month, following the accumulation of information in a month, about any incident in a category specified

Very serious

 8.

12

Fail to file, in accordance with the time limits specified, an incident report about any incident in a category specified

Serious

 9.

13

Fail to file the required incident reports about any incident in a category specified

Serious

10.

14(1)

Fail to file an annual summary within two months after the end of the reporting period specified

Serious

11.

15(1)

Fail to file an annual summary with respect to an active ingredient in the prescribed circumstances

Minor

12.

15(2)

Fail to provide the prescribed information in the annual summary

Minor

13.

16

Fail to provide the required information within 24 hours after the Minister requests it for the purpose of responding to a situation specified

Very serious

14.

Obligation to provide the record under section 17 to the Minister, on request, for the purposes specified in that section

Fail to provide the record to the Minister, on request, for the purposes specified

Very serious

* The short-form descriptions are provided in order to facilitate the use of these Regulations. In the case of any discrepancy, the legislative provision shall prevail over the short-form description.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Agriculture and Agri-Food Administrative Monetary Penalties Regulations Respecting the Pest Control Products Act and Regulations (PCP AMPs Regulations) were promulgated on April 25, 2001. The PCP AMPs Regulations establish which provisions of the Pest Control Products Act (PCPA) and its regulations are enforceable under the PCP AMPs Regulations, the contravention (e.g. pesticide misuses) of which may result in the issuance of monetary penalties ranging from $100 to $6,000. The penalties, similar to court-levied fines, are imposed through an administrative process with no resulting criminal record or imprisonment. The facts of the violations that result in the issuance of an administrative monetary penalty as well as the amount of penalty are subject to review by the Minister or a Review Tribunal.

Since the PCP AMPs Regulations were introduced, a new PCPA was brought into force, on June 28, 2006, along with revised Pest Control Product Regulations (PCPR). New regulations under the PCPA, namely the Pest Control Products Sales Information Reporting Regulations and the Pest Control Products Incident Reporting Regulations, also came into effect in 2006. Consequently, the PCP AMPs Regulations must be updated to be consistent with the new legislative texts and to provide an additional enforcement tool for the new regulations introduced. These amendments will also correct inconsistencies between the text of the enabling Agriculture and Agri-Food Administrative Monetary Penalties Act (AMPs Act) and that of the PCP AMPs Regulations and between the French and English versions of the PCP AMPs Regulations, and clarify some provisions of the AMPs Regulations.

Description and rationale

The PCP AMPs Regulations can currently only be applied to provisions in the new legislation if these provisions have an equivalent in the repealed pest control products legislation, pursuant to the Interpretation Act (R.S. 1985, c. I-21, s. 44). As well, education, deregistration or prosecution are the only tools available to enforce provisions of the Pest Control Products Sales Information Reporting Regulations and the Pest Control Products Incident Reporting Regulations. These tools may not always be the most effective way to deal with enforcement issues.

Benefits and costs

This amendment will provide a cost-effective enforcement tool to maintain compliance with the new PCPA and its regulations. The PCP AMPs Regulations offer the advantage of an enforcement response which is less severe than prosecution and can provide a quicker response than prosecution can. As with other ticketing systems, e.g. for traffic violations, there is a deterrent value to AMPs.

There is no foreseen impact for registrants or users of pest control products who comply with the PCPA and its regulations.

It was determined through a strategic environmental assessment that this regulatory initiative could result in minor positive environmental effects, as a result of maintained compliance with the new pest control products legislation and/or better awareness of this legislation by individual pesticide users.

Consultation

The proposed Regulations were pre-published in the Canada Gazette, Part I, on April 24, 2010. No comments were received during the 75-day comment period.

Implementation, enforcement and service standards

The various enforcement options available under the legislation administered and enforced by Health Canada’s Pest Management Regulatory Agency, including AMPs, are described in an Agency compliance policy document (www.hc-sc.gc.ca/cps-spc/pubs/pest/_pol-guide/dir2007-02/index-eng.php). This document outlines the guiding principles for the fair, consistent and predictable application of the PCPA, AMPs Act and regulations.

Contact

Francine Colbourne
Policy, Communications and Regulatory Affairs Directorate
Pest Management Regulatory Agency
Health Canada
2720 Riverside Drive
Address Locator: 6607D1
Ottawa, Ontario
K1A 0K9
Telephone: 613-736-3678
Fax: 613-736-3659
Email: pmra.regulatory.affairs-affaires.reglementaires.arla@hc-sc.gc.ca

Footnote a
S.C. 1995, c. 40

Footnote b
SI/2000-94

Footnote 1
SOR/2001-132